Glover v. Maddox, 37743

• Decision Date: 14 September 1959
• Docket Number: No. 37743,No. 1,37743,1
• Citation: 100 Ga.App. 262,111 S.E.2d 164
• Parties: Graham GLOVER v. James MADDOX et al
• Court: Georgia Court of Appeals

Page 164

111 S.E.2d 164

100 Ga.App. 262

Graham GLOVER v. James MADDOX et al.

No. 37743.

Court of Appeals of Georgia, Division No. 1.

Sept. 14, 1959.

Rehearing Denied Sept. 29, 1959.

Syllabus by the Court

1. An exception to the refusal to grant a nonsuit presents no question for decision where after verdict for the plaintiff the defendant moves for a new trial presenting the complaint that the verdict is contrary to the evidence and without evidence to support it.

2. A special ground of a motion for new trial which is not understandable within itself and which fails to point out in the brief of evidence the evidence may be found to make such ground understandable presents no question for decision.

3. A witness may explain why he believes his memory is correct.

4. Where counsel is permitted to continue questioning a witness on cross-examination without limitation, after colloquy between the court and counsel, it cannot be said that the right of cross-examination has been abridged.

5. When a prospective juror, who later serves in the case and participates in the verdict, is being examined under the provisions of the Act of 1951 (Ga.L.1951, pp. 214, 215; Code Ann. § 59-705), and upon being asked, fails to inform counsel for the loosing party that he has been previously represented by opposing counsel a new trial must be granted.

6. The evidence did not demand the verdict found by the jury.

James Maddox and J. D. Maddox, a partnership, doing business as Maddox and Maddox, attorneys, brought an action in the Superior Court of Floyd County against Graham Glover. On the first appearance of the case before this court in Glover v. Maddox, 98 Ga.App. 548, 106 S.E.2d 288, it was held that one count of the petition was subject to general demurrer and that the judgment of the trial court overruling the general demurrer to such count rendered further proceedings nugatory and the case was remanded to the trial court for a retrial of the issue presented by the remaining count of the petition not subject to general demurrer. The remaining count sought recovery upon an alleged implied contract between attorneys under which such attorneys were jointly representing clients on a contingent basis. On the second trial of the case the defendant, at the conclusion of the plaintiffs' evidence, moved for a nonsuit which motion was denied. The jury returned a verdict for the plaintiffs and the defendant's motion for new trial as amended was denied. It is to these judgments adverse to him that the defendant now excepts.

A. Cecil Palmour, Cook & Palmour, Summerville, for plaintiffs in error.

Fullbright & Duffey, Clower & Anderson, Rome, for defendant in error.

NICHOLS, Judge.

1. 'It is well settled in this State that 'An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently there-to the case is submitted to the jury, and after verdict being for the plaintiff a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.' Foremost Dairy Products, Inc. v. Sawyer, 185 Ga. 702, 716, 196 S.E. 436.' Brannen v. Bowen, 81 Ga.App. 430, 431, 59 S.E.2d 7, 8, and citations. See also Hanover Fire Ins. Co. v. Elrod, 91 Ga.App. 403, 85 S.E.2d 821, and Warwick Long Leaf Co. v. Zorn, 95 Ga.App. 344, 98 S.E.2d 62. Accordingly, in the present case where the defendant filed motion for new trial on the grounds that: '* * * Second. That the said verdict is contrary to the evidence in said case and without evidence to support it,' no question is presented for decision by the assignment of error on the refusal to grant the defendant's motion for a nonsuit.

2. The first special ground assigns error on the admission of certain evidence over the defendant's objection. James Maddox, one of the plaintiffs, was being examined on direct examination and was asked: 'Did that require some work on your part?' In reply to this question he testified: 'Yes, sir. Mr. Alec Harris and Mr. Gary Hamilton * * * Mr. John Maddox filed a very extensive brief in support of this petition [sic].' This ground of the amended motion for new trial is incomplete for it is not understandable within itself and the page in the brief of the evidence where the evidence necessary to a clear understanding of the ground may be found is not set forth. See Brewer v. Henson, 96 Ga.App. 501, 503, 100 S.E.2d 661, and Kirby v. Whitlock-Dobbs, Inc., 97 Ga.App. 159, 162, 102 S.E.2d 631. Accordingly, this ground cannot be considered.

3. Special ground 2 assigns error on the failure of the trial court to rule out the response of the plaintiff to a question directed to him on cross-examination by the defendant's counsel which response the defendant contends was harmful and prejudicial and injected into the case the issue of 'quantum meruit' which had previously been removed from the case by the decision of this court in the case of Glover v. Maddox, supra. The question asked and the answer given were as follows: 'Judge Maddox, can you say on that occasion you didn't have any agreement with Mr. Glover relative to the sharing of fees or relative to division of fees in the event a recovery would be effectuated from the county?' Answer: 'I definitely did not, and I definitely did not agree to represent or be associated with him on a contingent basis as to where I would get $5,000, because at that time he told me that the fees that were due were in excess of approximately $70,000; and I wouldn't make any such contract as that with Mr. Glover, realizing that Alec Harris and myself were going to have to do about ninetyfive percent of the work, which we did.'

It has long been established that a witness may explaint why his memory is correct. In the case of Scruggs v. Gibson, 40 Ga. 511, 517 it was held: 'We see no objection to Judge Gibson [a witness] stating, as evidence of the correctness of his memory, that he told his brother so and so just after the thing transpired. It is no evidence of what did transpire. That depends on the oath of the witness. This is but his reason for thinking his memory correct, and is nothing more than the frequent statement of witnesses that they are sure they remember correctly, because so and so.' In the present case ...