O.C.G.A. § 9-11-61 (2019)

Annotations

Cross references. - Grounds for new trial generally, § 5-5-20 et seq. U.S. Code. - For provisions of Federal

Rules of Civil Procedure, Rule 61, and annotations pertaining thereto, see 28 U.S.C.

JUDICIAL DECISIONS Error is presumed hurtful unless the error appears to have had no effect upon the result of the trial. Foster v. Harmon, 145 Ga. App. 413, 243 S.E.2d 659 (1978).

Reversible error consists of error plus injury or harm. Durham v. State, 129 Ga. App. 5, 198 S.E.2d 387 (1973). One who seeks reversal of verdict

and judgment must show harm as well as error. Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19 (1972). Injury as well as error must be shown before new trial is granted. City Dodge, Inc. v. Gardner, 130 Ga. App. 502, 203 S.E.2d 729 (1973), aff ’d, 232 Ga. 766, 208 S.E.2d 794 (1974). To obtain a new trial, party must show injury as well as error. Bennett v. Haley, 132 Ga. App. 512, 208 S.E.2d 302 (1974). An appellant must show harm as well as error to require reversal of the trial court’s judgment. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981). Harm, as well as error, required for showing. - Parent alleged the trial court erred in denying the parent a copy of the transcript of the hearing on the petition for termination of parental rights for use at a new trial hearing. Under O.C.G.A. § 9-11-61, the parent was required not only to show error, but harm as well, and no such showing was made. In re D. R., 298 Ga. App. 774, 681 S.E.2d 218 (2009), overruled on other grounds, In re A.C., 285 Ga. 829, 686 S.E.2d 635 (2009). Grant of new trial is appropriate when refusal would be inconsistent with substantial justice. Warren v. Mann, 117 Ga. App. 787, 161 S.E.2d 894 (1968). Admission of irrelevant evidence not reversible error unless prejudicial. - Admission of irrelevant evidence is not a ground for reversal unless the appellant can show the evidence was prejudicial to the appellant. Southwest Ga. Prod. Credit Ass’n v. Wainwright, 241 Ga. 355, 245 S.E.2d 306 (1978); Drew v. Collins, 153 Ga. App. 794, 266 S.E.2d 570 (1980). Evidence harmless when legitimately before the jury. - Appeallate courts will not grant a new trial or reverse a case for error unless it is shown that the error is harmful; evidence is harmless when evidence of the same fact has been admitted and is legitimately before the jury. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992). Exclusion of evidence is harmful when the exclusion affects a substantial right of a party to establish the party’s

case with apparent, competent, and relevant evidence. Newman v. Travelers Ins. Co., 143 Ga. App. 757, 240 S.E.2d 139 (1977). Exclusion of substantially similar evidence harmless. - In a product liability case, as pertinent testimony of plaintiff ’s expert conveyed substantially the same information to the jury (concerning a warning symbol placed on the defendant’s product) as contained in the relevant portions of the defendant’s requested exhibit, any error in failing to admit the exhibit was harmless. Continental Research Corp. v. Reeves, 204 Ga. App. 120, 419 S.E.2d 48 (1992). Exclusion of damage evidence harmless when jury verdict is against recovery. - Error in exclusion of evidence that pertains only to damages is harmless when the jury determines that the complainant is not entitled to recover. Reliford v. Central of Ga. R.R., 140 Ga. App. 782, 232 S.E.2d 129 (1976). Errors when verdict rendered as demanded. - Errors in court’s instructions or in admission or exclusion of evidence will not be considered when the verdict was rendered as demanded. Gaddis v. Georgia S. & Fla. Ry., 145 Ga. App. 826, 245 S.E.2d 8 (1978). Ex parte communication not harmless error. - In a medical malpractice case, the plaintiffs were entitled to a new trial because the communication between the court and the jury was not disclosed to the plaintiffs or the plaintiffs’ counsel until after the verdict, the note and response were not made a part of the record, recollections differed as to the nature and timing of the communication, and it was impossible for the appellate court to determine if a defense verdict would have been demanded regardless of the effect of the communication on the jury. Phillips v. Harmon, 328 Ga. App. 686, 760 S.E.2d 235 (2014). Jury charge creating conclusive presumption. - Even if the jury charge creates a conclusive presumption, the error is harmless when intent is not at issue at the trial or when evidence of intent is overwhelming. Hill v. Zant, 638 F. Supp. 969 (M.D. Ga. 1986), aff ’d, 833 F.2d 927 (11th Cir. 1987).

Judge’s characterization admitted in error but error harmless. - Even though it was error to allow a federal judge’s characterization of a principal’s transactions as a sham into evidence in a breach of an employment contract suit, such error was harmless. Ins. Indus. Consultants, LLC v. Alford, 294 Ga. App. 747, 669 S.E.2d 724 (2008), cert. denied, No. S09C0465, 2009 Ga. LEXIS 200 (Ga. 2009). Burden is on the appellant to establish the trial court’s error; moreover, error which is harmless will not be cause for reversal. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass’n, 247 Ga. 730, 279 S.E.2d 442 (1981). Objecting party failed to carry burden of proving that admission of evidence unduly prejudiced rights. See DOT v. 2.734 Acres of Land, 168 Ga. App. 541, 309 S.E.2d 816 (1983). People’s right to litigate with governmental bodies should not be decided on technicalities any more than one citizen’s right to litigate with another citizen. City of Atlanta v. International Soc’y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977). When the appellant has failed to comply with Uniform Superior Court Rule 6.5, but the error of procedure was harmless, in that the error did not affect the substantial rights of the plaintiff, the severe sanction of striking the affidavits was not mandated. O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608, 380 S.E.2d 487 (1989), overruled on other grounds, Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 463 S.E.2d 23 (1995). Error not harmless. - In a medical malpractice case, the trial court committed reversible error by finding that the patient waived a hearsay objection as to a defense pathologist’s deposition testimony because the patient had the right to object to the testimony at trial and the testimony was inadmissible hearsay entitling the patient to a new trial since it was not harmless error in that the evidence was critical in the case because the evidence directly addressed the core disputed issue of whether the clinic’s neurosurgeon left an excessive amount of cotton in the patient’s brain. Thomas v. Emory Clinic,

Inc., 321 Ga. App. 457, 739 S.E.2d 138 (2013). Cited in Knickerbocker Tax Sys. v. Mr. Tax of Am., Inc., 227 Ga. 148, 179 S.E.2d 228 (1971); Union Camp Corp. v. Youmans, 277 Ga. 687, 182 S.E.2d 468 (1971); Leach v. Midland-Guardian Co., 127 Ga. App. 562, 194 S.E.2d 260 (1972); Flexible Prods. Co. v. Lavin, 128 Ga. App. 80, 195 S.E.2d 677 (1973); White v. Hammond, 129 Ga. App. 408, 199 S.E.2d 809 (1973); Newman v. Greer, 131 Ga. App. 128, 205 S.E.2d 486 (1974); Mousetrap of Atlanta, Inc. v. Dekle, 131 Ga. App. 758, 206 S.E.2d 562 (1974); Tripcony v. Pickett, 132 Ga. App. 563, 208 S.E.2d 574 (1974); Shannon v. Kaylor, 133 Ga. App. 514, 211 S.E.2d 368 (1974); Southeast Transp. Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 212 S.E.2d 638 (1975); Epps v. State, 134 Ga. App. 429, 214 S.E.2d 703 (1975); Anderson v. Universal C.I.T. Credit Corp., 134 Ga. App. 931, 216 S.E.2d 719 (1975); Lewyn v. Morris, 135 Ga. App. 289, 217 S.E.2d 642 (1975); Hunnicutt v. Hunnicutt, 237 Ga. 497, 228 S.E.2d 881 (1976); Green v. Kaplan, 237 Ga. 602, 229 S.E.2d 369 (1976); McDaniel v. White, 140 Ga. App. 118, 230 S.E.2d 500 (1976); Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976); Pickle v. Pickle, 238 Ga. 66, 231 S.E.2d 61 (1976); City Council v. Carpenter, 240 Ga. 448, 241 S.E.2d 199 (1978); Green v. Knight, 153 Ga. App. 183, 264 S.E.2d 657 (1980); Sylvester Motor & Tractor Co. v. Farmers Bank, 153 Ga. App. 614, 266 S.E.2d 293 (1980); Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 267 S.E.2d 786 (1980); Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Mundt v. Olson, 155 Ga. App. 145, 270 S.E.2d 344 (1980); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980); Smith v. Dixon Ford Tractor Co., 160 Ga. App. 885, 288 S.E.2d 599 (1982); Jones v. Sudduth, 162 Ga. App. 602, 292 S.E.2d 448 (1982); In re Estate of Harris, 251 Ga. 535, 307 S.E.2d 482 (1983); Walker v. Hill, 253 Ga. 126, 317 S.E.2d 825 (1984); Curtis v. Curtis, 255 Ga. 288, 336 S.E.2d 770 (1985); Woodruff v. Naik, 181 Ga. App. 70, 351 S.E.2d 233 (1986); Southern Ry. v. Lawson, 256 Ga. 798, 353 S.E.2d 491 (1987); Gully v. Glover, 190 Ga. App. 238,

378 S.E.2d 411 (1989); Ailion v. Wade, 190 Ga. App. 151, 378 S.E.2d 507 (1989); Star Mfg., Inc. v. Edenfield, 191 Ga. App. 665, 382 S.E.2d 706 (1989); Clemons v. Atlanta Neurological Inst., 192 Ga. App. 399, 384 S.E.2d 881 (1989); DOT v. Hillside Motors, Inc., 192 Ga. App. 637, 385 S.E.2d 746 (1989); Weaver v. Ross, 192 Ga. App. 568, 386 S.E.2d 43 (1989); Rowe v. Rowe, 195 Ga. App. 493, 393 S.E.2d 750 (1990); Moore v. Sinclair, 196 Ga. App. 667, 396 S.E.2d 557 (1990); West v. Nodvin, 196 Ga.

App. 825, 397 S.E.2d 567 (1990); Horan v. Pirkle, 197 Ga. App. 151, 397 S.E.2d 734 (1990); Merrill v. Eiberger, 198 Ga. App. 806, 403 S.E.2d 91 (1991); Nalley Motor Trucks, Inc. v. Cochran, 200 Ga. App. 487, 408 S.E.2d 501 (1991); Turpin v. Worley, 206 Ga. App. 341, 425 S.E.2d 895 (1992); Owens v. Dep’t of Human Res., 255 Ga. App. 678, 566 S.E.2d 403 (2002); Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

RESEARCH REFERENCES Am. Jur. 2d. - 5 Am. Jur. 2d, Appellate Review, §§ 654 et seq., 899. 75 Am. Jur. 2d, Trials, §§ 388, 397. C.J.S. - 5 C.J.S., Appeal and Error, § 965 et seq. 35B C.J.S., Federal Civil Procedure, §§ 1081, 1093, 1097, 1269, 1271. 36 C.J.S., Federal Courts, § 658 et seq. 49 C.J.S., Judgments, § 647 et seq. 66 C.J.S., New Trial, §§ 27-30. ALR. - Communications between jurors and others as ground for new trial or reversal in criminal case, 62 ALR 1466. Brief voluntary absence of defendant from courtroom during trial of criminal case as ground of error, 100 ALR 478. Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 ALR2d 996. Error as to instructions on burden of proof under doctrine of res ipsa loquitur as prejudicial, 29 ALR2d 1390.

Power of court to vacate or modify order granting new trial in civil case, 61 ALR2d 642. Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written, 10 ALR3d 501. Propriety and prejudicial effect of reference by counsel in civil case to result of former trial of same case, or amount of verdict therein, 15 ALR3d 1101. Propriety and prejudicial effect of reference by counsel in civil case to amount of verdict in similar cases, 15 ALR3d 1144. Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 ALR3d 1236. Propriety and prejudicial effect of trial court’s inquiry as to numerical division of jury, 77 ALR3d 769.