Hixson v. Barrow , 135 Ga. App. 519 ( 1975 )

Deen, Presiding Judge,

dissenting.

It is only human nature, after finding a new light of truth to point the path, to follow it at the risk of leaving everything else merged in shadows. This court, having recognized the error of its ways in Jarrett v. Parker, 135 Ga. App. 195, is now so aware of the dangers of inconsistent verdicts that it seems likely to find them where none exists.

I agree fully that if these verdicts are inconsistent both cases must be reversed. The facts are, however, that the jury awarded the plaintiff a verdict of $150,000 against both defendants — Barrow’s based on gross and Hixson’s on ordinary negligence, amply authorized by the evidence, after a lengthy trial, and appearing.on appeal to be without error. It awarded Hixson $800 on his cross claim against Barrow for property damage to his automobile. This court reverses both judgments because, as to Hixson’s claim, the evidence of value of the automobile was testified to be "about $850,” with salvage value of $50. Therefore, says the court, the verdicts were repugnant because the $800 verdict was not mathematically reduced by the percentage of comparative negligence attributable to Hixson. Had the latter verdict been $799, would both be allowed to stand?

"Jurors are not required to accept as correct opinion evidence of value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion.” Hoard v. Wiley, 113 Ga. App. 328 (3) (147 SE2d 782). In Crowe v. Harrell, 122 Ga. App. 7, 8 (176 SE2d 190) it was held in a similar instance: "Although the evidence of automobile damage is limited to an opinion by the plaintiff of a decrease in value of $400, and the reasons therefor, the jury, in considering thefacts on which the opinion was based, was not necessarily limited to the exact figures as stated by the witness, and we conclude that a finding of $500 was authorized.” Exactly the same situation obtains here. The jury was informed that the vehicle in question was used as a taxicab; its age, its make and year model. Probably every juror on the panel was familiar with similar automobiles. If they chose to value the car at $50 or $100 more than the witness did, does this nullify both verdicts? A jury may "fix either a lower or a higher value upon the property than that stated in the opinions or estimates of the witnesses.” Southern v. Cobb County, 78 Ga. App. 58 (2) (50 SE2d 226). See also Baker v. Richmond City Mill Works, 105 Ga. 225 (31 SE 426); Atlantic & B. R. Co. v. Howard Supply Co., 125 Ga. 478 (54 SE 530); Reserve Life Ins. Co. v. Gay, 214 Ga. 2 (102 SE2d 492); Nottingham v. West, 69 Ga. App. 876 (27 SE2d 44); Childs v. Logan Motor Co., 103 Ga. App. 633 (120 SE2d 138); Garner v. Gwinnett County, 105 Ga. App. 714 (125 SE2d 563); Ga. Power Co. v. Harwell, 113 Ga. App. 653 (149 SE2d 376).

Are we to assume,, against these verdicts, that the jury intended to find Hixson nonnegligent in the collision with defendant Barrow because it did not return a verdict of under $800 for property damage, or may we assume that in valuing the vehicle, knowing its make, model and use, it may have reached a slightly higher value? If we do not in fact know how the jury arrived at a finding of market value for the car, does this render the verdicts repugnant so that both are void? "Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it, and one of which would defeat it, it 'will not on this account be set aside, but will be given a construction which will uphold it’.” Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 176 (33 SE2d 430).

These cases were tried long, hard, thoroughly and without error. The verdicts are amply supported by evidence and there is no reason to believe a different result would obtain on a retrial. Litigation should not be prolonged indefinitely on merely speculative grounds. I would affirm.

I am authorized to state that Presiding Judge Pannell concurs and Judge Evans specially concurs in this dissent.