Hovsepian v. Brown, 36797

• Decision Date: 09 September 1957
• Docket Number: No. 36797,No. 1,36797,1
• Parties: J. S. HOVSEPIAN v. H. L. BROWN et al., Trustees
• Court: Georgia Court of Appeals

Page 603

100 S.E.2d 603

96 Ga.App. 440

J. S. HOVSEPIAN v. H. L. BROWN et al., Trustees.

No. 36797.

Court of Appeals of Georgia, Division No. 1.

Sept. 9, 1957.

Rehearing Denied Oct. 4, 1957.

Syllabus by the Court

In order for this court to be empowered to pass upon an assignment of error, where there has been a verdict and no motion for new trial, as in this case, the antecedent ruling complained of, under the terms of the Code, § 6-804, must have been one which necessarily controlled the verdict.

Joseph S. Hovsepian brought the present action to recover for injuries allegedly received when he fell down an unlighted clevator shaft. The defendants' answer admitted that the plaintiff was injured but denied the allegations of negligence. On the trial the defendants tendered an amendment to their answer in which another defense was alleged, and the plaintiff's objection to the allowance of such amendment was overruled. Thereafter the jury returned a verdict for the defendants, which verdict was made the judgment of the trial court. No motion for new trial was filed and the exception is to the allowance of the verdict against the plaintiff and to the allowance of the amendment to the defendants' answer.

Gilbert E. Johnson, Savannah, for plaintiff in error.

Bouhan, Lawrence, Williams & Levy, Savannah, for defendant in error.

NICHOLS, Judge.

'The Code, § 6-804, declares: 'In any case where the judgment, decree or verdict necessarily has been controlled by one or more rulings, orders, decisions, or charges of the court, and the losing party desires to except to such judgment, decree, or verdict, and to assign error on the ruling, order, decision, or charge of the court, it shall not be necessary to make a motion for new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the appellate court to clearly understand the ruling, order, decision, or charge complained of.' In Western & Atlantic R. Co. v. Callaway, 111 Ga. 889, 36 S.E. 967, this court said: 'When a party against whom a verdict has been rendered, without moving for a new trial, sues out a direct bill of exceptions, he must, in order to obtain a reversal of the judgment, show not only that error was committed, but also that the adverse verdict was a necessary result thereof.' 'In order that a reversal may be had where a case is brought to this court, not as a whole, or after a motion for new trial has been made and overruled, but by direct bill of exceptions, merely bringing up and assigning error on particular rulings, it must appear that 'the judgment, decree, or verdict has necessarily been controlled' --not possibly affected, but necessarily controlled--by such rulings.' Anderson v. Wyche, 126 Ga. 393, 397, 55 S.E. 19, 20. Mr. Justice Grice, speaking for the court in Federal Land Bank of Columbia v. United States Fidelity & Guaranty Co., 188 Ga. 138, 2 S.E.2d 916, 917, said: 'In order to come within the provision of the Code, § 6-804, the rulings on the ...