O.C.G.A. § 5-5-50 (2019)

Annotations

Law reviews. - For article comparing

sections of Ch. 11, T. 9 with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION GRANT OF NEW TRIAL ON CERTIORARI APPLICABILITY CONSTRUCTION

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NEW TRIAL General Consideration

Neither Ga. L. 1967, p. 226, §§ 22, 43, 48 (see O.C.G.A. § 9-11-50(c)) nor any other provision changes the law under former Code 1933, § 6-1608 (see O.C.G.A. § 5-5-50) prior to the Civil Practice Act, that first grant of new trial was not error unless evidence demanded the verdict for the party opposing the motion. Martin v. Denson, 117 Ga. App. 288, 160 S.E.2d 210 (1968). Trial court was not authorized to grant a new trial on the issue of damages in a case involving comparative negligence. Head v. CSX Transp., Inc., 227 Ga. App. 818, 490 S.E.2d 497 (1997). Court lacks jurisdiction to consider oral motion for new trial. - When motion for new trial is made orally, there is no legal motion for new trial before the court, and the court is without jurisdiction to entertain or consider the motion. Motor Contract Co. v. Wigington, 116 Ga. App. 398, 157 S.E.2d 321 (1967). When reviewable judgment becomes final. - Reviewable judgment does not become final, however, until time prescribed by law for appealing the judgment has passed, or if appealed, until such judgment is affirmed by the appellate court and judgment of the appellate court is made the judgment of the trial court. Seaboard Air Line R.R. v. Whitman, 107 Ga. App. 375, 130 S.E.2d 272 (1963). New trials on evidentiary grounds when no evidence supports verdict. - Discretion to grant or refuse motions for new trials because a verdict is strongly and decidedly against the weight of the evidence rests solely in the presiding judge, and while the appellate division of the Municipal Court of Atlanta may, as any other court of review, grant a new trial when there is no evidence to support the verdict, when 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). Appellate courts will not interfere with first grant of new trial when there is any evidence at all upon which different ver-

dict could be sustained. Maloy v. Planter’s Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977). After one grant of new trial, subsequent grant upon discretionary grounds will be closely examined to see that discretion of court below has been justly and wisely exercised, in view of the facts of the particular case, and with due regard to general consideration of fitness of juries to ascertain facts and of necessity that there must be some end to the litigation. Smith v. State Mut. Life Ins. Co., 45 Ga. App. 633, 165 S.E. 896 (1932). When law and facts of the case do not demand verdict for either party, the first grant of a new trial will not be disturbed on appeal. Hicks v. American Interstate Ins. Co., 158 Ga. App. 220, 279 S.E.2d 517 (1981). Special verdict form was not objectionable. - Trial court erred in granting a new trial, pursuant to the standard of review under O.C.G.A. §§ 5-5-50 and 5-5-51, to the second insurer in the first insurer’s declaratory judgment action arising from a coverage dispute, after the jury rendered a verdict pursuant to a special verdict form in favor of the first insurer, since the form was not defective for including the words ‘‘coverage is excluded because’’ prior to the four potential fact-findings in favor of the first insurer; the wording of the form may have been inartful and had mixed questions of law with the factual assertions, but such did not constitute an abuse of the trial court’s discretion, as no mandate forbade the use of the language, and the trial court acted within the court’s discretion and authority pursuant to O.C.G.A. § 9-11-49(a). Gov’t Emples. Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga. App. 872, 622 S.E.2d 92 (2005). Cited in Southern Ry. v. Higgins, 102 Ga. 586, 27 S.E. 785 (1897); Carolee v. Handelis, 103 Ga. 299, 29 S.E. 935 (1898); Knight v. Isom, 113 Ga. 613, 39 S.E. 103 (1901); Cordray v. Savannah, T. & I. of H. Ry., 117 Ga. 464, 43 S.E. 755 (1903); McCain v. Bonner, 122 Ga. 842, 51 S.E. 36 (1905); Bagley & Willet v. Shumate, 128 Ga. 78, 57 S.E. 99 (1907); Cox v. Grady, 132 Ga. 368, 64 S.E. 262 (1909); Schaufele v. Central of Ga. Ry., 6 Ga. App. 660, 65

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General Consideration (Cont’d) S.E. 708 (1909); New v. Southern Ry., 136 Ga. 778, 71 S.E. 1104 (1911); Castelen v. Stafford, 138 Ga. 419, 75 S.E. 418 (1912); Hudson v. Driver, 13 Ga. App. 174, 78 S.E. 1013 (1913); Massey v. Cleveland, 141 Ga. 774, 82 S.E. 136 (1914); Savage v. Atlantic C.L.R.R., 16 Ga. App. 537, 85 S.E. 675 (1915); Central of Ga. Ry. v. Morgan, 145 Ga. 656, 89 S.E. 760 (1916); Allen v. Gershon & Ruskin, 19 Ga. App. 500, 91 S.E. 893 (1917); Chafin v. Tumlin, 20 Ga. App. 433, 93 S.E. 50 (1917); Parks v. Stevens, 21 Ga. App. 180, 94 S.E. 60 (1917); Shingler v. Yeates, 147 Ga. 339, 94 S.E. 467 (1917); Duncan v. Shackelford, 22 Ga. App. 220, 95 S.E. 760 (1918); Bell v. Askins, 150 Ga. 635, 104 S.E. 421 (1920); Sampson v. Smith, 29 Ga. App. 683, 116 S.E. 652 (1923); Puckett v. Heaton, 157 Ga. 232, 121 S.E. 240 (1924); Maner v. Clark-Stewart Co., 33 Ga. App. 424, 126 S.E. 871 (1925); Nabors v. Nabors, 161 Ga. 382, 131 S.E. 45 (1925); Louisville & N.R.R. v. Barksdale, 34 Ga. App. 812, 131 S.E. 298 (1926); Riggins v. Scott, 35 Ga. App. 465, 133 S.E. 647 (1926); Douglas v. Hardin, 161 Ga. 838, 131 S.E. 896 (1926); Belcher v. Land, 37 Ga. App. 346, 140 S.E. 423 (1927); Brooks v. Jackins, 38 Ga. App. 57, 142 S.E. 574 (1928); Gunn v. Chapman, 166 Ga. 279, 142 S.E. 873 (1928); National Union Fire Ins. Co. v. Ozburn, 38 Ga. App. 276, 143 S.E. 623 (1928); Howell v. Booth, 39 Ga. App. 41, 145 S.E. 910 (1928); Dodgen v. Fowler, 39 Ga. App. 515, 147 S.E. 775 (1929); Whitworth v. Carter, 39 Ga. App. 625, 147 S.E. 904 (1929); Johnson v. Johnson, 169 Ga. 7, 149 S.E. 564 (1929); Finance Serv. Co. v. Rich, 41 Ga. App. 831, 155 S.E. 60 (1930); Tyus v. Collier, 171 Ga. 519, 156 S.E. 235 (1930); Murray v. Davidson, 174 Ga. 213, 162 S.E. 526 (1932); Smith v. Perry, 176 Ga. 775, 168 S.E. 770 (1933); Mobley v. Bell, 177 Ga. 876, 171 S.E. 701 (1933); Sturr v. Southern Grocery Stores, Inc., 48 Ga. App. 126, 172 S.E. 231 (1933); National Life & Accident Ins. Co. v. Cantrell, 49 Ga. App. 368, 175 S.E. 543 (1934); Piedmont Wagon & Mfg. Co. v. Bird, 49 Ga. App. 426, 176 S.E. 109 (1934); Blitch v. Wells, 180 Ga. 566, 179 S.E. 629 (1935); Belk v. Cook, 51 Ga. App. 163, 179 S.E. 870 (1935); Inter-

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national Harvester Co. of Am. v. Felton, 56 Ga. App. 290, 192 S.E. 464 (1937); Carter v. Powell, 57 Ga. App. 360, 195 S.E. 466 (1938); Walker v. McCallum, 59 Ga. App. 895, 2 S.E.2d 514 (1939); Lawson v. Lawson, 61 Ga. App. 787, 7 S.E.2d 603 (1940); Jacobs v. Rittenbaum, 193 Ga. 838, 20 S.E.2d 425 (1942); Tomlin v. Georgia Power Co., 68 Ga. App. 412, 23 S.E.2d 92 (1942); Suggs v. Suggs, 198 Ga. 18, 30 S.E.2d 927 (1944); Pope v. United States Fid. & Guar. Co., 198 Ga. 304, 31 S.E.2d 602 (1944); Veneer Mfg. Co. v. Hill, 72 Ga. App. 28, 32 S.E.2d 838 (1945); Sullivan v. Dixon, 72 Ga. App. 507, 34 S.E.2d 318 (1945); Jones v. J.S.H. Co., 201 Ga. 611, 40 S.E.2d 752 (1946); Ash v. Higgins, 74 Ga. App. 726, 41 S.E.2d 270 (1947); Bowman v. Bowman, 203 Ga. 206, 45 S.E.2d 415 (1947); Graves v. Carter, 78 Ga. App. 564, 51 S.E.2d 863 (1949); Fuller v. Cox, 81 Ga. App. 301, 58 S.E.2d 513 (1950); Williams v. Redd, 82 Ga. App. 135, 60 S.E.2d 528 (1950); Dorsey v. Georgia R.R. Bank & Trust Co., 82 Ga. App. 237, 60 S.E.2d 828 (1950); Schofield v. Langley, 207 Ga. 430, 61 S.E.2d 838 (1950); Community Hosp. v. Latimer, 83 Ga. App. 6, 62 S.E.2d 379 (1950); Seabolt v. Lewis, 207 Ga. 691, 63 S.E.2d 894 (1951); Sims Estates, Inc. v. Walker, 209 Ga. 534, 74 S.E.2d 465 (1953); James v. Perry, 90 Ga. App. 69, 81 S.E.2d 874 (1954); Robinson v. Modern Coach Corp., 91 Ga. App. 440, 85 S.E.2d 826 (1955); Tifton Prod. Credit Ass’n v. Burkhalter Chevrolet Co., 92 Ga. App. 571, 89 S.E.2d 210 (1955); Law v. State, 92 Ga. App. 604, 89 S.E.2d 550 (1955); Buchanan v. Nash, 211 Ga. 874, 89 S.E.2d 637 (1955); Horne v. Phillips, 92 Ga. App. 651, 89 S.E.2d 682 (1955); Plymouth Record Corp. v. Books, Inc., 92 Ga. App. 753, 90 S.E.2d 336 (1955); McCormick v. Denny, 212 Ga. 444, 93 S.E.2d 578 (1956); Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956); Funderburk v. Funderburk, 212 Ga. 740, 95 S.E.2d 679 (1956); Hayes v. Dicks, 95 Ga. App. 11, 96 S.E.2d 627 (1957); Home Ins. Co. v. Cook, 96 Ga. App. 139, 99 S.E.2d 567 (1957); Chappell v. Clegg, 97 Ga. App. 752, 104 S.E.2d 541 (1958); Selman v. Manis, 100 Ga. App. 422, 111 S.E.2d 747 (1959); Service Cas. Co. v. Carr, 101 Ga. App. 70, 113 S.E.2d 175 (1960); Cox v. Independent Life &

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Accident Ins. Co., 101 Ga. App. 211, 113 S.E.2d 228 (1960); Kroger Co. v. Perpall, 105 Ga. App. 682, 125 S.E.2d 511 (1962); Stone v. Carter, 218 Ga. 92, 126 S.E.2d 617 (1962); YMCA of Metro. Atlanta, Inc. v. Bailey, 107 Ga. App. 417, 130 S.E.2d 242 (1963); Bennett v. Overby, 107 Ga. App. 477, 130 S.E.2d 511 (1963); Willard v. Willard, 221 Ga. 2, 142 S.E.2d 849 (1965); Sims v. Georgia Power Co., 112 Ga. App. 41, 143 S.E.2d 652 (1965); Hambrick v. Nova, 112 Ga. App. 258, 144 S.E.2d 922 (1965); Holden v. CTC Fin. Corp., 113 Ga. App. 318, 147 S.E.2d 846 (1966); Harper v. Green, 113 Ga. App. 557, 149 S.E.2d 163 (1966); Peak v. Cody, 113 Ga. App. 674, 149 S.E.2d 519 (1966); Botero v. Botero, 223 Ga. 380, 155 S.E.2d 381 (1967); State Hwy. Dep’t v. Smith, 117 Ga. App. 210, 160 S.E.2d 215 (1968); Howard v. Biles, 117 Ga. App. 384, 160 S.E.2d 620 (1968); Warren v. Mann, 117 Ga. App. 787, 161 S.E.2d 894 (1968); Smith v. Clark, 123 Ga. App. 458, 181 S.E.2d 551 (1971); Hammock v. Allstate Ins. Co., 124 Ga. App. 854, 186 S.E.2d 353 (1971); Wooten v. Nash, 126 Ga. App. 86, 190 S.E.2d 89 (1972); Hunt v. Denby, 128 Ga. App. 523, 197 S.E.2d 489 (1973); Edgeman v. Thomas, 132 Ga. App. 866, 209 S.E.2d 658 (1974); Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135 (1974); Davis v. Monroe County Hosp. Auth., 137 Ga. App. 214, 223 S.E.2d 255 (1976); Rasmussen v. Martin, 236 Ga. 267, 223 S.E.2d 663 (1976); Helton v. Zellmer, 238 Ga. 735, 235 S.E.2d 35 (1977); Cox v. K-Mart Enters. of Ga., Inc., 143 Ga. App. 30, 237 S.E.2d 432 (1977); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977); Hudgins v. Bacon, 171 Ga. App. 856, 321 S.E.2d 359 (1984); Green v. Jones, 254 Ga. 35, 326 S.E.2d 448 (1985); Davis v. Ramey, 174 Ga. App. 417, 330 S.E.2d 130 (1985); Schecter v. Strickland, 189 Ga. App. 82, 375 S.E.2d 93 (1988); Head v. CSX Transp., Inc., 271 Ga. 670, 524 S.E.2d 215 (1999); Action Sound, Inc. v. DOT, 265 Ga. App. 616, 594 S.E.2d 773 (2004). Grant of New Trial on Certiorari On certiorari, superior court has wide discretion in granting new trial in lower court, especially if it is the first grant of a new trial, when evidence is

conflicting and error is assigned on judgment (or verdict and judgment where a jury is involved) as contrary to law and evidence, although judgment of lower court may be authorized. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950). New trial granted on certiorari is equivalent to new trial granted by presiding judge. - Sustaining of certiorari and grant of new trial thereunder are on same basis as grant of new trial by presiding judge and rules applicable thereto, but in such event, the judge of the superior court does not have authority to sustain certiorari and then render final judgment. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950). Grant of new trial on certiorari not disturbed when evidence did not demand verdict. - When action of judge of superior court in sustaining certiorari had effect of granting new trial, this being the first grant of a new trial, and evidence not having demanded the verdict, the grant of certiorari was not disturbed. Sunbeam Heating Co. v. Mason, 42 Ga. App. 265, 155 S.E. 769 (1930). Rule that appellate court will not interfere with first grant of new trial unless the verdict was absolutely demanded applies to decisions on certiorari. Shirley v. Swafford, 119 Ga. 43, 45 S.E. 722 (1903). Applicability First grant of new trial refers only to first grant by trial court and does not include new trials granted by the appellate court when a new trial was refused below. Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954). Statute applies even though successor of judge presiding at trial passes on motion. - Statute applies even though judge who hears case ceases to hold office before hearing of motion for new trial, and the motion is passed on by the judge’s successor. Berman v. Berman, 231 Ga. 216, 200 S.E.2d 870 (1973). Statute applies to first grant of new trial by judge not presiding at whole trial. - First grant of new trial by judge who did not preside during the whole trial will not be disturbed, unless evidence demanded the verdict rendered. Brice & Co.

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Applicability (Cont’d) v. Whitehurst & Hilliard, 8 Ga. App. 291, 68 S.E. 1075 (1910), later appeal, 14 Ga. App. 209, 80 S.E. 670 (1914); Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954). Statute applies to damage suits as well as to others. Holland v. Williams, 3 Ga. App. 636, 60 S.E. 331 (1908). Statute applies when motion for new trial is based on directed verdict. - Statute applies as well when motion for new trial is based on directed verdict as when motion is based upon finding of jury upon issues submitted to the jury in instructions of the court. Cloud v. Hawkes Co., 18 Ga. App. 772, 90 S.E. 652 (1916). It is error to grant first new trial when law and evidence demands verdict as rendered, whether the verdict was directed by court or returned at volition of jury. Jones Motor Co. v. W.R. Finch Motor Co., 34 Ga. App. 399, 129 S.E. 915 (1925). Statute inapplicable to first grant of new trial based on denial of pretrial motion to sever. - Motion for new trial was granted on a special ground, namely that the trial court erred by denying the defendant’s pretrial motion to sever two different counts of armed robbery committed against two different victims at different times; therefore, the standard set forth in O.C.G.A. § 5-5-50 is not applicable and the Court of Appeals properly considered the propriety of the trial court’s ruling on the question of law regarding severance of the defendant’s offenses. To the extent that State v. McMillon, 283 Ga. App. 671, 642 S.E.2d 343 (Ga. Ct. App. 2007), and State v. Lamb, 287 Ga. App. 389, 651 S.E.2d 504 (Ga. Ct. App. 2007), conflicted with the holding that the standard set forth in § 5-5-50 was not applicable in a case involving the first grant of a new trial on special grounds involving a question of law, those cases are overruled. O’Neal v. State, 285 Ga. 361, 677 S.E.2d 90 (2009). Two successive verdicts rendered and new trials granted, one to each party. - Rule that first grant of new trial will not be disturbed except where verdict is demanded by evidence is applicable to case when two successive verdicts have

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been rendered, one for the plaintiff and the other for the defendant, and when in each instance a new trial was granted. Jordan v. Dooly, 129 Ga. 392, 58 S.E. 879 (1907); Owens v. Cocroft, 11 Ga. App. 235, 74 S.E. 1098 (1912); Butler v. Sansone, 138 Ga. 767, 76 S.E. 54 (1912); Elder v. Woodruff Hdwe. Co., 19 Ga. App. 626, 91 S.E. 942 (1917). New trial granted because of conviction of material witness of perjury. - When trial court stated in an order that a new trial was granted because of the conviction of a material witness for the defendant of the offense of perjury committed in the giving of testimony to the jury rendering verdict complained of, this was not such ruling on question of law as would prevent operation of statute with respect to first grant of new trial. George A. Hormel & Co. v. Ramsey, 62 Ga. App. 343, 7 S.E.2d 789 (1940). Statute is applicable when grant is conditional and condition is not complied with. Skipper v. Overall, 47 Ga. App. 691, 171 S.E. 310 (1933). When grant of new trial does not specify ground on which granted. - When sole assignment of error is judgment of trial judge granting first new trial in favor of the defendant on the motion containing usual general and several special grounds, the judgment not specifying upon which grounds new trial is granted, and when verdict in favor of the plaintiff in stated sum in suit on open account is not demanded by the evidence, which was in conflict both as to the value of the work performed and authority to perform the work, discretion of the judge in granting a new trial will not be disturbed. Tri-State Augusta, Inc. v. Woodward Lumber Co., 88 Ga. App. 748, 77 S.E.2d 769 (1953). Grant of motions both for new trial and for judgment n.o.v. - When a trial court grants separate motions for judgment notwithstanding the verdict and for new trial on the general grounds, the grant of the motion for new trial is conditional on the appellate court’s vacating or reversing the judgment n.o.v. Hicks v. American Interstate Ins. Co., 158 Ga. App. 220, 279 S.E.2d 517 (1981). New trial was error when evidence demanded verdict rendered. - Grant

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of a new trial was an abuse of the trial court’s discretion when the evidence demanded the verdict rendered. Builders Transp., Inc. v. Hall, 191 Ga. App. 889, 383 S.E.2d 341, cert. denied, 191 Ga. App. 921, 383 S.E.2d 341 (1989). New trial when verdict could go either way. - Trial court’s grant of a new trial was affirmed as the opposing party in that party’s appellate brief failed to show that the law and the facts required the verdict rendered at trial and admitted that the jury could have ruled in favor of either party. Dryman v. Watts, 268 Ga. App. 710, 603 S.E.2d 51 (2004). 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). New trial proper following independent evaluations. - Grant of a new trial was affirmed because the successor judge thoroughly reviewed the case, and presided over a full hearing in the matter. The judge made independent evaluations not only about the defendant’s involvement in the crimes but about the culpability of the codefendants, and concluded, that the defendant got ‘‘caught up’’ in the ‘‘neighborhood feud’’ and was ‘‘just a peripheral figure.’’ State v. Harris, 292 Ga. 92, 734 S.E.2d 357 (2012). New trial improper when party failed to exercise reasonable diligence. - Trial court erred in granting appellees new trials based on a Brady violation because the appellees had the medical examiner’s report at issue in the appellees’ possession before trial and had the appellees’ exercised reasonable diligence, the appellees would have realized that the second page was missing based on the pagination and could have obtained that page for a co-indictee prior to the appellees’ trial. State v. James, 292 Ga. 440, 738 S.E.2d 601 (2013).

Construction In first grant of new trial, trial judge has broad discretion and having exercised that discretion appellate courts are powerless to interfere unless verdict was demanded. Garrett v. Garrett, 128 Ga. App. 594, 197 S.E.2d 739 (1973). Appellate courts will not closely scrutinize facts with view to detecting abuses of discretion. - First grant of new trial will not be reversed unless it plainly and manifestly appears that there was an abuse of discretion by court below, and court will not closely scrutinize facts in evidence or endeavor to balance with great exactness the testimony on both sides, with view to detecting abuse of discretion by the trial judge. Exercise of discretion in favor of granting new trials should be encouraged. Baker v. McGarr, 187 Ga. 533, 1 S.E.2d 403 (1939). Fact that it appears judge considers improper matter in considering motion, does not affect rule. Mays v. Mays, 33 Ga. App. 335, 126 S.E. 299 (1924). Scope of discretion of judge not presiding at trial is narrower than presiding judge’s discretion. - Scope within which discretion may be exercised, in consideration of evidence, by judge who did not preside at trial is not as extensive as in case of judge who heard and observed witnesses, and who, in a sense, is to be considered as thirteenth member of jury. Brice & Co. v. Whitehurst & Hilliard, 8 Ga. App. 291, 68 S.E. 1075 (1910), later appeal, 14 Ga. App. 209, 80 S.E. 670 (1914); Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954). Trial court, in the court’s discretion, can grant extraordinary out-of-term motion for new trial when the circumstances warrant such relief. Tedoff v. B & L Serv. Co., 167 Ga. App. 452, 306 S.E.2d 719 (1983). Setting aside judgment because of excessive verdict is in nature of grant of new trial on general grounds. Baxter v. Weiner, 246 Ga. 28, 268 S.E.2d 619 (1980). When evidence is conflicting, first grant of new trial will not be reversed. Adams v. Hancock, 103 Ga. 561, 29 S.E. 715 (1897); Bluestein v. Amason, 49 Ga. App. 201, 174 S.E. 735 (1934); Queen v.

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Construction (Cont’d) State Hwy. Dep’t, 100 Ga. App. 190, 110 S.E.2d 541 (1959). When evidence on main question in case is in conflict, and when the jury would have been authorized to render a verdict for the movants, the judgment granting the first new trial will not be disturbed by the Supreme Court. Hopkins v. Brumbelow, 195 Ga. 388, 24 S.E.2d 318 (1943). It is never an abuse of discretion to grant a new trial when the evidence conflicts. Chappell v. Clegg, 97 Ga. App. 752, 104 S.E.2d 541 (1958). First grant of new trial not reversed unless law and facts require verdict. - First grant of new trial will not be reversed unless the record clearly makes it appear that the law and facts require the verdict. National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280, 175 S.E. 255 (1934); George A. Hormel & Co. v. Ramsey, 62 Ga. App. 343, 7 S.E.2d 789 (1940); Noles v. Andalusia Casket Co., 74 Ga. App. 39, 38 S.E.2d 746 (1946); Tri-State Augusta, Inc. v. Woodward Lumber Co., 88 Ga. App. 748, 77 S.E.2d 769 (1953); Green v. Stafford, 214 Ga. 830, 108 S.E.2d 271 (1959). When it does not appear that the verdict was demanded under the law and evidence, the first grant of a new trial will not be disturbed. Baker v. McGarr, 187 Ga. 533, 1 S.E.2d 403 (1939). No language indicating first new trial is abuse of discretion. - Former Civil Code 1910, §§ 6088 and 6204 (see O.C.G.A. §§ 5-5-25 and 5-5-50) contain no language from which it can be inferred that grant of first new trial is ever an abuse of discretion, unless verdict set aside was demanded by evidence adduced upon trial. Georgia S. & F. Ry. v. Bryan, 15 Ga. App. 253, 82 S.E. 913 (1914); Williams v. State, 27 Ga. App. 224, 107 S.E. 620 (1921); Throgmorton v. Trammell, 90 Ga. App. 433, 83 S.E.2d 256 (1954). When first new trial has been granted expressly upon ground that verdict is contrary to law and without evidence to support the verdict, the Court of Appeals will affirm the judgment when the verdict rendered was not as a matter of law de-

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manded. Tanner v. Louisville & N.R.R., 45 Ga. App. 734, 165 S.E. 761 (1932). When evidence on trial does not demand verdict for plaintiff it cannot be said that trial judge abuses the judge’s discretion in granting defendant’s motion for new trial. Anderson v. Interstate Life & Accident Ins. Co., 94 Ga. App. 411, 94 S.E.2d 758 (1956). Only question appellate courts will consider on appeal of first grant of new trial is whether verdict as rendered was demanded as a matter of law. Bass v. Pharr, 98 Ga. App. 125, 105 S.E.2d 236 (1958). If evidence demands verdict rendered, first grant of new trial will be reversed. Moody v. Moody, 194 Ga. 843, 22 S.E.2d 837 (1942). When the conflict in evidence could have been resolved in favor of either party, and evidence did not demand a verdict for the defendant, in absence of showing of manifest abuse of discretion on part of the trial court in the court’s first grant of new trial, the court’s judgment will not be disturbed. Lanier v. Collins, 91 Ga. App. 486, 85 S.E.2d 788 (1955). There is no error in granting new trial unless the trial judge abuses the judge’s discretion and no other verdict than that rendered could have been returned. Maxwell v. Harrell, 115 Ga. App. 97, 153 S.E.2d 653 (1967). The first grant of new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded. Holton v. Jones, 174 Ga. App. 654, 331 S.E.2d 26 (1985); Thomas v. Wiley, 240 Ga. App. 135, 522 S.E.2d 714 (1999). Standard of review. - First grant of motion for new trial will not be disturbed when there is any evidence to support the movant, unless the verdict for the opposite party is demanded. Winn Dixie Stores, Inc. v. Whaley, 127 Ga. App. 381, 193 S.E.2d 279 (1972). First grant of new trial on general grounds will not be disturbed by reviewing court, when the reviewing court cannot say that evidence demands finding that debt in question has been paid despite the jury finding that it had been, and when the movant specifically points out evidence and reasons why the movant

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Date: 06/14/13 Time: 12:43:33

GA RV 13 RV 4(T4-6) - EP

claimed the verdict is not supported by the evidence. Dunn v. Gilbert, 217 Ga. 358, 122 S.E.2d 93 (1961). When facts do not require verdict in amount rendered. - When verdict is for unliquidated damages, it is not error to grant new trial even though verdict for the plaintiff in some amount may be demanded, since facts do not require the verdict in the amount rendered. Robinson v. Modern Coach Corp., 91 Ga. App. 440, 85 S.E.2d 826 (1955). Fact that evidence as to damages is vague. - When there was abundant evidence to support a finding that the contract had been breached, which would have entitled the plaintiff to nominal damages at least the trial court did not abuse the court’s discretion in first grant of a new trial, even though evidence was vague as to amount of damages resulting from breach. Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962). Standard used in reviewing denial of judgment n.o.v. applies. - In determining whether the verdict was demanded, the reviewing court must measure issues by the same strict standard which would apply had the situation been reversed, and had plaintiff in error appealed from the denial of the motion for judgment notwithstanding the verdict following denial of the motion to direct a verdict in the plaintiff ’s favor. Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962). Only in those cases when a motion for judgment n.o.v. would have been sustained if the litigant had lost the litigant’s case will the grant of a first new trial be

error when in fact the litigant won the case. Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962). Constitutionality of Ga. L. 1959, p. 353, § 1, purporting to revise statute. - CTC Fin. Corp. v. Holden, 221 Ga. 809, 147 S.E.2d 427 (1966). First grant of new trial on special grounds involving question of law is reviewable in proper appeal. Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977). Courts with power to review. - Court of Appeals and Supreme Court possess power to review grants of new trials when order is limited to special grounds. Durrett v. Farrar, 130 Ga. App. 298, 203 S.E.2d 265 (1973), overruled on other grounds, Smith v. Telecable of Columbus, Inc., 140 Ga. App. 755, 232 S.E.2d 100 (1976). First grant of new trial, unless on general, discretionary grounds, is reviewable by Court of Appeals. Southern States, Inc. v. Thomason, 128 Ga. App. 667, 197 S.E.2d 429 (1973), overruled, Smith v. Telecable of Columbus, Inc., 140 Ga. App. 755, 232 S.E.2d 100 (1976), reversed, Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977). Amendment to motion designated as special ground but merely elaborating general grounds. - Though ground of amendment to motion for new trial is designated as a special ground, if it appears that it is no more than an elaboration of general grounds, or one of them, it is itself a general ground. L.F. Dommerich & Co. v. Phillips Sales Co., 112 Ga. App. 621, 145 S.E.2d 830 (1965).

RESEARCH REFERENCES Am. Jur. 2d. - 58 Am. Jur. 2d, New Trial, §§ 13 et seq., 19 et seq. ALR. - Absence of evidence supporting charge of lesser degree of homicide as

affecting duty of court to instruct as to, or right of jury to convict of, lesser degree, 21 ALR 603; 27 ALR 1097; 102 ALR 1019.