Court of Appeals of GeorgiaMar 11, 1991
199 Ga. App. 24 (Ga. Ct. App. 1991)
199 Ga. App. 24403 S.E.2d 881

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Action for damages. Gwinnett State Court. Before Judge Hoffman.

Charles A. Mullinax, for appellants.

Stephen L. Cotter, Swift, Currie, McGhee Hiers, Julie L. Ginden, for appellees.

Plaintiff/appellant Deborah Palo, individually and in her capacity as parent and next friend of Lisa Marie Palo, brought suit against defendants Dennis and Sue Meisenheimer to recover damages for injuries sustained by plaintiff's daughter when she was bitten by defendants' Rottweiler dog. The jury awarded plaintiff $4,804.96 for medical expenses in her individual capacity. The jury also found in favor of plaintiff as parent of Lisa Palo but awarded no damages for her daughter's pain and suffering. Plaintiff appeals the denial of her motion for new trial. We affirm.

1. Plaintiff contends the trial court erred in charging the jury on legal accident. Pretermitting whether the complained of charge was authorized under the facts of this case, we find no merit to this enumeration. "Since the jury returned a verdict for the [plaintiff, both individually and as next friend of her minor daughter], it is apparent that this charge was not applied. Therefore, any error that may have been committed was harmless. Stroud v. Woodruff, 183 Ga. App. 628 (3) ( 359 S.E.2d 680) (1987)." Gurly v. Hinson, 194 Ga. App. 673, 674 (5) ( 391 S.E.2d 483) (1990). See also Benson v. Tucker, 160 Ga. App. 217 (3) ( 286 S.E.2d 485) (1981).

2. Plaintiff next contends the trial court erred in charging on contributory and comparative negligence because no evidence was presented from which the jury could reasonably infer that Lisa Palo had been negligent. We disagree. As the trial court aptly noted "the two questions of fact which [authorize] a charge on that point of law [are] whether or not the child was negligent in failing to heed the instructions of the defendants with regard to not going outside where the dog was; and, secondly, the failure of the child to withdraw after the dog showed some consternation ... by growling. Those are questions for the jury to decide, not for the Court to decide as a matter of law. Whether or not that amounted to either contributory or comparative negligence is a question for the jury to decide." We agree this evidence was sufficient to authorize the charge given in this case. See Benson v. Tucker, supra at (1); see also Jackson v. Young, 125 Ga. App. 342 (2) ( 187 S.E.2d 564) (1972).

3. Lastly, plaintiff contends that the damages awarded her daughter were so inadequate as to justify the inference of gross mistake, undue bias and prejudice on the part of the jury. See OCGA § 51-12-12. "This enumeration of error is also without merit. Generally speaking, where `comparative negligence (is) involved under the pleadings and the evidence ..., a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.' Cox v. Nix, 87 Ga. App. 837, 839-840 ( 75 S.E.2d 331) (1953)." Stroud, supra at 630 (5). See also Benson v. Tucker, supra at (4); Murray v. Woods, 106 Ga. App. 267 (2) ( 126 S.E.2d 828) (1962).

Judgment affirmed. Beasley and Andrews, JJ., concur.