F. D. Wilson Trucking Co. v. Ferneyhough

605 S.E.2d 132, 269 Ga. App. 736, 2004 Fulton County D. Rep. 3207, 2004 Ga. App. LEXIS 1279
CourtCourt of Appeals of Georgia
DecidedSeptember 27, 2004
DocketA04A1526
StatusPublished
Cited by6 cases

This text of 605 S.E.2d 132 (F. D. Wilson Trucking Co. v. Ferneyhough) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
F. D. Wilson Trucking Co. v. Ferneyhough, 605 S.E.2d 132, 269 Ga. App. 736, 2004 Fulton County D. Rep. 3207, 2004 Ga. App. LEXIS 1279 (Ga. Ct. App. 2004).

Opinions

Blackburn, Presiding Judge.

Following a civil jury trial, F. D. Wilson Trucking Company and its insurer Canal Insurance Company appeal the judgment entered against them in favor of plaintiff Cynthia Ferneyhough, who was injured in a vehicle accident involving a tractor-trailer operated by Wilson. Wilson and Canal argue that the trial court erred in: (1) denying their motion for mistrial for inflammatory statements made during plaintiffs’ closing argument; (2) admitting a traffic citation that reflected a guilty plea by Wilson’s driver; and (3) admitting the testimony of a police officer who expressed an opinion as to the ultimate issue. For the reasons set forth below, we affirm.

Construed in favor of the verdict, the evidence shows that the Wilson driver had slept only four hours before beginning his journey and, while driving the Wilson tractor-trailer, looked away from the roadway to adjust his radio. When the driver looked up, he saw another tractor-trailer traveling more slowly in his same lane and, unable to brake quickly enough, struck the rear end of the second truck. This caused the Wilson truck to jackknife with its trailer straddling the freeway’s two lanes. The Ferneyhoughs were following the Wilson truck and were forced to brake and veer to the right to avoid a direct collision. The Ferneyhough vehicle went onto the road’s shoulder and flipped over, resulting in permanent injuries to Mrs. Ferneyhough.

The Ferneyhoughs sued Wilson, its driver, and its insurer Canal, as well as the owner, driver, and insurer of the second truck. The Ferneyhoughs eventually dismissed the two individual drivers, and a jury awarded Mrs. Ferneyhough $145,000 against Wilson and Canal. Wilson and Canal appeal this award.

1. Wilson and Canal first argue that the trial court erred in overruling their objections and motion for mistrial, which arose out of statements made during plaintiffs’ closing argument. OCGA § 9-10-185 imposes a duty on the court to rebuke counsel for “statements of prejudicial matters which are not in evidence.” Wilson and Canal complain about counsel’s rhetoric that defendants had “beat up” on the plaintiffs during the litigation, had tried to “crush” plaintiffs “like a bug,” had lied and cheated and stole from the plaintiffs, had brought in paid witnesses to dispute plaintiffs’ claims, and had engaged in “corporate greed” as demonstrated by the infamous Enron and Adelphia corporations. Seeking compensatory damages, plaintiffs asked the jury to treat the defendants as the defendants had treated plaintiffs. Wilson and Canal objected to this latter argument, claiming it was seeking punitive damages, and further argued that the [737]*737other statements were unsupported by the evidence. The trial court overruled the objections and denied defendants’ related motion for mistrial.

In ruling upon motions or objections to improper closing argument, the trial court is vested with a sound discretion, and this Court will not grant a new trial unless there has been a manifest abuse of that discretion. Hartford Fire Ins. Co. v. Rowland.1 “Flights of oratory and false logic do not call for mistrials or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies.” (Punctuation omitted.) Johnson v. State 2 Thus, Head v. State3 held:

Counsel enjoys very wide latitude in closing arguments, and may make use of well-known historical facts and illustrations, so long as he does not make extrinsic or prejudicial statements that have no basis in the evidence____Counsel’s illustrations during closing argument may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.

(Punctuation and footnotes omitted.) In giving play to such wit or wing to such imagination, counsel “should have ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment,” tethered only by the sound discretion of the judge. Adkins v. Flagg.4 See Findlay v. Griffin.5

We discern no abuse of discretion in the trial court’s conclusion that the Ferneyhoughs’ statements were within these parameters. Unlike Shaw v. Brannon,6 the Ferneyhoughs did not ask the jury to send a message or to award punitive damages. Constricted by their request for only compensatory damages, their admonition that defendants had engaged in wrongdoing and should be treated as they treated the Ferneyhoughs fell within allowable argument. Such merely reflects the natural consequence of awarding compensatory damages, which is that defendants are motivated to change their conduct to avoid future awards of compensatory damages. In denying the motion for mistrial, the court noted that plaintiffs clearly stated [738]*738to the jury that they were only seeking compensatory damages.

Also allowable were the graphic statements about “beating up” the Ferneyhoughs and trying to crush them “like a bug.” Such flights of oratory were simply inferential comments on the conduct of Wilson and Canal in this hard-fought litigation in which these defendants adamantly denied liability and thoroughly cross-examined Mrs. Fer-neyhough about previous minor injuries and caffeine-drinking habits. Similarly inferential was the comparison of these parties to well-known corporations such as Enron, which corporation — like the defendants arguably acted here — acted out of greed in denying any wrongdoing or liability. To the extent the jury may have misunderstood the analogy, plaintiffs’ counsel carefully clarified that the case was against only the named defendants, and that those were “the only defendants you are to consider in this case and... against which you will be ... rendering a verdict. And the case is not against Enron. I use Enron as an example. But it is not against Enron... because this case can only deal with what happened in this particular situation.”

Regarding the statement that defendants had brought in paid witnesses to dispute plaintiffs’ claims, the evidence showed that Wilson and Canal hired an expert witness to testify, whose testimony disputed the Ferneyhoughs’ claims. The “lying” accusation was based on Wilson’s driver denying at trial that he was distracted by the radio even though he told police at the scene otherwise. The “stealing” comment related to the taking away of Mrs. Ferneyhough’s quality of life through her injuries. The “cheating” comment related to (a) testimony showing that Wilson did not produce its driver’s driving logs (reflecting his rest periods, etc.), even though evidence showed that those logs were left in the Wilson truck, and (b) Canal’s decision not to have its representative (who investigated the accident the day after it occurred and may have obtained the logs) testify. See OCGA § 24-4-22 (a jury may presume against a party who fails to produce evidence in its control); Findlay, supra at 477 (4) (counsel may properly comment on a witness’s absence).

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F. D. Wilson Trucking Co. v. Ferneyhough
605 S.E.2d 132 (Court of Appeals of Georgia, 2004)

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Bluebook (online)
605 S.E.2d 132, 269 Ga. App. 736, 2004 Fulton County D. Rep. 3207, 2004 Ga. App. LEXIS 1279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-d-wilson-trucking-co-v-ferneyhough-gactapp-2004.