Gulick v. Mulcahy, 36432
| Decision Date | 24 January 1957 |
| Docket Number | 2,Nos. 1,No. 36432,36432,s. 1 |
| Citation | 97 S.E.2d 362,95 Ga.App. 158 |
| Parties | Russell GULICK v. Edward MULCAHY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The Act of 1947, Ga.L.1947, p. 298; Code Ann.Supp. § 70-301.1, does not dispense with the necessity of a brief of evidence in the present case where error is assigned on an excerpt from the charge.
Russell Gulick brought an action against Edward Mulcahy in which he sought to recover for property damage to his automobile as the result of an alleged collision between his automobile and the defendant's automobile. The defendant filed an answer and cross action in which he sought to recover for damage done to his automobile and in which he alleged that the plaintiff was negligent in certain respects and that such negligence proximately caused the damage to his automobile. On the trial, the jury returned a verdict for the defendant on his cross action, which verdict was made the judgment of the trial court. The plaintiff filed a motion for new trial on the usual general grounds which he later amended so as to include one special ground in which he excepted to an excerpt of the charge. The trial court denied the plaintiff's amended motion for new trial, and exception is made to this judgment.
A. W. Lyle, Ferdinand Buckley, Marshall, Greene & Neely, Jim Moore, Atlanta, for plaintiff in error.
E. Smythe Gambrell, James C. Hill, Gambrell, Harlan, Russell, Moye & Richardson, John W. Chambers, Atlanta, for defendant in error.
The one special ground of the amended motion for new trial assigns error on an excerpt from the charge. No brief of the evidence was filed in connection with the motion for new trial and the plaintiff contends that none is required under the Act of 1947, Ga.L.1947, p. 298, Code Ann.Supp. § 70-301.1, in view of the recital in the amended motion for new trial to the effect that the verdict for the defendant was not demanded.
The usual certificate of a trial judge approving as true all statements of fact contained in a special ground of a motion for new trial will be construed by this court as approving as true only such statements in the ground as are purely statements of fact, and not as approving other allegations therein, which, although stated as facts, should be construed as mere conclusions of the movant based on facts set forth in the ground. Miller Co. v. Gauntt, 93 Ga.App. 178, 180, 91 S.E.2d 104, and citations. In the present case the recital in the one ground of the amended motion for new trial to the effect that the evidence did not demand a verdict for the defendant must be construed as a contention of the movant and not as a statement of fact. In Willis v. Jones, 89 Ga.App. 824, 81 S.E.2d 517, relied on by the plaintiff in error, and examination of the original record discloses that in that case the trial judge, in a separate order, certified that it was his intention to certify as a statement of fact that the evidence was in conflict. Therefore, that case is distinguishable from the case here under consideration.
In the Willis case the trial court certified that the evidence was in conflict and would have authorized a verdict for either side. We think that such certification has no effect whatever on the power of the trial court or the appellate court to determine the primary consideration of whether error was committed. The statute specifically says that where a brief of evidence is necessary in order to determine a ground of a motion for new trial, such ground will not be passed upon in its absence.
Courts, however, are not authorized to reverse on error alone, no matter how flagrant it may be. Error, to be reversible, must be harmful to the complaining party. Error is presumed to be harmful, but it may be and frequently is shown by the brief of evidence in the case to have been harmless...
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...to it. Not only error but hurt must be shown in order to obtain a reversal of the judgment of the trial court (Gulick v. Mulcahy, 95 Ga.App. 158, 160, 97 S.E.2d 362), and, 'Ordinarily, error is presumed hurtful unless it appears to have had no effect upon the result of the trial.' Rogers v.......
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...381, 383(2), 157 S.E.2d 559 (1967); Bishop v. Peoples Loan & c. Corp., 101 Ga.App. 53, 58(8), 113 S.E.2d 161 (1960); Gulick v. Mulcahy, 95 Ga.App. 158, 97 S.E.2d 362 (1957). 5. (Citation and punctuation omitted.) 257 Ga. 736, 737(2), 363 S.E.2d 547 (1988). 6. (Citation omitted.) Roberts v. ......
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...demanded the verdict so rendered, an error in charging the jury or in failing to charge the jury would be harmless. Gulick v. Mulcahy, 95 Ga.App. 158, 97 S.E.2d 362; Scales v. Neal, 96 Ga.App. 168, 170(2), 99 S.E.2d 498. Consequently, in considering grounds of a motion for a new trial (exce......
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