Dean v. Worley Et Al., 206 Ga. App. 341, 425 S.E.2d 895 (1992)
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Judgments affirmed. Beasley and Andrews, JJ., concur.
Summary
Judgments affirmed. Beasley and Andrews, JJ., concur.
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Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Jill D. Levy, for appellant (case no. A92A1518).Robert F. Oliver, for appellant (case no. A92A1517).
The original complaint arose as a result of an automobile accident involving appellant/plaintiff Homer Turpin, appellee/defendant Nancy Worley, and co-defendant Albert Milford. Worley claimed her vehicle struck Turpin's vehicle after Milford's car pulled out in front of her requiring her to brake and causing her car to swerve into the other lane. Appellant appeals the judgment of the trial court awarding him pain and suffering in the amount of $100 and $4,157.77 property damage. Co-defendant Milford was awarded a directed verdict at the close of plaintiff's case. Appellee Worley and her daughter also had filed a third-party complaint against co-defendant Milford claiming he caused the accident, and that action was settled in favor of appellee's daughter in the amount of $7,000.
Case No. A92A1517. Main Claim
1. Appellant/plaintiff asserts the verdict and judgment were contrary to law and the evidence, as medical expenses were proven in excess of $3,000. At trial appellant failed to prove medical expenses with that degree of certainty required by Lester v. S. J. Alexander, Inc.,
The evidence in this case did not require as a matter of law that the jury award damages for pain and suffering in an amount commensurate with appellant's unperfected medical expense claim. Appellant's primary complaint of injury was that of prolonged and debilitating headaches. Both of appellant's expert witnesses gave deposition testimony that their conclusions relating to appellant's pain would be strictly subjective. Dr. Vickery further testified: "As far as I could tell in my own diagnosis and treatment this was not a disabling problem." Dr. Gotay, although testifying that a condition like appellant's could be disabling, conceded that there is no test that can be performed to detect these headaches; "the headache being an expression of pain . . . it's totally subjective"; and a doctor has to go by what the patient tells him, as the pain cannot be actually gauged or seen. Dr. Gotay further testified that 90 percent of any medical evaluation is based on the credibility of the patient, and because these types of symptoms are mostly subjective, it is extremely difficult to evaluate and prove a "malingerer situation with headaches." It thus is readily apparent that the determination of the jury as to the credibility of appellant and the weight to be given his proof of pain and suffering would have substantial impact on the amount of damages to be awarded therefor in the case at bar. Assuming appellant had proven medical expenses relating to injury sustained in the collision in an amount of at least $3,000, " ' "[a] verdict for less than the amount of the plaintiff's proved medical expenses is not so inadequate as to require a new trial where there was testimony showing that the plaintiff's complaints were at least partially related to her physical condition prior to the collision." ' " Butler v. Anderson,
2. Appellant asserts the trial court erred in directing verdict in favor of co-defendant Milford at the conclusion of plaintiff's case. Although such a procedure is permissible (compare Chambers v. Williams Bros. Lumber Co.,
Pretermitting whether the trial court erred in granting directed verdict in favor of Milford is the question whether the issue has been waived by the conduct of appellant. We conclude it has. During presentation of his case, appellant/plaintiff elected not to call co-defendant Worley for purposes of cross-examination (see generally OCGA
Case No. A92A1518. Third-Party Claim
3. Cross-appellant/third-party defendant Dean, citing a specific page of the record in A92A1517, asserts the trial court erred in ruling that he did not stand in place of Canal after directing a verdict for Canal at the first trial. The cited page reveals no such ruling; neither does the equivalent page of the record in Court of Appeals Case No. 77583 ( Dean v. Worley) pertaining to Case No. A92A1518. Conversely, the transcript in Case No. 77583 reflects the trial court held cross-appellant was "entitled to the same defenses" as Canal.
4. Cross-appellant sought to argue the policy was "void on its face," due to fraud or misrepresentations in completing the insurance application. The trial court ruled this argument could not be made, although cross-appellant would be allowed to argue that fraud or misrepresentation adversely affected the Worleys' credibility.
Although the garage policy was issued to Nancy Worley d/b/a Mountain Motors, as named insured, the insurance application expressly disclosed both of the Worleys owned Mountain Motors and that Wayne Worley had five speeding violations. The record fails to establish that, under the attendant circumstances, any of the misrepresentations allegedly made on the application was material, that is, that the misrepresentations either would influence a prudent insurer in determining whether to accept the risk or to fix a different amount of premium in the event of such acceptance. See Sentry Indem. Co. v. Brady,
Additionally, the record shows cross-appellant argued, without objection, that a person "cannot insure something [a person] doesn't own. . . . [A person] can't insure your car. [A person] can't insure your business. [A person] doesn't own it. . . . The application said they both owned it. Well, if they both owned it, why aren't they both suing us. . . . Mr. Worley says . . . on paper, it belonged to Mrs. Worley. . . . On paper don't count. What counts is who owned the business." Cross-appellant further argued: "I simply have to depend on . . . y'all going in the jury room and just saying . . . that just doesn't make any sense. Folks don't own stuff they don't know about. And if they do, they don't deny it under oath." Thus, cross-appellant in essence informed the jury they should not enforce the insuranCe policy, because contrary to the statements on the application, Nancy Worley did not own the car or the business and you cannot insure what you do not own. Assuming error had occurred as enumerated, it would be harmless as cross-appellant in effect was allowed to make an argument similar to that which the trial court earlier prohibited. OCGA
5. The trial court awarded cross-appellee certain damages resulting from cross-appellant's negligent cancellation of the insurance policy; among these damages was $6,860 billed cross-appellee for legal representation in defending the suit brought by appellant Turpin. At issue is whether additional attorney fees should have been deducted from the $6,860 award, because such fees had been earned by cross-appellee's attorney in the contingency case brought by cross-appellee and her daughter against Milford.
It was not contested that a reasonable hourly charge by cross-appellee's attorney was $100. But, at trial, cross-appellant contested the validity of 25.3 hours of the 88.6 hours billed -- in essence requesting a deduction of $2,530 from the asserted cost of attorney fees. Although the trial court partially granted cross-appellant's request and allowed a $2,000 fee deduction, it declined to permit a deduction of attorney fees "for anything in connection with the child's case, because [it] consider[ed] that an entirely different case."
The posture of the record is not adequate to support a finding, as a matter of law, that a double recovery of damages in the form of overlapping attorney fees has been awarded. The question whether certain items in the litigation and settlement of the third-party complaint filed against third-party defendant Milford, and for which cross-appellee's attorney received one-third of the settlement as attorney fees, sufficiently related to the litigation in the case at bar so as to warrant deduction in order to preclude a double recovery of damages, in this instance, primarily involves a factual adjudication to be made by the trial court. We will not reverse such factual determinations unless clearly erroneous. Cannon v. Coweta County,
Further, the record reflects that in reaching its holding the trial court considered a document, purporting to reflect the hours expended as attorney fees in the case at bar, entitled "Amendment to Statement of Hours." Although the original "Statement of Hours Expended" appears in the record, the parties do not cite the place in the record where the amended statement of hours can be found ( Manderson, supra); and our examination of available records and transcripts does not reveal that the amended document has been forwarded for appellate review. The amended document was necessary for a meaningful review of the enumeration of error, and we will not further cull the record for this document or speculate as to its contents. As this necessary document is not available for appellate consideration, the ruling of the trial court also must be affirmed on this basis. Compare Nodvin v. West,
6. Cross-appellant asserts the trial court erred in failing to grant his motion for directed verdict.
A motion for directed verdict must state the specific grounds on which it is based, and a ground not asserted cannot thereafter be raised on appeal. Hercules Automotive v. Hayes,
Further, cross-appellant did not specify in either of his motions for directed verdict what fraudulent material representations were made in the insurance application or on what specific basis Nancy Worley was not a proper person to claim under the insurance policy. However, it can be inferred that, in each instance, the basis being asserted was that she was not the owner of Mountain Motors. The posture of the record would not demand a verdict in favor of cross-appellant as to any of these grounds. Moreover, Nancy Worley, testified, inter alia, that she was the owner of the trade name, Mountain Motors. "A trade name primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner." (Emphasis supplied.) Gordy v. Dunwody,
"When determining whether a trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict." Canal Ins. Co. v. Wilkes Supply Co.,
7. Cross-appellant asserts the trial court erred in denying his two motions for summary judgment. However, the record reveals that following denial of these motions the case was brought to trial, the jury returned a verdict that cross-appellant Dean was the agent of cross-appellee Worley, d/b/a Mountain Motors, and that the policy issued by Canal to said cross-appellee was cancelled as a result of the negligence of cross-appellant. The verdict was made the judgment of the court. Thereafter, the parties waived jury trial on the issue of damages and the trial court rendered judgment against cross-appellant Dean in the total amount of $12,185.77 plus other court costs of $129.
" '(W)here a motion for summary judgment is overruled and the case is tried, the appellate courts will review the sufficiency of the evidence to support the verdict as well as enumerations of alleged trial errors, but will not also review the denial of the motion for summary judgment.' " Hamrick v. Greenway,
8. Cross-appellee's motion for imposition of frivolous appeal penalties against cross-appellant is denied.
David C. Jones, Jr., for appellees.
1992
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This document cites
- Supreme Court of Georgia - CANNON v. COWETA COUNTY et al., 260 Ga. 56, 389 S.E.2.d 329 (1990)
- Supreme Court of Georgia - HAMRICK v. GREENWAY., 257 Ga. 287, 357 S.E.2.d 580
- Supreme Court of Georgia - RAY v. STINSON., 254 Ga. 375, 329 S.E.2.d 502 (1985)
- Supreme Court of Georgia - BOLDEN v. CARROLL., 239 Ga. 188, 236 S.E.2.d 270 (1977)
- Supreme Court of Georgia - GORDY v. DUNWODY et al., 209 Ga. 627, 74 S.E.2.d 886 (1953)
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