This is an action for damages arising from a motor vehicle collision. Plaintiff Shannon G. Brunson seeks damages for serious injuries she received in the collision. Her husband, plaintiff G. N. Brunson, seeks damages for loss of consortium. The claims were tried together before a single jury which returned a verdict in favor of both plaintiffs, awarding Mrs. Brunson $200,000 and to Mr. Brunson, “no monetary award.”
Defendant filed its motion for new trial, which the trial court denied as to plaintiff Shannon G. Brunson and granted on the issue of damages with respect to plaintiff G. N. Brunson. Subsequently final judgment as to the claim of plaintiff Shannon G. Brunson was entered pursuant to OCGA § 9-11-54 (b). Defendant appeals and plaintiff G. N. Brunson cross-appeals. Held:
1. Defendant’s first two enumerations allege error in giving plaintiffs’ charge Number 11. Defendant incorrectly characterizes such charge as being in relation to a claim for loss of earning capacity. It argues that there was insufficient evidence to authorize a charge as to such a claim, and that the absence of evidence as to a disability rating or percentage of disability barred the charge. See
McDuffie County v. Rogers,
2. Defendant’s third and fourth enumerations allege error in the failure to give requested charges, the substance of which were contained in the trial court’s charge. It was not error to refuse to give requested instructions on principles of law which were adequately and substantially covered by the charge given.
White v. Seaboard Coast Line R. Co.,
3. Defendant enumerates as error the failure of the trial court to give its requested charge or otherwise instruct the jury on the law of comparative negligence. The evidence at trial shows that the collision occurred at an intersection. Plaintiff Shannon G. Brunson was travel-ling to the east through the intersection when defendant’s vehicle (a dump truck operated by defendant’s employee), traveling south, failed to stop for a red light and collided with plaintiff’s vehicle. The record contains no evidence of any negligence on the part of plaintiff. Particularly, we find no evidence of any negligence by plaintiff in her failure to avoid the consequences of the negligence attributed to defendant. Plaintiff testified that as a result of the injuries sustained in the collision she has no memory of anything which transpired after she received a green light to proceed into the intersection. Under these circumstances, it is presumed, in the absence of evidence to the contrary, that plaintiff exercised due care.
Carlton Co. v. Poss,
The burden was upon the defendant to prove that its negligence could have been discovered and avoided by plaintiff. The defendant having failed to meet this burden, the trial court did not err in refusing to charge as to comparative negligence.
Moore v. Price,
4. Defendant contends that the trial court erred in giving the following charge derived from
Taylor v. Buckhead Glass Co.,
Defendant’s view of the charge in question overlooks the intervening phrase we have emphasized in our recital of the charge. Under the charge defendant was properly required to convince the jury that it had exercised “due care” or such care as defendant was bound to use.
Dover v. Ga. Power Co.,
5. As noted above, the jury returned verdicts in the case sub judice in favor of plaintiffs, awarding plaintiff Shannon G. Brunson damages in the amount of $200,000 and plaintiff G. N. Brunson no monetary award. On April 4, 1983, the same date upon which the jury returned its verdicts, judgments following the verdicts were entered. On April 28, 1983, defendant filed its motion for new trial raising the general grounds and other issues.
In plaintiffs’ response to defendant’s motion for new trial plaintiffs ostensibly agreed with portions of defendant’s motion for new trial and argued in support of the grant of a new trial on the issue of damages to plaintiff G. N. Brunson. The trial court entered its order on defendant’s motion for new trial denying said motion except that a new trial with respect to the issue of damages to plaintiff G. N. Brunson was granted.
Defendant’s final enumeration complains of the trial court’s order on its motion for new trial. Clearly no reading of defendant’s motion, in the light of the surrounding circumstances, can suggest an attempt by defendant to elicit an order such as that entered by the trial court. The trial court’s order is entirely detrimental and in no way advantageous to defendant. It appears, that in substance, the trial court’s order was either the untimely sua sponte grant of a new trial or the grant of an untimely motion for new trial by plaintiff. See in this regard OCGA § 5-5-40 (h); OCGA § 5-5-40 (a);
Brawner v. Wilkins,
6. In his cross-appeal, plaintiff G. N. Brunson contends the jury’s verdict upon his loss of consortium claim was inconsistent with the substantial verdict in favor of his wife. We agree.
“[W]here the injured person and the spouse combine their separate claims in one suit, ... it has been held that the loss of consortium claim is a ‘derivative’ claim and where one jury has heard the same evidence on the same issue it cannot render inconsistent verdicts. . . .”
Stapleton v. Palmare,
Judgment affirmed in part and reversed in part in Case No. 68987; reversed in Case No. 68988.