Tallent v. McKelvey
| Citation | 105 Ga.App. 660,125 S.E.2d 65 |
| Decision Date | 07 February 1962 |
| Docket Number | 2,No. 39141,Nos. 1,3,39141,s. 1 |
| Parties | R. L. TALLENT v. J. M. McKELVEY |
| Court | United States Court of Appeals (Georgia) |
Syllabur by the Court.
Since the evidence authorized the finding of the jury establishing the liability of the defendant, and the undisputed evidence showed actual damages to the plaintiff resulting from the injuries sustained, a verdict in favor of the plaintiff for less than the actual damages proved was grossly inadequate and contrary to law and the evidence, and the refusal to grant the plaintiff a new trial was error.
Roy L. Tallent sued J. M. McKelvey to recover damages due to personal injuries alleged to have been sustained by the plaintiff when his motorcycle collided with the automobile of the defendant at the intersection of North Broad Street and McCall Boulevard in the City of Rome, Georgia. The petition alleged that the sole proximate cause of the injuries was that the defendant violated certain ordinances of the City of Rome by entering the intersection when the traffic light facing him in the direction in which he was traveling indicated 'red' and 'stop', and when at said time and place the defendant was not directed to so enter said intersection by a police officer. The petition, as amended, alleged that because of the injuries sustained in the collision the plaintiff incurred reasonable medical bills in excess of $1,400 and doctors' bills in excess of $2,000, and further alleged the loss of earnings in the amount of $2,800.80 in addition to damages for pain and suffering and future medical and doctors' expenses. The defendant in his answer denied the allegations of the petition and contended that the sole proximate cause of the collision was the negligence of the plaintiff who he alleged entered said intersection after the traffic control signal light was on yellow for traffic going in the direction in which plaintiff was proceeding, and prayed for a judgment against the plaintiff for damages to his automobile in the sum of $700. The jury found for the plaintiff in the sum of $730. The plaintiff made a motion for a new trial on the general grounds and added three special grounds by amendment. The first two special grounds except to the verdict as being inadequate. The third special ground of the amended motion is an exception to the court's charging the law of accident. The court denied the plaintiff's motion for a new trial as amended to which judgment the plaintiff excepts.
Parker, Clary & Kent, E. J. Clower, Rome, for plaintiff in error.
Fullbright & Duffey, Covington, Kilpatrick & Storey, Rome, for defendant in error.
1. The evidence did not demand a verdict for the defendant.
2. Ground 6 complains of the charge of the court on the subject of accident. We think this charge was error. It gave the defendant the benefit of a defense not pleaded or sustained by the evidence. Since accident was not involved, 'the charge on that subject was probably harmful to the plaintiff in view of the very small verdict for the plaintiff.' Riggs v. Watson, 77 Ga.App. 62, 67, 47 S.E.2d 900, 904.
3. On the general grounds of a motion for new trial a verdict in an amount not supported by the evidence must be set aside. Bishop & Parsons v. Mayor of Macon, 7 Ga. 200, 204; Hood & Robinson v. Ware, 34 Ga. 328; Roddenberry Hdw. Co. v. Merritt, 17 Ga.App. 425, 87 S.E. 681; Travers v. Macon Ry. &c. Co., 19 Ga.App. 15, 90 S.E. 732; Hill v. Cloud, 48 Ga.App. 506, 507, 173 S.E. 190; Davis v. Dula, 91 Ga.App. 448, 85 S.E.2d 825; accord, Oliver v. Coleman, 36 Ga. 552, 553, 555; Buchanan v. Hieber, 78 Ga.App. 434, 439, 50 S.E.2d 815; State Highway Bd. v. Warthen, 54 Ga.App. 759, 763, 189 S.E. 76.
The verdict for the plaintiff in this case shows that the jury found against the defendant on the question of liability. Plaintiff's undisputed evidence shows that he sustained special damages of approximately $5,000. Since the evidence 'authorized the finding of the jury establishing the liability of the defendant, and the undisputed evidence showed actual damages to the plaintiff resulting from the injuries sustained,' a verdict in favor of the plaintiff for less than the actual damages proved 'was grossly inadequate and contrary to law and the evidence, and the refusal to grant the plaintiff a new trial was error.' McLendon v. Floyd, 59 Ga.App. 506, 1 S.E.2d 466; accord, King v. Citizens Bank of DeKalb, 90 Ga.App. 638, 83 S.E.2d 821; Hamer v. White, 110 Ga. 300, 34 S.E. 1001; Hankin Music Co. v. Deaton, 62 Ga.App. 599, 9 S.E.2d 121.
It is contended that the amount of the verdict is explained by the application of the theory of comparative negligence. It is true that the trial court charged the law on comparative negligence. However, under both the pleadings and the evidence in this case the intersection where the collision occurred was controlled by a traffic light and there was positive evidence as to the manner in which the light was operating. If the intersection had not been so controlled the theory of comparative negligence would probably have been involved. The charge was clearly erroneous because the evidence does not authorize a finding of contributory negligence on the part of the plaintiff if the defendant's negligence, as found by the jury, was the proximate cause of the injuries. Anglin v. City of Columbus, 128 Ga. 469, 472, 57 S.E. 780.
The verdict in the amount of $730 was contrary to law and the evidence. The fact that the judge erroneously charged the jury on the law of comparative negligence and the plaintiff did not except to this charge, does not affect the illegality of a verdict which has been excepted to as being contrary to law and the evidence. Lee v. Hill, 28 Ga.App. 312, 111 S.E. 211. When the losing party fails to except to an erroneous charge, it becomes the law of the case that the judgment cannot be reversed on the ground of the erroneous charge. But a charge giving legal significance to facts in evidence, which in law have no significance, does not become the law of the case, when a motion for new trial is made containing the ground that the verdict is contrary to the law and the evidence. Lee v. Hill, supra. A fortiori, the failure to except to an erroneous charge upon a subject upon which there is no evidence cannot create evidence or make it the law of the case that there is such evidence, against the grounds that the verdict is grossly inadequate and is contrary to law and the evidence. Furthermore, it is inconceivable that a judgment cannot be reversed where there are two patent errors which are excepted to, because there is also a third error upon which there is no assignment.
The court erred in denying the motion for a new trial on the general grounds. It is therefore unnecessary to pass on Grounds 4 and 5.
Judgment of reversal adhered to on rehearing.
1. Code § 105-2015 provides: 'The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.' My understanding of this Code Section is that it does not have reference to a gross mistake, or any other kind of mistake on the part of a trial judge, which is not excepted to. When the judge in this case erroneously charged the law of comparative negligence and such a charge was not excepted to, the charge became the law of the case. The failure to except to the charge in this case made it the law of the case, whether right or wrong, that the evidence authorized the jury to find that there was comparative negligence. The Code Section above referred to contemplates as the reason for an inadequate or excessive verdict some unknown reason which influenced the jury, which could be a gross mistake of some unknown kind or bias for some unknown reason on the part of the jury. When a verdict is wholly inadequate, as in this case, it should not be set aside when there is an explanation for it which excludes the idea of bias or gross mistake on the part of the jury. For this reason the grounds complaining of the charge of accident and inadequacy of the verdict are without merit for the reason that it must be assumed...
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