author: Pope, Judge. Birdsong, Presiding Judge,

text:
    A91A0490.
    HARRIS v. THE STATE.
    (410 SE2d 123)
   Pope, Judge.

Defendant Kenneth Dewayne Harris pled guilty and was found guilty of theft by taking. The stolen property, a rental car, was taken by defendant from a parking lot where it had been parked by the lessee. The sentence imposed on July 26, 1990, provided for four years to serve 60 days in prison with the remainder on probation, and as one of the conditions of probation, restitution in an amount to be determined at a subsequent hearing. On August 29, 1990, restitution was ordered to be paid the lessee victim in the amount of $600. Although the amount of restitution had been in dispute, the lessee failed to appear at the hearing, apparently due to misinformation received from a receptionist in the District Attorney’s office, and the prosecutor and defendant through counsel stipulated to a restitution amount of $600. Apparently lessee was notified subsequently that she was being sued by the lessor for damages done to the stolen automobile. After being notified of the $600 restitution amount, lessee’s attorney filed a motion to modify the restitution order to provide for additional restitution in the amount of $2,623.99, which was the balance due on the amount being demanded of lessee by lessor. A second restitution hearing was held, and defendant posed timely objections to the requested increase in the amount of restitution. At this hearing the trial court expressed concern regarding the standing of a victim to intervene in a criminal proceeding in this manner and required the State to argue the lessee’s motion for additional restitution. On November 9, 1990, an order was signed, and filed on November 15, 1990, finding that lessor, Atlanta Rent-A-Car, Inc., has suffered a loss which is a result of the criminal act of the defendant, and is “entitled to damages in the nature of costs for lost rental of a vehicle and damage to the vehicle; the amount of damages is $2,296.30.” The trial court ordered defendant “liable for restitution in the amount of $2,296.30. Said amount ... to be paid in full during the probated portion of the sentence. . . .” (Emphasis supplied.)

Defendant appeals from the trial court’s order awarding restitution in the amount of $2,296.30, contending that “the trial court’s modification of [his] sentence to increase the restitution was invalid.” Held:

1. Defendant argues the trial court’s order is invalid because, inter alia, the attempted increase in the amount of restitution was ordered both after the term of court in which sentence initially was imposed and more than 60 days from the date sentence was imposed by the judge, in violation of OCGA § 17-10-1 (a). However, Article 1, Chapter 14, Title 17 of OCGA, specifically pertains to “Restitution and Distribution of Profits to Victims of Crimes.” Contained within Article 1 is OCGA § 17-14-12, which pertinently provides: “The ordering authority shall retain jurisdiction to modify a restitution order at any time before the expiration of the relief ordered.” (Emphasis supplied.) The limiting provisions of OCGA § 17-10-1 (a) are to be given application “except as otherwise provided by law.” Clearly, however, the legislature intended OCGA § 17-14-12 to be excepted from the time limitation in OCGA § 17-10-1. Compare England v. Newton, 238 Ga. 534, 535 (233 SE2d 787) (1977) and Logan v. Lee, 247 Ga. 608 (278 SE2d 1) (1981).

2. Defendant also argues the order is invalid because it increases his punishment after he had commenced serving his sentence. The State does not dispute that defendant had begun serving his sentence at the time the trial court entered its order increasing the amount of restitution to be paid the victims. It also is true, as defendant argues, that “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment..” Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413) (1971). The question then arises as to whether an increase in the amount of restitution, awarded as a condition of probation, is an increase in punishment as argued by defendant, or is but an increase in a non-punitive aspect of the probation portion of the sentence as argued by the State.

Contrary to defendant’s argument on appeal, restitution is not punitive in nature. Rather, the first and foremost purpose of restitution is to compensate or reimburse the victim for his loss, or insofar as it is possible, to return him to the position he enjoyed before the crime was committed against him. Indeed, Webster’s Third New Intl. Dictionary (3d ed. 1981) defines restitution as “an act of restoring or a condition of being restored: and also as “restoration of something to its rightful owner: the making good of or giving an equivalent for some injury. . . .” Consequently, restitution can be ordered paid to the victim to reimburse him for the loss of some physical thing, such as a stolen automobile; it can also be used in an attempt to help the victim recover from the crime as, for example, when a court orders a child or sexual abuser to pay for the victim’s psychological treatment in order to help the victim overcome the effects of the crime. See S. Res. 94, Ga. L. 1986, p. 1203; see also Ledford v. State, 189 Ga. App. 148 (375 SE2d 280) (1988).

Moreover, while restitution is not synonymous with civil damages, there are many similarities between restitution ordered to be paid by one convicted of a crime and damages awarded against a party in a civil trial. The restitution chapter provides that “[d]amages means all damages which a victim could recover against an offender in a civil action, . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). “ ‘Victim’ means any natural person or his personal representative or any firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an offender’s unlawful act.” OCGA § 17-14-2 (9). OCGA § 17-14-9 provides that “[t]he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” However, because the offender has already been punished for his crime, restitution may not include punitive damages. OCGA § 17-14-2 (2). Moreover, restitution and civil judgment are enforceable in the same manner — by execution. OCGA § 17-14-13. Thus, as is readily discerned from the statutory provision governing restitution, such an award is not punishment any more than are civil damages awarded to make whole a party who has incurred losses because of another party’s breach of a statutory, contractual or common law duty. As stated above, restitution is an economic recovery, a transfer of value from one who has caused injury or damages to one who suffered the same as a result. Restitution aims to restore the victim or victims to the condition existing before defendant’s criminal act, via a monetary expression of restoration. “One of the two primary goals of restitution is, as nearly as possible, to make the victim whole. OCGA §§ 17-14-1, 17-14-9, 17-14-10 (4).” Garrett v. State, 175 Ga. App. 400, 403 (2) (333 SE2d 432) (1985).

Based on the foregoing, we find the trial court had authority to modify the restitution order to include the lessor’s damages. The Code sections relating to restitution contemplate a hearing and findings on the amount of restitution due the victim, if any. Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980). When error in determining the amount of damages was discovered, the proper procedure for correcting the error was to reopen the issue for further evidence and a new finding on the amount of damages, including the lessor’s damages. Clearly, restitution could be ordered for both the lessor and the lessee of the automobile, as both were victims of the defendant’s acts in connection with his theft of the automobile. Since it does not appear from the evidence that the restitution ordered exceeded the damages suffered by the victims, the defendant has not shown that the trial court exceeded its authority. Instead, it implemented the stated policy of this State, which is “that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” Because the increase in the amount of restitution initially ordered in this case did not constitute an impermissible increase or enhancement of defendant’s punishment, the trial court’s order must be affirmed.

Judgment affirmed.

Banke, P. J., Carley, Beasley, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, P. J., and Birdsong, P. J., concur in part and dissent in part.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

The problems some opinions create frequently lead a more robust judicial existence than the good therein contained. I believe such is the effect of Division 2 of the majority opinion.

In addition to subjecting appellant to an increase in punishment for reasons hereinafter addressed in detail, the opinion of the majority raises inter alia the following legitimate concerns: (a) The precedent of the majority subjects this and other hapless defendants to genuine threat of repeated increases in the amount of adjudged restitution, years after he or she has been sentenced. In fact, under the precedent established by the majority, such increases can be ordered long after the expiration of any statute of limitation that would have pertained if the victim had elected to utilize the normal judicial avenue of initiation of civil litigation to recover “damages.” As the majority apparently would allow restitution to be increased as long as a probation period is in existence, such an increase could occur a decade or more after punishment was initially adjudged, and long after any evidence favorable to the defendant and relevant to the restitution issue has been lost. I cannot be a part of such a fundamentally unfair procedure, regardless of how appealing it may appear on initial consideration; and, (b) I perceive that henceforth victims, who belatedly learn of this procedural vehicle of open-ended restitution will be applying in substantial numbers to the trial courts to reopen restitution hearings in cases long ago adjudicated to award them reimbursement for their “damages.” Victims’ rights groups will view this procedure, and rightfully so, as now being available to reimburse all late discovered victims — regardless of the impact such procedure will have on an already overly burdened criminal justice system.

Additionally, I am compelled to consider that: (a) If restitution is not an inherent part of “punishment,” then what is it? The majority, protestations notwithstanding, apparently considers it to be some hybrid form of civil or quasi-civil reimbursement and economic recovery for “damages” done, and thus that it can be legally separated from the “punishment” imposed by the trial court in the sentencing process. If restitution is not an inherent part of the punishment adjudged during the sentencing process, what state and federal due process requirements must be met, during the imposition thereof, when a defendant declines to stipulate either that he was responsible for the damages done or as to the amount of “damages” for which reimbursement is claimed? Stated another way, is a defendant now entitled to some form of mini-trial within the criminal proceedings to determine his liability for restitution and the amount thereof? On the other hand, if no such procedure is required, and restitution is not an inherent part of the punishment adjudged during the sentencing process, can we now lay claim to a defendant’s property at any time during a probation period without due process (compare Ga. Const, of 1983, Art. I, Sec. I, Par. I); and, (b) As the majority appears to consider restitution to be similar and equivalent to a civil or quasi-civil procedure in nature, would a criminal defendant henceforth be entitled to demand a jury trial during the sentencing proceeding or subsequent restitution hearing, under our state constitution (Ga. Const, of 1983, Art. I, Sec. I, Par. XI), as to the issue of liability for restitution or as to the amount of restitution due and owing. Moreover, I believe the State, not the defendant, should bear the burden of insuring that a correct amount of restitution timely is adjudged. A defendant should not be penalized for the failure of the State to stipulate to the proper amount of restitution at the initial restitution hearing. This is but a partial list of the contents of the Pandora’s box open before us, which fortunately need not be resolved today.

1. Appellant argues the order of November 1990 is invalid because it increases his punishment after he had commenced serving his sentence. The State in its appellate brief states, “there is ... no dispute that appellant had begun serving his sentence in this case.” However, the State argues, inter alia, that “although restitution has been made a part of the criminal process, it is clearly not punitive in nature”; that the “non-punitive nature of restitution is analogous to that of child support” and should be treated similarly; and, that “modification of a sentence which occurs after service [of sentence] begins, but which does not enhance punishment, is permissible under the Fifth Amendment.”

(a) First it is noted that OCGA § 19-10-1 (j), formerly OCGA § 42-8-34 (d) relates solely to cases of abandonment, (Acker v. State, 184 Ga. App. 321 (361 SE2d 509)) and is inapplicable to the case at bar. (Note: Subsection (d) of OCGA § 42-8-34 was deleted, effective April 3, 1989 by Ga. L. 1989, p. 381, §§ 2 and 3 and added as OCGA § 19-10-1 (j) to Chapter 10 of Title 19 (Domestic Relations — Abandonment of Spouse or Child)). Further, the basic modification provisions of OCGA §§ 17-10-1 (a); 17-10-3 (b); 17-14-12; 42-8-34 (g); and 42-8-38 (c) on their face are not the “functional equivalent” of the provisions of OCGA § 19-10-1 (j) (4) (formerly OCGA § 42-8-34 (d) (4)). See Tillman v. State, 249 Ga. 792, 793 (294 SE2d 516).

(b) Hudson v. State, 248 Ga. 397 (283 SE2d 271) is distinguishable. Hudson, supra, involved modification of an unrevoked suspended sentence in an abandonment case to allow an increase in child support pursuant to Code Ann. § 27-2709 (d) (4) [currently OCGA § 19-10-1 (j) (4), formerly OCGA § 42-8-34 (d) (4)]. See subsection la, above. Further, “[although the payment of monthly child support was made a condition for the suspension of the sentence,” it was determined not to be part of the sentence, but was, in addition to a moral obligation, a statutory duty under Code Ann. § 74-105 (OCGA § 19-7-2). Id. at 398 (1) (a). Conversely, while restitution of victims is a “primary concern of the criminal justice system” (OCGA § 17-14-1), there exists no statutory authority imposing a duty to make restitution comparable to that found in child support legislation. Neither does there exist public policy regarding restitution comparable to that pertaining to the support of children who have been long recognized as “the wards of the court, the hope of the State, and the seed corn of the future.” Williams v. Crosby, 118 Ga. 296, 298 (45 SE 282).

Clearly, the trial judge in his discretion can decline to order any restitution in the criminal sentencing process and make a written finding to this effect. See generally OCGA §§ 17-14-3; 17-14-8 (a) (1); 17-14-10. Restitution, if awarded, also can be less than a victim’s damages (OCGA § 17-14-9), and does not bar any civil action against the offender (OCGA § 17-14-11). Thus, under the law and policy of this state and as recognized by our court in Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622), restitution was never even intended to be synonymous with civil damages.

Further, in Hudson, supra, the Supreme Court observed that defendant had not commenced to serve his sentence — it being an unrevoked suspended sentence — and thus was distinguishable from England v. Newton, 238 Ga. 534 (233 SE2d 787), which involved a probated sentence, and Entrekin v. State, 147 Ga. App. 724 (250 SE2d 177), where the suspended sentence had been revoked. In the case at bar, unlike Hudson, appellant’s sentence had commenced to run, a portion of the sentence was probated, and one of the conditions of the probation was restitution. Thus, we find the legal principles expressed in England and Entrekin more persuasive in this instance.

(c) It is a well-established rule that “once the defendant begins to serve his sentence it may not be increased.” England v. Newton, supra at 536, citing Inman v. State, 124 Ga. App. 190 (183 SE2d 413); accord Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451); Howell v. State, 160 Ga. App. 562 (287 SE2d 573); compare Entrekin v. State, supra, with Turnipseed v. State, 147 Ga. App. 735 (250 SE2d 186). Thus, “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment.” (Emphasis supplied.) Inman v. State, supra at 192 (1); accord England v. Newton, supra.

The question then arises as to whether an increase in the amount of restitution, even though a condition of probation, is an increase in punishment as argued by appellant, or is but an increase in a non-punitive aspect of the probation portion of the sentence as argued by the State. In Shelton v. State, 161 Ga. App. 524 (2) (289 SE2d 768), although we recognized the imposed fine and restitution were special conditions of probation, we nevertheless characterized them as “punishments.” This characterization is tacitly supported by restitution statutes. In apparent recognition of the punitive effect restitution can have, the legislature requires the courts in determining the nature and amount of restitution to be imposed, if any, to consider the present financial condition of the offender and his dependents, the probable future earning capacity of these persons, and the goal of rehabilitation to the offender. OCGA § 17-14-10. Moreover, although the legislature promulgated specific statutory authority for the increase of child support “to be paid as a term and condition of the suspended sentence” (OCGA § 19-10-1 (j) (4), formerly OCGA § 42-8-34 (d) (4)), it has not attempted to vest courts with similar statutory authority in regard to increases in restitution to be paid as a condition of a probated sentence. Accordingly, we conclude the trial court erred when it increased the amount of restitution after appellant had begun to serve his sentence.

2. The majority, however, concludes that the increase in the amount of restitution did not constitute an impermissible increase or enhancement of defendant’s punishment. I cannot agree with that view under the facts of this case. The victim lessee reported, in a victim impact statement, the loss of the following property allegedly left in the stolen car: a brief case (custom tapestry) ($450); a full length leather coat ($975); a crocodile purse ($400); a two-piece luggage set ($450); and a radar detector ($275). During the initial sentencing proceedings, the trial court, acknowledging “there is some dispute as to the amount of restitution,” elected to schedule a subsequent restitution hearing. At the restitution hearing, the State announced that the victim lessee had “not shown up” and conceded that the amount of claimed restitution “had increased significantly” since the initial police report. The State and appellant thereafter entered a stipulation, which was accepted by the court, that the amount of the victim’s loss was $600. On September 4, 1990, the trial court filed its order of restitution, signed August 29, 1990, ordering restitution in the amount of $600. On September 28, 1990, the victim lessee (who is not a party to this criminal action) filed a motion to modify the restitution order alleging that the lessor of the stolen vehicle had billed (and subsequently sued) the victim lessee for the cost of repairs of damages to the recovered stolen car. Interestingly, the motion does not assert that appellant and not the victim lessee damaged the car, although it does state the victim was in possession of the car for only four to six hours before it was stolen from the “nightclub parking lot.” At the subsequent hearing, the trial court, after questioning the victim lessee’s standing to intervene in the criminal case, ordered the State to argue the victim’s motion to modify the restitution order. After hearing the State’s argument, the trial court ruled that the restitution proceedings would be re-opened. At the re-opened proceedings, the victim lessee was not called as a witness; the only witness called was the claims administrator for the lessor rental car company who had not previously sought restitution from appellant during the criminal proceedings. The claims administrator testified as to the repair costs of the car, the amount of rental income lost, and the amount which the rental car company received from the victim lessee’s insurance company. He also testified that the car was held in the impound or towing lot for at least a week after it was recovered by the police before it was recovered by the lessor. Incidentally, no witness testified the vehicle was not damaged before it was stolen or that it was in the damaged condition testified to at the hearing at the time the police recovered it. The trial court ordered additional restitution payable to the victim (OCGA § 17-14-2 (9)) lessor rental car company in the amount of $2,296.30. In this case, the majority of the proceedings conducted has focused on the legality of ordering additional restitution, the disputed amount of restitution claimed, and apparently the question as to whom restitution should be paid. A criminal case must come to an orderly close at some point in the proceedings', yet, virtually, the entire trial process has been consumed by the conduct of proceedings attempting to resolve subordinate restitution issues. “Restitution serves [at least] two [distinct] purposes: (1) it reimburses the victim for his loss, and (2) it sanctions the defendant for his crime.” (Emphasis supplied.) Dorris v. State, 656 P2d 578, 584 (9) (CCA Alaska). Restitution has been “long available as a sanction.” People v. Hall-Wilson, 505 NE2d 584, 585 (CCA NY). A sanction is designed to secure enforcement of the law “by imposing a penalty for its violation or offering a reward for its observance.” (Emphasis supplied.) Black’s Law Dictionary (5th ed.) It is “a provision of a law enacting a penalty for disobedience or a reward for obedience.” Webster’s Encyclopedic Unabridged Dictionary of the English Language. A sanction also is “a mechanism of social control that punishes deviancy from . . . behavior existing in a society,” and “a restrictive measure used to punish a specific action or to prevent some future activity.” (Emphasis supplied.) Webster’s Third New Inti. Dictionary. Thus, as restitution also serves as a sanction of the criminal offender, when imposed it is inextricably linked to the punitive aspects of the offender’s sentence. Accordingly, this court properly characterized “restitution” as “punishment” in Shelton v. State, supra. Therefore, under the particular facts of this case, we conclude the trial court lacked authority to increase appellant’s sentence by ordering additional restitution after the original restitution hearing had been conducted, the original restitution order filed, and the accused, as appellant and the State both agree, had commenced serving the imposed sentence. England v. Newton, supra; Inman v. State, supra; State v. Bailey, 701 SW2d 632 (3) (CCA Tenn.); compare Entrekin, supra. The position taken by the majority could, in the long term, rend the fragile fabric of criminal trial system by diverting limited judicial resources from the primary issues of an offender’s guilt or innocence and from the adjudication of an appropriate punishment in the event of the offender’s conviction, and by focusing these scarce resources on the time-consuming task of judicially refereeing contested restitution claims again and again during the course of the criminal proceedings. In the interests of both justice and judicial economy, I cannot endorse such a procedure.

Decided July 16, 1991

Reconsideration denied July 31, 1991

John O. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Michael D. Thorpe, Assistant District Attorneys, for appellee.

3. It is also implicit in the holdings of my colleagues in the majority that under OCGA § 17-14-12 (Code Ann. § 27-3012), the trial court has the power to modify the restitution at any time while defendant is on probation. This position becomes apparent when it is noted that the final order of restitution was not issued in this case until November 9, 1990, a different term of the Superior Court of DeKalb County (OCGA § 15-6-3). However, this type of statute, while permitting a trial court to change or modify the terms of that portion of the sentence pertaining to restitution, does not authorize the trial court to increase the punishment imposed either in the same term or, as here, in another term of court, and after appellant has commenced serving his sentence. See England, supra at 536; Turnipseed, supra.

As recognized in Inman, supra at 192, it is considered a violation of the Fifth Amendment prohibition against double jeopardy for a court to increase the punishment once a person has entered upon the execution of his sentence. An increase in restitution is an increase of punishment, which would trigger the Fifth Amendment prohibition against double jeopardy when ordered after the accused has entered upon the execution of his sentence. State v. Bailey, supra; see England, supra; Shelton, supra. This court should not construe OCGA § 17-14-12 in such a manner as to authorize an unconstitutional act. See Mansfield v. Pannell, 261 Ga. 243, 245 (404 SE2d 104).

For the above reasons of law and conscience, although I concur in Division 1,1 am compelled to dissent as to Division 2.1 am authorized to state that Presiding Judge McMurray joins in this dissent.


source: Caselaw Access Project

author: Carley, Judge. Beasley, Judge,

license: Public Domain

text:
    A91A0549.
    CENTRAL OF GEORGIA RAILROAD COMPANY et al. v. MARKERT et al.
    (410 SE2d 437)
   Carley, Judge.

The relevant facts in this case are as follows: After their son was killed when his vehicle was struck at a railroad crossing, appelleeplaintiffs initiated the instant wrongful death action against appellant-defendants. Following a period of discovery, appellants moved for partial summary judgment as to certain allegations of their negligence. The trial court denied appellants’ motion, but certified its order for immediate review. Appellants applied to this court for an interlocutory appeal and the instant appeal results from the grant of their application.

1. Appellants’ motion was based, in part, on the ground of federal preemption. Assuming without deciding that federal preemption is an affirmative defense, appellants’ failure to have raised that defense in their answers was itself waived by appellees. Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (2a) (173 SE2d 723) (1970).

2. Appellees had alleged that appellants’ failure to have equipped the locomotive with certain safety and warning devices was actionable negligence. However, appellants showed that the locomotive had been equipped with such safety and warning devices as were required under the Federal Locomotive Boiler Inspection Act. The trial court’s denial of appellants’ motion for partial summary judgment as to the allegations that the locomotive had been negligently equipped is enumerated as error.

“The Supremacy Clause of the United States Constitution dictates that federal law preempts inconsistent state law. [Cit.] ‘Preemption may be either express or implied, and is “compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” [Cit.]’ [Cit.]” Poloney v. Tambrands, Inc., 260 Ga. 850-851 (1) (399 SE2d 208) (1991). “[T]he power delegated to the [Interstate Commerce] Commission [(Commission)] by the [Federal] Boiler Inspection Act as amended is a general one. It extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.” Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611 (47 SC 207, 71 LE 432) (1926). The federal enactment “was intended to occupy the field. The broad scope of the authority conferred upon the [C]ommission leads to that conclusion. Because the standard set by the [C]ommission must prevail, requirements by the states are precluded, however commendable or however different their purpose. [Cits.]” Napier v. Atlantic Coast Line R. Co., supra at 613.

It follows, therefore, that the trial court erred in failing to grant partial summary judgment in favor of appellants as to the allegation that the locomotive was negligently equipped. Appellants “complied as a matter of law with [their] duty to provide locomotive warning devices when [they] met the requirements of [the federal regulations].” Marshall v. Burlington Northern, 720 F2d 1149, 1153 (7) (9th Cir. 1983).

3. Appellants enumerate as error the trial court’s failure to grant partial summary judgment as to the allegation of negligence predicated upon operation of the train “at an excessive speed. . . .”

“In the exercise of ordinary care, the employees of [appellants] were under a duty to operate the train at a moderate and safe rate of speed.” Gay v. Sylvania Central R. Co., 79 Ga. App. 362, 367 (3) (53 SE2d 713) (1949). At least until enactment of the Federal Railroad Safety Act of 1970 (FRSA), 45 USC § 421 et seq., the determination of what constituted a moderate and safe rate of speed was for the trior of fact. See Atlantic Coast Line R. Co. v. Hansford, 85 Ga. App. 507, 510 (3) (69 SE2d 681) (1952). However, “[i]t is well established that Congress, through the pervasive federal regulation of railroads in the [FRSA], intended to establish nationally uniform railroad safety and preempt state regulation of railroads. [Cit.] The FRSA specifically controls the speed at which trains may operate by classifying sections of track and assigning to each classification a maximum speed limit. The track in question is classified as class four track and, according to federal regulations, the maximum train speed for class four track is 60 miles per hour. Based on the pervasive nature of federal regulation of the subject area[,] . . . train speed is expressly preempted by federal law. [Since the uncontroverted] evidence [in the instant case shows] that the train [never] exceeded this federal standard, any common law or statutory negligence claim based on the train’s speed is preempted by federal law. [Cit.]” Easterwood v. CSX Transp., 742 FSupp. 676, 678 (3) (N.D. Ga. 1990), aff’d 933 F2d 1548 (11th Cir. 1991). Thus, a state jury would not be authorized to find that a speed which was less than that authorized by the federal regulations was not a moderate and safe rate of speed.

We would note, however, that appellants’ employees “were also under a duty to keep a proper lookout ahead and to warn the public of the approach of the train to the crossing, and, if it was apparent that [appellees’ son] was approaching or about to use the crossing, to check the speed of the train or take whatever precautions were necessary in order to avoid injury to [him].” Gay v. Sylvania Central R. Co., supra at 367 (3). Nothing in the FRSA would serve to preempt appellees’ claim based upon a purported violation of this duty. See Florida East Coast R. Co. v. Griffin, 566 S2d 1321, 1324 (2-5) (Fla. App. 4 Dist. 1990). Thus, if the evidence shows that appellants’ employees failed to maintain a proper lookout ahead or to take any precautions after it was apparent to them that appellees’ son was about to cross the tracks, the fact that the train never exceeded the speed authorized by the federal regulation would not establish a defense to appellees’ recovery. “We reject the appellants’ contention that the [FRSA] has preempted consideration of negligent conduct of a railroad and its agents when faced with a dangerous condition or event, notwithstanding that the acts of negligence involve a failure to reduce speed below the maximum limit established by federal law. [Cits.]” Florida East Coast R. Co. v. Griffin, supra at 1324 (5).

4. With regard to the allegations of the negligent inadequacy of the warning devices at the crossing, appellants do not rely upon federal preemption. Instead, they urge that appellees have no viable claim under applicable state tort principles.

OCGA § 32-6-200 relates to the installation of protective devices at grade crossings on the state highway system, the county road systems, and the municipal street systems but, by its terms, not to the installation of protective devices at private crossings. However, this absence of private crossings from the ambit of OCGA § 32-6-200 merely shows that there is no statutory duty as to the installation of protective devices at such crossings and that railroads may not be held negligent per se as to the installation of protective devices at such crossings. It certainly does not establish that there is no common law duty as to the installation of protective devices at such crossings so that railroads may not be held liable for common law negligence with regard to the installation of protective devices at such crossings. “ ‘ “An act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring.” (Cit.)’ ” Southern R. Co. v. Ga. Kraft Co., 188 Ga. App. 623, 624 (5) (373 SE2d 774) (1988) (a whole court case specifically authorizing the giving of a charge to the jury “that it was to decide whether [the railroad] was negligent in failing to employ additional precautions at the crossing where the collision occurred.”) While “[n]on-compliance at [a private crossing] with the statutory requirements applicable to public roads established by law is not, as a matter of law, negligence per se[,] [i]t is generally for the jury to say whether under such circumstances the railroad company was negligent or not. [Cits.]” Comer v. Shaw, 98 Ga. 543, 544 (25 SE 733) (1896).

Appellants cite no authority for the proposition that they had no common law duty to provide warning devices because the crossing was private rather than public. It would appear that the status of the crossing as public or private is immaterial to the duty owed to those who had a right to use it. “It is generally for the jury to say whether under such circumstances the railroad company was negligent or not [at a private crossing]. [Cits.]” Comer v. Shaw, supra at 544. “With respect to persons rightfully using a private crossing, . . . the duty of the railroad company is similar to its duty as to users of public crossings, and as to them, it must exercise reasonable or ordinary care, commensurate with the danger of the particular situation.” 74 CJS 1308, Railroads, § 713. Accordingly, appellants would have no less of a common law duty with regard to a private crossing than they would have with regard to a public crossing.

Appellants urge that, even if they have a duty to provide warnings at private crossings, that duty was not breached in the instant case. However, the general rule in Georgia is that “[i]t is a question for the jury as to what signals or devices should be maintained at a railroad crossing. [Cits.]” Isom v. Schettino, 129 Ga. App. 73, 75 (1) (199 SE2d 89) (1973). Construing the evidence most favorably for appellees, the instant case is within rather than without this general rule. Accordingly, the trial court correctly denied appellants’ motion for partial summary judgment as to this allegation of negligence.

5. The trial court granted appellees’ motion to compel discovery and ordered appellants to answer an interrogatory relating to the employment of such equipment on the locomotive as would not otherwise be required under the Federal Locomotive Boiler Inspection Act. In Division 2, we have held that appellants’ failure to employ such equipment on its locomotive is not actionable negligence and that summary judgment was erroneously denied as to appellants’ liability under the negligent equipment theory. Accordingly, the interrogatory clearly addresses an irrelevant issue and that interrogatory has not otherwise been shown to be reasonably calculated to lead to the discovery of any admissible evidence. It follows, therefore, that the trial court erred in granting appellees’ motion to compel discovery as to the irrelevant interrogatory.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Beasley, J., concur specially.

Beasley, Judge,

concurring specially.

1.1 concur in the ruling in Division 1 but I am of the opinion that an explanation is in order. It is by not raising below the contention that defendants waived by delay the defense of federal preemption, that plaintiffs/appellees waived the point in this court. “Issues not raised in the court below may not be raised [here] for the first time as they present nothing to this court for decision.” Lester v. Groves, 162 Ga. App. 590, 591 (291 SE2d 785) (1982); Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581) (1990). The majority cites Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (2a) (173 SE2d 723) (1970), as authority concerning appellees’ waiver, but that case does not discernibly address this principle.

With respect to whether federal preemption is an affirmative defense which is governed by the procedural rules of OCGA § 9-11-8 (c), see Wright Assoc. v. Rieder, 247 Ga. 496, 500 (2) (277 SE2d 41) (1981), which distinguishes F. R. Civ. Proc. 8 (c) from what is now OCGA § 9-11-8 (c). If subsection (c) applied to this defense, that section might require its being alleged in the answer, or by motion for summary judgment “but only when the motion for summary judgment is the initial pleading tendered by defendant” (which is not the case here), or in the pretrial order that supersedes the pleadings. That is the ruling in Funding Systems Leasing Corp. v. Pugh, 530 F2d 91, 96 (9, 10) (5th Cir. 1976). But see Easterwood v. CSX Transp., 933 F2d 1548 (1) (11th Cir. 1991). It does not appear that this issue has been expressly resolved in Georgia.

2.1 concur in Division 4 but wish to point out that since there are statutory duties governing the railroad’s duties with respect to protective warning devices at public road crossings but not at private way crossings, I cannot agree that it is immaterial that the crossing was not of a public road but rather of a private dirt road leading in and out of a business.

OCGA §§ 32-6-200 to 32-6-202 cover such crossings on the state highway system, the county road systems, and the municipal street systems, specifying who may require and approve them, who shall bear their expense, and who shall maintain them. These provisions place no duty on a railroad to install or maintain protective devices at private crossings. This may be explained by the fact that these provisions are part of the Code chapter on the regulation of maintenance, use, etc., of public roads generally, which is part of Title 32 dealing with “Highways, Bridges, and Ferries.” However, the predecessor to OCGA § 32-6-190, which is the general section on the maintenance of grade crossings by railroads, had included also “private ways.” Code of 1933, § 94-503. See Atlantic Coast Line R. Co. v. Layne, 88 Ga. App. 674, 680 (77 SE2d 565) (1953); Atlantic Coast Line R. Co. v. Sweatman, 81 Ga. App. 269 (58 SE2d 553) (1950).

Chapter 8 of Title 46 regulates railroad companies. OCGA § 46-8-194 to 46-8-196 requires certain crossbuck signs at crossings of public highways. No mention is made of private ways. The evidence is that there were crossbuck signs at this crossing.

Since the duty of the railroad is not spelled out in the law with respect to its crossing of private ways, so that its breach would be negligence per se, the duty with respect to warning devices would involve the exercise of reasonable or ordinary care, as the majority states. That would be a jury question, raised by plaintiffs’ allegation in their response to defendants’ motion for summary judgment that “[t]he Defendant railroad failed to have active warnings at subject crossing to warn motorists or pedestrians of a train’s approach to the crossing.”

Decided July 16, 1991

Reconsideration denied July 31, 1991

Hall, Bloch, Garland & Meyer, F. Kennedy Hall, Steven J. Stewart, for appellants.

Burt & Burt, Hilliard P. Burt, for appellees.

I am authorized to state that Presiding Judge Banke joins in this special concurrence.

       Amendments to the Federal-Aid Highway Act have placed the obligation of regulating the safety of railroad crossings on the states. 23 USC §§ 101 and 130. Karl v. Burlington N. R., 880 F2d 68 (8th Cir. 1989); Carson v. Burlington N. R., #CV 89-0-513 (D.Neb. June 27, 1990) (unpublished).


author: Cooper, Judge. Birdsong, Presiding Judge,

text:
    A91A0567.
    CSX TRANSPORTATION, INC. v. LEVANT.
    (410 SE2d 299)
   Cooper, Judge.

This case arises out of an action for damages under the Federal Employer’s Liability Act (“FELA”). The case was tried before a jury, and the jury returned a general verdict in favor of plaintiff for one million dollars. Defendant, CSX Transportation, Inc., (“CSX”), appeals from the judgment entered on the jury verdict.

■ Plaintiff had worked as a switchman in a rail yard in Savannah, Georgia since 1972. His job required him to climb onto train cars and to do occasional lifting and pushing and pulling of objects of 100 pounds or more. In 1986, he was injured when one of the train cars on which he was riding derailed and came to a sudden stop. When plaintiff attempted to clear some of the train cars involved in the derailment, he experienced pain in his left shoulder, back and legs. He was taken to the hospital where he was treated and released. Plaintiff entered into a course of treatment with several doctors who prescribed medication for his pain. He was subsequently treated by an orthopedic surgeon who performed tests which revealed that plaintiff had a herniated disc. When plaintiff’s pain did not subside, he underwent surgery for the removal of his herniated disc.

1. Defendant’s first enumeration of error is that the verdict was excessive and that the trial court erred in denying CSX’s motion for a new trial on the issue of damages. The only damages recoverable in a FELA action are compensatory damages. A FELA plaintiff can recover special damages for past and future lost wages and medical expenses and general damages for pain and suffering. Central of Georgia R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365) (1990). Punitive damages are not recoverable. Id. “ ‘[T]he jury’s determination of the amount of damages to be awarded is otherwise inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)” [Cit.]’ ” CSX Transp. v. Darling, 189 Ga. App. 719 (1) (377 SE2d 217) (1988). Plaintiff established at trial that through the date of trial his lost wages totalled $46,342.97 and that his medical expenses totalled $11,694.79. Plaintiff also testified that although he has returned to work at a different job, he continues to lose approximately two to three days each month as a result of his injury and for which he is not compensated. Plaintiff also testified that because he still experiences pain, he is unable to work at his former job in the rail yard and is unsure how much longer he will be able to work for the railroad. Plaintiff stated that he is not allowed to take pain medication while at work, that he is afraid to make certain moves at work because of his pain, and that he is unable to do certain work around the house. Several employees of CSX testified that railroad work has become more physically demanding because of decreases in manpower. Those employees also testified that plaintiff moves with less ease, has difficulty throwing switches, and often has to have help from others in performing certain jobs. Plaintiff’s wife testified that plaintiff “is a different man”; that he is no longer able to play sports, keep up his garden or paint the house; that he is often irritable and depressed and has no patience with their children. Plaintiff’s doctor testified that plaintiff has a ten percent permanent partial impairment; that due to his injury, plaintiff will probably continue to experience some pain which will make it difficult for him to do the type of work that he normally does; that because of plaintiff’s injury, he is more vulnerable to injury in the future; and that he found plaintiff to be “under expressive” of the pain he was experiencing. “ ‘ “Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear ‘(exorbitant),’ ‘flagrantly outrageous,’ and ‘extravagant.’ ‘It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.’ It must carry its death warrant upon its face.” (Cits.)’ [Cit.]” CSX Transp. u. Darling, supra at 721. Given the nature of plaintiff’s injury (back), the type of work for which plaintiff is employed (physical), the fact that plaintiff has a permanent disability rating, will continue to have pain in the future, and is more vulnerable to injury in the future, we cannot conclude that the jury’s award of one million dollars “shocks the judicial conscience.” Although CSX relies on Central of Ga. R. Co. v. Swindle, supra, we find that case to be distinguishable. In Swindle, the plaintiff was a computer operator, rather than a physical laborer, who suffered a shoulder injury, but there was no permanent or occupational disability. There was no evidence that plaintiff would need further surgery, and plaintiff’s physicians testified that his neck and shoulder pain would diminish as plaintiff learned to avoid moving his arm in an overhead manner. As noted in Swindle, “in determining whether a trial court abuses its discretion in refusing to order a new trial on the issue of damages in an FELA case, ‘the appellate court must make its own “detailed appraisal of the evidence bearing on damages.” Grunenthal v. Long Island R. Co., 393 U. S. 156, 159 (89 SC 331, 333, 21 LE2d 309) (1968).’ [Cit.]” Central of Ga. R. Co. v. Swindle, supra at 686. Our “detailed appraisal of the evidence bearing on damages” does not lead us to the conclusion that the trial court abused its discretion in denying CSX’s motion for new trial on the issue of damages.

2. CSX also contends that the trial court erred in failing to exclude prejudicial comments made by plaintiff’s counsel during closing argument. The trial court granted CSX’s motion in limine to exclude any negative references about the railroad and directed plaintiff’s counsel not to make any derogatory remarks about CSX or counsel for CSX. During his closing remarks to the jury, plaintiff’s counsel made certain references to CSX’s trains running through towns with carloads of gas and suggested that the railroad did not employ enough people to maintain the tracks. Plaintiff’s counsel also made the following statement during his closing argument: “That’s the way they operate. They’re not going to put nobody to do — to keeping up these tracks or anything else as long as you people don’t come down here and halfway compensate somebody. If all you do is give them halfway compensation, and you don’t fully compensate them, you can bet they ain’t going to never keep it up.” We agree with CSX and find that plaintiff’s argument was improper in that it suggested to the jury that damages be awarded to punish the railroad. See Central of Georgia R. Co. v. Swindle, supra at 688, fn. 1 (Plaintiff’s counsel stated therein: “(W)e ask that when you’re deciding what to do, that you’re not so fair to the railroad that you encourage . . . their misplaced priorities. We ask that you not be so fair to the railroad that you encourage this kind of treatment of the employees.”) We have reviewed the entire record, including those instances during the trial where CSX alleges that plaintiffs attorney made prejudicial comments. While we agree that many of plaintiff’s attorney’s remarks were improper, we find that, considering those remarks in the context of the trial as a whole, the remarks did not require the trial court to declare a mistrial. We cannot conclude that under the factual circumstances presented in this case the improper argument and references made by plaintiff’s counsel “permeated the trial and resulted in the jury’s rendering a verdict based, at least in part, on punitive damages.” Swindle, supra at 687. In contrast to Swindle, we conclude the verdict in this case can be logically explained as having resulted from the damages suffered by plaintiff (see Division 1) and not from a punitive cause. CSX’s second enumeration of error is without merit.

3. In its third enumeration of error, CSX contends that the trial court erred in excluding expert testimony from a certified public accountant about present value and testimony about the railroad retirement taxes paid by plaintiff. CSX sought to have its expert witness explain how certain present sums of money would yield certain future amounts of money. The trial court refused to allow the testimony, finding that this method usurped the function of the jury, which was to make an award and then reduce it to present value. The trial court did not prohibit the witness from testifying about present value altogether, but prohibited him from presenting the evidence “backwards.” The trial court also found that the witness’ testimony was analogous to the kind of annuity testimony which was specifically disallowed in Gusky v. Candler Gen. Hosp., 192 Ga. App. 521 (3) (385 SE2d 698) (1989). (Expert testimony as to annuities which could be purchased with the settlement proceeds is irrelevant as it is antithetical to the requirement . . . that future pecuniary damages are to be reduced by the jury to the present value.) Although Gusky was not an FELA case, we find the principles espoused therein to be applicable to this case. If the evidence had been admitted, the jury could have confused their function, which is not to determine what a present sum of money will yield in the future, but to award a certain sum and reduce the award to present value. “ ‘Evidence which is relevant may be excluded because its probative worth or value is outweighed by its tendency to confuse the issues, or the jury.’ [Cit.]” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264 (4) (387 SE2d 593) (1989). We find no error with the trial judge’s exclusion of the evidence.

The trial court also refused to admit any evidence relating to the amount of railroad retirement taxes withheld from plaintiff’s income. CSX contends that it should have been allowed to show plaintiff’s net income as reduced by his railroad retirement taxes. It is clear that CSX sought to mitigate damages by having the jury consider plaintiff’s payment of railroad retirement taxes. “ ‘The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers. . . . The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer so they cannot be considered in mitigation of the damages caused by the employer.’ ” Eichel v. N. Y. Central R. Co., 375 U. S. 253, 254 (84 SC 316, 11 LE2d 307) (1963) citing New York, N. H. &c. R. Co. v. Leary, 204 F2d 461 (1st Cir. 1953). The taxes paid by plaintiff into the railroad retirement fund are to fund his future retirement and are paid directly to him upon his retirement. Since the railroad retirement taxes would ultimately be paid directly to plaintiff upon his retirement, we find no error with the trial court’s exclusion of this evidence or with the trial court’s refusal to instruct the jury that plaintiff’s net income means gross income minus all taxes including railroad retirement taxes.

4. CSX contends that the trial court erred in allowing plaintiff to call employees of the railroad for the purpose of cross-examination and in not permitting CSX to examine those witnesses during plaintiff’s case-in-chief. OCGA § 24-9-81 allows either party in a civil case to call for the purpose of cross-examination the opposite party or any agent of the opposite party. CSX argues that since the witnesses were either friends of plaintiff, co-workers, or fellow union members, the railroad was denied its constitutional right to a fair trial by not having the opportunity to examine those witnesses. We disagree. OCGA § 24-9-81 does not require the party calling the witness for cross-examination to establish that the witness is hostile. See Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (2) (346 SE2d 842) (1986). All of the witnesses called by plaintiff for cross-examination were employees of the railroad and “subject to all of the pressures and possible prejudices in favor of the defendant which that relationship would tend to engender.” Atlanta Joint Terminals v. Knight, 98 Ga. App. 482 (2) (106 SE2d 417) (1958). “Under the provisions of OCGA § 24-9-81 appellant had a right to cross-examine [the employees of the railroad] as [agents] of the opposite party.” Henderson v. Glen Oak, Inc., supra. Furthermore, it was within the trial court’s discretion whether to allow CSX to question the witnesses at the end of plaintiff’s cross-examination, or to require CSX to call the witnesses as part of its case. Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744 (1), fn. 5 (309 SE2d 617) (1983). Although the trial court did not permit CSX to examine the witnesses at the conclusion of plaintiff’s examination, the court gave CSX the opportunity to call the witnesses as part of its case. Therefore, the trial court did not deny CSX the opportunity to examine the witnesses, and we do not find that the trial court’s exercise of its discretion and application of OCGA § 24-9-81 denied CSX a fair trial.

5. In its final enumeration of error, CSX contends that the trial court erroneously instructed the jury to calculate any future lost earnings over plaintiff’s life expectancy while declining to instruct the jury that a person may not work all the years of his life. CSX argues that since a person may not work all of the years of his life, lost earnings must be calculated based on a person’s work-expectancy as opposed to his life expectancy. The trial court charged the jury as follows: “If you find that the Plaintiff’s earnings will be permanently reduced in this case or under the evidence in this case, then lost future earnings, like lost past earnings, will be determined on the basis of the earnings the Plaintiff will lose, and there must be some evidence before you as to the amount of such earnings. In doing this, you could take into consideration that old age generally reduces the capacity to labor and earn money. You may also take into consideration the proposition that the earning capacity of Plaintiff could have increased during some later periods of his life, if such is authorized by the evidence. In considering this question, you should also consider the life expectancy of the Plaintiff. And taking the factors I’ve just mentioned in consideration as to earning capacity and life expectancy, you should determine what his average annual loss of future earning would probably have been and apply them to his life expectancy.” “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.’ [Cit.]” Department of Transp. v. Hillside Motors, 192 Ga. App. 637 (3) (385 SE2d 746) (1989). After considering the court’s charge as a whole we find no error.

6. Prior to the hearing on CSX’s motion for new trial, plaintiff submitted affidavits from all but one of the jurors in this case stating in effect that they were not biased by any of plaintiff’s counsel’s remarks; that they did not attempt to punish the railroad with their verdict; and that they felt their verdict of one million dollars was reasonable compensation for plaintiff’s injury. The record does not reflect that CSX objected to the trial court’s consideration of the affidavits at the time of the motion for new trial. Nor did CSX enumerate as error the trial court’s consideration of the affidavits. “ ‘[I]t is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.’ [Cit.]” Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218 (1) (390 SE2d 79) (1990).

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Carley and Pope, JJ., concur. Sognier, C. J., Birdsong, P. J., Beasley and Andrews, JJ., dissent.

Birdsong, Presiding Judge,

dissenting.

As my colleagues in the majority would affirm this judgment, I am compelled to dissent.

The jury in this case returned a verdict in favor of plaintiff for one million dollars, although plaintiff at trial established lost wages through the date of trial of $46,342.97 and medical expenses of $11,694.79. Appellant also testified regarding the scope of pain he continues to suffer, his continued loss of approximately two to three days of work each month for which he is not compensated, and the effect of the injury on his ability to perform his former job in the rail yard and on his ability to enjoy the pleasures of life to the same extent as before injury.

1. “Damages recoverable in an FELA action are compensatory only. [Cit.] The FELA plaintiff can recover special damages for past and future lost wages and medical expenses, as well as general damages for pain and suffering. [Cits.] In arriving at its verdict, the jury should take into consideration the plaintiff’s occupational disability and its impairment on his earning power. [Cit.] However, punitive damages are not allowable. [Cit.] Federal courts have held that in determining whether a trial court abuses its discretion in refusing to order a new trial on the issue of damages in an FELA case, ‘the appellate court must make its own “detailed appraisal of the evidence bearing on damages.” [Cit.]’ [Cit.] The jury’s determination of the amount of damages to be awarded in an FELA case has been held to be ‘otherwise inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial” ’ ” Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365). Applying this precedent to the facts before it, the Supreme Court in Swindle, supra, concluded that the jury verdict in the case was a verdict that could only be “logically explained as having resulted from a punitive cause, which is an improper cause in FELA cases.” Id. Therefore, it was concluded that the jury impermissibly intended “at least a portion of the verdict to have the effect of punishing the defendant and influencing its conduct rather than compensating the plaintiff for his injuries.” Id.

In arriving at its determination in Swindle, the majority considered CSX Transp. v. Darling, 189 Ga. App. 719 (377 SE2d 217) and rejected it as controlling; notwithstanding the vigorous protest of Justice Benham in dissent who asserted “if the verdict in this case is wrong [which the majority found it was], then the verdict in Darling was wrong.” Id. at 689.

The verdict in Swindle (award of $875,000 where total special damages consisted of $32,218.82 in medical expenses and $27,090 in lost income; also appellant testified to his inability to enjoy life’s pleasures to the same degree as before injury) is similar but not as pronounced as the degree of disparity between amount of award and the established amount of special damages and lost wages to the verdict in the case sub judice. Nevertheless, the Supreme Court did not attempt to support its determination exclusively on this factor. Rather, the court in Swindle stated, “a review of the transcript shows a pervasive and persistent attempt on the part of the plaintiff to establish improper motive and anti-union sentiment on the part of the defendant railroad, ‘suggesting that damages be awarded ... for the purpose of punishing the defendant.’ Based upon our ‘detailed appraisal of the evidence bearing on damages,’ we can only conclude that this ‘improper cause’ permeated the trial and resulted in the jury’s rendering a verdict based, at least in part, on punitive damages.” Swindle, supra at 687. This conclusion was expressly stated to be “supported by the pejorative nature of plaintiff’s closing argument,” which the court excerpted for the benefit of lower court guidance. Id. at 687, n. 1.

At the outset, we note that during his opening statement plaintiff’s counsel informed the jury that he had worked for a railroad (Central and not Seaboard). Subsequently, as in Swindle, plaintiff’s counsel during closing argument made repeated, express or implicit, pejorative statements in the presence of the jury, as follows: “And bless his old heart, he’s got thirteen men to cover two hundred miles of track. Now, that ain’t my fault. That’s not my fault when they [the railroad] come running through these towns with these carloads of gas, and it rocking back and forth, because they got thirteen men to cover two hundred miles of track. Your skin’s on the line. And if you don’t think your skin’s valuable, you wait until you have to sit down at one of these tables, man, and sue them, and then they hand the file over to some lawyer, and say, ‘Here, Mr. Young, you go down there and beat them down just as hard as you can beat them down. . .• .’ We was talking about they give it to a lawyer to come down hear to beat it down. That’s the way they operate. They’re not going to put nobody to do to keeping up these tracks or anything else as long as you people don’t come down here and halfway compensate somebody. If all you do is give them halfway compensation, and you don’t fully compensate them, you can bet they ain’t going to never keep it up. . . . And I felt sorry for Mr. Tucker, because Mr. Tucker’s doing the best with what he can do, with what the railroad’s giving him. . . . And you know what he’s trying to do? Again they’ve given him this file and told him to come to the courthouse and get out of this case just as cheap as he can. But they really don’t care about [appellee¡plaintiff]. . . . And I thought it was — I almost puked. I mean I almost threw up on Ray Allison over there when that man stood up and said . . . [h]e’s working all out there. . . . [Appellee/plaintiff ] is one of the finest people I’ve ever come to this courthouse for, and if he don’t go out of here with a sackful of money today, it won’t be because I have not expended myself to show you what kind of injury this man’s got. ... I remember the time whenever I used to go to work at the railroad, I made $12.80 a day. . . . We have no healing remedies. And the fact that you give him a million dollars or thereabout — when you give him that kind of money, just say five years from today it’s gone to nothing, at least you’ve done what you could today. I don’t know what the next year’s going to bring, because, man, our society is living in such a . . . terrible time economically. . . . But whatever you do, do not let this company throw this man away. Don’t let them throw him away. [Appel lee Levant] is a good man. . . . He’s a friend of mine. I don’t mind calling [appellee] a friend because he is a friend. . . . But what I want you to do is you’re going to have a verdict form out with you, and I hope you’ll put that figure right there. . . . ‘We, the jury, find in favor of the plaintiff’ — or you can just say Lee Levant — ‘in the amount of $943,904.55, of which the amount of $11,694.79 is included for medical bills.’ ‘This’ — and I hope it’s today — ‘7th day of August, 1989. . . .’ Because it’ll be something that you’ll always be proud of. . . . [L]et your voice speak in unison, that we’re going to see that he gets his money, and we’re going to stand with the Lee Levants, that we stamp out the rest, those who would cause us to try to deviate because he’s a labor man. Stand firm for what’s right. . . .” (Emphasis supplied.)

Viewing the above excerpts it is apparent that in addition to arguing for legitimate damages, appellee’s counsel informed the jury that the railroad was maintaining its tracks with an inadequate number of people and would continue to do so unless the jury made them pay; that the railroad did not care about appellee; that the jury should do right by appellee whom counsel considered to be a good man and his friend; and, that the jury should stamp out those (the corporate appellant) who would try to have the jury not give appellee an award of adequate damages because appellee is a “labor man.” Inherent within appellee’s closing argument is the message that the big railroad needed to be punished for these transgressions. This is precisely the danger condemned in Swindle and which provided the primary support for the court’s conclusion therein. Compare the above excerpts with the excerpts of the closing argument in Swindle, supra at 687, n. 1.

The attempt of the majority to distinguish Swindle pales, in my view, when the text of appellee’s closing argument is compared with that in Swindle, and considering the relatively short deliberation time of the jury in this approximately week-long trial and their award of approximately $56,000 more than the figure specifically requested by appellant’s counsel when he suggested to the jury how to fill out the verdict form. Moreover, the punitive references contained in the closing argument in this case were exacerbated by appellee’s counsel’s claim, both in his opening statement and closing argument, that he had worked for a railroad and by his personal references of appellant as his friend. These statements by clear implication conveyed to the jury that counsel was in a preferred position to understand the operating philosophy of a railroad company and to assert counsel’s personal opinion of appellee’s character.

Although appellate courts should exercise great restraint before setting aside a damage award as excessive, when at least a portion thereof can only logically be explained as having resulted from a punitive award, it must be set aside. Swindle, supra at 687. Although “[t]he jury are the best doctors of doubt that we know” (Central R. Co. v. Ferguson & Melson, 63 Ga. 84, 85), they can be lulled, as here, into rendering an inaccurate diagnostic award when presented with misleading symptoms. It then becomes the duty of an appellate court to intervene with a correct judicial prescription. Accordingly, I would not affirm the million dollar judgment rendered in this case after a deliberation of approximately 17 minutes in duration.

2. In my opinion the trial court erred in declining to grant a motion for new trial on the grounds that improper and prejudicial statements about the railroad and its counsel throughout trial were calculated to lead to a verdict that, at least in part, was intended to punish the railroad.

In addition to raising the general grounds in its amended motion for new trial, appellants asserted that the trial court erred in overruling its motion for mistrial made after numerous improper and prejudicial remarks had been made by appellee’s counsel, and that the court erred in allowing appellee to argue over objection about trains with “carloads of gas” and by asking the jury to put themselves in the place of the plaintiff. See generally Doe v. Moss, 120 Ga. App. 762, 767 (172 SE2d 321).

At the beginning of trial, prior to the presentation of any evidence, appellant’s counsel requested the trial court to instruct appellee’s counsel not to make comments, statements or suggestions that the railroad and its counsel are “bad and evil people.” Using its inherent power to ensure the proper conduct of judicial proceedings, the court in effect granted a broad application of the motion in limine, and informed plaintiff’s counsel “not to make derogatory remarks” about the railroad or its counsel. (Emphasis supplied.)

A major purpose of filing a motion in limine is “to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit.” (Emphasis supplied.) Harley-Davidson &c. Co. v. Daniel, 244 Ga. 284, 285, n. 1 (260 SE2d 20). The order granting a motion in limine, “like a pretrial order, ‘controls the subsequent course of the action, unless modified at trial to prevent manifest injustice. . . . All the purposes of an objection have already been fulfilled by the proceedings on the motion in limine. . . . [A]nd the record has been perfected for appeal purposes. Therefore, we see no reason for another objection at trial in order to preserve the denial of the motion on appeal.” Id. at 286. In Division 1, above, numerous instances of improper and prejudicial statements by appellant are recounted, and that in one instance where appellant’s counsel objected, his objection was in effect overruled.

As the record does not reflect that the oral order granting the motion in limine was ever modified in the case at bar, appellant was not required to pose any additional objections regarding violations thereof, even when such violations occurred during closing argument of opposing counsel. See Harley-Davidson, supra at 286.

The trial court’s ruling notwithstanding, the record reflects the following comments inter alia made in the presence of the jury by appellee’s/plaintiff’s counsel: (a) during the course of objecting to repetitious or cumulative testimony and to the asserted badgering of a witness, implied that appellant’s counsel was dragging the trial out with “silly questions”; (b) asserted appellant’s counsel was knowingly engaging in “sneaky stuff”; (c) read a portion of a slip opinion in the presence of a jury, purporting to concern the issue of calling an agent of either party for purposes of cross-examination, which contained a holding that “[e]mployees of the defendant railroad company were found to be subject to all the pressures and possible prejudice in favor of the defendant employer if that relationship (unintelligible)” (emphasis supplied); (d) during the course of posing a sustained objection to a question asked of a local chairman representing switch-men stated, “If he [appellant’s counsel] wants to put me on the stand, I was a general chairman for ten years and can testify expertly about that matter, because I know both about the law and about where he’s at” (emphasis supplied); (e) during the course of arguing against an objection which was thereafter overruled stated, “That’s not my question at all, Judge. He [appellant’s counsel] must have been asleep”; (f) during the course of posing an objection that was overruled regarding referring a witness to his medical notes stated: “He didn’t want the jury to have the notes that he had, and he reads him only part of it, and we offered them all into the record” (emphasis supplied) (Note: Appellant’s subsequent request to the judge to instruct appellee’s counsel not to make speeches while objecting was overruled); (g) during the course of posing an objection that was overruled stated, “This is absolutely insane. . . . [A]nd this guy’s [appellant’s counsel] going to drag out secondary gain, and this kind of stuff which has no bearing on this thing” [Note: Appellant’s counsel again objected to the making of speeches during objections by appellee’s counsel]; (h) during the course of posing an objection stated, “now see this guy [appellant’s counsel] staggers all over the place, and suggests all kinds of things, and I object to it” [Note: At this point the trial court rebuked counsel and sent the jury out so that discussion could be held on the objection outside the jury’s presence]; (i) while cross-examining a railroad witness asked who a man dressed in “gray” was in the back of the room, and argued that he wanted to know who the man was because he worked with the witness (Note: After the jury left, appellant’s counsel requested the court to instruct appellee’s counsel “not to have comments in front of this jury about what he thinks,” and to instruct and reprimand him in front of the jury. At this point appellant’s counsel asserted that if appellee’s counsel’s conduct continued he would have to move for a mistrial). At this point, the trial court inquired as to what appellant’s counsel was complaining about, and appellant’s counsel stated that as the jury was leaving appellee’s counsel had said, “Bring them on. I sure do love those kind of witnesses. That’s some good witnesses for us. Bring them on.” Appellee’s counsel admitted he had said “Bring them on,” but asserted it was in the context of a conversation where “John” (his co-counsel) had said the witness had been good. Thereupon the trial judge instructed appellee’s counsel not to make “those editorial comments.” Appellant’s counsel reiterated that the remarks were prejudicing his client to which appellee’s counsel responded, “The jury was going out, man.” At this point appellant’s counsel made a motion for mistrial. Appellee’s counsel asserted that the jury could not have heard the remarks, but appellant’s co-counsel stated without contradiction in the record that: “They stopped. The jury stopped.” At the judge’s suggestion, appellant’s counsel stated for the record that, as the jury was being excused, appellee’s co-counsel made a comment to the effect: “Boy, that sure was a good witness for us.” Appellee’s counsel then “got up, clapped his hands, walked back, the jury was still in the room . . . [a]nd not only what he said but how he said it, and the voice — ‘Just bring them on boy. We just want some more of these kinds of witnesses.” Appellant’s counsel could not recall the exact words thereafter used, but stated “but the point is what he’s doing is belittling my client.” Thereafter neither appellee’s counsel or co-counsel took exception to the characterization of the incident as placed on the record by appellant’s counsel.

The trial court denied the motion, and upon the jury’s return cautioned them that what lawyers say is not evidence, that the case has been aggressively and hotly contested, and not to let things lawyers say in their presence affect the jury as their job is to decide the case based on the evidence presented. But compare, Knowles v. Dayries Rice Co., 10 Ga. App. 567 (1) (73 SE 856). Pretermitting the question of whether the trial court abused its discretion in failing to grant the mistrial motion, at this point in the trial, is that the continued improper comments of appellee’s counsel, as recited in Division 1, above, coupled with the comments herein discussed, are blatant and sufficient to raise a reasonable probability that appellant has been denied its right to a fair trial. Accordingly, I would also reverse this holding on this ground even though appellant did not renew his mistrial motion following closing argument. Where in unusual circumstances, such as in this case, it is apparent that a new trial is essential to the preservation of the right of a fair trial, this court will act to preserve fair trial rights. See Menningmann v. Independent Fire Ins. Co., 187 Ga. App. 118, 120 (369 SE2d 295); Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213, 218 (351 SE2d 650); compare Pelham &c. R. Co. v. Elliott, 11 Ga. App. 621 (5) (75 SE 1062); see also Foskey v. Foskey, 257 Ga. 736 (2) (363 SE2d 547).

Decided July 16, 1991

Reconsideration denied July 31, 1991

Hunter, MacLean, Exley & Dunn, Arnold C. Young, Wade W. Herring II, Alston & Bird, Jack H. Senterfitt, for appellant.

Billy E. Moore, Paul R. Bennett, John W. Jones, for appellee.

I respectfully dissent. I am authorized to state that Chief Judge Sognier joins in this dissent.


author: Birdsong, Presiding Judge. Sognier, Chief Judge, Cooper, Judge,

text:
    A91A0653.
    BARMORE et al. v. HIMEBAUGH.
    (410 SE2d 46)
   Birdsong, Presiding Judge.

Melissa Barmore and all other adult relatives of Jolinda Jane Rogers, an incapacitated adult, except appellee, appeal the superior court’s grant of summary judgment to appellee Jeffery Himebaugh, Rogers’ son, on the appeal of the probate court’s denial of their petition to remove Himebaugh as Rogers’ guardian. Although expressed in several enumerations of errors, appellants’ primary complaint is that the superior court erred by refusing to consider certain evidence, not presented in the probate court, because the superior court held that it could not consider the evidence as it concerned new issues. Held:

Although the superior court relied upon Williams v. Calloway, 171 Ga. App. 286 (319 SE2d 500) and Mathews v. Mathews, 136 Ga. App. 833 (222 SE2d 609), as authority that new issues may not be raised in the superior court, both Williams and Mathews predate the 1986 amendments to OCGA §§ 5-3-29 and 29-5-11 and our Supreme Court’s decision in Lee v. Wainwright, 256 Ga. 478 (350 SE2d 238).

Contrary to the holdings in Williams and Mathews, supra, Lee v. Wainwright holds that de novo appeals to the superior court are not limited to issues raised in the probate court. Lee states “[t]he purpose of this statute [OCGA § 5-3-29] is to provide the parties to an appeal from probate court a de novo hearing, and ‘all competent evidence’ may be introduced in the superior court regardless of whether it was submitted in the probate court. [Cit.]” Id. at 479. Therefore, under Lee all competent evidence must be admitted on de novo appeal to the superior court regardless of whether it concerned new issues. This rule was reiterated recently in Justice Hunt’s concurring opinion in Shockley v. Fayette County, 260 Ga. 489, 492, n. 1 (396 SE2d 883), “de novo investigations are not limited to issues presented in the lower tribunal. OCGA § 5-3-29.”

Moreover, OCGA § 29-5-11 (a) provides that “[t]he appeal shall, be in the same manner as other appeals from the probate court to the superior court but shall be heard as expeditiously as possible. The appeal shall be de novo unless the parties by agreement specifically limit the issues.”

The general procedure for de novo appeals to the superior court is set forth in OCGA § 5-3-29. This section provides that “[a]n appeal to the superior court ... in any other case where not otherwise provided by law, is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.”

Therefore, since all competent evidence may be considered in a de novo appeal to the superior court, it was error for the superior court to exclude any competent evidence relevant to the removal of Himebaugh as Rogers’ guardian. Lee v. Wainwright, supra. Accordingly, the grant of summary judgment to Himebaugh must be reversed. Our ruling on this issue renders moot the other errors enumerated.

Further, to the extent Williams and Mathews conflict with Lee, they are no longer valid precedent. Also, to the extent that Division 2 of Russell v. Flynn, 191 Ga. App. 196, 197 (381 SE2d 142), relies on Williams and Mathews and conflicts with Lee, it is no longer valid precedent.

Judgment reversed.

McMurray, P. J., Carley and Beasley, JJ., concur. Sognier, C. J., and Andrews, J., concur specially. Banke, P. J., Pope and Cooper, JJ., dissent.

Sognier, Chief Judge,

concurring specially.

I concur only in the judgment of the majority’s opinion. A review of Ga. L. 1986, p. 982 supports Judge Cooper’s position in his dissent that the 1986 amendments to OCGA §§ 29-5-11 and 5-3-29 effected no change in the law regarding de novo appeals from probate courts in non-jury trial cases to superior courts. Nothing in Lee v. Wainwright, 256 Ga. 478 (350 SE2d 238) (1986) or Shockley v. Fayette County, 260 Ga. 489, 492, n. 1 (396 SE2d 883) (1990) supports a conclusion that Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500) (1984) and Mathews v. Mathews, 136 Ga. App. 833, 836-838 (2) (222 SE2d 609) (1975), as modified by this court in Russell v. Flynn, 191 Ga. App. 196, 197-198 (2) (381 SE2d 142) (1989), have been overruled. Contrary to the majority’s position, I find Russell to be still valid law and to control the result here. Accordingly, since under Russell, appellants were not precluded in superior court by the holding in Williams and Mathews from raising in their de novo appeal all issues which could have been raised in the probate court whether or not actually raised therein, I agree that the superior court erred by refusing to consider appellants’ newly raised issue of appellee’s unfitness to serve as Rogers’ guardian as a ground for his removal.

I am authorized to state that Judge Andrews joins in this special concurrence.

Cooper, Judge,

dissenting.

I respectfully dissent, as I find that the superior court was correct in limiting the issues for consideration in the de novo proceeding in the superior court to only those issues raised before the probate court. Appellants maintained that the issue before both the probate court and the superior court was whether or not appellee should be removed as guardian and that in support of appellants’ position, several “evidentiary grounds” were alleged before the probate court which appellants also had the burden of proving in the de novo proceeding, e.g., appellee’s failure to inform the court as to the nature of the estate, his failure to monitor Rogers’ condition and provide adequate medical care, his refusal to provide Rogers with items needed for her care, his refusal to provide guidance and supervision of Rogers’ minor son and his refusal to account for his activities as guardian. Appellants argued that the superior court erroneously determined that these “evidentiary grounds” were in fact “issues” and that none other than these “issues” could be considered by the superior court in the de novo trial. In addition to the charges listed above, appellants alleged in their pleadings in the superior court that appellee’s criminal history rendered him unfit to serve as a guardian. My review of the record clearly reveals that appellants did not allege appellee’s unfitness to serve as a guardian as a ground for removal in the probate court. The superior court declined to consider this allegation because unfitness was not specifically raised as an issue in the probate court, even though appellee’s criminal history had been raised in the context of appellee’s ability to obtain a bond. Appellants contended that because OCGA § 29-2-45 sets forth grounds for removal and specifically lists fitness as such a ground and because appellee’s felony conviction was probative of that fact, consideration of appellee’s criminal history on the question of his fitness to serve as a guardian should not have been excluded. Appellants contended the superior court improperly restricted the consideration of relevant evidence in the de novo trial by viewing their contention regarding appellee’s criminal history as a separate “issue” which had to be raised in the court below, as opposed to viewing it as competent evidence of the ultimate issue, removal of appellee as guardian.

In support of its determination that new “issues” could not be raised in a de novo appeal, the court relied on Williams v. Calloway, 171 Ga. App. 286 (2) (319 SE2d 500) (1984), in which the superior court determined that the question of inheritance, raised for the first time in a de novo trial, was a new issue in a case involving the appointment of an administrator of an estate, and Mathews v. Mathews, 136 Ga. App. 833 (2) (222 SE2d 609) (1975), where the superior court similarly excluded, as a new issue, mismanagement of an estate in a case involving an accounting by an executrix. In my view, the superior court was correct in restricting its consideration to those issues raised before the probate court. “[T]he trial in the superior court is not a trial without limitation, but is rather ‘a new trial in which only the matter[s] presented to the court below can be relitigated.’ [Cit.]” Williams, supra at 288. The questions of appellee’s failure to inform the court as to the nature of the estate, his failure to monitor Rogers’ condition and provide adequate medical care, his refusal to provide Rogers with items needed for her care, his refusal to provide guidance and supervision of Rogers’ minor son and his refusal to account for his activities as guardian were litigated in probate court, as the court weighed evidence presented by the parties and made findings based on the evidence. However, the question of whether appellee’s criminal record made him unfit to serve as a guardian was not raised in the probate court proceeding; therefore, the superior court did not err in limiting its inquiry on that issue. Id. See Russell v. Flynn, 191 Ga. App. 196 (2) (381 SE2d 142) (1989).

I do not believe that our holdings in Williams, Mathews, and Russell are no longer valid precedent based on Lee v. Wainwright and the 1986 amendment to OCGA §§ 5-3-29 and 29-5-11.

OCGA § 29-5-11 (a) provides in pertinent part that appeals concerning guardianship “shall be in the same manner as other appeals from the probate court to the superior court but shall be heard as expeditiously as possible. The appeal shall be de novo unless the parties by agreement specifically limit the issues.” OCGA § 5-3-29 governs “other appeals from the probate court to the superior court.” That statute has been interpreted in Williams, supra, and Mathews, supra, as allowing all competent evidence relevant to the issues raised below to be admissible in appellate proceedings before the superior court.

The Georgia Supreme Court’s decision in Lee v. Wainwright, 256 Ga. 478 (350 SE2d 238) (1986), supra is not inconsistent with this court’s holdings in Williams and Mathews. In Lee, the issue raised before the probate court was whether the document propounded before that court was the last will and testament of the deceased. Lee, 256 Ga. at 479. The Supreme Court held that the subsequent will was competent evidence of whether the document before the court was truly the last will and testament of the deceased and that evidence should have been allowed. Id. That holding did not expand the issues in the case before the superior court.

Decided July 16, 1991

Reconsideration denied July 31, 1991

Joseph A. Griggs, Tyron C. Elliott, for appellants.

Whitmer & Law, James H. Whitmer, G. Hammond Law III, J. Richardson Brannon, for appellee.

Furthermore, the majority opinion interprets the language in OCGA § 29-5-11 (a) that “[t]he appeal shall be de novo unless the parties by agreement specifically limit the issues,” as providing a basis for its holding that issues not raised below may be litigated on appeal. That language should be read as allowing the parties to limit the issues to be raised on appeal from those issues previously raised below.

In sum, the issue of the guardian’s unfitness had not been raised before the probate court. Consequently, that issue and evidence pertaining to it could not be raised for the first time on appeal to the superior court.

I am authorized to state that Presiding Judge Banke and Judge Pope join in this dissent.

       Footnote 2 in Lee, supra at 479 does not stand for the proposition that this court’s interpretation of the language in OCGA § 5-3-29, as set forth in Mathews, supra, and Williams, supra, was altered by the 1986 amendment to that statute. Although in 1986 the language of that statute was changed to remove the term probate court specifically and the appeals process was modified to allow certain direct appeals to this court and the supreme court from probate cases, OCGA § 15-9-123, certain probate matters still remain appealable to the superior courts pursuant to OCGA § 5-3-29.