Cohen v. Lowe Aviation Company, Inc.; and v.ce v.rsa., 221 Ga. App. 259, 470 S.E.2d 813 (1996)
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Summary
Judgment affirmed in Case No. A96A0239. Case No. A96A0240 is dismissed. McMurray, P. J., and Ruffin, J, concur.
Summary
Judgment affirmed in Case No. A96A0239. Case No. A96A0240 is dismissed. McMurray, P. J., and Ruffin, J, concur.
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JOHNSON, Judge.
Norman Cohen and Edward Hill, both licensed pilots, were killed instantly when a Cessna 172 airplane crashed during takeoff. Ellen Cohen, as surviving spouse and executrix under her late husband's will, brought this negligence action against Lowe Aviation Company, Inc. seeking damages for the wrongful death of her husband. She alleged that Lowe negligently failed to maintain the plane rented to Norman Cohen, and that Lowe's employee, Edward Hill, was negligent in failing to provide adequate flight supervision resulting in Norman Cohen's death. After hearing eight days of evidence, a jury returned a verdict in favor of defendant Lowe which is appealed by Cohen in Case No. A96A0239.
Case No. A96A0239
1. In five separate enumerations of error, Cohen argues that the verdict is contrary to the evidence, justice, and equity, against the weight of the evidence, and contrary to the law as charged. She asserts the trial court erred in failing to direct a verdict in her favor and in denying her motion for new trial. Because the standard of review on appeal, the "any evidence" rule, is the same for all of these allegations, we will treat them together. "Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [plaintiff's] motion for new trial. . . will not be disturbed." (Citations and punctuation omitted.) Willis v. Brassell,
This Court recognizes the deleterious effects on society of any form of racial, religious, or ethnic bias. The presumption on the part of Cohen's counsel that this response was solicited solely as a means of telegraphing to the members of the jury that the decedent was Jewish and thereby influencing them to return a defense verdict is unsettling. Whether that was, in fact, the purpose of the question is for the conscience of defense counsel to examine. The absence of any objection to the question or the answer and the lack of any ruling by the trial court, however, leaves this Court with nothing to review.
Similarly, Cohen's assertion that a reference to a country club was a prejudicial reference to her husband's economic status was not properly preserved for appellate review.
However, we note that the argument is somewhat specious in light of evidence introduced by Cohen herself that her late husband had an annual salary of $126,000 and future earnings estimated to rise to $400,000 annually.
In a related enumeration of error, Cohen complains that defense counsel used regionalisms which were grossly improper and prejudicial to his client in order to align himself with the jury. Specifically she complains that counsel exhorted the jury, during closing argument, not to "send her counsel back to New York with a croker sack full of money" Such trial strategy is at a minimum impolite and arguably unprofessional. But even had the issue been properly preserved for our review, which it was not, we do not believe that it was so inflammatory as to have blinded the jury to the eight days of evidence which was otherwise competently presented.
3. We likewise find no merit in Cohen's final assertion that the trial court erred in failing to charge the jury that, because she proved that flight instruction was being provided at the time of the crash, the burden of proof shifted to Lowe to disprove flight instruction. Because contradictory evidence was introduced regarding whether Hill was providing flight instruction at the time of the crash, the burden did not shift and the trial court did not err in refusing to give the jury such an instruction.
Case No. A96A0240
Our affirmance of the jury's verdict in Case No. A96A0239 renders the errors enumerated in Lowe's cross-appeal moot. Accordingly, this appeal is dismissed.
Brown, Katz, Flatau & Hasty, Richard M. Katz, for appellant.
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