Smith v. Tri-State Culvert Manufacturing Co.

207 S.E.2d 203, 131 Ga. App. 836, 1974 Ga. App. LEXIS 1573

• Court: Court of Appeals of Georgia
• Decided: April 17, 1974
• Docket: 48886
• Status: Published

Opinions

Evans, Judge.

This is an appeal from a complaint brought by a wife against the defendant seeking damages for loss of consortium allegedly the result of injuries received by her husband consisting of facial injuries, principally the forehead, and a broken thumb. This is the second appeal of the present case. In the first trial the jury found for the defendant and a reversal was had on appeal by the complainant wife, in Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508 (191 SE2d 92). In the present case the jury found in favor of the complainant wife in the amount of $100 damages and she brings this appeal complaining of the amount of damages found, and enumerating error on three charges of the court, her objections to which are as follows: "The Court: Any exceptions? Attorney for Plaintiff: Your Honor, please, on behalf of plaintiff, we have the following exceptions to note. The first, in the beginning of your — of Your Honor’s charge, you charged the question is what amount of damages, if any, has been sustained by the plaintiff. The Court: Yes, sir. I think I later told them they would return a verdict in some amount. Attorney for Plaintiff: Yes, sir. The second exception, Your Honor charged as I understood it that the jury was not concerned with the injuries to the husband, and the third exception, Your Honor charged fairly close to the end of the charge that the amount of damages might be nominal. Those are my three exceptions, Your Honor.” Held:

1. The only measure for the loss of consortium is, like pain and suffering, the enlightened conscience of the jurors. See Hightower v. Landrum, 109 Ga. App. 510, 516 (136 SE2d 425); Malay v. Dickson, 127 Ga. App. 151, 167 (193 SE2d 19). We cannot say that the verdict is so small as to show bias and prejudice on the part of the jury, nor can we say that a judgment in that amount was not authorized. See Beecher v. Farley, 104 Ga. App. 785 (123 SE2d 184); Darrah v. Womack, 123 Ga. App. 766 (182 SE2d 518); Maloy v. Dickson, 127 Ga. App. 151 (2), supra.

2. The trial judge charged that the jury was not concerned with the injuries to the husband. Plaintiff excepted and enumerates error thereon. This is a suit by a wife for the loss of her husband’s consortium. As was held in Hightower v. Landrum, 109 Ga. App. 510 (2, 4) (136 SE2d 425): "In a wife’s suit to recover for the loss of her husband’s consortium alleged to have resulted from injuries negligently inflicted upon him by the defendant, the jury is concerned with the nature and extent of the husband’s injuries...” (Emphasis supplied.) Despite this law, the trial court charged as follows: "You are not concerned in this case with whether or not — whether the husband was or was not — I mean, how much the husband was or was not injured or damaged in the case.” The wife was directly and positively concerned with whether her husband was injured and how much he was injured and the above charge was erroneous. That was the whole gist of her case.

It has been suggested that the plaintiffs lawyer may not have excepted sufficiently at the conclusion of the charge of the court. Counsel for the plaintiff stated to the court, in his exceptions to the court’s charge, that he had certain exceptions to make to the court’s charge, and then specifically stated: "Yes sir. The second exception, Your Honor charged as I understood it that the jury was not concerned with the injuries to the husband . . .” It is no longer a requirement that counsel must point out what the court should have charged. See A-1 Bonding Service v. Hunter, 125 Ga. App. 173, 174 (4 b) (186 SE2d 566), which states that, "no particular formality is imposed on his manner of doing so.” Counsel plainly excepted to the court’s charging "that the jury was not concerned with the injuries of the husband.” In other words, he advised the court that this should not have been included in, but should have been omitted from the charge. What further objection could he have made? It was error for the court to have charged as was done here.

Argued January 11, 1974 Decided April 17, 1974 Rehearing denied May 20, 1974 Guy B. Scott, Jr., for appellant. Webb, Fowler & Tanner, W. Howard Fowler, J. L. Edmondson, for appellee.

3. The trial judge charged that the amount of damages might be nominal. Plaintiff excepted and enumerates error thereon, and contends that the language charged intimated to the jury that the amount of damages should be nominal. This charge — the part to which exception is taken — is not subject to the complaint that it suggested how much or how little to award the wife, especially as the trial court instructed the jury that the amount of the verdict would depend upon "the evidence presented and will be in accordance to your enlightened consciences as impartial jurors.” There was no error in that portion of the charge to which exception is taken here.

4. For the reason stated in Division 2, a new trial will be necessary.

Judgment reversed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark, Stolz and Webb, JJ., concur. Pannell, P. J., dissents.