Walkley v. Dukes

• Decision Date: 05 September 1985
• Docket Number: No. 70660,70660
• Citation: 175 Ga.App. 820,334 S.E.2d 868
• Parties: WALKLEY v. DUKES.
• Court: Georgia Court of Appeals

Page 868

334 S.E.2d 868

175 Ga.App. 820

WALKLEY v. DUKES.

No. 70660.

Court of Appeals of Georgia.

Sept. 5, 1985.

David D. Gottlieb, Dennis D. Watson, Lafayette, for appellant.

Lindsay H. Bennett, Jr., Hubert E. Hamilton III, Rossville, for appellee.

DEEN, Presiding Judge.

Appellee Jerri Lynn Dukes sustained extensive soft tissue injuries to the upper left quadrant of her body when the automobile she was driving along a Catoosa County thoroughfare was struck by another vehicle whose driver, appellant Walkley, failed to yield the right-of-way at an intersection, as required by OCGA § 40-6-70(a). Dukes sought $85,000 in damages for pain and suffering and loss of future earnings. At trial, Ms. Dukes' treating physician, an orthopedist, testified by deposition that she had a ten percent permanent physical impairment of the left upper extremity. A jury awarded the amount prayed for, and appellant moved for a new trial on the general grounds. Upon denial of the motion, Walkley appealed, enumerating as error the trial court's denial of his motions for new trial and for a mistrial. Held:

1. We construe appellant's first enumeration, which alleges only that the trial court erred "in denying Defendant Walkley's Motion for a New Trial," as a challenge on the general grounds. Appellant has cited no authority and presented no argument in support of this enumeration, and it is therefore deemed abandoned under Rule 15(c)(2) of the Rules of the Court of Appeals.

2. Alleging violations of OCGA §§ 9-10-185 and 24-3-37, appellant assigns as error the trial court's denial of his motions on the basis of allegedly improper statements by appellee's counsel during closing argument and by appellee herself while on the witness stand. Our scrutiny of the transcript reveals that none of the allegedly improper remarks was of such character as in any way to influence the jury or unfairly to advance plaintiff/appellee's cause or prejudice that of defendant/appellant. We are not persuaded that any of the challenged statements constituted an improper or otherwise erroneous remark. The transcript further reveals that on the occasion of each challenged remark, the trial court either reprimanded counsel or issued curative instructions to the jury, or both. The exercise of the trial court's discretion in granting or denying a mistrial will not be disturbed on appeal absent abuse. Bowman v. Bowman, 230 Ga. 395, 197 S.E.2d 372 (1973).

Moreover, even if, arguendo, any of the challenged remarks was improper, it is well settled that, to warrant reversal or a new trial, demonstrated error must be shown to be prejudicial. OCGA § 9-11-61; Miller Grading Contractors v. Ga. Fed. Savings etc. Assn., 247 Ga. 730, 279 S.E.2d 442 (1981). Appellant has shown no such prejudicial effect, and we find no reason why either a mistrial or a new trial should have been granted. Dawes Mining Co. v. Callahan, 154 Ga.App. 229, 267 S.E.2d 830 (1980). Appellant's third, fourth, and fifth enumerations are without merit.

3. In his second and sixth enumerations appellant assigns as error the trial court's failure to give two jury instructions regarding calculation of damages. Appellant contends, first, that the jurors should have been instructed that in computing damages for loss of future earnings, they should take into account the diminution of a person's earning capacity that often occurs in his latter years. Appellant also contends that the court should have instructed the jury as to the mathematical formula for reducing lost future earnings to present cash value. Appellant acknowledges that he neither requested jury instructions on these two points nor raised the matter when invited by the court to present objections. Under OCGA § 5-5-24(a), he may therefore be deemed to have waived his right to except. Hopkins v. City of Philadelphia, 155 Ga.App. 534, 271 S.E.2d 672 (1980).

Appellant contends, however, that this court should nevertheless review these enumerations under the mandate of OCGA § 5-5-24(c), which reads as follows: "[T]he appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not." (Emphasis supplied.) In support of his contention that the trial court, in failing to instruct regarding decreased earning capacity in one's declining years, committed an error reviewable by this court, appellant cites Porter v. Bland, 105 Ga.App. 703, 708, 125 S.E.2d 713 (1962): "In a case where the pleadings and evidence would authorize recovery for both pain and suffering and a diminution in one's capacity to earn money, the court must charge on both measures of damages. [Cits.] Where the plaintiff claims damages for permanent injury, the failure to instruct the jury that it should take into consideration the diminution of earning capacity of the plaintiff in his declining years, although not requested by the defendant, is erroneous." See Florida Central etc. R. Co. v. Burney, 98 Ga. 1, 10, 26 S.E. 730 (1895). As we pointed out in Division 2, supra, however, error must be shown to be prejudicial before it can be considered as grounds for reversal of a judgment.

In Williams v. Young, 105 Ga.App. 391, 124 S.E.2d 795 (1962), this court made a comprehensive survey of Georgia decisions on these and related points and found two conflicting lines of cases. The court's analysis, at 401, 124 S.E.2d 795 et seq., was as follows: "The tendency of the appellate courts has been to decide this question as it arises in each case on the specific facts of each case, and if it is apparent that the failure to charge this proposition could not have adversely affected the amount of the verdict from the defendant's point of view, then such failure to charge was not error. [Cits.] On the other hand, cases which hold that it is error to fail to present to the jury this proposition even without request may nearly all be grouped in the category of those where the evidence was in sharp conflict and the verdict rendered was substantial in amount, and apparently the appellate court thought upon consideration of the case on all of the record that the failure to charge this proposition probably adversely affected the amount of the verdict ..." The Williams court continued, at 403, 124 S.E.2d 795: "[I]n all of those cases where there was a reversal on account of the failure of the court to charge this proposition without request, it appeared that the court gave to the jury an incorrect mathematical yardstick for determining future lost earnings which precluded them from considering such matters as increased or decreased future earnings, variance in length of life, or other variables which must naturally enter into any such computation." (Emphasis supplied.) The court concluded, at 404: "[T]hese matters, in the final analysis, relate to the natural phenomena of life ...,...