lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
MITCHELL v. TURNER.
34828.
Damages. Before Judge Anderson. Bibb Superior Court. July 16, 1953.
GARDNER, P. J.
1. The evidence is sufficient to support the verdict on the general grounds.
2. The one special ground is without merit and thus shows no cause for reversal.
Mrs. Charles E. Turner (defendant in error here, whom we shall call the plaintiff) on June 14, 1951, brought an action for damages on account of personal injuries, against Flanders Mitchell (plaintiff in error here, whom we shall call the defendant), in Bibb Superior Court. She alleged that on May 29, 1951, at about 12:30 p.m., she was walking with her sister in a southerly direction on the sidewalk on the west side of Second Street in Macon, Georgia, in front of a place of business known as the McCord Motor Company; that the sidewalk and curb in front of the motor company had been lowered so as to permit vehicles to come from Second Street across the sidewalk onto and into the McCord Motor Company; that at said time and place the defendant was driving a 1949 one-half ton Ford pickup truck in a northerly direction on Second Street; and that, when he got to the drive-in in front of McCord Motor Company, he made a left turn across Second Street onto the sidewalk and hit the plaintiff and her sister, causing both of them to suffer personal injuries.
The plaintiff, in her original petition, alleged that she suffered severe contusions to her left hip and left thigh, a severe sprain and bruise of her left elbow, and injury to the lower part of her back as a result of ligaments being twisted and bruised; and alleged that she was 76 years of age.
On August 12, 1951, the plaintiff amended her petition and alleged that the striking of her person caused injury to her right breast and right chest area; and that upon consultation with her doctor she was advised that said breast must be removed; and that it was removed by radical surgery.
Thereafter, on April 2, 1953, she again amended her petition and alleged that she was entitled to special damages for $75 doctor's bills and $78 hospital bills.
The defendant contended that his truck never did strike the plaintiff, that she was not injured as a result of the incident complained of, and that the condition from which she suffered was from disease which predated the date of the accident.
The case was tried, and the jury rendered a verdict for $5,000 in favor of the plaintiff. A motion for new trial was filed on the general grounds, and this was subsequently amended. From a judgment denying the motion for new trial the case is before this court for review.
The plaintiff testified in part as follows: "The first thing I knew when I saw the car coming was, we were walking along, as I said, she was just a little ahead and we had nothing on our mind at the time except going for lunch and then going up town after lunch and I don't know, I just happened to look up right to my left and saw this car coming and as I did I screamed and she heard me scream, I presume that is what made her look around, and I started to back to try to get out of the way and she tried to go the other way and it got me this way and got her that. It did hit me because I would never have fallen if it hadn't. It shoved me down, yes, it knocked me down. I was the first to fall. The part of the truck that hit me was not the bumper because I avoided the bumper by backing quite a bit and it was the fender and the running board such as that that got me because she couldn't get out of the way of the bumper but I did back enough to miss that. I fell to the pavement, definitely. I hit the pavement hard. My sister, Mrs. Bond was hit. I didn't see when she was hit because I was down by that time but I heard her when she hit and I couldn't get myself together at the time enough and as soon as I could I realized that this sharp pain was there and I rolled over and tried to get up to get her, when I came to my senses, really I don't think I was ever unconscious but I was stunned. A sharp pain hit me right through here, this breast, and never ceased to ache until I had it removed. That is the right breast. I had never had a pain--no, I don't suppose I had ever never thought of having it taken off--no, I had never had any pain at all in it. I hadn't had any occasion to have a doctor in five or six years prior to this injury. When I fell and rolled over I hurt this arm, this wrist was sprained somewhat, not so serious, but as I first fell I fell right on seemingly the root of my spine and I yet have that work facing me. I have got to have that attended to. It's some trouble at the base of my spine. I had never had any trouble with it previously. I really don't know how to explain it. It seems to me like it is right at the root of the spine, the base, and I think the bone is enlarged. I don't know whether it is a growth but it has got to be attended to because I do suffer. I have to sit on a cushion all the time, a pillow, an air cushion. As to whether I am suffering from my breast now, well, I am conscious of it all the time. There is never a time that I am not conscious of it. I don't know whether I'll have to go back to the doctor with it or not. I don't know what the results will be but in this rib right under here I can't half wear my clothes. It gives me a lot of trouble. I'm just a nervous wreck.
"It seemed to me that the truck came in there fast. I would never say it was slow. It just seemed to whip in because he was right in on us before we knew it. I'm no judge of distance or anything like that, but to my thoughts it was fast. After this injury my breast swelled some. It turned black. I did go to a doctor then, after I was forced to go, yes. At first, when the wreck was, the first few days I couldn't think of myself. I had my home to look after and my sister. I thought she was going to die and I have no one to help or do anything for me but she does have her children, of which I felt it was my duty to get her children to her as quick as I could, and for that reason I neglected myself for a few days. For the first several days my sister was in the hospital. She was carried right across to the hospital from the scene of the accident. I held on to the chair, got across there with her as best I could. Got her in the hospital. She was taken to the clinic. I had to go to the hospital to have my breast removed. I never counted up my expenses at all. I'll be frank and fair, I've paid one seventy-five dollars just for this breast alone, to Dr. Clay. That didn't count hospital bill or anything else. I do not really recall my hospital bill, I may have the bills. I was only in the hospital for that about four days, something like that. I don't know but it was that awful suffering after I got home. I went home because I didn't feel able to stay in the hospital. I knew I didn't have the money and I knew I couldn't stay there without that $10 a day and I went home as quick as I could, as quick as the doctor would let me. I paid $10 a day just for a room alone the time I was there. I can't perform the same household duties around my home that I did prior to my injury. I don't do anything at all now. Before my injury I never wanted anybody to hand me anything or do a thing for me. I was just independent and I was able to look after myself and my household duties. I did everything, cooking and all around the house. As a result of the injuries I am hardly ever without pain. I am having trouble sleeping. The nights would be four-thirty in the morning before I can go to sleep, even now. My nerves have got me and they just haven't seemed to be able to do anything for them yet. I don't take any nerve medicine. Dr. Clay told me to take compound empirin and that is all I ever take. Don't have to have a prescription or anything, you can get that you know. Kind of like an aspirin, I presume."
Mrs. Homer Satterfield testified for the plaintiff: That she was an eyewitness to the accident involved; and that the truck involved in the accident cut in front of the car she was driving. She further testified: "I was not close enough to hit him but I did have to stop. I did apply my brakes when he cut in front of me. He didn't stop. He just kept driving until he hit the ladies on the sidewalk. There were two elderly ladies on the sidewalk . . . They were walking side by side. The truck knocked only one lady down. That was the one on the right.
The one on the left must have seen the truck because she kind of hesitated and propped on it to keep from falling and she did touch the right front fender of the truck. She didn't fall, but she had to scramble to keep from falling . . . I was blocked in traffic. I sat there a few minutes . . . I don't recall the truck blowing its horn . . . As to whether or not he gave a signal . . . I don't recall any signal."
Dr. J. Emory Clay testified for the plaintiff in part as follows: "I attended [the plaintiff] May 31, 1951 . . . She had been involved in an accident which occurred a few days before. [May 29, 1951.] The right breast was swollen or larger than the other one. It was just a tumor in the breast. I did not see any discoloration of that breast nor bruises nor any evidence of any discoloration. I have no record of it. I think I would have put it down if it had been. She complained of it being sore since the accident two days before . . . I don't recall that she had any pain . . . She visited me on June 4 and July 2, and she was admitted to the hospital for operation on July 2, 1951 and was operated on July 3, 1951. She remained in the hospital until July 5th, when she was allowed to go home. She came back to the office for dressings on July 9, 13, 16, 27, August 2 and August 17, 1951 . . . She gave the history of having this lump in her breast for a year when she came to the office. It is possible for a trauma or a bruise to aggravate a pre-existing cyst or tumor of the nature the plaintiff had . . . She complained of a great deal of pain in raising her arm, raising her shoulder. She complained on April 3, 1953, of pain at the end of her spine over the coccyx. The coccyx is very painful and very tender after sitting down too hard or falling down . . . If she is having pain and has been having pain in the coccyx since the incident of May 29, 1951, it would not be my recommendation that it be removed at her age of 78, unless you had to . . . In July, 1951, I gave her some sedaphine for nervousness or inability to sleep."
Mrs. Bond, the sister who was with the plaintiff on the day of the accident and who was injured, testified substantially: That she did not know whether or not the plaintiff was knocked down, she having been hit and not in a condition to know much of anything at the time; that the plaintiff had not been able to do housework, and had not been so active since the accident; that witness did not recall her sister having any complaint about her lower spine previous to the accident; that, when the witness was injured, she stayed on the hospital bed two months; that her sister was not able to care for her; that the witness's daughter waited on the witness for two months, and the witness had a nurse for four months.
The defendant testified that he gave proper signals for the turn; that neither of the ladies got within three feet of his truck; that his truck did not touch either of them; and that, when the ladies fell, they were on the right side of his truck.
1. The evidence is amply sufficient to support the verdict of the jury.
The jury found in favor of the plaintiff as to the amount of damages. The trial judge approved the verdict of the jury. We are unauthorized to hold that the judge abused his discretion in approving the amount of damages, $5,000. This question having been brought up to this court in the general grounds rather than in a special ground, and there being sufficient evidence to support the finding of the jury, we find no reversible error in this finding of the jury and approval by the judge of the amount. See Halliburton v. Collier, 75 Ga. App. 316, 325 (43 S. E. 2d 339).
2. There is only one special ground. This complains that the court erred in charging the jury as follows: "If the plaintiff recovers she can recover only for such injuries you find she suffered and it is for you to say whether such injuries, if any, have continued to the present and how long they will continue into the future, if any.
"In this connection, gentlemen, that is, in connection with these instructions on pain and suffering, the plaintiff claims damages for pain and suffering on account of an alleged injury to her breast, and in connection she also claims pain and suffering on account of other alleged injuries, but the instructions the court is now going to give you will have reference to her contention that she has suffered, that she has been injured and is entitled to recover pain and suffering to her breast.
"If the plaintiff is entitled to recover at all for pain and suffering on account of any injury to her breast-let me withdraw that last sentence I gave to you, gentlemen, beginning with 'if the plaintiff has suffered any injury on account of pain and suffering to her breast' I will withdraw that statement from you entirely and charge you this in lieu of it.
"In connection with her claim for pain and suffering on account of the alleged injury to her breast, I charge you that the plaintiff cannot recover for any pain and suffering and disablement consequent solely upon a diseased condition existing prior to the alleged injury. If the condition from which the plaintiff suffered or suffers, as she contends, with reference to the alleged breast injury if she suffered or suffers any therefrom, if that was due to the aggravation of her pre-existing condition caused by the negligent act of the defendant, as alleged in the petition, then the plaintiff could recover only damages due to such aggravation of her pre-existing diseased condition. If that condition from which she alleges she suffered and now suffers was only the imaginary or possible result of the negligent act of the defendant, if the defendant was negligent, or if other and contingent circumstances preponderated largely in causing the injurious effect, such damages are too remote to be the basis of recovery by the plaintiff. I charge you gentlemen that if this condition from which the plaintiff contends that she suffered and now suffers is the legal and natural result of the acts done by the defendant to some extent, then the damages are not too remote ton be recovered. Damages traceable to the act, but not its legal or natural consequence, are too remote and contingent to be recovered.
"I think, gentlemen, I may simplify the instructions somewhat not taking away anything I have said, but adding this to it. If the plaintiff suffered from a diseased condition in her breast prior to the occasion complained of and if she was injured in her breast, on the occasion complained of, as she contends, then she could not recover for any pain and suffering from the pre-existing diseased condition of her breast, that is, resulting solely therefrom, but she could recover for any pain and suffering resulting from the aggravation of that previous existing diseased condition, and she could recover therefor only to the extent that her pain and suffering was a proximate result of the alleged acts of the defendant complained of in her petition, and amendments thereto. So you will understand, if she is entitled to recover for that element it would be only to the extent that some act of the defendant, alleged in the plaintiff's petition, aggravated that preexisting condition and proximately caused thereby her alleged pain and suffering."
Error is assigned on this charge for the following reasons: "(a) Because, said charge is illegal in stating the measure of damages where an injury has aggravated a pre-existing disease, and the court should have charged that plaintiff's recovery was limited to the extent of any aggravation of a pre-existing disease.
"(b) Because, the court charged 'that if this condition from which the plaintiff contends that she suffered and now suffers is the legal and natural result of the acts done by the defendant, if he did any act as charged, though contingent to some extent, then the damages are not too remote to be recovered.' The defendant says that this language was extremely confusing and prejudicial in that the jury could not have known what the court meant by charging that if an act was 'contingent to some extent,' and this defendant contends that if the court was going to use the word 'contingent,' it should have defined the meaning and intent of said word as so used by the court.
"(c) Because, in the language quoted in subparagraph (b) above, the court used the words 'the legal and natural result of the acts done by the defendant,' and this defendant says that the use of the adjective 'legal' necessarily created confusion in the minds of the jury.
"(d) Because the court in said excerpt charged: 'Damages traceable to the act, but not its legal or natural consequences, are too remote and contingent to be recovered.' "
The defendant contends that the language of the court was uncertain and confusing to the jury and prevented them from a consideration of the true rule, which counsel says is that, if a pre-existing disease is aggravated by an injury, damages are recoverable only to the extent of such aggravation.
We cannot see that the excerpt from the charge of the court in regard to remote damages is out of line with the rule laid down in Whatley v. Henry, 65 Ga. App. 668 (5) (16 S. E. 2d 214). The court did charge and specifically emphasized the rule of limitation of damages, and said: "If the condition from which the plaintiff suffered or suffers . . . was due to the aggravation of tier pre-existing condition caused by the negligent act of the defendant, as alleged in the petition, then the plaintiff could recover only damages due to such aggravation of her pre-existing diseased condition." It is possible that this might have influenced the jury against the cause of the plaintiff, in that the court expressed an opinion that a pre-existing condition did exist. Certainly the excerpt did not harm the cause of the defendant.
The Supreme Court held in Montgomery & West Point R. Co. v. Boring, 51 Ga. 582, 588, that a charge in that case, on all fours with the charge of the court on this Code section in the instant case, was correct. Nor is there anything shown in the charge in Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 695 (51 S. E. 2d 705), which would influence us to reverse the trial court because of the alleged incorrect charge. The rule in regard to damages for aggravation of pre-existing infirmities, as established by the Supreme Court in Bray v. Latham, 81 Ga. 640 (2) (8 S. E. 64), is not a basis for reversal because of the charge in the instant case. The charges are not in conflict. In view of the charge of the court as a whole, we find no reversible error in this special ground.
The jury found in favor of the plaintiff, the trial judge approved the verdict of the jury and the amount of damages. We are unauthorized to hold that the judge abused his discretion in approving the amount of $5,000. This question haying been brought up to this court in the general grounds rather than in a special ground, and there being sufficient evidence to support the finding of the jury, we find not reversible error in this finding of the jury and approval by the judge of the amount of damages.
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Martin, Snow & Grant, for plaintiff in error.
DECIDED OCTOBER 16, 1953.
Saturday May 23 04:19 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com