Woods v. Andersen, 54761

Decision Date17 March 1978
Docket NumberNo. 54761,54761
Citation243 S.E.2d 748,145 Ga.App. 492
CourtGeorgia Court of Appeals
PartiesW. E. WOODS et al. v. Esher L. ANDERSEN.

Greene, Buckley, DeRieux & Jones, Burt DeRieux, Eileen Crowley, Atlanta, for appellants.

Lokey & Bowden, Glenn Frick, Robert P. Bleiberg, Atlanta, for appellee.

McMURRAY, Judge.

This case involves a wrongful death action brought by the mother of the deceased, a 61/2 year old child who was killed while riding a bicycle which was struck by a van truck owned and operated by the defendant Parcel Delivery Company and driven by the co-defendant Woods. Verdict and judgment was returned for plaintiff in the amount of $155,000 damages for the "full value of" the deceased's life.

Defendant Parcel Delivery Company filed a motion for new trial which was denied, and it appeals along with Woods who filed no appeal until eighty-nine days later and after entry of the judgment denying the motion for new trial. The defendants appeal contending the trial court erred in overruling their objection to a hypothetical question posed to an expert witness, in denying the motion to strike an expert's opinion allegedly based on hearsay; and in overruling their motion to strike an expert's opinion based on "the present cash value of the economic loss of . . . (the deceased) . . . on the grounds that . . . as to the dollar amounts he (the expert) incorporated thereon an opinion" as to inflationary trends continuing "at the rate of 5% a year" as being "too speculative and remote" as a matter of law. Defendants also contend the court erroneously charged the jury, should have granted their motion to compel discovery, and the verdict was excessive and was unsupported by the evidence. Held :

1. Since we affirm the judgment, we need not consider the separate motion to dismiss the appeal of defendant Woods.

2. Defendants raised no objection as to the qualifications of plaintiff's expert witness, a professor of finance at Georgia State University whose particular expertise was in the field of the evaluation of earning capacities of businesses and individuals. Defendants contend though, that the trial court erred in overruling their objection to the following hypothetical question: "In the case of Heather Lynn Andersen (the deceased), have you projected what a six year old child whose parents were college graduates, the mother a school teacher, the father a lawyer: Have you projected what the child might have been expected to earn if it had lived to a full life expectancy, but had only graduated from high school? . . . Could you give the jury the benefit of . . . your opinion?" Defendants objected "to him stating an opinion until he states the basis of the opinion and what facts he bases them on." We find no merit in defendants' objection, and the trial court properly overruled it.

Contrary to defendants' contention, the posed question did set out facts upon which the expert based his opinion. Moreover, prior to the question, facts identical to those posed therein had been presented in evidence as descriptive of the deceased. Also, the expert testified, prior to the question, that facts such as those posed were reliable indicators of what the deceased would have earned in her lifetime had she not met a premature demise. "In propounding a hypothetical question . . . it is not essential to the admissibility of evidence that there should be a complete resume of every fact entering into and involved in the case." Davis v. State, 153 Ga 669, 675, 113 S.E. 11, 12. The reasoning the expert used in reaching his opinion may be explored on cross examination and need not be presented in toto as a condition precedent to admissibility. The subject was a proper one for expert testimony; the court properly allowed the question, and it remained for the jury to decide what weight to give the expert opinion. Code § 38-1710; Dual S. Enterprises, Inc. v. Webb, 138 Ga.App. 810, 814(5), 227 S.E.2d 418.

3. Defendants contend the trial court incorrectly overruled their motion to strike the expert testimony because it was based, in part, on hearsay evidence. We disagree. On cross examination of the expert, it was revealed that his opinion as to the economic value of the deceased's life was partly based upon United States Department of Labor and Bureau of the Census research statistics concerning average wages of people in various categories of age, education, occupation, etc. The expert testified that the figures he gleaned from the government reports were recognized as accurate and reliable in the fields of economics and statistics. The fact that an expert opinion is based in part upon hearsay goes to the weight and not to the admissibility of the opinion testimony. Georgia Power Company v. Edwards, 136 Ga.App. 135(2), 220 S.E.2d 460; City of Atlanta v. McLucas, 125 Ga.App. 349(2), 187 S.E.2d 560. "The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his profession, amounts to something more than mere hearsay, and may be very valuable in elucidating a given scientific inquiry." The Mayor and Council of Jackson v. Boone, 93 Ga. 662, 663, 20 S.E. 46. There is no merit in this complaint.

4. "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." Code § 38-1710. The opinion testimony of an expert can be based upon hypothetical questions and though the jury is allowed to receive the testimony of experts the jury is not bound by such testimony; such testimony is not conclusive or controlling and is submitted for whatever the jury considers it to be worth. The jury can consider such expert opinion testimony by reference to their own experience and may discard the opinion of experts entirely. " 'The jury can believe opinion evidence or expert testimony in part or in whole or reject it in favor of other evidence. They can give it such weight as they think it ought to have. They can disregard it and substitute their own knowledge and experience.' Holmes v. Harden, 96 Ga.App. 365, 371(8), 100 S.E.2d 101." Ford Motor Company v. Hanley, 128 Ga.App. 311, 315(2), 196 S.E.2d 454, 457. These cases allow the conclusions of an expert to be given when founded on stated facts, "although to some degree speculative." See Douglas v. Herringdine, 117 Ga.App. 72(3), 159 S.E.2d 711. See also Dual S. Enterprises, Inc. v. Webb, 138 Ga.App. 810, 814(5), 227 S.E.2d 418, supra, holding that an expert's opinion based on insufficient factual foundation affects the weight, but not the admissibility, of the expert's testimony. Attention is also called to Mayor, etc., of Jackson v. Boone, 93 Ga. 662(1), 663, 20 S.E. 46, supra.

In this instance the expert had testified that the figures he gleaned from government reports were recognized as accurate and reliable in the fields of economics and statistics of which he had qualified as an expert.

In Henry Grady Hotel Corporation v. Watts, 119 Ga.App. 251(4), 256-257, 167 S.E.2d 205, 207, this court held: "there was no error in offering expert opinion testimony showing statistical averages of lifetime earnings of high school graduates and normal life expectancy." The expert witness in the Henry Grady Hotel case was qualified as an expert in the field of actuarial science. He was basing his opinion on his special knowledge in the field of statistics and testified as to lifetime salaries of high school graduates of average intelligence "based on statistical averages taking into account mortality tables, certain inflationary trends, and methods of reducing figures arrived at to present cash values." (emphasis supplied). The expert in that case used an annual wage increase factor of 31/2%. In the Henry Grady Hotel case and the case sub judice, the expert utilized mortality tables to estimate the life expectancy, projected earnings assuming that the person would enter her lifetime work at age 18 and an annual wage increase factor (31/2% as opposed to 5% used here). The Henry Grady Hotel case is directly in point here.

The witness clearly stated that any judgment awarded today in this case could be invested safely at the rate of 7% for the foreseeable future because investment communities "are taking into consideration the expectation of future inflation at a higher level than 5%," and that in his opinion the 5% figure was very conservative, that it has been 5% over the last 60 years on average and that it is probably going to be more in the future than it has been in the past, that his testimony does not mean that we would not have recessions or that it would be 5% every year. He also testified that the 5% yearly inflationary increase was merely his opinion, "that the general wage level will be at the average annual rate over the period of time between 1977 and 2034, at the average annual rate of 5% per year." The witness' testimony was as to a general economic trend. This is exactly the same type testimony as the expert gave in the Henry Grady Hotel case, except there the annual rate was 31/2%.

The court did not err in refusing to strike the expert's testimony on the grounds that it was too vague and speculative to be considered.

5. We find no error in the charge given. Seaboard Coast Line Railroad Company v. Duncan, 123 Ga.App. 479, 481, 181 S.E.2d 535; Atlantic, Valdosta and Western Railroad Company v. McDilda, 125 Ga. 468, 471, 54 S.E. 140.

6. We find no abuse of discretion in, and therefore will not interfere with, the trial court's refusal to compel plaintiff to answer a particular interrogatory. Redwing Carriers, Inc. v. Knight, 143 Ga.App. 668(9), at page 676, 239 S.E.2d 686; CPA § 26(b)(4) (Code Ann. § 81A-126(b)(4)).

7. The evidence was sufficient to support the verdict, hence the general grounds of the motion for new trial are not meritorious. Nor...

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