Brooks v. Williams

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; CLARK; EBERHARDT
• Citation: Brooks v. Williams, 127 Ga.App. 311, 193 S.E.2d 231 (Ga. App. 1972)
• Decision Date: 16 October 1972
• Docket Number: No. 47449,No. 3,47449,3
• Parties: Marie BROOKS v. Michael J. WILLIAMS

Page 231

193 S.E.2d 231

127 Ga.App. 311

Marie BROOKS v. Michael J. WILLIAMS.

No. 47449.

Court of Appeals of Georgia, Division No. 3.

Oct. 16, 1972.

Syllabus by the Court

1. An appeal from a judgment based on a jury verdict, reciting that a motion for new trial was made and overruled on a given date, is not rendered moot by an enumeration of error on a subsequent order of the trial court, entered between the date of the appeal and the date of filing of the enumeration of error, denying an extraordinary motion for reconsideration or new trial based on an irregularity in exhibiting papers to the jury which was not discovered until after the appeal was filed.

2. 'Since the evidence authorized the finding of the jury establishing the liability of the defendant, and the undisputed evidence showed actual damages to the plaintiff resulting from the injuries sustained, a verdict in favor of the plaintiff for less than the actual damages proved was grossly inadequate and contrary to law and the evidence, and the refusal to grant the plaintiff a new trial was error.' Tallent v. McKelvey, 105 Ga.App. 660, 125 S.E.2d 65.

Marie Brooks, the plaintiff-appellant, was injured in an automobile collision between two automobiles, she being a guest passenger in the car which was struck by that operated by the defendant. On the first trial she was awarded a verdict of $2,000 as to which she filed a motion for new trial on the ground of inadequacy and which motion was granted by the trial judge on the general grounds. The second trial resulted in a verdict for an identical amount. She again filed a motion for new trial on the same basis, which the trial judge overruled and which is the subject matter of this appeal. Subsequent to the order of denial her counsel filed a motion for reconsideration based entirely on his affidavit to the effect that the verdict in the first trial had been written on an inside sheet of one of the pleadings; that by agreement of counsel for both sides, the judge and the clerk, this pleading had been eliminated from the papers destined for the jury room; that nevertheless by some means unknown to any of the parties this pleading had in fact been given to the jury and had presumably influenced the verdict because not only was the second verdict written on the outside of the particular paper but, at an angle to it, appeared the words '(See Verdict Inside-Also).' Due to delay in discovering this fact, the motion, treated by the trial court as an extraordinary motion for new trial, was both filed and denied subsequent to the filing of the notice of appeal, and both judgments are enumerated as error.

Harris, Chance & McCracken, O. Torbitt Ivey, Jr., Augusta, for appellant.

Fulcher, Hagler, Harper & Reed, J. Walker Harper, Augusta, for appellee.

DEEN, Judge.

1. 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.

2. 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, 192 S.E.2d 383; Davis v. Camp Concrete Co., 122 Ga.App. 551, 117 S.E.2d 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 S.E.2d 65; McLendon v. Floyd, 59 Ga.App. 506, 1 S.E.2d 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 $5.00 per day for 136 days or $580. The jury might have reduced this figure, but not eliminated it all. In...