Wood v. Mobley
Wood v. Mobley
Opinion of the Court
Only Headnote 1 requires comment. It has been urged that a different result is required by the provisions of the Appellate Practice Act of 1965, as amended (Ga. L. 1965, p. 18; Ga. L. 1966, p. 493). We do not agree. It is provided in the amendment of 1966 that a “Motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict, but in all cases where such motion is an available remedy, the party may file the motion, or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict.” (Emphasis supplied).
It is to be observed that the provision is in the alternative. The losing party may file a motion for judgment n.o.v., or he may appeal directly from the judgment and enumerate as error the denial of a directed verdict. Our view is that if he files a motion for judgment n.o.v., as was done in this case, and obtains a ruling on it he has used that device as a means of reviewing the motion for directed verdict at the trial level. If the ruling is adverse he must enumerate it as error on appeal or become bound by the ruling and judgment unexcepted to, which becomes the law of the case. Kelly v. Strouse, 116 Ga. 872, 892 (43 SE 280); Griffin v. Beasley, 173 Ga. 452 (2a) (160 SE 500).
“As was said in City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759), 'a reviewing court should apply the law as
A different question would have been raised if appellant had not filed a motion for judgment n.o.v. and obtained a ruling thereon, but instead had appealed directly from the judgment, enumerating as error the denial of the motion for a directed verdict.
Judgment affirmed.
Dissenting Opinion
dissenting in part. I dissent from the ruling in the first headnote and first division of the opinion.
I cannot bring myself to the conclusion that the 1966 amendment to the Appellate Practice Act of 1965 means what the
Dissenting Opinion
dissenting as to Division 1. Under the present Georgia procedural law, there is little difference between a motion for directed verdict and a motion for judgment notwithstanding the verdict. In the grant of the former, the judge tells the jury what to do and they then have no choice and nothing but a robot voice. In the grant of the latter the result is the same, identically so, although the jury had previously returned a verdict on its own. The latter erases the verdict. Each motion is based on a consideration by the trial judge of all of the evidence in the case. With the right to appeal error in the refusal to grant a motion for directed verdict ac
I do not think the 1966 amendment is in the alternative in the sense expressed by the majority. I think it is alternative only in the sense that if both are made in the trial court, either may be enumerated as error and reviewed by the appellate courts.
The majority view engraves a needless and useless technicality on a liberal statute designed to discourage tediousness in appellate practice.
Pannell, Judge, concurring. I concur in the opinion of the majority and in the ruling expressed in Division 1. However, since the dissenting judges have seen fit to assume that the Act of 1966 effected a change in the substantive law so as to make the overruling of a motion to direct a verdict error, I think it appropriate that I express my ideas thereon.
“Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto.” Code § 110-104. Under this Code section a trial court may direct a verdict, but a refusal of a trial court to direct a verdict is not error in any case and will not require a reversal. Roper Wholesale Grocery Co. v. Faver, 8 Ga. App. 178 (1) (68 SE 883); McClellan v. McClellan, 142 Ga. 322, 323 (3) (82 SE 1069); Bennett v. Patten, 148 Ga. 66, 67 (95 SE 690). Over 200 cases with similar rulings have been referred to by the writer of this opinion, and it is not necessary to encumber this opinion with the express citations of these cases. Accordingly, under this rule we should hold that the trial judge did not err in refusing to direct a verdict in favor of the defendant’s plea of accord and satisfaction to the plaintiff’s claim for damages arising out of an automobile collision. The majority expresses the opinion however that this rule does not prevail in view of Section 1 of the Act approved March 14, 1966 (Ga. L. 1966, pp. 493, 494) which struck Section 2 of the Appellate
There are some decisions of the Court of Appeals stating that an assignment of error on the overruling of a motion for. directed verdict is not reviewable in a criminal case. The first case so holding is Nalley v. State, 11 Ga. App. 15 (7) (74 SE 567), which gives no citation of authority for the ruling made. This case was followed in Johnson v. State, 75 Ga. App. 581 (44 SE2d 149); Wilkins v. State, 96 Ga. App. 841 (1) (101 SE2d 912); Hunter v. State, 105 Ga. App. 564 (3) (125 SE2d 85); Painter v. State, 112 Ga. App. 24 (1) (143 SE2d 680). The only civil case using such language is Kayler v. Romines, 85 Ga. App. 839 (1) (70 SE2d 395), which cites as authority Roberts v. Groover,
Assuming an intent to declare the failure to direct a verdict error, the area of, or determinative circumstance of, the error, is not set forth in the Act. Is the failure to direct a verdict on motion error only in those cases where a verdict may be directed under Code § 110-104? The Act does not say. Or, is it error to deny a motion for directed verdict when a verdict to the contrary would be unauthorized under the evidence? The Act does not say. Or where a verdict to the contrary would be strongly against the weight of the evidence? The Act does not say. The legislative enactment of 1966 does not say what constitutes the error even if we should agree with the concept that this amendment to the Appellate Practice Act intended to, and does require this court to find that the refusal to direct a verdict is error. This court is left to determine under what circumstances it becomes error, when prior to this enactment it was never error under any circumstances in any case. It is my opinion, therefore, that the Act would be too vague and indefinite to be enforced or given effect in this particular. The Act having failed to define the area of error in the action of the trial court in overruling the motion for a direction of a verdict, this court cannot so declare, since in the absence of a statute so declaring to the contrary, it is not error to refuse to direct a verdict.
Until such action of the trial judge is made error, we should continue, as we have in the past, to review and consider any enumeration of error upon the refusal of the trial judge to direct a verdict (as required by the Act of 1966) and should also continue to apply the numerous rulings of this court and the Supreme Court holding that such action is not error in any case.
Even the Act of 1953 relating to motions for judgment notwithstanding the verdict and requiring that a motion to direct a verdict be made as a condition precedent thereto (Ga. L. 1953, Nov. Sess., p. 444; Code Ann. § 110-113) “does not change this rule of law, but merely provides a new method ... by which a failure to direct a verdict may subsequently become
I am well aware of the rule that “In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy,” and that “Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands,” (Code § 102-102 (9)), and that an Act will ordinarily not be so construed as to make it “an exercise in futility” if another construction can legitimately be given (Central of Ga. R. Co. v. State of Georgia, 104 Ga. 831 (31 SE 531)); however, I do not see how the language used in the Act of 1966 can mean any more than it says in authorizing or stating that this court can “review” and that the party appealing may “enumerate as error” the overruling of a motion for directed verdict. While the one that presented that bill to the legislature or the one who drafted it may have intended to make the refusal to direct a verdict error where the evidence demanded such verdict, the Act did not, and we cannot consider this intention unless the Act itself also evidences such intention by expressing it. See Keener v. State, 18 Ga. 194, 217, and Georgia R. & Bkg. Co. v. Wright, 125 Ga. 589, 611 (54 SE 52). We quote from the decision last cited: “Lord Nottingham, the author of the statute of frauds, in a decision relating to a provision in that statute, says: ‘I have some reason to know the meaning of this law; for it had its first rise from me, who brought in the bill into the Lords’ house, though it afterwards received some additions and improvements from the judges and the civilians.’ Lord Campbell said, in reference to this remark, 'If Lord Nottingham drew it, he was the less qualified to construe it, the author of an act considering more what he privately intended than the meaning he has expressed.’ 4 Campbell’s Lives of the Chancellors, 228.” In view of what has been said above, I can only conclude that the legislature, in the Act of 1966, was misled by the few cases
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