Turpin v. Worley, s. A92A1517

• Decision Date: 05 November 1992
• Docket Number: Nos. A92A1517,A92A1518,s. A92A1517
• Citation: 425 S.E.2d 895,206 Ga.App. 341
• Parties: TURPIN v. WORLEY et al. DEAN v. WORLEY et al.
• Court: Georgia Court of Appeals

Page 895

425 S.E.2d 895

206 Ga.App. 341

TURPIN v. WORLEY et al.

DEAN v. WORLEY et al.

Nos. A92A1517, A92A1518.

Court of Appeals of Georgia.

Nov. 5, 1992.

Reconsideration Denied Nov. 18, 1992.

Certiorari Denied Jan. 22, 1993 in No. A92A1518.

Robert F. Oliver, Demorest, for appellant (case no. A92A1517).

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Jill D. Levy, Atlanta, for appellant (case no. A92A1518).

David C. Jones, Jr., Homer, for appellees.

BIRDSONG, Presiding Judge.

The original complaint arose as a result of an automobile accident involving appellant/plaintiff Homer Turpin, appellee/defendant Nancy Worley, and co-defendant Albert Milford. Worley claimed her vehicle struck Turpin's vehicle after Milford's car pulled out in front of her requiring her to brake and causing her car to swerve into the other lane. Appellant appeals the judgment of the trial court awarding him pain and suffering in the amount of $100 and $4,157.77 property damage. Co-defendant Milford was awarded a directed verdict at the close of plaintiff's case. Appellee Worley and her daughter also had filed a third-party complaint against co-defendant Milford claiming he caused the accident, and that action was settled in favor of appellee's daughter in the amount of $7,000.

The cross-complaint arose when third-party plaintiff/cross-appellee Nancy Worley sued third-party defendant/cross-appellant Will Dean and Canal Indemnity Company (Canal). Worley alleged her motor vehicle was insured under a garage policy by Canal, but if not covered, lack of coverage was due to the negligence of insurance agent Dean. The lower court bifurcated the trial of the third-party complaint from the main action and tried the third-party complaint first. Canal was granted a directed verdict. The jury concluded Dean was the agent of Nancy Worley, d/b/a Mountain Motors, and that the policy between Canal and Worley, d/b/a Mountain Motors, was cancelled as a result of Dean's negligence. Judgment subsequently was entered against Dean in favor of Worley for $4,257.77 for judgment rendered against her on the main claim, for $6,860 and $500, respectively for reasonable attorney fees, and for $568 costs. Held:

Case No. A92A1517.

Main Claim

1. Appellant/plaintiff asserts the verdict and judgment were contrary to law and the evidence, as medical expenses were proven in excess of $3,000. At trial appellant failed to prove medical expenses with that degree of certainty required by Lester v. S.J. Alexander, 127 Ga.App. 470, 471(1), 193 S.E.2d 860. Evidence was introduced of prior and subsequent medical problems of plaintiff unrelated to the collision. The jury was charged that medical expenses could not be awarded, but could be used to assist in determining reasonable compensation for pain and suffering.

The evidence in this case did not require as a matter of law that the jury award damages for pain and suffering in an amount commensurate with appellant's unperfected medical expense claim. Appellant's primary complaint of injury was that of prolonged and debilitating headaches. Both of appellant's expert witnesses gave deposition testimony that their conclusions relating to appellant's pain would be strictly subjective. Dr. Vickery further testified: "As far as I could tell in my own diagnosis and treatment this was not a disabling problem." Dr. Gotay, although testifying that a condition like appellant's could be disabling, conceded that there is no test that can be performed to detect these headaches; "the headache being an expression of pain ... it's totally subjective"; and a doctor has to go by what the patient tells him, as the pain cannot be actually gauged or seen. Dr. Gotay further testified that 90 percent of any medical evaluation is based on the credibility of the patient, and because these types of symptoms are mostly subjective, it is extremely difficult to evaluate and prove a "malingerer situation with headaches." It thus is readily apparent that the determination of the jury as to the credibility of appellant and the weight to be given his proof of pain and suffering would have substantial impact on the amount of damages to be awarded therefor in the case at bar. Assuming appellant had proven medical expenses relating to injury sustained in the collision in an amount of at least $3,000, " ' "[a] verdict for less than the amount of the plaintiff's proved medical expenses is not so inadequate as to require a new trial where there was testimony showing that the plaintiff's complaints were at least partially related to her physical condition prior to the collision." ' " Butler v. Anderson, 163 Ga.App. 547(1), 295 S.E.2d 216; see Farley v. Thompson, 154 Ga.App. 505, 268 S.E.2d 778. Likewise, a verdict less than the amount of plaintiff's proved medical expenses is not so inadequate as to require a new trial where, as here, there is some testimony that the pain suffered was subjective in nature and that proper medical diagnosis was substantially dependent upon patient credibility. The question of damages is ordinarily for the jury; and the court should not interfere with the jury's verdict unless the damages awarded are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. " ' "The general rule on appeal of an award of damages is that a jury's award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to 'shock the conscience.' " ' " Peterson v. First Franklin Financial Corp., 201 Ga.App. 849, 850, 412 S.E.2d 612. So viewed, the judgment will not be disturbed. To set aside this award as being flagrantly inadequate would, in light of the expert testimony regarding the subjective character of appellant's alleged pain and suffering, transgress upon the providence of the jurors who determined appellant's credibility, observed his courtroom demeanor, and weighed the evidence. The assessment of a monetary value for pain and suffering is a matter for the enlightened conscience of the jury. Howard v. Gardner, 128 Ga.App. 545(1), 197 S.E.2d 386. " ' "Moreover, the trial court's approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. (Cits.)" [Cit.]' " Peterson, supra. There exists, in this case, insufficient evidence to overcome this presumption. See Ray v. Stinson, 172 Ga.App. 718, 720(1 B), 324 S.E.2d 506, aff. 254 Ga. 375, 329 S.E.2d 502. Further, appellant took no exceptions at trial either to the charges or to the form of the verdict, and has not enumerated any charging error. Compare Ray v. Stinson, 254 Ga. 375, 329 S.E.2d 502, supra.

2. Appellant asserts the trial court erred in directing verdict in favor of co-defendant Milford at the conclusion of plaintiff's case. Although such a procedure is permissible (compare Chambers v. Williams Bros. Lumber Co., 80 Ga.App. 38, 55 S.E.2d 244), where recovery is permitted against fewer than all defendants, "[a] trial court should exercise great caution before directing a separate verdict for one of several co-defendants, and it ought never to be granted unless it clearly appears that there is no evidence to affect the party in whose favor it is made." 75A Am.Jur.2d, Trial, § 985. The court in exercising its discretion should consider the likelihood that a remaining co-defendant, as to whom the trial will continue, will introduce evidence showing the moving defendant to be liable. 75A Am.Jur.2d, supra at §§ 944 and 985.

Regarding the hearsay testimony of appellant's witness, Spivey, concerning statements attributable to appellant as to Milford's driving conduct, hearsay though admitted without objection lacks probative value to establish fact. See, e.g., Shaver v. State, 199 Ga.App. 428, 429(1), 405 S.E.2d 281. Appellant has failed to establish that this hearsay met any recognized hearsay exception. Discounting this testimony, at the conclusion of appellant/plaintiff's case there existed no evidence adequate to preclude the granting of Milford's motion for directed verdict. However, during the subsequent testimony of co-defendant Worley, evidence was presented which would have precluded such grant.

Pretermitting whether the trial court erred in granting directed verdict in favor of Milford is the question whether the issue has been waived by the conduct of appellant. We conclude it has. During presentation of his case, appellant/plaintiff elected not to call co-defendant Worley for purposes of cross-examination (see generally OCGA § 24-9-81) to obtain her direct testimony regarding the driving conduct of co-defendant Milford. Further, appellant did not request the trial court's permission to reopen its case so additional evidence as to Milford's negligence could be presented, or to defer ruling on Milford's motion for directed verdict. When the trial court expressly asked opposing counsel, regarding the motion for directed verdict, "do I hear anything from anybody," appellant's counsel posed no objection to an immediate ruling. A party cannot complain of a judgment, order, or ruling that his own trial procedure or conduct aided in causing. West v. Nodvin, 196 Ga.App. 825, 829(3e), 397 S.E.2d 567. Such conduct constitutes both a form of induced error and waiver. Also, following the testimony of co-defendant Worley, appellant elected not to request reconsideration of the trial court's grant of directed verdict. " 'A party cannot during trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.' " Bolden v. Carroll, 239 Ga. 188, 189(1), 236 S.E.2d 270.

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