Southwind Trucking Co. v. Harvey

• Decision Date: 31 October 1957
• Docket Number: No. 2,Nos. 36879,36880,s. 36879,2
• Citation: 101 S.E.2d 223,96 Ga.App. 715
• Parties: SOUTHWIND TRUCKING COMPANY, Inc. v. J. T. HARVEY. PUBLIC NATIONAL INSURANCE COMPANY v. J. T. HARVEY
• Court: Georgia Court of Appeals

Page 223

101 S.E.2d 223

96 Ga.App. 715

SOUTHWIND TRUCKING COMPANY, Inc. v. J. T. HARVEY.

PUBLIC NATIONAL INSURANCE COMPANY v. J. T. HARVEY.

Nos. 36879, 36880.

Court of Appeals of Georgia, Division No. 2.

Oct. 31, 1957.

Rehearing Denied Nov. 22, 1957.

A. Walton Nall, Nall, Sterne, Miller, Cadenhead & Dennis, Earl J. Van Gerpen, Atlanta, Joseph O. Saseen, Dennis Pierce, Pierce & Ranitz, Savannah, for plaintiffs in error.

John C. Wylly, Lewis, Wylly & Javetz, Savannah, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

1. 'By the terms of the Practice and Procedure Act, as amended in the November-December Session of the General Assembly in 1953, it is a condition precedent to a motion for judgment notwithstanding the verdict that a motion for a directed verdict must have been made and denied.' National Life & Accident Ins. Co. v. Goolsby, 91 Ga.App. 361, 363, 85 S.E.2d 611, 613. Ga.L.1953, Nov.-Dec. Sess., pp. 440-444; Ga.Code (Ann.) § 110-113. Such a motion for a directed verdict must have been a legal motion made at a time when the party making it had a right to have a directed verdict. Durden v. Henderson, 212 Ga. 807(1), 96 S.E.2d 362.

2. A motion for a directed verdict may be made by the defendant only after the defendant has introduced some evidence. At the conclusion of the plaintiff's evidence, the only appropriate judgment that the court can enter if the plaintiff has failed to make out his case is a judgment of nonsuit which allows the plaintiff, if he so desires, to bring his case again. Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441(2), 10 S.E. 113; Eady v. Napier, Worsham & Co., 96 Ga. 736(3), 22 S.E. 684; Hines v. McLellan, 117 Ga. 845(1), 45 S.E. 279; Zipperer v. City of Savannah, 128 Ga. 135(4), 57 S.E. 311; Equitable Mfg. Co. v. J. B. Davis Co., 130 Ga. 67(4), 60 S.E. 262; Williams v. Perry, 136 Ga. 453(2), 71 S.E. 886; Copeland v. Jordan, 147 Ga. 601(2), 95 S.E. 13; Lewis v. Bowen, 208 Ga. 671, 68 S.E.2d 900; Seymour v. Seymour, 210 Ga. 49(1), 77 S.E.2d 433. This rule is applicable whether or not the defendant afterward introduces any evidence, Durden v. Henderson, 212 Ga. 807, 96 S.E.2d 362, supra, the rationale being that before a verdict of a jury may be authorized there must be some evidence upon which to base it. Stotesbury v. Lanier, 42 Ga. 120; Burdell v. Blain, 66 Ga. 169; Doerflinger v. Nelson, 76 Ga. 101; Sprinz v. Frank, Heyman & Rhine, 81 Ga. 162(1), 7 S.E. 177; Horne v. Rodgers, 103 Ga. 649(3), 30 S.E. 562; Brown v. Conner, 141 Ga. 622, 81 S.E. 901; Crawford v. Irwin, 211 Ga. 241, 246(4), 85 S.E.2d 8; Hansard v. Pool, 39 Ga.App. 109, 147 S.E. 153; City of LaGrange v. Frosolona, 52 Ga.App. 232, 183 S.E. 99.

3. Under the foregoing principles of law, where the only assignments of error made in the bills of exceptions before this court are on the ruling and judgment of the trial court overruling and denying the defendant's motion for a directed verdict and on the judgment overruling and denying the motion for a judgment notwithstanding the verdict, and where it appears from the writ of error and from the record before this court that such latter motion was based on the motion for a directed verdict made at the conclusion of the plaintiff's evidence, where no evidence was introduced by the defendant, such assignment of error presents no question for consideration by this court, and, accordingly, the judgment of the trial court must be affirmed. Durden v. Henderson, 212 Ga. 807, 96 S.E.2d 362, supra.

4. The contention of the plaintiff in error that the ruling in Youngblood v. Logan, 92 Ga.App. 107, 108(2), 88 S.E.2d 173 is controlling of the question as to whether a motion for a directed verdict may properly be made at the conclusion of the plaintiff's evidence is without merit. The Youngblood case cited and relied on Thompson v. Etowah Iron Co., 91 Ga. 538(2), 17 S.E. 663, but as pointed out in Seymour v. Seymour, 210 Ga. 49, 77 S.E.2d 433, supra, the ruling in that case is out of harmony with the older full bench decisions of Hanson v. Crawley, 51 Ga. 528, 529, and Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441, 10 S.E. 113, supra, which must be followed by this court as controlling precedents.

Judgments affirmed.

GARDNER, P. J., concurs.

TOWNSEND, J., concurs specially.

TOWNSEND, Judge (concurring specially on rehearing).

From the standpoint of logic I agree with what is said in the brief of the plaintiff in error in the motion to rehear, which is in substance as follows: Where the case has closed (both plaintiff and defendant having rested, although the defendant has not elected to offer any evidence) and where the plaintiff's evidence not only fails to make out his case as laid but affirmatively disproves his right to a recovery, and verdict is demanded for the defendant and the trial court should be empowered to direct such verdict regardless of whether or not the defendant elected to offer evidence. This is the effect of the decision in Parker v. Cramton, 143 Ga. 421, 85 S.E. 338 and Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S.E. 663. However, the decision in Seymour v. Seymour, 210 Ga. 49, 77 S.E.2d 433, 434, disapproves that part of the Etowah Iron Co. case which held it proper to direct a verdict under similar circumstances where the plaintiff 'fails to make out a case' and follows a ruling in Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441, 10 S.E. 113 where a verdict was absolutely demanded for the defendant because the plaintiff admitted that the defendant did not cause the damage sued for. It also follows Hanson v. Crawley, 51 Ga. 528, 529, which states that the defendant has one of two alternatives--to move for a nonsuit or to argue to the jury that the plaintiff has failed to make out his case. See also Smith v. Robinson, 212 Ga. 761, 763, 95 S.E.2d 798. This constitutes a ruling that in the situations there involved the court had no authority, at that stage of the proceedings, to direct a verdict even though the evidence demanded it in favor of one of the parties.

Should a jury case come to trial and both plaintiff and defendant rest without offering and evidence, it could not be...