Donnell Lathon and Nora Lathon, husband and wife, were killed in an automobile crash with a Consolidated Freightways truck. This wrongful death action was brought by the plaintiffs on behalf of the minor child of Donnell Lathon and the minor children of Nora Lathon. Consolidated appeals from the jury verdict and judgment in favor of the plaintiffs.
1. In enumeration one, Consolidated contends the trial court erroneously allowed the jury to consider evidence that Donnell Lathon received veteran’s disability benefits in reaching their determination on damages. In a wrongful death action damages may be awarded for the full value of the deceased’s life. OCGA §§ 51-4-2; 51-4-1. Generally, these damages may be categorized as: (1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value
(Elsberry v. Lewis,
Consolidated argues that the economic component of damages can only be derived from lifetime loss of earnings generated by the decedent’s services. Thus, evidence of pension, retirement benefits and social security is admissible as items derived from services rendered by the decedent, whereas evidence of disability benefits is excluded because it is compensation for a disability and unrelated to services rendered by the decedent. We disagree with this limited view of disability benefits, and find no error in the admission of the decedent’s veteran’s disability benefits in proving the economic component of the full value of his life. Regardless of whether compensation paid to a veteran for disability is characterized as arising from services rendered by the decedent, or as compensation for a disability,
2. Consolidated claims the jury verdict awarding damages of $1,000,000 as to Nora Lathon and $800,000 as to Donnell Lathon for the intangible component of the full value of their lives was excessive, and should be set aside on appeal. “The general rule on appeal of an award of damages is that the jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. 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.’ . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” (Citations omitted.)
Cullen v. Timm,
There was evidence upon which the jury could base an award for loss of intangible aspects of the decedents’ lives. Testimony was given concerning the character and family circumstances of the decedents, and there was evidence, though scant, of the decedents’ relationships with their respective children. In considering this evidence in light of their own experience and knowledge of human affairs, and governed by their enlightened conscience
(City of Macon,
supra at 375;
Collins,
supra at 349), we cannot say the jurors’ verdict shocks the conscience, nor is there any clear indication the jury was biased, prejudiced or grossly mistaken. The award was not, as a matter of law, excessive.
Calloway v. Rossman,
3. In its third enumeration of error, Consolidated claims the trial court erred in admitting testimony regarding the decedents’ religious activities. Generally, evidence of a decedent’s church activities and religious beliefs are not relevant to prove pecuniary loss in a wrongful death action.
Atlantic Coast Line R. Co. v. Daugherty,
4. In its fourth enumeration of error, Consolidated contends there was no evidence to support the jury’s finding that it was liable for the deaths. For this court to reverse the jury verdict in favor of the plaintiffs would require the absence of any evidence of the defendant’s liability for damages.
Denny v. D. J. D., Inc.,
5. Consolidated claims the trial court erred by refusing to instruct the jury that “the mere fact the [decedents’] vehicle was struck in the rear by [Consolidated’s vehicle] is insufficient to fix liability on the defendant.” The charge, as requested, is an incomplete and vague statement of the legal principle that the lead vehicle in a rear-end collision case holds no superior legal position over the following vehicle; that both drivers must exercise ordinary care, and the mere fact that one vehicle is struck in the rear is not, in and of itself, sufficient to fix liability on the driver of either vehicle.
Atlanta Coca-Cola Bottling Co. v. Jones,
Though a charge on this principle would have been appropriate, we find nothing in the court’s charge as a whole which would have misled the jury to believe that the lead vehicle held a superior legal position.
Plyler v. Smith,
6. In its sixth enumeration of error, Consolidated argues the trial court erroneously refused to charge the jury that any damages awarded to the plaintiffs will not be subject to income taxes, therefore the jury should not consider such taxes in determining the amount of any award. In
Atlantic Coast Line R. Co. v. Brown,
Since the
Brown
decision, the U. S. Supreme Court has ruled that questions concerning damages in FELA cases are governed by federal law, and that in such cases it is error to refuse to instruct the jury that an award of damages is not subject to federal income tax.
Norfolk & Western R. Co. v. Liepelt,
It is not necessary to decide here whether giving such an instruction would have been proper. 1
We hold that the trial court did not err in refusing to give the requested instruction. The jury was otherwise properly instructed on damages, and there is no indication from the present record that the jury’s award may have been affected by a misapprehension as to tax consequences. Compare
Stolz v. Shulman,
Judgment affirmed.
Notes
The issue appears to be unresolved in Georgia. Although dicta in
Brown,
supra, indicates the charge, if given, would have been improper, the holding was only that the refusal to give the charge was not error. In any event,
Brown,
generally cited as authority that the requested instruction should not be given, was a FELA case superseded on this issue by
Liepelt,
supra. Declining to follow
Liepelt
in cases arising under state law, the majority of states has held that the refusal to give the instruction is not reversible error, a minority has followed
Liepelt,
and a few have held the matter to be within the discretion of the trial court.
Rego Co. v. McKown-Katy,