Tanksley v. Welch

• Decision Date: 25 January 1972
• Docket Number: No. 2,No. 46754,46754,2
• Citation: 125 Ga.App. 365,187 S.E.2d 563
• Parties: William TANKSLEY v. Raymond WELCH et al
• Court: Georgia Court of Appeals

Page 563

187 S.E.2d 563

125 Ga.App. 365

William TANKSLEY v. Raymond WELCH et al.

No. 46754.

Court of Appeals of Georgia, Division No. 2.

Jan. 25, 1972.

J. W. Yarbrough, Chatsworth, for appellant.

Pittman, Kinney, Kemp, Pickell & Avrett, Maurice M. Sponcler, Jr., Dalton, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

While under arrest and being transported in an automobile by the deputy sheriff for incarceration, plaintiff-appellant was injured when the deputy sheriff lost control of his vehicle and collided with a utility pole. Suit was brought against the Deputy Sheriff, the Sheriff and Murray County, Board of Roads and Revenue and a verdict was obtained for $500. Being dissatisfied with the amount of the verdict plaintiff filed a motion for new trial on the general grounds, followed by an amendment which alleged error through admission of evidence over objection, and further error in the court having dismissed the jury before announcement of its verdict. After the motion for new trial as amended was denied plaintiff took this appeal. Held:

1. 'The amount of the verdict is peculiarly a jury question.' A.C.L. R. Co. v. Heath, 57 Ga.App. 763, 771, 196 S.E. 125, 131. The jury verdict in this case was approved by the trial court. We have examined the transcript of evidence and find the applicable law to be stated thus in Kirkman v. Miller, 116 Ga.App. 78(2), 156 S.E.2d 558: 'Although the damages were low, they were not, under the evidence, subject to exact calculation and were not so inadequate as to be manifestly the result of gross mistake or undue bias and prejudice. (Citations).'

2. Although the plaintiff-appellant enumerates error and argues that the court below erred in dismissing the jury before publication of the verdict, the additional record supplied by appellee's motion in this court shows the trial judge asked both counsel for plaintiff and counsel for the defendant if there were any objections to his not publishing the verdict until after another jury was selected and excusing the jurors in this case for the term. 'In response to the Judge's question, both counsel stated that there was no objection to this procedure.' It appearing the attorney for the appellant in conformity with usual practice in such matters expressly waived the presence of the jury and thereby consented, he cannot now complain. Hughes v. State, 159 Ga. 818, 127 S.E. 109; Smith v. Jones, 185 Ga. 236, 194 S.E. 556; Stanley v. Hudson, 78 Ga.App. 834,...