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Damages. Before Judge Heery. Savannah City Court. July 21, 1954.
1. Where, on review by this court of a judgment denying a motion for new trial, it appears from one ground of such motion that the verdict is not responsive to the issues made by the pleadings and evidence and submitted to the jury for its consideration, and is, consequently, contrary to law, the judgment refusing a new trial will be reversed and a new trial granted.
2. Where, in such a case as indicated above, the remaining assignment of error is of such nature as will not likely recur on the new trial, such assignment of error will not be considered.
The plaintiff's motion for a new trial, based on the usual general grounds and two special grounds, was denied, and she has brought the present writ of error to have that judgment reviewed.
1. In this action for damages, the plaintiff seeks to recover for damages to her automobile, for loss of earnings and for mental and physical pain and suffering. No demand for permanent physical injury is made. It appears from the evidence without contradiction that, as a result of the collision between the plaintiff's automobile and the defendant's train, the plaintiff suffered contusions of one of her hips and both of her knees; that she lost three weeks' time from her employment as the result of such injuries, but received all of her salary for the time lost except for two days; that she endured a certain amount of pain and suffering from her injuries and continues to do so and that her automobile was damaged in the amount of $925.00. The jury resolved the question of the plaintiff's right of recovery by returning a verdict in her favor. Accordingly, under the uncontradicted evidence, she was entitled to recover something for each of the elements of damage claimed. The jury by its verdict limited the plaintiff's recovery to "personal injuries only." While, under an application of the comparative negligence rule, raised by the pleadings, evidence, and instructions of the court in this case, the jury were authorized to reduce the amount of the plaintiff's claims by apportioning the damages, it was not authorized to exclude entirely the claim of damage to the plaintiff's automobile, as we think it did by the terms of its verdict. "Personal injury" as defined by lexicographers, jurists and text-writers, and by common acceptance, denotes an injury to the physical body of a person, including pain and suffering from such injury, injury to a person's health, or to his reputation, as contradistinguished from injury to his property. See, in this connection, Hutcherson v. Durden, 113 Ga. 987, 991 (39 S. E. 495, 54 L. R. A. 811); Fraser v. Atlanta Title & Trust Co., 66 Ga. App. 630 (1) (19 S. E. 2d 38), Smith v. Buck, 119 Ohio St. 101 (162 N. E. 382). We think, therefore, that it cannot be said that the jury, by the verdict returned in this case, reasonably intended to include the element of the damage to the automobile but merely reduced the amount thereof under an application of the comparative-negligence rule.
The fact that the plaintiff testified that she had paid for the repairs to the automobile in the amount of $925.60, but had received reimbursement therefor from her insurance company, constituted no defense to the plaintiff's claim for damages to her automobile. The policy of insurance was not in evidence, and there was no evidence of the terms or conditions under which the plaintiff received payment from the insurance company.
For the reasons already indicated, the verdict was not responsive to the issues made by the pleadings and evidence and submitted to the jury for its consideration, and consequently is contrary to law. Tompkins v. Corry, 14 Ga. 118; Martin v. Nichols, 127 Ga. 705 (56 S. E. 995). Accordingly, the trial court erred in denying the motion for a new trial.
2. The alleged error complained of in the other special ground of the motion for a new trial, the injections of the question of the existence of insurance coverage on the plaintiff's car, is of such nature as not likely to recur on another trial and is not considered here.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
Bouhan, Lawrence, Williams & Levy, contra.
Harry P. Anestos, for plaintiff in error.
Saturday May 23 03:41 EDT

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