Seaboard System Railroad v. Taylor

Benham, Judge,

dissenting.

Because I am unable to agree with the majority’s conclusion that the jury’s award in this case is excessive as a matter of law, I must respectfully dissent from the judgment of reversal.

“When a case comes before this court, after the refusal of a new trial by the presiding judge, it comes not only with the presumption in favor of the verdict, but also stamped with the approval of the judge who tried the case, and where no prejudice or bias or corrupt means in reaching the verdict appear, we are not authorized to set it aside as being excessive. [Cits.] 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. [Cits.]” Melton v. Bow, 145 Ga. App. 272 (4) (243 SE2d 590) (1978). The majority correctly notes that in a case such as this one, where there is no direct proof of prejudice or bias, the verdict “must carry its death warrant upon its face.” Realty Bond &c. Co. v. Harley, 19 Ga. App. 186, 188 (91 SE 254) (1917).

I must part company with the majority, however, in its analysis of the evidence supporting the verdict. “The evidence must be construed most strongly toward upholding a verdict which has the approval of the trial judge. ‘After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.’ [Cits.]” Johnson v. Cook, 123 Ga. App. 302, 304 (180 SE2d 591) (1971). Applying that principle to the present case, it may be seen that the verdict here does not, in fact, carry its death warrant on its face.

While, as the majority points out, appellee did not claim to suffer constant pain as a result of her injury, there was evidence that she is unable to stand erect in the morning until she moves around and that the discomfort in her back is triggered not only by her work but by virtually all activity. Appellee’s physician testified to improvement in her condition, but also testified that there is a degenerative condition in her back and that it will continue to be troublesome as she advances in age. In addition, the record contains testimony that appellee can no longer comfortably engage in such activities as bowling, swimming, playing softball, cutting grass, washing her car, washing her hair at the sink, and pulling on her pantyhose. The majority points out that appellee continues to be able to travel and drive a car, but the record shows that the continued sitting which is a part of automobile travel causes the discomfort in her back to increase, requiring stops for her to walk around. Although appellee has not been crippled or rendered unable to work, the evidence clearly authorized the jury to find that the injury to appellee’s back has deprived her of a large measure of comfort and will continue to do so, possibly in a more severe fashion, for the rest of her life, another 36 years according to the life expectancy tables placed into evidence.

Decided October 23, 1985 Rehearing denied November 15, 1985 Jack H. Senterfitt, Richard T. Fulton, for appellant. Kerry R. McDonald, Jack T. Brinkley, Jr., J. Anderson Harp, J. Sherrod Taylor, for appellee.

Reviewing, as we must, a cold record, not having had the jury’s opportunity to hear appellee’s testimony and observe her as she testified, we are in no position to second-guess the “enlightened conscience of the jury” (Central of Ga. R. Co. v. Nash, 150 Ga. App. 68 (256 SE2d 619) (1979)), which did have that opportunity. Here, as in St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624) (1965), the size of the verdict was complained of in a motion for new trial; the holding in that case is pertinent here: “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 [its] discretion in overruling the motion for a new trial on this ground. [Cits.] In the present case, where the evidence most favorable to the plaintiff shows painful and permanent injuries . . ., it cannot be said that the verdict is excessive as a matter of law.”

Since I agree with the other holdings of the majority in this case, I would affirm the judgment of the trial court.

I am authorized to state that Presiding Judge Deen and Judge Carley join in this dissent.