Brooks v. Williams

193 S.E.2d 231, 127 Ga. App. 311, 1972 Ga. App. LEXIS 868

• Court: Court of Appeals of Georgia
• Decided: October 16, 1972
• Docket: 47449
• Status: Published

Opinions

Deen, Judge.

While it is elementary that after a notice of appeal has been filed to a judgment of the trial court the judge no longer has jurisdiction to reconsider and change it, this has no bearing on extraordinary motions filed under Code § 70-204. The court had jurisdiction to consider intrinsic evidence pertaining to the manner in which the trial was conducted which had come to light between the filing of the notice of appeal and the docketing of the case in this court, and the point is properly made through the medium of an enumeration of error on the denial of the extraordinary motion. Since no separate appeal need be taken in such a circumstance, and since the law of the case rule has been abolished (Code Ann. § 81A-160 (h)), the appellee’s position that the ruling on this second motion is "the law of the case” is without foundation. This court need not, however, attempt to decide whether allowing the jury to view the first verdict, which was set aside for inadequacy under evidence not presented to it or to us for comparison, was presumptively prejudicial, but will look to the evidence in the record before us to see whether it supports the verdict rendered, noting at the same time that if it has no basis of its own on which to rest, an inference of prejudice might well arise.

Damages are compensation for the injury sustained, and the burden of showing them is on the complainant; where it is duplicative, ambiguous and confusing, mere skimpiness unattended by facts realistically demanding a higher figure will not cause reversal. Taylor v. Roberson, 127 Ga. App. 23; Davis v. Camp Concrete Co., 122 Ga. App. 551 (177 SE2d 798); Code § 105-2015. On the other hand, the rule is without exception that on the general grounds of a motion for new trial, where the verdict is in an amount not supported by the evidence, and where there is no legal justification for reducing it as against a plaintiff who cannot have been guilty of comparative negligence or in some other manner contributed to her own misfortune, a new trial must be granted. Tallent v. McKelvey, 105 Ga. App. 660 (125 SE2d 65); McLendon v. Floyd, 59 Ga. App. 506 (1 SE2d 466). The jury found the defendant answerable in damages, a conclusion amply supported by the facts in the record. As to the amount, uncontested hospital and medical bills and ambulance service came to $1,320.42. Additionally, the evidence showed the following: The plaintiff had been working regularly and had just accepted a new job as waitress at a salary of $50 per week. She was in the hospital 27 days and an 8-week period followed during which she was required to use a walker to get around. Therefore, a very minimum of lost wages must be figured at $600. She additionally lost three teeth, and even if the testimony that it would cost $500 to replace them is hearsay, it is unlikely that this could be done for the $79.58 remaining to make up the $2,000. In addition, during the time she was incapacitated (as well as a sister and brother-in-law with whom she lived) other relatives had to care for the infant; the wife of another brother quit her job to perform this service and it was the plaintiff’s testimony that she was charged $5 per day for 136 days or $580. The jury might have reduced this figure, but not eliminated it all. In addition the evidence showed that the plaintiff suffered a broken back, broken pelvis, cracked cheek bone and widespread lacerations; that she had much actual pain and suffering and under expert opinion testimony sustained a 10% permanent back impairment. Under these circumstances, the verdict was as a matter of law inadequate compensation for the damage inflicted.

The trial court erred in overruling the motion for new trial on the general grounds.

Judgment reversed.

Clark, J., concurs. Eberhardt, P. J., concurs specially.