31 S.E.2d 236 | Ga. Ct. App. | 1944
1. "Before a verdict becomes final it should, where the losing party requires it by a motion for a new trial, receive the approval of the mind and conscience of the trial judge. He is sometimes spoken of as the thirteenth juror. Until his approval is given, the verdict does not become binding, in a case where a motion for a new trial contains the general grounds."
2. "In interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary."
3. There is nothing in the order overruling the motion for a new trial to indicate that the judge was dissatisfied with the verdict on the discretionary grounds; on the contrary, in overruling the motion on all the grounds and refusing a new trial on all of them, his approval is indicated. The trial judge is presumed to have known, and we think did know, his obligation was to exercise his legal discretion, and that in overruling the motion he did exercise this discretion.
4. Where the trial judge refuses to order a new trial on the general grounds in a damage case, this court will interfere with that discretion only in case of manifest abuse.
5. "Substantial damages is a sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right."
6. The amount of damages found here being substantial, we can not say that the trial judge abused his discretion, when in overruling the motion for a new trial, he, in effect, said that the damages, as shown by the verdict, were not so small as to justify the inference of gross mistake or undue bias.
7. The charge of the court substantially embraces the rules of law on the measurement of damages, as applied to the pleading and the evidence. The matters alleged to have been erroneously omitted from the charge were elaborations of the instructions actually given; and in the absence of an appropriate request the plaintiff can not now complain.
8. The plaintiff recovered a verdict of $900 as damages for injuries. She complained that this recovery was inadequate. The alleged errors in the charge, and the admission of the testimony complained of in the *438 nine grounds of the motion for a new trial, referred to in the last division of this opinion, concern solely her right to recover, and have no bearing on or relation to the amount of damages which she should recover. Such errors, if any, are necessarily harmless, and as the case is being affirmed, it is unnecessary to discuss them.
The order overruling the motion for a new trial is as follows:
"1. The action is one to recover damages resulting from personal injuries sustained by the plaintiff while riding as a passenger *441
on a bus of the defendant, operating as a motor common carrier. The jury returned a verdict in favor of the plaintiff for $900, and being dissatisfied with the amount of the verdict, she moves for a new trial. 1. [Special] ground one of the motion complains that the damages fixed by the jury are legally inadequate, and are so small as to justify the inference of gross mistake and undue bias or prejudice. (Brackets ours.) "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.' Code, § 105-2015. No negligence on the part of plaintiff was claimed, and the verdict of the jury must be construed as a finding that the defendant was negligent in one or more of the ways set forth in the pleadings. Anglin v. Columbus,
"2. The jury, having found for the plaintiff, the remaining grounds of the motion, alleging error in the charge of the court and in the admission of evidence, must be held harmless. `Where, in a suit against a railway company for damages, the jury returns *442
a verdict in favor of the plaintiff, he can not justly complain of an erroneous charge touching his right to recover, or of any other error which did not operate to his prejudice.' Peterson
v. Wadley Mount Vernon R. Co.,
The judge, in division 1 of his order overruling the motion for a new trial, discusses and passes only upon ground 1 of the amendment to the motion for a new trial, hereinafter referred to as special ground 1. The plaintiff, in special ground 1, contends that "the verdict of the jury was wholly inadequate, and indicates prejudice, or bias, or gross mistake." The judge, after a preliminary narrative and discussion of the plaintiff's contention as set forth in special ground 1, ruled against this contention in the following language: "In the light of the record we can not say that the jury's verdict was the result of `gross mistake and undue bias or prejudice,' as alleged in the motion . . [for] the record does not justify the inference that the verdict of the jury was the result of `gross mistake.'" (Brackets ours.) The plaintiff argued that the authorities referred to by the court in the preliminary discussion of special ground 1 referred only to the rule of law applicable to the granting of a new trial by the appellate court on the ground of the inadequacy of the verdict, and not to the rule of law applicable to the granting of a new trial on such a ground by the trial judge; that it is obvious from the order overruling the motion for a new trial that the presiding judge thought that he had no power to grant the new trial, unless the evidence showed that the verdict was the result of gross mistake, or undue bias, or prejudice; and that the judge did not exercise the discretion vested in him by law.
"Before a verdict becomes final it should, where the losing party requires it by a motion for a new trial, receive the approval of the mind and conscience of the trial judge. He is sometimes spoken of as the thirteenth juror. Until his approval is given, the verdict does not become binding, in a case where a motion for a new trial contains the general grounds. Walters v.State,
2. We have decided in the previous division of this opinion that the trial judge knew and exercised his legal discretion in overruling the motion for a new trial on all of its grounds, meaning, of course, that he overruled it on the usual general grounds as well as on special ground 1, which raised the question that the damages were inadequate. Trammell v. Atlanta CoachCo.,
The jury were authorized to find that the plaintiff was totally incapacitated for twenty-four weeks, and that at the time she became incapacitated she was earning $12 per week, which would make the value of her lost time $288; that her hospital bill was $114, and her doctor's bill $150; all of the value of $552. We find no evidence in the record from which the jury would have been authorized to determine the actual value of any time lost by the plaintiff other than for the aforesaid twenty-four weeks. However, the evidence showed that at some time after she was discharged by Dr. Clay, and prior to the trial, she obtained a job at $20 per week, later raised to $22.50 per week, which she was getting *446 at the time of the trial, two years after the accident; and that she was to get another raise in about fifteen days after the trial. If the jury found in favor of the above-enumerated items of damage, and that each item was of the value above stated, this would have left $348 of the $900-verdict as the amount of damages which was awarded for pain and suffering. No measure of damages can be prescribed for pain and suffering except the enlightened conscience of intelligent jurors. In the instant case the jury had a right to accept Dr. Clay's testimony that, "I do not think, as far as impairments of function is concerned, that it is a permanent deformity and no permanent disability." Also the testimony of Dr. Weir, who was a witness for the plaintiff, that "the bone is not completely straight, but the union is as firm as ever. . . I think the bow of the left arm is a little perceptible. She has just as efficient use of that arm as of the other." The testimony of Dr. Dupree conflicted with that of the other doctors, and the jury were not required, if they saw fit not to do so, to accept all or any part of the testimony of Dr. Dupree. Thus they were not required to accept that part of his testimony which referred to the deformity of the arm on account of a slight bend or bow in it, or a slight shortness thereof. The jurors heard the testimony of the other doctors, as it related thereto and had the opportunity of seeing the plaintiff's arm, while she was on the stand.
The determination of the question, as to whether a verdict for damages is inadequate in the legal sense, lies within the sound discretion of the trial court, which will be interfered with by the appellate court only in case of a manifest abuse of discretion. Holland v. Williams, supra; Ann. Cas., 1916B, 388. Lord Denman once expressed himself on this point as follows: "A new trial on a mere difference of opinion between the [appellate] court and jury as to the amount of recovery in an action of tort for unliquidated damages ought not to be granted. Something more must be disclosed to warrant interference, where substantial damages have been returned." Berry v. Lake Erie c. R. Co., 72 Fed. 488. (Brackets ours.) Substantial damages is "a sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right." Black's Law Dictionary (3d ed.), 1671; 2 Abbott's Dictionary of Terms and Phrases, 513; 3 Bouvier's Law Dictionary, 3173; 40 Words Phrases, 496. Green v. Weaver,
In the case of Berry v. Lake Erie c. R. Co., supra, the headnote stated: "In an action by an infant of the age of seven years, brought by her next friend, against a railway company, to recover damages for personal injuries resulting in the loss of plaintiff's right leg below the knee, the jury gave plaintiff a verdict for $1100. There was no proof of any expense incurred, or pecuniary loss. Held, that the amount of the verdict, though less than the [appellate] court would have approved, did not afford such evidence of bias, passion, prejudice, or mistake as to justify setting it aside as inadequate." (Brackets ours.) And in the body of the opinion it was said: "The verdict of the jury settled — and I think, correctly — that the injury arose wholly from the negligence of the defendant, without contributory fault on the part of the plaintiff. When an action sounds in tort, for the recovery of unliquidated damages, to the admeasurement of which no fixed rule of law can be applied, the [appellate] court ought not to set aside the verdict of a jury simply because the damages are, in its opinion, inadequate or excessive, unless it clearly appears that the verdict is so grossly inadequate or excessive as to afford evidence of bias, passion, or prejudice, or of mistake and oversight, in failing to take into consideration the proper elements of damage in assessing the amount of recovery. The present case does not seem to fall within this rule." (Brackets ours.) Where the item of damage complained of can be measured only by the enlightened conscience of intelligent jurors, and the amount assessed is substantial, the appellate court ought not to set aside the verdict of the jury on the ground of inadequacy simply because the damages are, in its opinion, inadequate, unless it clearly appears, as stated in the Berry case, supra, that the verdict is so small as to affordevidence of a gross mistake or undue bias; or, as differently stated in Ann. Cas., 1916B, 385, that the verdict is so small as to support a convincing inference of gross mistake or undue bias; or, as stated in our Code, § 105-2015, that the verdict is so small as to justify an inference of gross mistake or undue bias. Where the trial judge refuses to order a new trial on the general grounds in a damage case, this court has stated that if the trial court "can conscientiously acquiesce in the verdict, though it may not exactly accord with his best judgment, or though some other finding might seem somewhat more satisfactory to his mind, and if his sense of justice is reasonably *448 satisfied, he should, in the absence of some material error of law, affecting the trial, approve it, and this court will uphold him in so doing," and will not say that he abused his discretion. In short, this court will interfere with that discretion only in cases of manifest abuse. Holland v. Williams, supra. The item of damage complained of being for pain and suffering on account of a broken arm and other temporary bruises, which were the result of the occurrence in question, and there being no measure of damage for pain and suffering, except the enlightened conscience of intelligent jurors, and the amount of the damages found therefor being substantial, we can not say that the trial judge abused his discretion when he said that this item of damage for pain and suffering was not so small as to justify the inference of gross mistake or undue bias. Nor can we say that he abused his discretion when he said that the total damage as shown by the verdict was not inadequate.
3. In this case the verdict was for $900. The plaintiff contended that this amount of damages fixed by the jury was inadequate, and that it was reversible error to fail to charge "that if the jury found in favor of the plaintiff they should find full damages, as shown by the evidence, without any deductions of any kind, for the reason it is admitted by counsel for the defendant [that] she was not guilty of any negligence which caused or contributed to her injuries." The charge of the court substantially embraces the rules of law on the measurement of damages, as applied to the pleading and the evidence in this case. The matters alleged to have been erroneously omitted from the charge were elaborations of the instructions actually given. If the plaintiff thought the charge was not full enough, or clear enough, or that it omitted something that would put his side more fairly before the jury than would the charge given, then the notice of the court should have been called thereto; and in the absence of an appropriate written request, the plaintiff can not now complain. Kimbrell v. State,
4. The motion for new trial contained nine other grounds complaining of certain portions of the charge, as well as of the admission *449
of certain testimony, but none of the alleged errors have any bearing on or relation to the amount of damages which the plaintiff should recover. "Where, in a suit against a railway company for damages, the jury returns a verdict in favor of the plaintiff, he can not justly complain of an erroneous charge touching his right to recover, or of any other error which did not operate to his prejudice." Peterson v. Wadley c. R. Co.,
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.