Roberts v. Aderhold

¶1Presiding Judge, dissenting.

¶2Because I believe the verdict of $0 for plaintiffs Aderhold and Hillman was legally a verdict for defendant Roberts and the grant of Aderhold’s motion for new trial was an abuse of discretion, I must respectfully dissent.

¶3The majority acknowledges that “[gjenerally, a zero damages verdict does result in a verdict for defendant.” Electronic Data Systems Corp. v. Heinemann, 268 Ga. 755, 758 (6) (493 SE2d 132) (1997). See also, e.g., Multimedia Technologies v. Wilding, 262 Ga. App. 576, 578 (1) (586 SE2d 74) (2003); Gielow v. Strickland, 185 Ga. App. 85, 87 (4) (363 SE2d 278) (1987). The majority then, however, based on Heinemann, supra;Moore v. TCI Cablevision &c., 235 Ga. App. 796, 798 (1) (510 SE2d 96) (1998); and Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504 (353 SE2d 50) (1987), attempts to force this case into the narrow exceptions to this rule represented by these three cases, which are not applicable here.

¶4In Heinemann, supra, the jury did not return a general damages verdict as the jury in this case did, but answered special interrogatories indicating defendants had misappropriated and used trade secrets, but did not assess any damages against them. The Supreme Court found that, in that particular situation, a verdict in defendants’ favor was not demanded and a new trial should be granted.

¶5Moore, supra, involved guest passengers of O’Neal injured in a collision with a truck driven by McLeod, TCI’s employee. No preexisting medical conditions which would have diminished the Moores’ damages were shown, nor did the fact that they may not have been wearing seat belts diminish their recovery as a matter of law. Id. at 799 (2). This Court concluded that

[ujnder the particular facts of this case, this leaves the Moores, as guest passengers, in the legal situation that their injuries and damages resulted from only one of three possibilities: Either their injuries resulted solely from the negligence of O’Neal, or solely from the negligence of McLeod, or from the combined negligence of both these drivers in causing this collision. The only way to correct this situation is to *650grant a new trial on the general ground, and it was error to fail to do so.

¶6Id.

¶7There, however, unlike the present situation, both of the parties who could possibly have been responsible for the damages had been sued. Here, the mother of the child was not named by Aderhold as a defendant. Therefore, this jury could have concluded that, although Aderhold was not negligent, the negligence of Hillman,31 who at that time was not his wife, exceeded that of Roberts and was the supervening proximate cause of his damages. Humphreys v. Kipfmiller, 237 Ga. App. 572 (1) (515 SE2d 878) (1999); see Reid v. Midwest Transp., 270 Ga. App. 557, 562 (3) (607 SE2d 170) (2004). In Humphreys, supra, Humphreys was a passenger in Paulson’s car, traveling on a through street. Defendant Kipfmiller was traveling on a side street controlled by a stop sign at the intersection with the through street. Kipfmiller, having first stopped at the stop sign, looked twice for oncoming traffic and turned left onto the through street, into Paulson’s car’s path. Humphreys sued only Kipfmiller who argued that Paulson’s speed was the sole proximate cause of the collision. A defense verdict was returned and this Court affirmed the denial of Humphreys’s motions for new trial and j.n.o.v., finding that the jury had three options: (1) concluding that both drivers violated the law and the negligence of each was a contributing proximate cause of the collision; (2) Kipfmiller breached his duty under the law and was the sole proximate cause of the collision; or (3) Kipfmiller did not breach his duty and Paulson’s speed was the sole proximate cause of the collision. The verdict in this case for the plaintiffs but for $0 damages would be upheld by concluding that the jury found that (1) Roberts breached no duty to Hillman or Aderhold; (2) although Roberts may have breached a duty, that breach was not the proximate cause of the child’s death, but the acts or failures to act of Hillman were the sole proximate cause of the death;32 or (3) acts or failures to act of Dr. Williams alone or of Dr. Williams and Hillman combined were the proximate causes of the death.

¶8In Rucker, the jury was instructed to indicate on the verdict form as to each count a finding of liability in one blank space and, if liability were found, then to indicate in the damages space either “none” or “sum awarded.” Rather than do this, however, the jury found against *651plaintiff on Count 1, noting “none” as damages; found for the plaintiff on Count 2, but left blank the space for damages; and found for plaintiff on Count 3, awarding $10 nominal damages, but again leaving blank the space for punitive damages. Id. at 505. The jury indicated that it did not intend to award no damages on Counts 2 and 3, but was confused as to the damages issue. The trial court nonetheless made this verdict the judgment of the court. That judgment was properly found void because the jury indicated it intended to award some damages but was confused and the verdict was incomplete and uncertain.

¶9In this case, no such uncertainty exists. Instead, as in Palmer v. Barnes, 193 Ga. App. 105 (387 SE2d 44) (1989), in a verdict for the plaintiff, there was a handwritten entry of “$0” which is a definite sum as damages. This Court upheld the verdict, finding that the jury could have concluded that the plaintiff had not sustained any compensable damages as the proximate result of the collision at issue.

¶10The majority also appears to have disregarded the rules for our review of verdicts and the grant of motions for new trial on the basis of claimed impropriety in the verdict and judgment.

“ ‘The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous ... and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)’ (Cit.)” West Ga. Pulpwood v. Stephens, 128 Ga. App. 864, 870 (198 SE2d 420) (1973). See also Rucker v. Camden Tel. &c. Co., [supra].

¶11(Emphasis supplied.) Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 686 (2) (a) (382 SE2d 721) (1989). See also Wright v. Wilcox, 262 Ga. App. 659, 660 (586 SE2d 364) (2003).

¶12Here, I believe that the most that could be said about the verdict returned, even assuming that it was not, as a matter of law, a defendant’s verdict, was that it might be vague, ambiguous, or contradictory. Here, following the return of the jury’s verdict, the jury members were polled and all affirmed that the verdict was, in fact, their own. Following that, plaintiffs’ counsel stated that he had no problems with the form of the verdict. Further asked if he had objection to the discharge of the jury, plaintiffs’ counsel also stated that “I think that’s appropriate. . . .”

¶13Under these circumstances,

the meaning and effect of the verdict must have been clear to the parties. If either party felt the verdict was vague and ambiguous, objection should have been made when the verdict was returned so that the jury could clarify its meaning. [Cits.] A verdict which is not as specific as it could be but which is capable of being reduced to judgment will not be set aside on appeal where no timely objection was made thereto. See [OCGA § 9-12-4]. Upon hearing an imprecise verdict rendered[,] a litigant should not sit silently by, hoping to gain a retrial by failing to object. [Cit.]

¶14Todhunter v. Price, 248 Ga. 411, 412-413 (1) (283 SE2d 864) (1981).

¶15By failing to object, Aderhold waived his right to challenge any inconsistency in the revised verdict. Todhunter, supra;Queen v. Lambert, 259 Ga. App. 385, 387 (1) (577 SE2d 72) (2003); First Union Nat. Bank v. Boykin, 216 Ga. App. 732, 735 (1) (455 SE2d 406) (1995).

¶16This argument was made by Roberts in opposition to Hillman’s and Aderhold’s motion for new trial.

¶17Therefore, I believe the grant of a new trial to Aderhold was an abuse of discretion.

¶18I am authorized to state that Judge Mikell joins in this dissent.