Speer v. Gemco Elevator Co., Inc.

• Citation: 134 Ga.App. 360,214 S.E.2d 425
• Decision Date: 21 March 1975
• Docket Number: No. 50190,No. 1,50190,1
• Court: United States Court of Appeals (Georgia)
• Parties: Alvin L. SPEER v. GEMCO ELEVATOR COMPANY, INC

Page 425

214 S.E.2d 425

134 Ga.App. 360

Alvin L. SPEER v. GEMCO ELEVATOR COMPANY, INC.

No. 50190.

Court of Appeals of Georgia, Division No. 1.

March 21, 1975.

Lefkoff & Hanes, George M. Fox, Atlanta, for appellant.

Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

This is a negligence action against an elevator maintenance company for personal injuries sustained by Alvin Speer while opening the door of an elevator maintained by the company. The jury returned a verdict for Speer, Gemco moved both for judgment n.o.v. and for new trial, and the trial court entered the following order: '(1) The defendant's motion for judgment notwithstanding the verdict is hereby granted and sustained. (2) In the alternative, and subject to the ruling made in the foregoing paragraph, the defendant's motion for new trial is hereby granted and sustained.' The motion for new trial, as amended, consists of the usual general grounds and, in addition, four special grounds. The trial court, however, failed to specify the grounds upon which it granted the motion for new trial as required by CPA § 50(c)(1) (Code Ann. § 81A-150(c)(1)). Held:

CPA § 50(c)(1) (Code Ann. § 81A-150(c)(1)) provides: 'If the motion for judgment notwithstanding the verdict provided for in subsection (b) of this section is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.' (Emphasis supplied.)

The purpose of the trial court's ruling upon the motion for new trial in addition to the motion for judgment n.o.v., as is apparent from subsection (c) (1), is to eliminate the necessity, should the appellate court reverse the granting of judgment n.o.v., of remanding the case to the trial court for a ruling upon the motion for new trial, from which ruling yet another appeal could be taken, resulting in fractured appellate consideration of questions arising from the same trial. 'Accordingly it is held, consistent with the language of Rule 50(c) and for reasons of convenient and expeditious practice, that if alternative prayers or motions are presented for judgment n.o.v., and for a new trial, the trial judge should rule on the motion for judgment, and whatever his ruling thereon may be, he should also rule on the motion for a new trial, indicating the grounds of his decision.' 5A Moore's Federal Practice, § 50.13(1), p. 2378. 'It is essential if the alternative motion is made that the trial court rule on both branches of the motion. Difficult as this may sometimes be, the cases have long so required and Rule 50(c)(1), as amended in 1963, so provides. If the court grants judgment notwithstanding the verdict and fails to act on the alternative motion for a new trial, litigation will be needlessly protracted should the appellate court find that the grant of judgment was erroneous.' 9 Wright & Miller, Federal Practice and Procedure § 2539, pp. 609-610.

Thus, when both rulings are made initially by the trial judge, all questions arising from the one trial can be disposed of by the appellate court with but one appeal. 'Otherwise the same unfortunate situation that existed in the Montgomery Ward case (311 U.S. 243 (61 S.C(t). 189, 85 L.E(d). 147)-trial court did not rule on motion for new trial, necessitating remand for ruling on that motion after reversal of judgment n.o.v. for defendant) might be repeated and litigation uselessly prolonged by piecemeal procedure delaying final determination on appeal.' 2B Barron & Holtzoff, Federal Practice & Procedure: Civil, § 1082, pp. 431-432.

The same reasoning underlies the requirement that the trial court 'shall specify the grounds for granting or denying the motion for the new trial.' If the trial court's first grant of a new trial is on the general grounds, the appellate court will disturb that ruling only if it is shown that the trial court abused its discretion in granting it and that a verdict for the party opposing the motion was demanded. See, e.g., Warren v. Mann, 117 Ga.App. 787(2, 3), 161 S.E.2d 894; Hunt v. Denby, 128 Ga.App. 523(4), 197 S.E.2d 489; Blanchard v. Westview Cemetery, 133 Ga.App. 262, 263(1), 211 S.E.2d 135 and cases cited. However, '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).' 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.E.2d 265. Accordingly, if the special ground upon which the new trial was solely granted is determined by the appellate court to be without merit, the judgment granting the new trial on that ground will be reversed. State Highway v. Smith, 117 Ga.App. 210, 160 S.E.2d 215; State Highway Dept. v. Rosenfeld, 120 Ga.App. 439, 170 S.E.2d 837. Moreover, even where the trial court grants a new trial both on the general and one or more of the special grounds, and the reviewing court affirms on the general grounds, it is nevertheless necessary for the appellate court to review the rulings made by the trial court in granting a new trial on the special grounds. Dennard v. Styles, 101 Ga.App. 459(2), 114 S.E.2d 317; Blanchard v. Westview Cemetery, 133 Ga.App. 262, 264(2), 211 S.E.2d 135, supra.

It is obvious, then, that if there is to be any meaningful review of the order granting judgment n.o.v. and in the alternative a new trial, the trial court must specify the grounds for granting the new trial as required by CPA § 50(c) (1). The trial court did not do so here, and the issue confronting us is what disposition we should make of the appeal. The Florida and California courts, under their statutes requiring the specification of grounds for granting new trials, hold that failure to make the required specifications requires reversal of the new trial order and the reinstatement of the judgment entered pursuant to verdict. Adkins v. Burdeshaw, 220 So.2d 39 (Fla.App.); Travelers Indem. Co. v. Mary Boutique, Inc., 198 So.2d 343 (Fla.App.) and cases collected; Mercer v. Perez, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315. The Arizona courts follow the Missouri rule and hold that where the trial court does not specify the grounds as required by statute, it will be presumed that the verdict of the jury was correct, placing the burden upon the appellee to convince the appellate court that the trial court did not err in ordering a new trial. Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809. The Ohio courts take a more traditional approach and hold that the specification of grounds is mandatory, and where there is a failure to so specify, the order granting the motion for new trial will be reversed and the cause remanded with direction to the trial court to redetermine the...