Merchants' & Miners' Transp. Co. v. Corcoran

• Decision Date: 04 August 1908
• Docket Number: 753.
• Citation: 62 S.E. 130,4 Ga.App. 654
• Parties: MERCHANTS' & MINERS' TRANSP. CO. v. CORCORAN.
• Court: Georgia Court of Appeals

62 S.E. 130

4 Ga.App. 654

MERCHANTS' & MINERS' TRANSP. CO. v. CORCORAN.

No. 753.

Court of Appeals of Georgia

August 4, 1908

Syllabus by the Court.

It is prima facie to be presumed that a trial judge has exercised his discretion when he grants or refuses a motion for new trial, and he who asserts to the contrary must plainly show the failure of the judge to exercise the legal discretion with which he is clothed. The judgment of a court upon a motion for new trial cannot be impeached by statements of the presiding judge, not contained in the order overruling or granting the motion. If the trial judge has really exercised his discretion upon a motion for new trial, the reasons which influence him in giving direction to the case are unimportant to the court of review.

(a) In no event can a reviewing court look beyond the order disposing of the motion for new trial, or the recitals in a bill of exceptions affirmatively showing that his discretion was not exercised, to inquire whether the judge has failed to exercise his discretion.

(b) Even when the judge gives expression orally to disapproval of a verdict and does not incorporate it in his final judgment it is not to be held that this indicated that there was not finality and exercise of discretion. It will be treated merely as indicating that the final decision was not reached without difficulty.

A second verdict, found with no evidence to sustain it, should be set aside as readily as a first; but a second verdict cannot be set aside, as a first verdict might be, merely because upon the second trial the judge may think that the preponderance of the evidence is in favor of the losing party.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, New Trial §§ 162-165.]

The evidence authorized the verdict, and, though the evidence were weak, the judge would not be authorized to grant a second new trial because his personal opinion as to the weight of the evidence differs from that of the jury, unless for errors of law a new trial should be granted.

Evidence of the incompetency of a servant as to a particular business requiring skill may be deduced from a circumstance disconnected with the cause of action, where the service to be performed is of the same nature or requires like skill as that from the absence of which it was claimed the plaintiff was injured.

The court may present a defense of the defendant most strongly by excluding from the consideration of the jury all liability under the plaintiff's claim of right of recovery as to that matter.

(a) In the absence of a written request, it is not error for the court, after giving general instructions upon the subject of the measure of damages, to omit to instruct them that they should take into consideration the plaintiff's diminishing capacity for labor, due to old age. If general instructions are given on the subject of the ascertainment of damages, more specific instructions, if desired, should be duly requested.

(b) The jury are presumed to be as cognizant of the common phenomena of human experience as the judge, and, if their attention is especially desired to be directed thereto, a timely written request should be made. It is not essential, in order to form an estimate of the value of the life of a deceased or to ascertain the diminished capacity of a plaintiff to earn money which has been caused by an injury, that the jury trying the case should have before them the standard mortality tables. Such tables may be a useful circumstance but are not conclusive.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 648.]

A verdict of a jury cannot be held to be excessive unless it be manifestly the result of prejudice or bias, or other corrupt motive.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3944-3947.]

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by Thomas R. Corcoran against the Merchants' & Miners' Transportation Company. Judgment for plaintiff, and defendant brings error. Affirmed.

O'Connor, O'Byrne & Hartridge and Lawton & Cunningham, for plaintiff in error.

Robt. L. Colding, for defendant in error.

RUSSELL J.

This case was heretofore brought to this court upon error assigned upon the award of a nonsuit, and it is reported in 1 Ga.App. 743, 57 S.E. 962. Upon the return of the case to the lower court it was again tried, and the trial resulted in a verdict for $12,250 in favor of the plaintiff. Exception is now taken to the judgment refusing a new trial, and it is further insisted in the bill of exceptions that the trial judge did not, in fact, exercise his discretion in passing upon the motion for a new trial.

1. We shall first determine what merit, if any, is in the contention that the discretion of the trial judge with reference to the grant of a new trial was not exercised. In the grant or refusal of a motion for new trial it is, of course, to be presumed prima facie that such discretion was exercised, and it devolves upon him who asserts to the contrary to show that there was a failure on the part of the trial judge to exercise that broad and yet legal discretion with which he is clothed. We do not think that the circumstances which are relied upon by the plaintiff in error are sufficient to rebut the general presumption, or can be properly considered by this court in the face of the judgment overruling the motion for new trial. It appears from the record that in open court, on August 20th, the court passed the following order: "After hearing argument upon the within motion for new trial, it is considered and ordered that said motion be, and the same is hereby, overruled. In open court, August 20, 1907. T. M. Norwood, Judge City Court Savannah." This judgment was a finality, so far as the motion for new trial is concerned. The power of the judge of the city court of Savannah, so far as that motion is concerned, was then exhausted, and the case was at an end. Any further rights of the parties depended upon a writ of error by proper bill of exceptions, unless the judge, upon the ground that the order had been inadvertently or improvidently signed, had seen proper to set it aside or modify it. The plaintiff in error seeks to show that the judge had not exercised his discretion, because upon the succeeding day he filed an opinion explaining the reasons for his previous judgment.

The opinion was as follows (after stating the case): "Decision of court on motion for new trial. I have not had time to reduce my opinion to writing, and, in fact, in the view I take of it there would be nothing to say that I think would require a written opinion. This case came up here two or three years ago and was tried by a jury, and the jury rendered a verdict. I think it was for $6,000. It came up again, and I was of the opinion that the plaintiff had no case-that is to say, not sufficient to submit to a jury-and I nonsuited the plaintiff. He took the case to the Court of Appeals, and the court said I was in error; that there was enough to go to a jury. It was then submitted to another jury, and that jury found a verdict for the plaintiff. It was found upon about the same testimony that was submitted when I nonsuited the case. A motion is made for a new trial, but the case stands on about the same footing that it did before, and, in the view I take of it, the duty of this court is this: The law in the case is about the same, that is to say, on this last trial, as it was before when it went to the Court of Appeals. The facts are about the same, and I think that I should allow the Court of Appeals to review the whole case again. They reviewed it once on motion for nonsuit. Now they can review it as a case completed, and decide whether the court here was in error, or the jury was in error, or both. My opinion is therefore that it is better to overrule the motion for a new trial without any reference to what I think about the case. I have nonsuited it once, and then let this court of revision, whichever counsel sees fit to go before, say whether I am right or wrong. This August 21, 1907. T. M. Norwood, Judge City Court of Savannah."

If the judgment overruling the motion for new trial was passed in open court and was not a finality, so far as the city court of Savannah is concerned, it does not appear from the record whether the opinion in which the judge explained the reasons why he exercised his discretion as he did was delivered in term time or in vacation-whether the city court was still in session or had adjourned. If the term of court had ended without an order continuing the hearing of the motion until vacation, the judge would be without jurisdiction or authority to pass any order, and, in the absence of any evidence upon that subject, this court cannot consider the subsequent order which we have quoted above. Beyond that however, we are satisfied that it would never do to hold that the solemn judgment of a court can be impeached by the oral statements of the presiding judge in which he may give utterance to the views which influenced him, sometimes for the satisfaction and sometimes to the dissatisfaction of the counsel in the case, even though these remarks be stenographically reported, and the judge afterwards consents to verify them by his signature. The reviewing court is not concerned with the extrajudicial reasons which impelled the judge to decide. The only question is: Did the judge decide and thereby exercise his discretion, which is nothing more or less than the exercise of his right to legally determine between two or more courses of action? If he exercises his right of choice after full consideration, the judicial discretion has been exercised, whether it has been exercised wisely or not. This point was expressly ruled in City...