Seaboard Air Line Ry. v. Randolph

• Decision Date: 19 December 1907
• Citation: 59 S.E. 1110,129 Ga. 796
• Parties: SEABOARD AIR LINE RY. v. RANDOLPH.
• Court: Georgia Supreme Court

59 S.E. 1110

129 Ga. 796

SEABOARD AIR LINE RY. v. RANDOLPH.

Supreme Court of Georgia

December 19, 1907

On Rehearing Jan. 15, 1908.

Syllabus by the Court.

Where in a suit by a widow for the homicide of her husband, a verdict was found in favor of the plaintiff for $9,127.20 and the presiding judge, on the hearing of a motion for a new trial, expressed his disapproval of such verdict as being far too large a sum, and stated that he would not approve a verdict in favor of the plaintiff for exceeding $6,500 whereupon the plaintiff's attorney wrote off all in excess of that amount, and the judge then passed an order reciting that "it appearing" that the plaintiff had voluntarily reduced the verdict and judgment in her favor and had written off all in excess of $6,500, the motion was overruled, under previous decisions of this court, this was error which necessitated a reversal.

Error from Superior Court, Glynn County; T. A. Parker, Judge.

Action by Mrs. H. B. Randolph against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Reversed.

See 55 S.E. 47.

Crovatt & Whitfield, for plaintiff in error.

Burton Smith and D. W. Krauss, for defendant in error.

LUMPKIN J.

The case before us is controlled by former decisions of this court. In Savannah, Florida & Western Ry. v. Harper, 70 Ga. 120, the following ruling was made: "Where general damages have been recovered for a personal tort, if they are so excessive as to lead the court to suspect bias or prejudice, he may grant a new trial; but the judge has no power to say that the verdict in such a case should not exceed a specified sum, and to require the plaintiff to write off a portion of the damages, and thereupon refuse a new trial. Aliter, in actions on contracts or for torts to property, the value of which may be ascertained, and in relation to which fixed rules for measuring damages are recognized." Mr. Justice Hall, in a learned and elaborate opinion, discussed the power of the judge in such cases, the limitation therein, and the reasons therefor, in the light of the common law and the statutes of this state. The only difference between the action of the presiding judge there and in the present case is that in the former case he stated in his order that a new trial would be granted unless a certain amount should be written off from the verdict by the plaintiff, which was done, and the defendant excepted. Here the bill of exceptions shows that the judge stated orally that he would not approve a verdict in favor of the plaintiff in excess of a certain amount, whereupon counsel for the plaintiff wrote off all in excess of that amount, and the motion for a new trial was overruled, to which the defendant excepted. The order on its face shows that the overruling of the motion for a new trial was affected or influenced by this "voluntary" (?) writing off of a part of the verdict. The case cited was for a physical injury. In Savannah, Florida & Western Ry. v. Godkin, 104 Ga. 655, 30 S.E. 378, 69 Am.St.Rep. 187, the general rule was again stated. But cases of tortious homicide are passingly referred to as exceptions, and the cases of Carlisle v. Callahan, 78 Ga. 320, 2 S.E. 751, and Central Railroad v. Crosby, 74 Ga. 737, 58 Am.Rep. 463, were cited. It was held that the mere voluntary writing off of a part of the verdict by the plaintiff was not in itself a ground for reversal, where it did not appear that this was done on the suggestion of the presiding judge, or that his refusal of a new trial was influenced by the reduction of the verdict, and where this court could not say that the verdict as originally rendered by the jury was so excessive as to lead the court to suspect bias or prejudice on the part of the jury. See, also, Brunswick Light, etc., Co. v. Gale, 91 Ga. 813, 18 S.E. 11; Central of Ga. Ry. Co. v. Harden, 113 Ga. 453, 38 S.E. 949; Thompson v. Warren, 118 Ga. 644, 45 S.E. 912; McIntyre v. McIntyre, 120 Ga. 67, 47 S.E. 501, 102 Am.St.Rep. 71.

In Central of Georgia Ry. Co. v. Perkerson, 112 Ga. 923, 38 S.E. 365, 53 L.R.A. 210, suit was brought by a widow for the homicide of her husband. Proof was made as to his earnings, and the mortality and annuity tables were introduced in evidence. The jury returned a verdict in favor of the plaintiff for $10,833.33. The defendant moved for a new trial. The motion was overruled, except as to the ground complaining that the verdict was excessive, upon which ground the judge ordered that a new trial be granted unless the plaintiff should write off from the verdict a designated amount. The plaintiff complied with the requirement, and a new trial was thereupon refused. The defendant excepted. This court held that "the trial judge has no power to order that, as a condition to the refusal of a new trial, a portion of the verdict shall be written off as excessive, except where, from the application of the law to the evidence, the excess can be accurately ascertained." In the opinion Mr. Justice Fish reviewed various cases, including the Carlisle Case, 78 Ga. 320, 2 S.E. 751, and the Central Railroad Case, 74 Ga. 737, 58 Am.Rep. 463. The decision in the case of Savannah, Florida & Western Ry. v. Harper, 70 Ga. 119, was approved, and certain later decisions, which were not in harmony with it, were disapproved.

If the question were an original one, something might be said in favor of the practice adopted in some other states, where, if the presiding judge approves the finding so far as the question of...