Georgia Communications Corp. v. Horne , 174 Ga. App. 69 ( 1985 )

174 Ga. App. 69 (1985) 329 S.E.2d 192

GEORGIA COMMUNICATIONS CORPORATION et al.
v.
HORNE et al.

69434.

Court of Appeals of Georgia.

Decided March 4, 1985. Rehearing Denied March 21, 1985.

J. Dunham McAllister, for appellants.

Kenneth R. Fielder, for appellees.

BENHAM, Judge.

This appeal follows a jury trial in which appellees were awarded damages for a radio "defamacast" broadcast by appellants. The sole issue at trial was damages, since appellants' defensive pleadings had been struck and judgment entered against them on the liability issue due to their failure to comply with a discovery order. See OCGA § 9-11-37 (b) (2) (c); Ga. Communications Corp. v. Horne, 164 Ga. App. 227 (294 SE2d 725) (1982).

1. The motion to dismiss the appeal as frivolous is denied inasmuch as that is not a statutory ground for dismissal. See OCGA § 5-6-48.

2. Appellants' first and second enumerations of error have been decided adversely to them in this court's opinion in Williamson v. Lucas, 171 Ga. App. 695 (2b, 4) (302 SE2d 800) (1984).

3. The trial court adequately instructed the jury that appellees were entitled only to those damages alleged and proved. OCGA § 51-5-10 (c). Compare Williamson v. Lucas, 166 Ga. App. 403 (1) (304 SE2d 412) (1983). The trial court also informed the jury of the possibility of returning a verdict of no damages, if appropriate. See Williamson v. Lucas, supra, 171 Ga. App. 695 (2a).

4. After several hours of deliberation, the jury announced that it was at an eleven to one deadlock. The trial court gave an "Allen" charge and the jury returned to its deliberations. An hour later, the jury again announced that it was "basically the same," and another "Allen" charge was issued. After approximately 70 minutes more of deliberation, the jury reached its verdict. Appellants maintain that the trial court abused its discretion when it failed to declare the mistrial appellants sought after the jury's second announcement.

It is within the trial court's sound discretion to determine when and whether or not to give an "Allen" charge, and the exercise of that discretion will not be disturbed unless manifestly abused. See Harris v. Collins, 149 Ga. App. 638 (2) (255 SE2d 107) (1979). The grant or denial of a motion for mistrial is similarly within the sound discretion of the trial court and subject to the same standard of appellate review. Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497 (4) (277 SE2d 785) (1981). Having found no abuse of discretion on the part of the trial court and having been cited none, we affirm both the actions taken and the judgment entered.

5. Appellees' motion for assessment of damages for frivolous appeal under OCGA § 5-6-6 is hereby denied.

Judgment affirmed. Banke, C. J., and Pope, J., concur.