Smith v. Telecable of Columbus, Inc.

Court of Appeals of Georgia

Smith v. Telecable of Columbus, Inc.

232 S.E.2d 100, 140 Ga. App. 755, 1976 Ga. App. LEXIS 1623

CourtCourt of Appeals of Georgia

DecidedNovember 10, 1976

Docket52459

StatusPublished

Cited by14 cases

This text of 232 S.E.2d 100 (Smith v. Telecable of Columbus, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. Telecable of Columbus, Inc., 232 S.E.2d 100, 140 Ga. App. 755, 1976 Ga. App. LEXIS 1623 (Ga. Ct. App. 1976).

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Opinions

Stolz, Judge.

This appeal arises from an action for personal injuries sustained by the plaintiff when an overhead cable, which was owned, installed, and maintained by the defendant, broke. The cable, which was strung across a public street, was snapped by a passing truck. It then struck the plaintiff and wrapped around her body in the fashion of a whip.

At the first trial of the case, judgment was entered for the plaintiff in the sum of $27,500. The defendant moved for a new trial on the general grounds, and subsequently amended its motion with the addition of a special ground urging as error the court’s charge to the jury. The trial judge found the general grounds of the motion for new trial to be without merit, but granted a new trial on the special ground asserted in the amendment to the motion for new trial. At the second trial, judgment was based on a verdict for plaintiff in the sum of $17,000. The plaintiff appeals, alleging as error the trial court’s grant of a new trial on the special grounds after the original $27,500 judgment. Held:

While we agree with the plaintiff that the trial judge [756]*756erroneously granted the defendant’s motion for new trial on the special ground related to the charge, we are without authority to review the ruling.

"As this is the first grant of a new trial, the main bill of exceptions must be affirmed unless it appears that the law and facts required the verdict which has been rendered in the case. Civil Code § 5585. This is true notwithstanding the new trial was granted upon a single ground and that involved a question of law only. Johnson v. Railroad Co., 102 Ga. 577; Railway Company v. Higgins, Ibid. 586. It may be now considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle & Sons v. Brunswick & W. R. Co., 107 Ga. 367, 368 (1) (33 SE 471) (1898).

In Ga. L. 1959, pp. 353, 354, the General Assembly sought to amend Code § 6-1608 so as to provide for appellate review of the grant of motions for new trial on special grounds, as in this case. The Supreme Court held that the statute was a nullity, as it attempted to amend "Code of Georgia Annotated,” rather than the official Code. CTC Finance Corp. v. Holden, 221 Ga. 809 (147 SE2d 427) (1966).

Prior to the Supreme Court’s decision in CTC Finance Corp. v. Holden, supra, this court held that the first grant of a new trial, not on the discretionary (general) grounds, was reviewable by this court pursuant to Ga. L. 1959, pp. 353,354. See Rice v. Matthews, 104 Ga. App. 593, 594 (1) (122 SE2d 175) (1961). Subsequent to the Supreme Court’s decision in Holden, supra, this court, in an unfortunate series of decisions, adhered to its decision in Rice v. Matthews, supra. See Southern States, Inc. v. Thomason, 128 Ga. App. 667 (1) (197 SE2d 429) [757]*757(1973); Whitehead v. Dillard, 129 Ga. App. 5 (198 SE2d 376) (1973); Durrett v. Farrar, 130 Ga. App. 298, 302 (4) (203 SE2d 265) (1973); Speer v. Gemco Elevator Co., 134 Ga. App. 360, 362 (214 SE2d 425) (1975); Jarrett v. Parker, 135 Ga. App. 195, 196 (1) (217 SE2d 337) (1975); Darby v. The Commercial Bank, 135 Ga. App. 462 (1) (218 SE2d 252) (1975). Without a statutory base, these decisions must yield to the decision of the Supreme Court in Weinkle & Sons v. Brunswick & W. R. Co., 107 Ga. 367, supra, and to the extent that they conflict therewith they are overruled. We are thus constrained to hold that "this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle & Sons v. Brunswick & W. R. Co., supra, p. 368. If the rule is to be otherwise, the change must be accomplished by the Supreme Court or by Act of the General Assembly.

Argued July 13, 1976 Decided November 10, 1976 Rehearing denied December 15, 1976 L. B. Kent, for appellant. Edward Szczepanski, for appellee.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Clark, Webb, Marshall, McMurray and Smith, JJ., concur. Deen, P. J., concurs specially.

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Stolz, Judge.

This appeal arises from an action for personal injuries sustained by the plaintiff when an overhead cable, which was owned, installed, and maintained by the defendant, broke. The cable, which was strung across a public street, was snapped by a passing truck. It then struck the plaintiff and wrapped around her body in the fashion of a whip.

At the first trial of the case, judgment was entered for the plaintiff in the sum of $27,500. The defendant moved for a new trial on the general grounds, and subsequently amended its motion with the addition of a special ground urging as error the court’s charge to the jury. The trial judge found the general grounds of the motion for new trial to be without merit, but granted a new trial on the special ground asserted in the amendment to the motion for new trial. At the second trial, judgment was based on a verdict for plaintiff in the sum of $17,000. The plaintiff appeals, alleging as error the trial court’s grant of a new trial on the special grounds after the original $27,500 judgment. Held:

While we agree with the plaintiff that the trial judge [756]*756erroneously granted the defendant’s motion for new trial on the special ground related to the charge, we are without authority to review the ruling.

"As this is the first grant of a new trial, the main bill of exceptions must be affirmed unless it appears that the law and facts required the verdict which has been rendered in the case. Civil Code § 5585. This is true notwithstanding the new trial was granted upon a single ground and that involved a question of law only. Johnson v. Railroad Co., 102 Ga. 577; Railway Company v. Higgins, Ibid. 586. It may be now considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle & Sons v. Brunswick & W. R. Co., 107 Ga. 367, 368 (1) (33 SE 471) (1898).

In Ga. L. 1959, pp. 353, 354, the General Assembly sought to amend Code § 6-1608 so as to provide for appellate review of the grant of motions for new trial on special grounds, as in this case. The Supreme Court held that the statute was a nullity, as it attempted to amend "Code of Georgia Annotated,” rather than the official Code. CTC Finance Corp. v. Holden, 221 Ga. 809 (147 SE2d 427) (1966).

Prior to the Supreme Court’s decision in CTC Finance Corp. v. Holden, supra, this court held that the first grant of a new trial, not on the discretionary (general) grounds, was reviewable by this court pursuant to Ga. L. 1959, pp. 353,354. See Rice v. Matthews, 104 Ga. App. 593, 594 (1) (122 SE2d 175) (1961). Subsequent to the Supreme Court’s decision in Holden, supra, this court, in an unfortunate series of decisions, adhered to its decision in Rice v. Matthews, supra. See Southern States, Inc. v. Thomason, 128 Ga. App. 667 (1) (197 SE2d 429) [757]*757(1973); Whitehead v. Dillard, 129 Ga. App. 5 (198 SE2d 376) (1973); Durrett v. Farrar, 130 Ga. App. 298, 302 (4) (203 SE2d 265) (1973); Speer v. Gemco Elevator Co., 134 Ga. App. 360, 362 (214 SE2d 425) (1975); Jarrett v. Parker, 135 Ga. App. 195, 196 (1) (217 SE2d 337) (1975); Darby v. The Commercial Bank, 135 Ga. App. 462 (1) (218 SE2d 252) (1975). Without a statutory base, these decisions must yield to the decision of the Supreme Court in Weinkle & Sons v. Brunswick & W. R. Co., 107 Ga. 367, supra, and to the extent that they conflict therewith they are overruled. We are thus constrained to hold that "this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Weinkle & Sons v. Brunswick & W. R. Co., supra, p. 368. If the rule is to be otherwise, the change must be accomplished by the Supreme Court or by Act of the General Assembly.

Argued July 13, 1976 Decided November 10, 1976 Rehearing denied December 15, 1976 L. B. Kent, for appellant. Edward Szczepanski, for appellee.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Clark, Webb, Marshall, McMurray and Smith, JJ., concur. Deen, P. J., concurs specially.

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232 S.E.2d 100, 140 Ga. App. 755, 1976 Ga. App. LEXIS 1623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-telecable-of-columbus-inc-gactapp-1976.

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