SOUTHWIND TRUCKING CO., INC. v. Harvey

101 S.E.2d 223, 96 Ga. App. 715, 1957 Ga. App. LEXIS 670

• Court: Court of Appeals of Georgia
• Decided: October 31, 1957
• Docket: 36879, 36880
• Status: Published

Opinions

Carlisle, J.

1. “By the terms of the Practice and Procedure Act, as amended, in the November-December Session of the General Assembly in 1953, it is a condition precedent to a motion for judgment notwithstanding the verdict that a. motion for a directed verdict must have been made and denied.” National Life & Accident Ins. Co. v. Goolsby, 91 Ga. App. 361, 363 (85 S. E. 2d 611). Ga. L. 1953, Nov.-Dec. Sess., pp. 440-444 (Code, Ann., § 110-113). Such a motion for a directed verdict must have been a legal motion made at a time when the party making it had a right to have a directed verdict. Durden v. Henderson, 212 Ga. 807 (1) (96 S. E. 2d 362).

2. A motion for a directed verdict may be made by the defendant only after the defendant has introduced some evidence. At the conclusion of the plaintiff’s evidence, the only appropriate judgment that the court can enter if the plaintiff has failed to make out his case is a judgment of nonsuit which allows the plaintiff, if he so desires, to bring his case again. Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441 (2) (10 S. E. 113); Eady v. Napier, Worsham & Co., 96 Ga. 736 (3) (22 S. E. 684); Hines v. McLellan, 117 Ga. 845 (1) (45 S. E. 279); Zipperer v. Mayor &c. of Savannah, 128 Ga. 135 (4) (57 S. E. 311); Equitable Mfg. Co. v. Davis, 130 Ga. 67 (4) (60 S. E. 262); Williams v. Perry, 136 Ga. 453 (2) (71 S. E. 886); Copeland v. Jordan, 147 Ga. 601 (2) (95 S. E. 13); Lewis v. Bowen, 208 Ga. 671 (68 S. E. 2d 900); Seymour v. Seymour, 210 Ga. 49 (1) (77 S. E. 2d 433). This rule is applicable whether or not the defendant afterward introduces any evidence (Durden v. Henderson, 212 Ga. 807 supra), the rationale being that before a verdict of a jury may be authorized there must be some evidence upon which to base it. Stotesbury v. Lanier, 42 Ga. 120; Burdell v. Blain, 66 Ga. 169; Doerflinger v. Nelson, 76 Ga. 101; Sprinz v. Frank, Heyman & Rhine, 81 Ga. 162 (1) (7 S. E. 177); Horne v. Rodgers, 103 Ga. 649 (3) (30 S. E. 562); Brown v. Conner, 141 Ga. 622 (81 S. E. 901); Crawford v. Irwin, 211 Ga. 241, 246 (4) (85 S. E. 2d 8); Hansard v. Pool, 39 Ga. App. 109 (147 S. E. 153); City of LaGrange v. Frosolona, 52 Ga. App. 232 (183 S. E. 99).

Decided October 31, 1957 Rehearing denied November 22, 1957.

3. Under the foregoing principles of law, where the only assignments of error made in the bills of exceptions before this court are on the ruling and judgment of the trial court overruling and denying the defendant’s motion for a directed verdict and on the judgment overruling and denying the motion for a judgment notwithstanding the verdict, and where it appears from the writ of error and from the record before this court that such latter motion was based on the motion for a directed verdict made at the conclusion of the plaintiff’s evidence, where no evidence was introduced by the defendant, such assignment of error presents no question for consideration by this court, and, accordingly, the judgment of the trial court must be affirmed. Durden v. Henderson, 212 Ga. 807, supra.

4. The contention of the plaintiff in error that the ruling in Youngblood v. Logan, 92 Ga. App. 107, 108 (2) (88 S. E. 2d 173) is controlling of the question as to whether a motion for a directed verdict may properly be made at the conclusion of the plaintiff’s evidence is without merit. The Youngblood case cited and relied on Thompson v. Etowah Iron Co., 91 Ga. 538 (2) (17 S. E. 663), but as pointed out in Seymour v. Seymour, 210 Ga. 49, supra, the ruling in that case is out of harmony with the older full bench decisions of Hanson v. Crawley, 51 Ga. 528, and Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441, supra, which must be followed by this court as controlling precedents.

Judgments affirmed.

Gardner, P. J., concurs. Townsend, J., concurs specially. A. Walton Nall, Nall, Sterne, Miller, Cadenhead & Dennis, Dennis Pierce, Pierce & Ranitz, Joseph 0. Saseen, Earl J. VanGerpen, for plaintiffs in error. John C. Wylly,, Lewis, Wylly & Javetz, contra.