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Action for damages. Whitfield Superior Court. Before Judge Davis.
TOWNSEND, Presiding Judge.
1. This court will not set aside a verdict of a jury approved by the trial court on the ground that it is excessive unless it is clear from the record that such verdict was the result of bias or prejudice or was procured by corrupt means. No such showing is made in this record.
2. The excerpts from the charge of the court relating to future pain and suffering were supported by the evidence and were not otherwise subject to the objections urged against them.
3. It is error to instruct the jury that the plaintiff may recover if the defendant was negligent in any manner, without restricting the negligence of the defendant to that charged against him in the petition. However, while one of the excerpts of the charge here complained of was subject to that criticism, it is obvious from the charge as a while that the jury could not have been misled into believing that a verdict could be returned against the defendant regardless of whether or not the acts of negligence charged against him were proved.
The plaintiff brought suit for $12,500 in the Superior Court of Whitfield County for injuries growing out of an automobile collision occurring on December 25, 1958, between the car in which she was riding and the car of the defendant being driven by the defendant's son under the family-purpose doctrine. The defendant's answer alleges that the plaintiff's injuries, if any, were the sole proximate result of the negligence of the driver of the car in which she was riding.
On the trial the jury was authorized to find from the evidence that the plaintiff on impact was violently thrown against the windshield which was broken and against the instrument panel of the car in which she was riding. Her injuries consisted of a fracture of the bone of one of her fingers, fractures of the roots of three front teeth, injuries to her head, shoulder and arm, and multiple lacerations, contusions and abrasions. The latter healed within a few days. The head injuries cleared up within a few more days. She carried her arm in a sling for about one month. She suffered some pain from the arm and shoulder during that time. At the time of the trial (October term 1959) her hand was stiff and ached somewhat when she lifted anything heavy. Also at the time of the trial she still suffered some pain from the fractured roots of the three upper front teeth.
A doctor treated her fractured finger. It remained in a cast for approximately six or seven weeks. Her doctor was of the opinion that there was a good union at the time he removed the cast and dismissed the patient. He testified that in the event a bad union should have resulted, it would necessitate the removal of a part of the bone in order to get a completely painless finger. This was not probable. Her attending dentist was of the opinion that the three upper front teeth, the roots of which were fractured in the collision would abscess and have to be removed and that this would result in a depression of the upper lip. He testified that upon extraction the teeth could immediately be replaced by a partial plate, and after a few months a permanent bridge could be inserted but this would necessitate gold crowns on some other teeth which would show up in the mouth.
The jury returned a verdict for the plaintiff for $7,500. The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of 6 special grounds.
The judgment of the trial court overruling the motion for a new trial as amended is assigned as error.
1. Special ground 1 contends that the verdict is so excessive as to obviously be the result of bias and prejudice against the defendant.
Code 105-2015 provides as follows: "The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." This court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses, including the plaintiff on the stand, has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. See Atlantic Coast Line R. Co. v. Wells, 78 Ga. App. 859 et seq. (52 S. E. 2d 496).
The evidence as to the injuries of the plaintiff is such that this court is of the opinion that the trial court did not err in overruling this ground of the motion for a new trial.
2. Special grounds 2, 3, and 4, complain of excerpts from the charge of the court wherein the court instructed the jury that the item of pain and suffering for which the plaintiff sought damages might include humiliation in the future; might include mental suffering from deformity if they find she will be deformed and might include humiliation and mortification from the same conditions. These excerpts are also assigned as error in special ground 5 because it is contended the continuous sequence in which they were given constituted an undue emphasis on these items. All these grounds of the amended motion for a new trial contend that these excerpts from the charge are improper in that there is no evidence to support a finding by the jury of any deformity, and hence no reason for humiliation, mortification or mental suffering by reason thereof; that the stress of emphasis upon these elements of pain and suffering was tantamount to a statement by the trial court of judicial cognizance of, or assumption of sufficient evidence to prove that such humiliation, mortification, deformity and impairment of bodily vigor or health would ensue and that the plaintiff would be entitled to recover therefor at the time of trial, irrespective of whether the same followed as a result of injuries sustained in the occurrence giving rise to the cause of action.
The positive testimony of the attending dentist was to the effect that in his opinion these teeth would abscess and have to be removed at some time in the future; that this would necessitate replacement by a partial plate for a few months; that thereafter a permanent bridge could replace these teeth, but due to gold crowns and the artificial teeth themselves, they would not be as good as the original teeth and would show up in the mouth. Also his opinion was that the upper lip would become depressed after the removal of the teeth. There was no opinion, expert or otherwise, to the contrary. The jury, therefore, was authorized to find that the teeth will have to be removed, that their replacement will be apparent, and that the upper lip will be depressed. This would be a deformity and could humiliate and mortify the plaintiff. The plaintiff made these allegations in her petition and sued for mental pain based on the marring of her appearance over the future loss of her teeth. This is a proper element of damages and is supported by the pleadings and evidence. Social Circle Cotton Mitt Co. v. Ransom, 23 Ga. App. 605 (4) (99 S. E. 238). The sequence in which these excerpts from the charge were given was not such as to be prejudicial to the defendant. The trial court did not err in overruling these grounds of the amended motion for a new trial.
3. Special ground 6 contends that the trial court erred in charging the jury as follows: "If you believe from a consideration of all of the evidence before you together with the charge of the court that the defendant's son, Tommy Kiker, was in any manner negligent, the plaintiff in this case would still be entitled to recover, unless you believe that the negligence of plaintiff's husband, if you believe he was negligent, was the sole and proximate cause of any injuries that the plaintiff might have sustained."
This excerpt taken alone would certainly constitute error as the plaintiff would not be entitled to recover should the jury find that the defendant's son was in any manner negligent, unless such negligence was a part at least of the proximate cause of the plaintiff's injuries. However this excerpt was given in connection with the charge on the principal defense, that the negligence of the plaintiff's husband was the sole proximate cause of the injuries to the plaintiff. Elsewhere and throughout the charge the court made it abundantly clear to the jury that the plaintiff could not recover unless the negligence of the defendant's son was at least a part of the proximate cause of the plaintiff's injuries. He defined proximate cause, and taking the charge as a whole, the jury could not have been misled by the excerpt of which complaint is made in this assignment of error. The very excerpt complained of makes reference to the charge as a whole. This excerpt can be construed with the rest of the charge without conflict when the whole charge is considered. Loe v. Brown, 155 Ga. 24 (4) (116 S. E. 309). Accordingly, the alleged error here does not fall within that class of cases which require reversal because there is an irreconcilable conflict in the charge one part of which is correct and the other part incorrect.
The answer of the defendant admitted the agency of his son who was driving his car at the time of collision, and the general grounds of the motion for a new trial have been expressly abandoned.
The judgment of the trial court overruling the motion for a new trial as amended is without error.
Judgment affirmed. Carlisle, Frankum and Jordan, JJ., concur.
Pittman, Kinney & Pope, H. E. Kinney, contra.
Hardin, McCamy & Minor, Carlton McCamy, for plaintiff in error.
Friday May 22 23:35 EDT

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