Trowell v. Weston

Banke, Judge. The plaintiffs appeal a judgment in their favor in a wrongful death action due to the alleged inadequacy of the damages awarded by the jury. The first of the two co-defendants was charged with negligently backing a truck onto the road in front of the automobile in which the decedent was riding. The second was charged with negligence in failing to perform his duty as a flagman to prevent such an occurrence. The latter was named as a co-defendant only after a previous co-defendant, originally alleged to have been the flagman, was released on motion for summary judgment. After the new co-defendant was added, he, too, was released on motion for summary judgment, based on a statute of limitation defense. The case was tried before a jury, and the plaintiffs were awarded $5,000. They contend on appeal that this verdict was inconsistent with uncontroverted evidence proving special damages of almost $12,000. They also contend that the new co-defendant was not entitled to invoke the statute of limitation because the amendment naming him as a defendant related back to the date the original suit was filed. Held: 1. The testimony established that the decedent suffered from a variety of pre-existing medical problems which contributed to his *573 death. "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 plaintiffs complaints were at least partially related to her physical condition prior to the collision.” McBowman v. Merry, 104 Ga. App. 454 (1) (122 SE2d 136) (1961), as cited in Byrom v. Felker, 137 Ga. App. 400, 402 (3) (224 SE2d 72) (1976). See also Pierson v. M. & M. Bus Co., 74 Ga. App. 537 (1) (40 SE2d 561) (1946); Calhoun v. Branan, 149 Ga. App. 160 (1) (253 SE2d 838) (1979). Submitted April 16, 1980 Decided May 9, 1980. George M. Saliba, Hugh B. McNatt, Bruce V. Durden, for appellants. Arthur K. Bolton, Attorney General, Anthony W. Moss, Assistant Attorney General, Robert W. Hayes, C. Saxby Chambliss, for appellees. 2. The remaining enumeration of error is deemed abandoned for failure to provide argument or citation of authority in support thereof. Rule 15 (c) (2); Code Ann. § 24-3615 (c) (2). Judgment affirmed. McMurray, P. J., and Smith, J., concur.