Pаmela Ditta brought this action against Vanessa Whitley and her father John Whitley for damages sustained as a result of Vanessa’s negligence in causing a vehicular collision with Pamela. The jury returned a verdict awarding plaintiff $12,000 for past medical expenses, $10,000 for future medical expenses, and $200,000 for pain and suffering against the defendants. After the court entered judgment on the verdict, defendants filed a motion for j.n.o.v. or new trial, which the court denied. Defendants appeal, arguing that the damage awards are excessive and that imposition оf liability against John Whitley under the family purpose doctrine is unauthorized.
Plaintiff testified that as a result of the collision, her face hit the car window slicing her eyelid in half and cutting her facе to the muscle. She was taken to a hospital emergency room, where she was attended by a plastic surgeon, Dr. Slutsky. In treating her, he inserted long needles in her face and eye. Her parents could hear her screams from the waiting room. Dr. Slutsky referred plaintiff to another plastic surgeon, Dr. Nahai, who did four surgical procedures: three ZPlastys or scar rеvisions and one dermabrasion. Again, needles were put in her face and eye.
Dr. Slutsky testified that the total cost of his services to plaintiff was $1,514 and that his charge for a scar revisiоn would be about $1,375. Dr. Nahai did not testify as to the amount of plaintiff’s bill, but he did testify that if he did another scar revision the total charge would probably be in the region of $1,250, and the total charge for another dermabrasion would be about $650.
Plaintiff was later treated by another plastic surgeon, Dr. Dixon. As of the date of the trial, he had performed two scar revisions. He did not testify as to what he charged. He did testify that it was very likely that a dermabrasion would later be needed and that other procedures might also have to be done.
Defendants argued before the jury that the highest figure it could
The photographic evidence admitted by plaintiff shows a rather large scar on her left cheek. The doctors testified that it would be permanent. The extremely painful surgical procedures, requiring local anesthetic and pain medication, were performed at six-month intervals over a period of years. Plaintiff testified that, in addition to the effect on her appearance caused by the scar and the physical pain she has endured, her recreational activities have been restricted, and she has been required to spend her last year of high school and entire college years undergoing surgical procedures and the complications and healing periods which followed.
Other evidence will be reviewed insofar as is necessary for a consideration of the issues raised.
1. Defendants contend that the trial court erred in denying their motion for j.n.o.v. or new trial on the ground that the evidence does not support a $22,000 award of medical expenses.
A plaintiff seeking to recover special damages for mеdical expenses has the burden of proving his losses in such manner as can permit calculation thereof with a reasonable degree of certainty.
Lester v. S. J. Alexander, Inc.,
The jury’s award of $22,000 in medical expenses should have been reduced by $12,311. “The trial court did not err in overruling the motion for judgment notwithstanding the verdict on the . . . motion for a new trial еxcept as to [this] issue. . . .”
Co-op Cab Co. v. Arnold,
2. Defendants contend that the trial court erred in denying their motion for j.n.o.v. or new trial on the ground that the jury’s award to plaintiff of $200,000 for pain and suffering was excessive.
“The question of damages is . . . one for the jury; and the court should not interfere with the jury’s [discretion] unless the damages
The amount of the jury’s award here is not so flagrant as to shock the conscience.
3. Defendants contend that the trial court erred in denying their motion for directed verdict, made at the conclusion of plaintiff’s casein-chief and renewed at the conсlusion of the evidence, on the issue of John Whitley’s liability for his daughter’s negligence under the family purpose doctrine.
Defendants argue that plaintiff’s evidence was insufficient to withstand a motion for directed verdict on the family purpose doctrine; that Vanessa’s mother, not her father, owned the vehicle and gave Vanessa permission to drive; and that, at the time of the accident, she was not engaged in a family purpose.
Vanessa Whitley testified on cross-examination during plaintiff’s case-in-chief that she had previously admitted that hеr parents owned the vehicle she was driving at the time of the accident. Vanessa later testified that the car she was driving was her mother’s car and that the accident ocсurred when she was on an errand for her employer. During defendants’ case-in-chief, Vanessa testified that her family had three cars: a Honda Prelude that her mother drove, a family сar that she and her sisters shared, and her father’s car that he used in his business. She asked to borrow her mother’s car because it was smaller and easier for her to drive. However, her mоther rarely let her use that car.
Vanessa’s father testified on cross-examination during plaintiff’s case-in-chief that he and his wife purchased the vehicle together. During defendants’ case-in-chief, he testified that he and his wife purchased the car together with funds from a joint account. They both worked and both made deposits to the account. The car was titled in her name and maintained by her. He seldom drove it, did not have a set of keys to it, and considered it her car. Both Mr. Whitley and his wife testified that if the children wanted to use the Honda, they would ask her permission and not his.
The Honda was insured in Mr. Whitley’s name under a policy entitled a family combination automobile policy. Portions of this policy were admitted in evidence as a defense exhibit.
“ ‘To come within the application of the [family purpose] doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made
“ ‘ “Under (the . . .) doctrine, the owner of an automobile who permits members of his household to drive it for their own pleasure or convenience is regarded as making such a family purpose his ‘business,’ so that the driver is treated as his servant.” [Cit.]’ [Cit.]”
Shank v. Phillips,
The fact that the vehicle was purchased by the father and mother with joint funds, and that it was insured by the father under a family insurance policy, authorized the jury to find that the father had a recognized property interest in the vehicle at the time of the accident, that he made it available for family use, and that the dаughter was driving it with his acquiescence or implied consent. As in
Murch v. Brown,
4. Defendants contend that under former OCGA § 33-34-9 (b) the trial court erred in failing to reduce the judgment by $2,500 received by plaintiff in no-fault medical-expense benefits.
Plaintiff disрutes that she was eligible for such benefits, and defendants have failed to present contrary evidence. The burden is on the appealing party to show error from the record.
Brown v. Frachiseur,
Judgment affirmed on condition $12,311 is written off; otherwise reversed.