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Action for damages. Ludowici City Court. Before Judge Underwood from Hinesville City Court.
DEEN, Judge.
The amount of a verdict for pain and suffering addresses itself to the jury trying the case in the first instance. Whether the amount returned is so large or so small as to be "out of bounds" is for the decision of the trial judge where the issue is made on motion for a new trial. This court in effect looks only to the question of whether the trial judge abused his discretion, and where it does not appear that the amount of such verdict, approved by the trial court, is so egregiously outrageous as to shock the conscience, and it does not otherwise appear from the record that it resulted from bias or prejudice, this court will not interfere.
The plaintiff, a 59-year-old woman, was injured in November, 1963, when the driver of a van belonging to defendant moving company, attempting to make a left turn from an outside lane, crashed into the side of the automobile which she was driving. The plaintiff was knocked unconscious by the blow, and when taken to the hospital for emergency treatment, was nauseated, bruised, her right arm was badly swollen, and she suffered pain in the chest, back, neck, arm and shoulders. She remained one week in the hospital where she was given traction for 45 minutes of every hour and regular hypodermics for pain. On discharge from the hospital she was equipped with a Thomas collar to support the head, remained in bed for six weeks, continued with traction, heat and massage for 16 weeks, and then was transferred to a health center for further therapy. At the time of the trial in November, 1964, her right arm continued to pain her and she could not close her right hand or grasp objects with it. She suffers severe headaches at the base of the skull necessitating medication every three or four hours, has radiating pain into the spine and from the shoulders through the right arm to the wrist and fingers. She suffers from insomnia due to pain and the traction has changed her mouth formation so as to necessitate new dentures. Since the doctor who had been treating her died shortly prior to the trial the only medical witness was the physician who had cared for her during the week in the hospital. He diagnosed the injury as a whiplash "in all probability permanent in nature" from which it might be expected, due to present symptoms after the lapse of time, that she would be prone to continued pain, more prone to re-injury, and more susceptible to arthritic complications in the future.
The plaintiff sued for $25,000 for past pain and suffering and $35,000 for future pain and suffering. The jury returned a verdict for the sum of these amounts, $60,000. Defendants' motion for a new trial, based on the sole ground that the verdict was excessive, was overruled by the trial judge.
No question of comparative or contributory negligence enters into this award. The sums found for future pain and suffering are to be determined by the enlightened conscience of impartial jurors, and are not to be reduced to present cash value. Bagley v. Akins, 110 Ga. App. 338 (138 SE2d 430). "As we understand the law as to excessive verdicts, a verdict will not be set aside as excessive by this court unless it manifestly appears from the record that it was a result of prejudice, bias, or gross mistake." Colonial Stores, Inc. v. Coker, 77 Ga. App. 227 (9) (48 SE2d 150). "Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear 'exorbitant,' 'flagrantly outrageous,' and extravagant' . . . It must carry its death warrant upon its face." Western & A. R. v. Burnett, 79 Ga. App. 530, 543 (54 SE2d 357), citing Realty Bond &c. Co. v. Harley, 19 Ga. App. 186, 187 (91 SE 254). While it was stated in Seaboard Air-Line R. v. Miller, 5 Ga. App. 402 (63 SE 299) that the inference of bias or gross mistake which under Code 105-2015 must appear before any court is authorized to set aside a verdict for excessiveness may arise from its size alone, through comparison with like cases and other verdicts, the comparison is difficult because no two cases are precisely alike. The student of verdict size may find examples to his heart's content collected in 16 ALR2d, Anno., pp. 3-389. Nonpecuniary damages generally falling under the category of pain and suffering range at least up to $134,000 in cases where earning capacity has not been destroyed. See Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498 (364 P2d 337). An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony. This court is a court for the correction of errors of law only, and this court's jurisdiction is confined to the question of whether the trial court abused his discretion in overruling the motion for a new trial on this ground. See also Seaboard Air Line R. Co. v. Vaughn, 19 Ga. App. 397 (3) (91 SE 516) followed in Wilson v. Dunaway, 112 Ga. App. 241 (144 SE2d 514). In the present case, where the evidence most favorable to the plaintiff shows painful and permanent injuries with loss of physical function, it cannot be said that the verdict is excessive as a matter of law.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Felton, C. J., and Jordan, J., concur.
Dawson & Phillips, R. L. Dawson, Richard D. Phillips, contra.
Oliver & Maner, Joseph M. Oliver, T. S. Gray, for plaintiffs in error.
Friday May 22 21:16 EDT

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