O.C.G.A. § 5-5-20 (2019)

Annotations

Law reviews. - For survey of cases dealing with criminal law and criminal

procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION JUDGMENT NOTWITHSTANDING VERDICT APPLICATION 1. IN GENERAL 2. ADEQUACY OF DAMAGES APPEAL FROM DENIAL OF NEW TRIAL

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NEW TRIAL General Consideration

Section furnishes exact rule by which verdict is to be measured; by it a verdict is either right or wrong. Richmond & D.R.R. v. Allison, 89 Ga. 567, 16 S.E. 116 (1892) (see O.C.G.A. § 5-5-20). Damages rules and new trial rules exist independently. - Rules of law governing (1) right of jury to originally fix damages, (2) right of appellate court to grant new trial when verdict is alleged to be excessive or inadequate, and (3) right of trial judge to grant new trial when in the judge’s discretion the judge thinks the verdict ‘‘unfair, unjust, contrary to evidence, excessive, or too small,’’ exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Authority to grant new trial. - No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97, 547 S.E.2d 734 (2001). Duty of trial judge to exercise discretion. - Motion for new trial on grounds set forth in O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21 addresses sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962); Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Denial of new trial is in trial judge’s discretion. - Denial of a new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge. Witt v. State, 157 Ga. App. 564, 278 S.E.2d 145 (1981). Trial court did not abuse the court’s discretion in denying the defendant’s motion for a new trial, as the defendant did not show that the defendant received ineffective assistance of counsel because the evidence was so overwhelming against the defendant that there was not a reasonable probability that the subpoena of the witness and the witness’s testimony at trial would have produced a different result; in other words, the defendant did not show

that the defendant was prejudiced by the alleged deficiency of defense counsel’s failure to subpoena a witness. Cain v. State, 277 Ga. 309, 588 S.E.2d 707 (2003), overruled in part by Dickens v. State, 280 Ga. 320, 627 S.E.2d 587 (2006). Motion for new trial addresses only errors of law and fact contributing to rendition of verdict; it does not pertain to motion to vacate judgment. Insurance Co. of N. Am. v. Eunice, 111 Ga. App. 135, 140 S.E.2d 918 (1965). Motion for new trial must be made before trial court. - Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448, 738 S.E.2d 277 (2012). Standard for considering motion for new trial. - Trial court failed to apply the proper standard of review in considering a motion for new trial under O.C.G.A. § 5-5-20. A trial court could not grant judgment notwithstanding the verdict on an issue if ‘‘any evidence’’ existed to support that issue; by contrast, under § 5-5-20, a trial court could grant a motion for new trial if the verdict was contrary to the evidence. Moore v. Stewart, 315 Ga. App. 388, 727 S.E.2d 159 (2012). Trial court applied incorrect standard. - When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court’s discretion and weigh the evidence. The trial court did not exercise the court’s discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and 5-5-21. Walker v. State, 292 Ga. 262, 737 S.E.2d 311 (2013). General ground that verdict is contrary to evidence means verdict lacks evidence to support the verdict. Hardwick v. Georgia Power Co., 100 Ga. App. 38, 110 S.E.2d 24 (1959). Approval of verdict necessary to finalize verdict. - Before verdict becomes final the verdict should, when the losing party requires it by motion for new

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General Consideration (Cont’d) trial, receive approval of mind and conscience of trial judge. Until the judge’s approval is given, the verdict does not become binding in case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Grounds for new trial known but omitted at time of motion cannot be raised in subsequent petition. - When, in former suit between same parties and relating to same subject matter, verdict was rendered against party, whose motion for new trial was afterwards voluntarily dismissed, a petition subsequently brought by such party to review and set aside verdict is properly dismissed on general demurrer (now motion to dismiss), when it appears that grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate those grounds in motion for new trial made in former case. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946). Cited in Holland v. Williams, 3 Ga. App. 636, 60 S.E. 331 (1908); Western & Atl. R.R. v. Hughes, 278 U.S. 496, 49 S. Ct. 231, 73 L. Ed. 473 (1929); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Davis v. State, 202 Ga. 13, 41 S.E.2d 414 (1947); Harper v. Hall, 76 Ga. App. 441, 46 S.E.2d 201 (1948); Devereaux v. State, 76 Ga. App. 498, 46 S.E.2d 528 (1948); Doyle v. Dyer, 77 Ga. App. 266, 48 S.E.2d 488 (1948); Lasseter v. Griffin, 77 Ga. App. 429, 49 S.E.2d 142 (1948); City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949); Nance v. State, 84 Ga. App. 777, 66 S.E.2d 273 (1951); Foster v. Jones, 208 Ga. 320, 66 S.E.2d 743 (1951); Hight v. Steely, 86 Ga. App. 137, 70 S.E.2d 886 (1952); Garland v. Green, 209 Ga. 424, 73 S.E.2d 187 (1952); Hamilton v. State, 89 Ga. App. 159, 78 S.E.2d 875 (1953); Whitfield v. Washburn Storage Co., 99 Ga. App. 708, 109 S.E.2d 865 (1959); Hamby v. Hamby, 99 Ga. App. 808, 110 S.E.2d 133 (1959); Cohen v. Gotlieb, 108 Ga. App. 122, 132 S.E.2d 93 (1963); Rackard v. Merritt, 114 Ga. App. 743, 152 S.E.2d 701 (1966); Pinkerton & Laws Co. v. Atlantis Realty

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Co., 128 Ga. App. 662, 197 S.E.2d 749 (1973); Faulkner v. Western Elec. Co., 98 F.R.D. 282 (N.D. Ga. 1983); Southeast Grading, Inc. v. Grissom-Harrison Corp., 171 Ga. App. 298, 319 S.E.2d 121 (1984); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Powell v. State, 185 Ga. App. 464, 364 S.E.2d 599 (1988); Stinson v. State, 185 Ga. App. 543, 364 S.E.2d 910 (1988); Towns v. State, 185 Ga. App. 545, 365 S.E.2d 137 (1988); In re C.I.W., 229 Ga. App. 481, 494 S.E.2d 291 (1997); High v. Parker, 234 Ga. App. 675, 507 S.E.2d 530 (1998); Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003). Judgment Notwithstanding Verdict New trial may be granted without demanding judgment n.o.v. for weight of evidence may be on one side, yet there is some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence in the verdict’s favor, the verdict may still be against weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Denial of new trial on general grounds, unexcepted to, precludes judgment notwithstanding verdict on appeal. - When trial judge denies motion for new trial on general grounds, the judge finds that the verdict is not against the weight of the evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support the verdict or that the evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Effect of motion for judgment notwithstanding verdict when some evidence supports verdict. - When there is any evidence supporting the verdict, grounds of motion for judgment notwithstanding the verdict, that such verdict was contrary to evidence and contrary to principles of justice and equity, merely

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invoke discretion of trial court on question of whether new trial should be granted on weight of evidence. Crosby Aeromarine, Inc. v. Hyde, 115 Ga. App. 836, 156 S.E.2d 106 (1967). Application 1. In General In first grant of new trial, trial judge has broad discretion. Garrett v. Garrett, 128 Ga. App. 594, 197 S.E.2d 739 (1973). Denial of new trial becomes law of case as to grounds contained in motion. - Absent specific appeal from ruling on motion for new trial or enumerating it as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Grant of new trial under section does not create statutory double jeopardy bar. - Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). Trial court’s written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51. Jackson Nat’l Life Ins. Co. v. Snead, 231 Ga. App. 406, 499 S.E.2d 173 (1998). Successful motion precludes later plea of former jeopardy. - Motion for new trial if granted at trial level is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). If no evidence supports finding, new trial must be granted. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933). Overruling general grounds of motion is proper where some evidence supports verdict. - When trial judge

has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not error. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962). New trial properly denied. - Trial court properly denied defendant’s motion for a new trial, as the evidence presented, when coupled with the victim’s clear and unfettered identification of the defendant from a photo array, which was not impermissibly suggestive, supported the defendant’s convictions, and the defendant failed to show that trial counsel, who had over 30 years of criminal defense experience, was ineffective and that there was a reasonable likelihood that but for the alleged errors, the outcome would have been different. McIvory v. State, 268 Ga. App. 164, 601 S.E.2d 481 (2004). Defendant’s motion for a new trial was properly denied as defendant’s claim that the defendant was denied the right of access to the courts by conduct of the prison authorities as such conduct occurred in a post-conviction setting and did not go to the fundamental fairness of the trial as required by O.C.G.A. § 5-5-20 et seq. Tarvin v. State, 277 Ga. 509, 591 S.E.2d 777 (2004). Motion for a new trial by one member of the limited liability company (LLC) in an action against other members was properly denied, as resignation by another member from LLC did not constitute a breach of fiduciary duty under the LLC’s operating agreement or Georgia law; the remaining member failed to show that the members who resigned from the LLC were prohibited from forming a competing business or soliciting customers of the LLC. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Servs., 272 Ga. App. 232, 612 S.E.2d 17 (2005). In a suit on a guaranty, the trial court did not err in denying a guarantor’s motion for a new trial on general grounds, as the jury’s award fell within the range of damages established by the evidence, the guarantor consented to the bank’s modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court’s instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006).

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Application (Cont’d) 1. In General (Cont’d) Because the appellant failed to supply the appellate court with the entire trial transcript in the record on appeal, but only included the pretrial motions and the opening statements at trial, without a complete transcript the court of appeals had to presume that the evidence supported the jury’s verdict; thus, a new trial was not warranted. Parekh v. Wimpy, 288 Ga. App. 125, 653 S.E.2d 352 (2007), cert. denied, No. S08C0520, 2008 Ga. LEXIS 319 (Ga. 2008). Trial court properly denied a motion for new trial based on the claim by a dentist and a dental center that a former employee failed to present evidence on the employee’s claim of intentional infliction of emotional distress that the dentist’s actions in harassing the employee were extreme and outrageous or that the emotional distress suffered by the employee was severe; the evidence of the dentist’s pervasive pattern of harassing behavior demonstrated the extreme and outrageous nature of the dentist’s conduct, and the severity of the emotional distress suffered by the employee was evidenced by the fact that the employee became so fearful of the dentist that the employee obtained a gun and kept the gun under the employee’s bed until the employee moved out of state. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008). Trial court did not err in denying a defendant’s motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 based on newly discovered evidence because the ‘‘new’’ evidence - that the defendant’s girlfriend got ‘‘five hundred’’ from the defendant in connection with the incident - did not come to the defendant’s knowledge since the prior trial, and the girlfriend’s alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555, 669 S.E.2d 514 (2008). Trial court did not err in denying a defendant’s motion for a new trial or the defendant’s motion for a directed verdict because the evidence was sufficient for the trial court to find the defendant guilty of burglary in violation of O.C.G.A.

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§ 16-7-1(a) beyond a reasonable doubt where the back window of a home was broken and police found the defendant hiding in a closet under a pile of clothing. Williams v. State, 297 Ga. App. 723, 678 S.E.2d 95 (2009). Although the condemnee claimed that the verdict was contrary to law and the evidence because the Department of Transportation’s (DOT) expert failed to give any value to the condemnee’s loss of access to approximately 3,800 feet of frontage, the condemnee’s claim failed because the record reflected that the expert explained that any access to the DOT bypass along the approximately 3,811 feet of frontage taken along with the 13.022 acres would be limited by the bypass itself and that the condemnee never owned access rights to the bypass. Moreover, the expert explained further that the frontage had been considered in the valuation of the property. RNW Family P’ship, Ltd. v. DOT, 307 Ga. App. 108, 704 S.E.2d 211 (2010). Motion for a new trial was properly denied because: (1) the evidence was sufficient to support the crimes for which the defendant was convicted; (2) the trial court did not abuse the court’s discretion by denying the defendant’s motion for a change of venue due to pretrial publicity because the excusal percentage of jurors for cause was not indicative of such prejudice as would have mandated a change in venue; (3) no showing of an improper communication from a bailiff to the jury was shown; (4) the trial court properly instructed the jury and did not err in denying the defendant’s requested instructions; and (5) a cumulative error rule was inapplicable. Gear v. State, 288 Ga. 500, 705 S.E.2d 632 (2011). Trial court did not err in denying the defendant’s motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1); under the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), the jury was entitled to consider the victim’s out-of-court statements as substantive evidence, and the victim was made available

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at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim’s accusations. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011). Trial court did not err in denying the defendant’s motion for new trial because the evidence was sufficient to authorize the defendant’s conviction for possessing more than one ounce of marijuana; the defendant was presumed to have exclusive possession and control of the marijuana that a police officer found in the car the defendant was driving. Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011). Trial court did not err in denying the defendant’s motion for a new trial because the evidence established the defendant’s commission of child molestation, O.C.G.A. § 16-6-4(a), and aggravated child molestation, O.C.G.A. § 16-6-4(c), and supported the verdict; the victim’s prior inconsistent statements concerning the defendant’s acts of sodomy were allowed to serve as substantive evidence of the defendant’s guilt. Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011). Trial court did not err in denying the defendant’s motion for new trial because the evidence was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of false imprisonment, O.C.G.A. § 16-5-41(a), burglary, O.C.G.A. § 16-7-1(a), and aggravated assault, O.C.G.A. § 16-5-21(a)(2); defense counsel thoroughly cross-examined the victim, the responding officers, and the investigator regarding the victim’s demeanor after the attack, the victim’s description of the attack and the attacker, and the inconsistencies between what the victim told each of them, and determinations of witness credibility and the weight to give the evidence presented was solely within the province of the jury. Pennington v. State, 313 Ga. App. 764, 723 S.E.2d 13 (2012). When motion for new trial denied. - It is correct for the trial court to deny a motion for new trial when it cannot be said that the verdict of the jury was contrary to the evidence and without evidence to support the verdict. Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982).

If any evidence supports finding of jury, and no error otherwise committed, verdict will stand. Bill Jones Motors, Inc. v. Mitchell, 100 Ga. App. 185, 110 S.E.2d 555 (1959). In determining whether there is any evidence supporting verdict, conflicts are resolved to favor verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979). It is not error to refuse new trial if verdict is supported by evidence. Hornbuckle v. State, 76 Ga. App. 111, 45 S.E.2d 98 (1947). When second trial necessary anyway. - New trial is inappropriate when same verdict and judgment will necessarily result on second trial. Georgia Power Co. v. City of Decatur, 181 Ga. 187, 182 S.E. 32 (1935), aff ’d sub nom. Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936). When evidence authorizes verdict for either party. - When transcript contains evidence which, if believed by the jury, was quite sufficient to authorize the verdict, it is of no moment that evidence would also have authorized the verdict in some amount for the plaintiff since the jury weighed the evidence and made the jury’s choice which is the jury’s duty and function. Daniels v. Hartley, 120 Ga. App. 294, 170 S.E.2d 315 (1969). Verdict contrary to law and issues raised by pleadings. - That verdict is contrary to law and contrary to issues made by pleadings is a question which may be raised by motion for new trial. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946). Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448, 42 S.E. 785 (1902). Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909). Verdict in amount within range covered by testimony will not be set aside as unsupported by evidence, though the verdict may not correspond with contentions of either party. Langston v.

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Application (Cont’d) 1. In General (Cont’d) Langston, 42 Ga. App. 143, 155 S.E. 494 (1930). Counsel’s remark not grounds for mistrial. - Denial of defendant’s motion for a new trial based on the prosecutor’s remark in closing that the defendant had gone into the robbery business was proper and the remark was not the basis for a mistrial under O.C.G.A. § 5-5-20 since there was sufficient evidence to convict defendant of robbery and the jury’s verdict was not contrary to the evidence and principles of justice and equity. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003). No abuse in granting new trial. - Because there was expert evidence that supported a finding of negligence and causation against physicians and their employers in a medical malpractice action by a patient, a verdict in the physicians’ favor was not absolutely demanded, and the trial court did not abuse the court’s discretion in granting the patient’s motion for new trial, pursuant to O.C.G.A. §§ 5-5-20 and 5-5-50, after the jury rendered a verdict in favor of the physicians. Bhansali v. Moncada, 275 Ga. App. 221, 620 S.E.2d 404 (2005). After a jury entered a special verdict finding that the corporation had notice of an earlier deed securing property in the corporation’s declaratory judgment action to determine the priority of the corporation’s deed over the earlier deed, the corporation’s motion for a new trial was properly granted on the ground that the recordation of the earlier deed was so defective as to provide no notice under O.C.G.A. § 44-14-39; the trial court did not abuse the court’s discretion in granting a new trial, even though the court’s grant of judgment notwithstanding the verdict was improper on the ground that evidence supported the jury’s verdict, because the evidence, construed in the corporation’s favor as required under O.C.G.A. § 5-5-20, did not absolutely demand a verdict that the corporation had actual notice of the earlier deed. Page v. McKnight Constr., 282 Ga. App. 571, 639 S.E.2d 381 (2006).

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Premature motion properly denied. - As a deed grantor’s motion for a new trial based on the weight of the evidence pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 was premature, it was void and a trial court’s denial thereof was not error; further, there could be no review thereof on appeal as an independent error. Dae v. Patterson, 295 Ga. App. 818, 673 S.E.2d 306 (2009). 2. Adequacy of Damages Determination is within discretion of trial court. - Determination of question as to whether verdict for damages is inadequate in legal sense, lies within the sound discretion of the trial court. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Mere difference of opinion as to amount of recovery. - New trial should not be granted based on mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Bias, passion, prejudice, or mistake must appear to justify setting aside. - When amount of verdict, though less than appellate court would have approved, did not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). When judge can conscientiously acquiesce in verdict, trial judge should approve verdict. - If trial court can conscientiously acquiesce in amount of verdict, though it may not exactly accord with the court’s best judgment or though some other finding might seem somewhat more satisfactory to the judge’s mind, and if the judge’s sense of justice is reasonably satisfied, the judge should, in absence of some material error of law affecting trial, approve the verdict, and the appellate court will uphold the judge in so doing, and will not say that the judge abused the judge’s discretion. Brown v. Service Coach

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Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Inadequacy of damages for pain and suffering. - Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315 (1935); Brown v. Garcia, 154 Ga. App. 837, 270 S.E.2d 63 (1980). Exorbitant damages. - Trial court erred in denying a railroad’s motion for a new trial when the jury verdict awarding an injured employee substantially more than the employee requested for pain and suffering was clearly intended to punish the railroad, which was impermissible under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., as: (1) the jury found that the employee was 50 percent negligent; (2) the employee’s condition had improved, and the employee was attending school, evidencing an ability to adapt to the disability and to improve the employee’s economic situation; and (3) the employee’s counsel infected closing argument with a plea to the jury to punish the railroad or to reach a verdict that would affect the jury’s conduct. Norfolk S. Ry. v. Blackmon, 262 Ga. App. 266, 585 S.E.2d 194 (2003). Appeal from Denial of New Trial Appellate court does not have same discretion as trial judge who approved verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909). Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979). Appellate courts have no discretion regarding new trials for verdict against weight of evidence. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Trial judge’s discretion regarding adequacy of damages, will not be interfered with by appellate courts absent manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). When the trial judge refuses to order a new trial on ground of inadequate damages in tort action, this court will interfere with that discretion only in case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). First grant of new trial is not normally reviewable by appellate courts. - First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932). Appellate courts are powerless to interfere with first grant of new trial unless verdict set aside was demanded. Garrett v. Garrett, 128 Ga. App. 594, 197 S.E.2d 739 (1973). Ruling on motion for new trial under this section or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) does not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978). When trial judge discharges duty to review evidence, Supreme Court cannot review factual issues. - When trial judge has discharged the judge’s duty to review evidence, the Supreme Court has no power under the Constitution to pass judgment on issues of fact made by evidence. Merritt v. State, 190 Ga. 81, 8 S.E.2d 386 (1940). Presumption that trial judge knew rule as to obligation to approve jury’s verdict. - In interpreting language of order overruling motion for new trial, the appellate court must presume that the trial judge knew rule as to obligation to approve jury’s verdict devolving upon the judge, and that in overruling motion the judge did exercise this discretion, unless language of order indicates to contrary and that court agreed to verdict against the judge’s own judgment and against

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Appeal from Denial of New Trial (Cont’d) dictates of the judge’s own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of the jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). When there is doubt, appellate courts must decide in favor of verdicts. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933). Appellate court cannot set aside verdict on general grounds trial judge could have relied upon. - In considering case in which verdict of jury has approval of trial judge, the appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932). Appeal from denial of new trial on general grounds raises question whether evidence supported verdict. - When appeal is from judgment denying party’s motion for new trial and motion is based solely on general grounds, only query for reviewing court is whether evidence supported verdict. Daniels v. Hartley, 120 Ga. App. 294, 170 S.E.2d 315 (1969). Any of general grounds for new trial are addressed to the discretion of the trial judge and on appeal these general grounds pose the sole question, was there any evidence to support verdict. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970). Setting aside verdict on evidentiary grounds. - Court of Appeals can set aside verdict on evidentiary grounds only when totally unsupported. Court of Appeals was established to correct errors of law, and can only set verdict aside, on evidentiary grounds, as being contrary to law, in that the verdict lacks any evidence by which the verdict could be supported. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932). Verdict of jury which has approval of trial judge will not be set aside by Court of

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Appeals if the verdict is supported by any evidence. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933). While appellate division of Municipal Court of Atlanta may, as any other court of review, grant a new trial when there is no evidence to support the verdict, since there was some evidence on which the verdict could be based, and such verdict had the approval of the trial judge, the appellate division of the Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass’n, 52 Ga. App. 374, 183 S.E. 350 (1936). When verdict is supported by some evidence and the verdict has approval of the trial judge, the verdict will not be disturbed by the appellate court as to general grounds of motion for a new trial. Western & Atl. R.R. v. Fowler, 77 Ga. App. 206, 47 S.E.2d 874 (1948). When verdict is supported by some evidence and is approved by the trial court, the Court of Appeals is without authority to interfere. McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948); Humphries v. State, 78 Ga. App. 139, 50 S.E.2d 799 (1948); Newsome v. State, 78 Ga. App. 332, 50 S.E.2d 828 (1948). Although evidence might authorize different verdict, when there is enough to support verdict found, judgment of trial court refusing new trial on general grounds will not be disturbed. Wright v. State, 76 Ga. App. 483, 46 S.E.2d 516 (1948); Marcus v. State, 76 Ga. App. 581, 46 S.E.2d 770 (1948); Ramer v. State, 76 Ga. App. 678, 47 S.E.2d 174 (1948); Whitfield v. Wheeler, 76 Ga. App. 857, 47 S.E.2d 658 (1948), overruled on other grounds, Caskey v. Underwood, 89 Ga. App. 418, 79 S.E.2d 558 (1953). In passing upon general grounds of motion for new trial, appellate court will not disturb trial court’s refusal to grant new trial if there is any evidence to support the judgment. Hopkins v. Sicro, 107 Ga. App. 691, 131 S.E.2d 243 (1963). Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant’s motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780, 466 S.E.2d 667 (1996).

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Denial of motion for new trial not to be interfered with absent abuse of discretion. - Denial of ordinary motion for new trial, like denial of extraordinary motion, when based upon conflicting evidence, will not be corrected absent abuse of discretion. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938). Denial of defendant’s motion for new trial was reversed as the defendant’s right to be present at trial under Ga. Const. 1983, Art. I, Sec. I, Para. XII was violated when the trial court questioned a juror in chambers without defense counsel or the prosecutor present, dismissed the juror, and replaced the juror with an alternate; the defendant did not acquiesce in the illegal proceedings and repudiated counsel’s silent waiver of the juror’s rights at the juror’s first opportunity, the hearing on a motion for a new trial, at which the defendant was represented by new counsel. Sammons v. State, 279 Ga. 386, 612 S.E.2d 785 (2005). Although the defendant received effective assistance from trial counsel, because the defendant did not waive or abandon the defendant’s claims under O.C.G.A. §§ 5-5-20 and 5-5-21, the trial court erred in denying the defendant’s motion for new trial. Hartley v. State, 299 Ga. App. 534, 683 S.E.2d 109 (2009). Denial of defendant’s motion for new trial upheld. - It was not an abuse of discretion to deny a new trial motion brought by a trustee who was found to have breached the trustee’s fiduciary duty to trust beneficiaries by making distributions to a cotrustee under a trust’s encroachment provision because the trustee breached the trustee’s duty to protect the trust corpus as: (1) the trustee inconsistently required the cotrustee to provide supporting evidence for corpus distributions and let the cotrustee exceed an allotted budget; and (2) the beneficiaries were damaged by the resulting reduction in trust corpus. Reliance Trust Co. v. Candler, 315 Ga. App. 495, 726 S.E.2d 636 (2012).

Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and 5-5-21, the language used by the trial court in the court’s discretionary determinations that the evidence at trial was not ‘‘sufficiently close’’ to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court’s discretion under the relevant statutory provisions. Brockman v. State, 739 S.E.2d 332, No. S12P1490, 2013 Ga. LEXIS 201 (2013). When the evidence supports judgment rendered without jury. - When the evidence is sufficient to support the judgment of the court trying the case by agreement without intervention of the jury, on a motion for new trial, the verdict will not be disturbed by the appellate court. Carter v. State, 77 Ga. App. 60, 47 S.E.2d 815 (1948). Function of appellate court in reviewing verdict. - Barring error by the trial court, the jury’s verdict must be upheld unless it can be shown that there is no substantial evidence to support the verdict, considering the evidence in the light most favorable to appellees, and clothing the verdict with all reasonable inferences to be deduced therefrom. Thus, the United States Court of Appeals’ sole function is to ascertain if there is a rational basis in the record for the jury’s verdict. Columbus Bank & Trust Co. v. Cohn, 644 F.2d 1040 (5th Cir. 1981). Evidence viewed in light most favorable to upholding verdict. - It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence. Clark v. United Ins. Co. of Am., 199 Ga. App. 1, 404 S.E.2d 149 (1991).

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RESEARCH REFERENCES Am. Jur. 2d. - 58 Am. Jur. 2d, New Trial, § 245 et seq. C.J.S. - 23 C.J.S., Criminal Law, §§ 1972, 1973. 66 C.J.S., New Trial, § 117 et seq. ALR. - Abuse of witness by counsel as ground for new trial or reversal, 4 ALR 414. Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 ALR 779; 95 ALR 1163. Power of trial court to dismiss defendant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 ALR 187. Court’s power to grant new trial as to both defendants, over their objection, because of verdict holding employer and absolving employee for latter’s negligence, 16 ALR2d 969. Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 29 ALR2d 1199. Prejudicial effect of misconduct by one

other than juror during authorized view by jury in civil case, 45 ALR2d 1128. Verdict for money judgment which finds for party for ambiguous or no amount, 49 ALR2d 1328. Disclosure in criminal case of juror’s political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 ALR2d 1120. Discussion, during jury deliberation, of possible insurance coverage as prejudicial misconduct, 47 ALR3d 1299. Standard for granting or denying new trial in state criminal case on basis of recanted testimony - modern cases, 77 ALR4th 1031. Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 ALR5th 875. Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 ALR5th 1. Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 ALR5th 1.