Winn Dixie Stores, Inc. v. Whaley

• Decision Date: 20 October 1972
• Docket Number: No. 1,1
• Citation: 127 Ga.App. 381,193 S.E.2d 279
• Parties: WINN DIXIE STORES, INC. v. Lillie Mae WHALEY. WINN DIXIE STORES, INC. v. J. D. WHALEY. Lillie Mae WHALEY et al. v. WINN DIXIE STORES, INC. 47437-47439
• Court: Georgia Court of Appeals

Page 279

193 S.E.2d 279

127 Ga.App. 381

WINN DIXIE STORES, INC. v. Lillie Mae WHALEY.

WINN DIXIE STORES, INC. v. J. D. WHALEY.

Lillie Mae WHALEY et al. v. WINN DIXIE STORES, INC.

47437-47439.

Court of Appeals of Georgia, Division No. 1.

Oct. 20, 1972.

Harry H. Hunter, Sylvania, Robert S. Lanier, Statesboro, for appellant.

Allen, Edenfield, Brown & Franklin, James B. Franklin, Statesboro, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Lillie Mae Whaley sued Winn Dixie Stores, Inc. for personal injuries alleged to have been sustained when she slipped and fell in defendant's store at Statesboro. Her husband, J. D. Whaley, brought a separate action against the same defendant for medical expenses, and for loss of consortium and services of his wife. The two cases were tried together.

The jury returned a verdict for Mrs. Whaley in the amount of $10,000; and for Mr. Whaley in the amount of $10,000. During the trial defendant moved for directed verdicts in each case; and after verdict and judgment, moved for judgment notwithstanding the verdicts, and in the alternative, moved for a new trial. Thereafter, defendant amended his motion for new trial by adding special grounds thereto. After a hearing, the motions for judgment notwithstanding the verdict were denied. However, the court granted a new trial in each case based upon the general grounds and one special ground.

The defendant filed an appeal from the judgment refusing to grant his motion for judgment notwithstanding the verdict; and the plaintiffs filed a joint cross appeal from the judgment granting a new trial. However, three cases were filed in this court, Nos. 47437 and 47438, being separate cases of Winn Dixie against the two plaintiff, and No. 47439, being the joint cross appeal by both plaintiffs against the defendant, Winn Dixie. A certificate for immediate review was entered as to the single judgment of the lower court which is the subject matter of all three appeals. Held:

1. The appellate courts have held time and again that the first grant of a motion for new trial will not be disturbed where there is any evidence to support the movant, unless a verdict for the opposite party is demanded. Code Ann. § 6-1608; Merriam v. City of Atlanta, 61 Ga. 222; Oliver v. Head, 60 Ga.App. 13, 2 S.E.2d 716; Cox v. Independent Life &c. Ins. Co., 101 Ga.App. 211(4), 113 S.E.2d 228; CTC Finance Corporation v. Holden, 221 Ga. 809, 147 S.E.2d 427; Martin v. Denson, 117 Ga.App. 288, 160 S.E.2d 210.

2. Except in clear and palpable cases, the question of what negligence, as well as whose negligence is responsible for the injury, is always for determination by a jury. Fortner v. McCorkle, 78 Ga.App. 76, 50 S.E.2d 250; Malcolm v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188. Thus, where as here, the evidence is conflicting as to whether or not the plaintiff was injured...