Boring v. McPherson

344 S.E.2d 459, 178 Ga. App. 623, 1986 Ga. App. LEXIS 1717

• Court: Court of Appeals of Georgia
• Decided: March 21, 1986
• Docket: 71185
• Status: Published

Opinions

Deen, Presiding Judge.

The appellees, Louise McPherson and her daughter, brought this action against the appellant, Don Boring, seeking damages for personal injuries sustained when they were bitten by a horse that they had bought from the appellant at an auction. Boring brings this appeal from an adverse jury verdict, and the denial of his motion for new trial.

1. Appellant’s first four enumerations of error challenge certain portions of the trial court’s charge to the jury. No objections were raised to the charge at trial, but appellant now asserts that the portions of the charge here objected to were harmful as a matter of law. See OCGA § 5-5-24 (c).

The trial judge inquired as to whether defendants had any exceptions to the charge and counsel replied: “None, Your Honor.” In the case cited in the dissenting opinion, Central of Ga. R. Co. v. Luther, 128 Ga. App. 178, 184 (196 SE2d 149) (1973) which is a civil case, a new trial was disallowed based on failure to make exceptions: “In compliance with Our modernized procedure which eliminated ‘sandbagging’ the trial judge through subsequent microscopic inspection for errors in his charge, we now require counsel to state in open court their exceptions at its conclusion. Code Ann. § 70-207 (a).” (The court in the cited case on page 184 defined “sandbagging” as “Poker parlance but more expressive than ‘ambush.’ ”)

Luther further held on page 180: “In Nathan v. Duncan, 113 Ga. App. 630 (149 SE2d 383) this court stated the philosophy with which the appellate courts should consider an appeal where errors in a charge are asserted but without counsel having taken exception as required by Code Ann. § 70-207 (a, b). It was there stated at p. 638 that ‘It is the view of this court that the error in that frame of reference is not harmful unless a gross miscarriage of justice attributable to it is about to result. Generally, if counsel, who are skilled and trained in the law and who have prepared and tried the case, fail to see the error and enter an exception as provided in subsections (a) and (b), it is not to be regarded as harmful. Instances when the charge will be found ground for reversal under subsection (c) are likely to be very, very rare.’ ” (Emphasis supplied.)

2. The evidence of record is sufficient to support the verdict. In particular, we note in reference to Subdivision E of appellant’s fifth enumeration that the verdict does not support his allegation that appellee Ann Laird McPherson was awarded any amount for future medical expenses. Also, as to Subdivision G, it is apparent in light of the trial court’s charge that the portion of the jury’s verdict awarding $20,000 for “lost future wages” in favor of Louise McPherson was in fact not an award for diminution of her capacity to earn money but rather was an award for loss of capacity to work, an item of general damages measured by the enlightened consciences of the jurors. As such, there was no need for appellee Louise McPherson to produce evidence of the pecuniary value thereof. See Wright v. Lail, 219 Ga. 607 (135 SE2d 418) (1964). Compare McDuffie County v. Rogers, 124 Ga. App. 442 (3) (184 SE2d 46) (1971).

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Carley and Benham, JJ., concur, and also concur specially. Deen, P. J., also concurs specially. Sognier, Pope, and Beasley, JJ., dissent.