Patterson Bank v. Gunter

588 S.E.2d 270, 263 Ga. App. 424, 2003 Fulton County D. Rep. 3018, 2003 Ga. App. LEXIS 1232

• Court: Court of Appeals of Georgia
• Decided: September 26, 2003
• Docket: A03A1006
• Status: Published

Opinions

Ellington, Judge.

A Pierce County jury returned a verdict in favor of Carolyn Gunter in her slip and fall action against the Patterson Bank.¹ The bank appeals from the denial of its motion for a new trial, which was based on its post-trial discovery of a juror’s disqualification and on the amount of the award for general damages. Finding no error, we affirm.

1. The bank contends it is entitled to a new trial because a juror was disqualified from serving due to his familial relationship to Gunter. See OCGA § 15-12-135 (a) (a juror is disqualified if the juror is related “by consanguinity or affinity” to any party “within the sixth degree as computed according to the civil law”). The week after the trial, the bank discovered that the juror was related to Gunter within the prohibited degree of kinship.

After verdict, a litigant cannot obtain a new trial by reason of the fact that a juror is disqualified by relationship, unless the litigant can show that before the verdict it and its counsel did not know of the relationship and could not have discovered the relationship by the exercise of ordinary diligence. Reid v. State, 204 Ga. App. 358, 361 (2) (419 SE2d 321) (1992); Millers Nat. Ins. Co. v. Waters, 97 Ga. App. 103, 109 (2) (102 SE2d 193) (1958). “[W]here the party or [its] counsel has reason to believe that a disqualification exists, the burden is on them to make further investigation to determine the truth of the situation, and in the absence of further investigation such disqualification is waived and a judgment overruling such ground of the motion for new trial is not reversible error.” (Citation omitted.) Norman v. Norman, 103 Ga. App. 626, 629 (2) (120 SE2d 42) (1961). When a motion for new trial is supported by evidence of a juror’s disqualification, we review the trial court’s decision under the abuse of discretion standard. Millers Nat. Ins. Co. v. Waters, 97 Ga. App. at 109 (2).

In this case, the bank deposed Gunter four years before the trial. The bank asked Gunter if she had relatives among the broad class of persons who could be summoned as jurors in the trial of the case, that is, adult residents of Pierce County.² Gunter answered: “I don’t but my husband has some cousins.” Gunter did not know their names and said, “You will have to ask [my husband]. There are several cousins.” Gunter contends her deposition answer put the bank on notice that further investigation would be required to discover the names of those relatives so that prospective jurors could be questioned about any relationship to Gunter’s husband. We agree. Millers Nat. Ins. Co. v. Waters, 97 Ga. App. at 109-110 (2) (trial court was authorized to find lack of due diligence where party failed to obtain list of interested corporation’s stockholders so that disqualified relatives of stockholders could be discovered on jury panel). The trial court did not abuse its discretion in denying the bank’s motion. Id.; Norman v. Norman, 103 Ga. App. at 629 (2).

2. The bank contends it is entitled to a new trial because the jury’s award was so excessive as to warrant a new trial. See OCGA § 51-12-12 (a).³

The amount of damages returned by a jury in a verdict for pain and suffering due to alleged negligence is governed by no other standard than the enlightened conscience of impartial jurors. And the defendant has a heavy burden under OCGA § 51-12-12 (a) to establish that such a damage award is excessive [.] In particular, appellate courts should be hesitant to second-guess verdicts where the damage award is based in any significant part on pain and suffering. . . . Therefore, for this Court to overturn the jury’s verdict, it must be so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors. Moreover, because the trial court approved the verdict in denying [the appellant’s] post-trial motion, a presumption of correctness arises that will not be disturbed absent compelling evidence.

(Citations and punctuation omitted.) Beam v. Kingsley, 255 Ga. App. 715, 716 (1) (566 SE2d 437) (2002).

In this case, the bank argues that the jury’s award of $621,129.68 is inconsistent with the preponderance of the evidence and shocks the moral senses based on such facts as (1) the total award is nearly thirty times Gunter’s total special damages (in this case, her medical expenses) of $21,129.68; (2) Gunter missed only five weeks from work before returning part-time and returned full-time after ten weeks; (3) Gunter sustained only a five percent total body disability and a twelve percent disability to one leg; and (4) Gunter did not require medical care for her knee in the years after the injury and manages the residual pain with over-the-counter medications. But, as Gunter argues, “this Court has consistently rejected attempts by appellants to reverse awards based on any mathematical formulae.” Indeed, the bank does not identify any case where, based on the factors argued here, our appellate courts have reversed a jury’s award which was approved by the trial court in a post-trial ruling.

The jury heard the victim’s testimony about the pain she suffered immediately after she fell and during her recuperation as well as the pain she continues to suffer and the limitations on her life activities. Given the evidence, the amount of the jury’s award here is not so flagrant as to shock the conscience, and we cannot find that the trial court abused its discretion in denying the bank’s motion. J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 637 (3) (512 SE2d 34) (1999); Whitley v. Ditta, 209 Ga. App. 553, 554-555 (2) (434 SE2d 108) (1993); Atlanta Transit System v. Robinson, 134 Ga. App. 170-171 (1) (213 SE2d 547) (1975).

Judgment affirmed.

Ruffin, P. J., Miller and Phipps, JJ., concur. Smith, C. J., Andrews, P. J., and Blackburn, P. J., dissent.

1 This is the second appearance of this case in this Court. See Gunter v. Patterson Bank, 247 Ga. App. 555 (544 SE2d 735) (2001) (reversing grant of summary judgment in favor of I bank).

2 See OCGA §§ 15-12-40 et seq.; 15-12-120 et seq.; 15-12-163 (b).

3 OCGA § 51-12-12 (a) provides: “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.”