Central of Georgia Railroad v. Swindle , 260 Ga. 685 ( 1990 )

Fletcher, Justice.

This case, Central of Ga. R. Co. v. Swindle, 194 Ga. App. 24 (389 SE2d 779) (1989), is here on certiorari. The jury awarded plaintiffappellee $875,000 in his action against his employer railroad under the Federal Employers’ Liability Act (FELA). 45 USCA § 51 et seq. The question on certiorari is whether the verdict is either excessive or punitive.

Plaintiff is employed by defendant-appellant as a computer operator. On February 24, 1985, he slipped and fell in a bathroom on company premises, injuring his right shoulder. Initially, he did not think that the injury was serious enough to warrant filling out an accident report. A company physician subsequently diagnosed plaintiff as having muscle spasms in the right lumbar and lower thoracic regions, as well as tenderness over the joint of the right shoulder.

Plaintiff began treatment at an orthopedic clinic on April 25, 1985. He initially complained of pain in his right shoulder. He later complained of limited movement in his shoulder, as well as pain in his neck. He was initially diagnosed as suffering from an “impingement syndrome,” which is an irritation and scarring of the coracoacrominal ligament and the rotator cuff. Later diagnoses included bursitis; “cervical spondylosis,” which is loss in the height of the vertebra caused by trauma to the spine; possibly a “discogenic syndrome,” which is pain emanating from the intervertebral disk; and a ruptured or slipped disk. Anti-inflammatory medications and physical therapy were prescribed.

To relieve plaintiff’s complaints of shoulder pain, in 1985 three surgical procedures were performed: one outpatient procedure, one arthroscopic procedure requiring overnight hospitalization, and one procedure requiring two nights of hospitalization. Surgery was performed in August of 1986 for the disk problem which had caused, among other things, neck pain. Arthroscopic surgery requiring overnight hospitalization was again performed in March of 1988 for shoulder complaints.

At one point in plaintiff’s treatment, his physician became concerned that plaintiff was suffering from a psychological disorder known as “chronic pain syndrome.” The concern was based upon the absence of any objective basis for his pain and plaintiff was prescribed anti-depressants.

All physicians treating plaintiff testified that, although he will continue to be bothered by some neck and shoulder pain, his pain will diminish as he learns to avoid repetitive over-the-head movement of his arm in the course of doing such things as lifting objects. The physician performing the last surgery did not envision the need for any further surgery.

Plaintiff’s hobbies include hunting, fishing, homebuilding, and playing baseball and football with his sons. He has had to restrict these activities. Plaintiff’s wife testified that this has caused plaintiff to become grouchy and depressed. When asked whether plaintiff would have difficulty fishing, one of the physicians responded, “Overhead casting, yes.”

Plaintiff’s total special damages consisted of $32,218.82 in medical expenses and $27,090 in lost income.

We reverse the judgment of the Court of Appeals. After consideration of the record in this case, we are led to the conclusion that the jury intended at least a portion of the verdict to have the effect of punishing the defendant and influencing its conduct rather than compensating the plaintiff for his injuries. In FELA cases, this is impermissible.

Damages recoverable in an FELA action are compensatory only. Seaboard System Railroad v. Taylor, 176 Ga. App. 847 (2) (338 SE2d 23) (1985). The FELA plaintiff can recover special damages for past and future lost wages and medical expenses, as well as general damages for pain and suffering. See, e.g., CSX Transp. v. Darling, 189 Ga. App. 719 (377 SE2d 217) (1988); Nairn v. Nat. R. Passenger Corp., 837 F2d 565 (2nd Cir. 1988). In arriving at its verdict, the jury should take into consideration the plaintiff’s occupational disability and its impairment on his earning power. Dugas v. Kansas City S. R. Lines, 473 F2d 821, 827 (5th Cir. 1973). However, punitive damages are not allowable. Seaboard System Railroad v. Taylor, supra.

Federal courts have held that in determining whether a trial court abuses its discretion in refusing to order a new trial on the issue of damages in an FELA case, “the appellate court must make its own ‘detailed appraisal of the evidence bearing on damages.’ Grunenthal v. Long Island Rail Road Co., 393 U. S. 156, 159 (89 SC 331, 333, 21 LE2d 309) (1968).” Nairn v. Nat. R. Passenger Corp., supra, 837 F2d at 567.

The jury’s determination of the amount of damages to be awarded in an FELA case has been held to be “otherwise inviolate, ‘absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.’ ” (Emphasis supplied.) Seaboard System Railroad v. Taylor, 176 Ga. App. at 849, supra, citing Lane v. Gorman, 347 F2d 332, 335 (10th Cir. 1965).

Consistent with these holdings, we find the jury verdict in this case to be a verdict that can only be logically explained as having resulted from a punitive cause, which is an improper cause in FELÁ cases.

The evidence in this case shows that, although the plaintiff has undoubtedly sustained painful physical injuries which have required him to undergo extensive medical treatment, no occupational disability has resulted. He continues working in an office in the employ of the defendant railroad, and there is no evidence that his pay scale is less than it was before the accident. We find no evidence of any projected dollar amount of future medical expenses or future lost wages.

“[A] detailed appraisal of the evidence bearing on damages,” Grunenthal, 393 U. S. at 159, supra, leads us to believe that the verdict here “raise[s] an irresistible inference that . . . [an] improper cause invaded the trial.” Seaboard System Railroad v. Taylor, 176 Ga. App. at 849, supra. The defendant filed a motion in limine requesting that the plaintiff be barred from making “[a]ny suggestion that damages should be awarded in this case for the purpose of punishing the defendant or for the purpose of setting an example in order to influence conduct in the future.” Recognizing that references to such matters are irrelevant in an FELA case and are also highly prejudicial, the trial court granted the motion.

Notwithstanding the ruling of the trial court on the motion in limine, a review of the transcript shows a pervasive and persistent attempt on the part of the plaintiff to establish improper motive and anti-union sentiment on the part of the defendant railroad, “suggesting that damages be awarded ... for the purpose of punishing the defendant.” Based upon our “detailed appraisal of the evidence bearing on damages,” we can only conclude that this “improper cause” permeated the trial and resulted in the jury’s rendering a verdict based, at least in part, on punitive damages.¹

We therefore remand the case for a new trial.

Judgment reversed and case remanded.

All the Justices concur, except Smith, P. J., and Benham, J., who dissent.

1 Our conclusion in this regard is supported by the pejorative nature of plaintiff’s closing argument, excerpted as follows:

“Why go into the fact that [railroad personnel] call up doctors? Well, I’ll have to be honest with you now, folks, there’s two reasons. Maybe you think one of them is illegitimate. . . . The very idea of presuming the right to call up this man’s, or any other employee’s doctor and discuss with him, without telling Bill, without permission, without a release, without nothing, discussing his medical condition, bothers me. It really does. It shows an attitude I think maybe is troublesome. And what did they call the doctors about? Did they really call them because they’re interested in Bill’s condition? What did Tom Barton ask about? When can he come back to work and what’s the disability rating going to be. What’s he worried about? He wants to talk to the doctor about the claim. Ladies and gentlemen, I suggest to you that what we need from the railroad is less suspicion and more safety.”

“Face-to-face, they never questioned Bill; behind his back they mounted this investigation. Analogy to a child: behind-the-back investigations; calling his doctors. Haven’t we come further than that in this society in this day and time? Haven’t we come further than that now? Is that any way to treat an employee?”

“Maybe it’s all right to do an investigation of somebody like this without ever telling him face-to-face you think he’s lying, and then to hide the file. Maybe it’s all right to keep a file on his union activities under his name. Why keep a record of how many of these claims he wins for his fellow employees under his name? I don’t understand that.”

“You’re going to say something about how to treat employees.”