Shockey v. Baker

• Citation: 212 Ga. 106,90 S.E.2d 654
• Decision Date: 15 November 1955
• Docket Number: No. 19079,19079
• Parties: Albert James SHOCKEY v. Frank W. BAKER et al.
• Court: Supreme Court of Georgia

Page 654

90 S.E.2d 654

212 Ga. 106

Albert James SHOCKEY v. Frank W. BAKER et al.

No. 19079.

Supreme Court of Georgia.

Nov. 15, 1955.

Rehearing Denied Nov. 29, 1955.

Syllabus by the Court.

1. The motion to dismiss the petition for certiorari is denied.

2. An assignment of error, attacking the validity of a rule adopted by this court and approved by the General Assembly, which question was not raised in the trial court when the provisions of the rule were invoked, will not be considered.

3. The rule of practice and procedure which provides for the making of motions for a judgment notwithstanding the verdict, Ga.L.1953, Nov.-Dec. Sess. pp. 440, 444, Code Ann.1954 Supp. § 110-113, did not alter the provisions of Code § 110-104 or its application under prior decisions of this court.

4. The evidence, though conflicting on the material issues, with all reasonable deductions and inferences therefrom not demanding a verdict for the defendants, the Court of Appeals erred in holding that the trial court's judgment in denying the defendants' motion for a judgment notwithstanding the verdict was erroneous.

John L. Westmoreland, Sr., John L. Westmoreland, Jr., Atlanta, for plaintiff in error.

Barrett & Hayes, Edgar A. Neely, Marshall, Greene & Neely, Ferdinand Buckley, Atlanta, for defendant in error.

ALMAND, Justice.

Albert James Shockey filed suit against Mrs. Frank W. Baker and Frank W. Baker, to recover damages for personal injuries, alleged to have been sustained by the negligent operation of an automobile by Mrs. Baker. The grounds of negligence alleged were: 1. In operating said automobile at a reckless and dangerous rate of speed. 2. In failing to keep a lookout ahead in the direction in which she was driving. 3. In failing to have the car under immediate control. 4. In failing to apply the brakes of the car in sufficient time to avoid hitting and striking the plaintiff. 5. In failing to bring the automobile to a stop prior to colliding with and striking the plaintiff. 6. In operating said automobile across the left lane, or east lane, of Roswell Road, and off onto the dirt on the east side of Roswell Road and colliding with the plaintiff, as hereinbefore described. 7. In applying the brakes of said automobile in such a manner as to cause the same to go out of control of the defendant Mrs. Baker. 8. In failing to hold onto the steering wheel of the car to retain control of the same. 9. In failing to operate the said automobile in the righthand side lane, or west lane, of Roswell Road in the direction she was proceeding. 10. In failing to give any warning to the plaintiff prior to striking and injuring him.

On the trial, at the conclusion of the evidence, the motion of the defendants for a directed verdict was denied. The jury returned a verdict in favor of the plaintiff, and thereafter the defendants filed their separate motions for a judgment notwithstanding the verdict, which motions were denied, as were the motion of the defendants for a new trial. The Court of Appeal, 92 Ga.App. 443, 88 S.E.2d 741, on review, reversed the judgments denying the defendants' motions for a judgment notwithstanding the verdict. Baker v. Shockey, 92 Ga.App. 443, 88 S.E.2d 741. The application of the plaintiff for a writ of certiorari to this court was granted.

1. The defendants in certiorari filed a motion to dismiss the application as having been improvidently granted, and because the petition violates rule 45 of this court, Code, § 24-4549, in that it contains argument and citation of authority. At the time we granted the petition for certiorari, we considered these matters, and determined that the cause was one which should be reviewed by this court, and that the petition complied with our rules. Upon consideration of the motion to dismiss, we are further confirmed that there is no merit in the motion to dismiss, and it is denied.

2. The petition for certiorari asserts that the Court of Appeals erred in applying the rule of practice and procedure adopted by this court and confirmed by the General Assembly--which rule provides that, where parties move for the direction of a verdict, which motion had been denied, in the event of an adverse verdict such moving party may move for a judgment notwithstanding the verdict, Ga.L.1953, Nov.-Dec. Sess. pp. 440, 444, Code Ann., 1954 Supp., § 110-113, on the ground that such rule violates stated sections of the State and Federal Constitutions. It appears from the record that this question was first raised by the petitioner in his motion for a rehearing in the Court of Appeals. Such question could and should have been raised in the trial court at the time the provisions of said rule were invoked by the defendants, and cannot be raised for the first time in the Court of Appeals or in this court.

In this ruling, no intimation is to be drawn that, if the question had been properly raised, it would have been meritorious.

3. The rule adopted by this court and approved by the General Assembly, providing for the making of a motion for a judgment notwithstanding the verdict, does not in any manner change Code, § 110-104 or its application as determined under prior decisions of this court. Prior to the adoption of this rule, one could not assign error on the denial of his motion for a directed verdict, and such is still true; but under this rule, where a party moves for a directed verdict, which motion is denied, such party, by making a motion for a judgment notwithstanding the verdict, where such motion is denied, can have reviewed the question of whether or not a judgment notwithstanding the verdict should be entered. The rulings of this court and of the Court of Appeals that, where there is any material conflict in the evidence, and where all the evidence introduced, with all reasonable deductions and inferences therefrom, does not demand a particular verdict, it is error to direct a verdict, although the evidence may preponderate strongly in favor of the party in whose favor a verdict was directed, Culver v. J. S. Wood, 138 Ga. 60, 74 S.E. 790; Wood v. Bellamy, 154 Ga. 431, 114 S.E. 579; Peck v. Baker, 76 Ga.App. 588, 593, 46 S.E.2d 751, were not altered by the 1953 rule. Echols v. Thompson, 211 Ga. 299, 302, 85 S.E.2d 423. Though the ruling of a trial court denying a motion for a judgment notwithstanding the verdict may be reviewed by the appellate courts, and, if sustained, direction shall be given that a verdict be entered in accordance with the motion, the provisions of Code, § 110-104 control the appellate court as well as the trial judge, as to the circumstances under which the verdict may be directed.

4. The Court of Appeals, 92 Ga.App. 443, 88 S.E.2d 741, held that, 'Since the evidence did not authorize a verdict for the plaintiff, the court erred in overruling the defendants' motion for a judgment notwithstanding the verdict.' In its opinion, the court stated that the only evidence as to the speed of Mrs. Baker's automobile, other than that of herself and her son that she was driving about 25 miles an hour, was the testimony of the plaintiff that he first saw...