Goss Brothers Trucking v. Ashley

Judge Harold R. Banke,

dissenting.

I respectfully dissent because I cannot agree that the trial court manifestly abused its discretion in denying Goss’ motion for mistrial. See Ga. Power Co. v. Hinson, 179 Ga. App. 263, 270 (7) (346 SE2d 73) (1986). Appellate courts should not interfere with the exercise of discretion unless wrong or oppression has resulted from an abuse of its use. Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996).

Ashley sued Goss as a common carrier and instituted a direct action against Canal Insurance Company (“Canal”) under OCGA § 46-7-12 (e). The fact that liability insurance existed had to be obvious to the jury inasmuch as Canal was a named party defendant. As we have previously observed, “ ‘[a]ny juror who doesn’t know that there is liability insurance in [a case of a motor vehicle collision]. . . should probably be excused by virtue of the fact that he or she is an *358idiot.’ ” Smith v. Crump, 223 Ga. App. 52, 55 (1) (476 SE2d 817) (1996).

In this case, Randy Goss’ unobjected-to testimony made abundantly clear to the jury: (1) that Goss had purchased a liability policy from Canal, and (2) that the policy covered the company’s trucks and drivers. Compare Dubose, 222 Ga. App. at 100 (liability insurance improperly injected in trial). The only remaining uncertainty related to the amount of the applicable policy.

Then Ashley’s counsel improperly asked, “And that policy is a one million dollar policy?” This question was never answered. After Goss promptly objected, the trial recessed, and a discussion ensued. Ultimately, the trial court determined that a mistrial was not required and opted to provide curative instructions instead. After the court explained to the jury that Canal was a party defendant, it cautioned, “[i]n this particular type of case in which this truck was involved and due to the nature of the business of Goss Brothers Trucking Company, it is admissible [sic] to file a direct action against a liability insurance company naming it as a party defendant in the case. That is permitted. But the amount of insurance that is carried by Goss Brothers Trucking is completely irrelevant to this case, has nothing to do with it. And as I say, no answer has been given concerning that amount. You should completely disregard the question itself and you should not, in making your deliberations in this case, be influenced in any way by what you may speculate to be the amount of liability insurance coverage carried by Goss Brothers Trucking. That, again, as I say, has absolutely nothing to do with this case and you should disregard it.”

Improper injection of insurance evidence does not automatically require reversal. Getz Terminators &c. v. Towe, 193 Ga. App. 268, 271 (1) (387 SE2d 338) (1989). “ Tt is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial (reversal) should be granted.’ [Cit.]” (Emphasis in original.) Id. at 271 (1). Here, there was no prejudicial testimony because the trial court did not permit the improper question to be answered. In any event, an instruction to a jury to disregard evidence is tantamount to an exclusion. Locke v. Vonalt, 189 Ga. App. 783, 786 (3) (377 SE2d 696) (1989).

Notwithstanding the majority’s contention to the contrary, Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (272 SE2d 702) (1980), neither demands nor authorizes a different result. In Davalos, the trial court erroneously admitted evidence of the policy limits over objection. Id. Here, evidence of the policy limits was specifically excluded, and the jury was expressly admonished not to speculate as *359to that amount. The jury was further instructed that it was to consider such amount as irrelevant when deliberating. Where, as here, the error is remedied by curative instruction, no mistrial is required and the instructions were sufficient to purge any error which might have occurred. Locke, 189 Ga. App. at 786 (3).

Moreover, the record fails to show that the jury improperly considered the policy limits and that Goss was thereby prejudiced or oppressed. Ashley proved she had incurred $17,455.36 in medical expenses. She testified about her lost wages, impaired work ability, and current constant stabbing pain in her chest. Her treating physician of almost two years testified that he considered her injuries to be permanent and painful. He also described her physical limitations, her inability to work, her need for continuing medical treatment and her likely future pain and suffering. Her physician estimated that the therapy she needed for pain management would likely cost $45,000 to $50,000 or more. He testified that her monthly prescription bill was about $150. The amount of the judgment, $107,000, supports a reasonable inference that the jury based its verdict on the evidence of Ashley’s damages and adhered to the court’s cautionary instructions. See Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (appellant must show harm and error to prevail). Under these facts, no harm to Goss was shown.

Nor can I agree that the unanswered question about the policy limit injected Goss’ wealth into the case. The majority does not cite to a scintilla of evidence in the record which shows that Goss’ financial condition was disclosed to the jury. Even assuming that Goss had obtained a $1 million policy, such fact, even if true, would not prove that Goss’ business was lucrative, profitable, or flourishing, just that Goss was law-abiding and prudent by obtaining substantial liability insurance protection. Compare Adams v. Camp Harmony Assn., 190 Ga. App. 506, 507 (1) (379 SE2d 407) (1989) (impassioned remarks of defense counsel impermissibly prejudiced jurors by eliciting sympathy that camp would have to be shut down and that the future of “fine little boys” would be obliterated if plaintiffs prevailed).

I believe that the court’s carefully crafted curative instruction obviated the need for a mistrial. See Towe, 193 Ga. App. at 271 (1). To hold otherwise is to conclude that any question about insurance policy limits, even though not answered, automatically necessitates a mistrial. This is plainly not the law. Dubose, 222 Ga. App. at 100. To follow the majority’s mechanistic approach is to completely divest a trial court of its right to exercise discretion. Such an approach invites the possibility of abuse, where a savvy attorney who perceives the case is proceeding poorly could strategically elect to ask the forbidden question to trigger an automatic mistrial.

Having found no evidence of a manifest abuse of discretion in the *360trial court’s use of a proper and complete curative instruction, I must respectfully dissent. See id.

Decided August 21, 1997 Reconsideration denied September 4, 1997 McNatt, Greene & Thompson, Hugh B. McNatt, Richard S. Thompson, for appellants. Salter & Shook, Mitchell M. Shook, Susan S. Shook, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.