Kuhnen v. Postal Telegraph-Cable Co. , 135 Ga. 390 ( 1910 )

Evans, P. J.

The rule that where there have been two concurrent verdicts for the plaintiff on the same state of facts, and where no error of law is alleged to have been committed on the last trial, and where under the evidence the verdict is not manifestly wrong, the trial judge should not grant a second new trial (Gregory v. Georgia Granite Railroad Co., 132 Ga. 587 (64 S. E. 686) ), is applicable only where there have been . two new trials granted by the trial judge in the exercise of his discretion.

(a) Thus, where a plaintiff recovers a verdict which the trial court refuses to set aside on motion, and the refusal to grant a new trial is reversed by the Supreme Court because of errors of law committed in the. charge, the new trial thus obtained does not come from the exercise. of the discretion of the trial judge; and therefore, if on the second trial the plaintiff again prevails on substantially the same state of facts, and the court grants a new trial upon a motion which does not complain that any error of law has been committed, the second hew trial is the first exercise of the discretion of the trial judge; and where the evidence does not demand the verdict, the judgment granting a new trial will not be disturbed by this court.

Judgment affirmed.

All the Justices concur.

Damages. Before Judge Kimsey. Habersham superior court. August 14, 1909.

J. C.-Edwards, for plaintiff. Howard Thompson and Anderson, Felder, Rountree & Wilson, for defendant.