Southern States, Inc. v. Thomason, 47928
| Decision Date | 02 April 1973 |
| Docket Number | No. 2,No. 47928,47928,2 |
| Citation | 128 Ga.App. 667,197 S.E.2d 429 |
| Parties | SOUTHERN STATES, INC. v. Ronald C. THOMASON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the trial judge overrules the general grounds which are discretionary and specifies a special nondiscretionary reason for granting a new trial, such order, even though it be for a first grant of a new trial, is reviewable when accompanied by an immediate review certificate.
2. Where the pleadings and evidence raise a question as to both plaintiff and defendant being negligent accompanied by a request for a charge on comparative negligence, it is proper for the court to charge such principle.
Smith, Cohen, Reingel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellant.
Joe H. Bynum, Jr., Michael D. Brooks, Thomas J. Lewis, Jr., Atlanta, for appellee.
For determination here is the grant of a new trial upon a single special ground, that being stated to be an error in having included the principle of comparative negligence in the jury charge.
Plaintiff Thomason sued Southern States, Inc., for personal injuries sustained while making a delivery of uniforms on defendant's property. Plaintiff had driven his panel truck into a private driveway which was used for loading and other operations. He descended and proceeded around the vehicle to the rear and was there, 'one foot was on the ground and one (foot) was on the bumper' (T. 18), when defendant's loaded truck backed into plaintiff's panel truck. There were conflicting versions in the testimony with plaintiff acknowledging he had seen a fork lift in the driveway in front of his parked panel truck but denying the presence of the truck which actually collided with his vehicle. Additional differences exist in the transcript with reference to the safety of the location where plaintiff had parked his truck.
After a verdict had been returned for plaintiff who was disappointed with the amount of the award, he filed a motion for new trial on general grounds plus two special grounds. One of the special grounds complained of the inadequacy of the amount of the verdict. The other special ground is not involved in this appeal.
After several continuances the court entered an order granting a new trial. Some few days thereafter this initial grant was withdrawn and the decision vacated, the court stating this to have been done 'In order that the record might reflect the proper and correct ruling of the court and the reason therefor.' This new order recited the plaintiff's motion for new trial was granted 'solely on the grounds that it is the opinion of this court that it committed harmful error in charging the jury on the question of comparative negligence . . . all of the other grounds for motion for new trial are overruled.' (R. 59). Movant had not raised this contention as error.
Defendant has taken this appeal from that judgment accompanied by an immediate review certificate signed by the trial judge pursuant to Code Ann. § 6-701(a) (2).
1. The plaintiff-appellee's brief contends the defendant-appellant has failed to show that the judge abused his discretion in this first grant of a new trial relying upon Code § 6-1608. This principle does not apply here where the trial judge did not grant the new trial on general grounds. 'The first grant of a new trial, unless on discretionary grounds, is reviewable by this court.' Rice v. Matthews, 104 Ga.App. 593(1), 122 S.E.2d 175. See also Code § 70-208; Code Ann. § 81A-150(c)(1). It should be noted here that the trial judge specifically overruled the general grounds and also the special grounds including that which complained of the inadequacy of the verdict.
2. It is with considerable reluctance that this court reverses the trial judge in the present instance. We have generally observed Georgia's trial judges to be zealous in their efforts to make certain that litigants obtain fair trials. Seldom, however, do we have a situation as here in which there is no complaint from counsel as to an error in the charge either at the trial or as a part of his new trial motion and yet the jurist on his own volition concludes he himself erred. As the instant appeal is accompanied by the trial judge's immediate review certificate he has now shifted to us the burden of deciding which of his decisions was correct. As our late President Truman's desk-sign stated: 'The buck stops here.'
Our study of the transcript of the two-day trial has convinced us the trial judge's original charge properly...
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Durrett v. Farrar
...to special grounds. Code Ann. §§ 6-1608 and 81A-150(c); Rice v. Mattews, 104 Ga.App. 593, 122 S.E.2d 175; Southern States, Inc. v. Thomason, 128 Ga.App. 667(1), 197 S.E.2d 429. 5. We next address ourselves to the effect of a new trial to plaintiff limited to one defendant in a case involvin......
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...Rice v. Matthews, 104 Ga.App. 593(1), 122 S.E.2d 175. See also Code § 70-208; Code Ann. § 81A-150(c)(1).' Southern States v. Thomason, 128 Ga.App. 667, 668(1), 197 S.E.2d 429, 431. Accord, Whitehead v. Dillard, 129 Ga.App. 5, 198 S.E.2d 376; Durrett v. Farrar, 130 Ga.App. 298, 302(4), 203 S......
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...a request for a charge on comparative negligence, it is proper for the court to charge such principle." Southern States, Inc. v. Thomason, 128 Ga.App. 667 (2), 197 S.E.2d 429 (1973). However, it is improper to charge on comparative negligence where there is no evidence authorizing such a ch......