Realty Bond & Mortgage Co. v. Harley

• Decision Date: 23 January 1917
• Docket Number: 7644.
• Parties: REALTY BOND & MORTGAGE CO. v. HARLEY.
• Court: Georgia Court of Appeals

91 S.E. 254

19 Ga.App. 186

REALTY BOND & MORTGAGE CO. v. HARLEY.

No. 7644.

Court of Appeals of Georgia, Second Division

January 23, 1917

Syllabus by the Court.

The evidence authorized a finding for the plaintiff.

The question of amount of damage is one for the jury, and the court should not interfere unless there is something in the record or in the size of the verdict to indicate that the verdict was the result of prejudice or bias on the part of the jury.

The alleged newly discovered evidence is largely cumulative and impeaching, and is not sufficient to warrant the granting of a new trial.

"The motion of the defendant in error to assess damages for delay is denied. While there is no reason for the grant of a new trial, still the verdict is not so manifestly correct as to exclude a bona fide insistence on the part of the plaintiff in error that a new trial should be granted." Atlantic Coast Line R. Co. v. Locklear, 9 Ga.App. 344, 71 S.E. 683.

Error from City Court of Savannah; Davis Freeman, Judge.

Suit by Lloyd Harley, a minor, by his father and next friend, P. L Harley, against the Realty Bond & Mortgage Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wilson & Rogers, of Savannah, for plaintiff in error.

Twiggs & Gazan, of Savannah, for defendant in error.

BLOODWORTH J.

Lloyd Harley, a minor, by his father and next friend, P. L. Harley brought suit against the Realty Bond & Mortgage Company alleging, that said company was the owner of a certain house and lot in the city of Savannah; that P. L. Harley rented an upstairs apartment, and after renting discovered that "the premises were in a fearful state of disrepair," that window panes were broken out, and that the railing of the upstairs balcony had several palings or rails missing, so as to leave open spaces two or three feet wide in the banister; that his father notified the defendant of the condition of the premises, and of the railing in particular; that this notice was given several times, but the company failed and neglected to repair same; that Lloyd Harley, a child of tender years, went through the space in the window where the pane was missing, out upon the balcony, and fell through the space in the railing to the street below, striking upon his head and thereby depressing the skull and affecting the brain; that the child was knocked unconscious and had to be taken to the hospital, where it remained for two weeks; that after leaving the hospital the said child remained at home in bed for three weeks; that there is a depression in the skull, and said child has been dull and stupid ever since; that said Lloyd Harley was of such tender years as to have been incapable of negligence; and that the injuries to said child were due solely and entirely to the negligence of the defendant company, its agents, servants, and employés. The special acts of negligence alleged were:

"(A) In not repairing said house and the windows and balcony thereof by putting in the necessary panes and railings so as to make the said house a safe one for the occupants. (B) In failing to put said house in a condition of good repair when notified by the tenant of the defects therein. (C) In maintaining said house in a dangerous and defective condition, to wit, the panes and glass missing and railings missing from the balcony banister, when the defendant knew, or ought to have known, that such condition created a dangerous place for children."

Petitioner sued for $5,000 for the physical injuries, for deformity to his head, for mental pain and suffering, for injury to his mental faculties, and the permanent handicap which said weakness will entail. The Realty Bond & Mortgage Company denied all the averments referring to negligence and damage. Upon a trial of the issue, the jury returned a verdict for the plaintiff in the sum of $1,000, and defendant made a motion for a new trial on the general grounds. This motion was subsequently amended by adding two additional grounds, one of which was that the verdict was excessive, and the other based upon alleged newly discovered evidence.

1. Did the evidence authorize the verdict for plaintiff? The allegations in the petition, which are paraphrased above, if true, make a good case. Practically every allegation is proven as stated in the petition. The allegata and probata are in unison. This being true, there is ample evidence to support the verdict.

"This court is a court for the correction of errors in law and in equity alone. It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict." Bell Bros. v. Aiken, 1 Ga.App. 36, 57 S.E. 1001.

"There is nothing in the evidence in the record to take the case out of the established rule that the verdict of the jury, approved by the trial judge, is conclusive as to all issues of fact." Atlantic Coast Line R. Co. v. Locklear, 9 Ga.App. 344, 71 S.E. 683.

2. Was the verdict so excessive as to clearly show prejudice or bias on the part of the jurors, and thus require this court to set it aside? There is no direct proof in the record of prejudice or bias, and nothing therein to indicate it, unless it be in the amount of damages awarded. Before the verdict will be set aside because it is excessive, where there is no direct proof of prejudice or bias, it must appear that the amount thereof when considered in connection with all the facts, must shock the moral sense, appear "exorbitant," "flagrantly outrageous," and "extravagant....