Brunswick Light Co. v. Gale , 91 Ga. 813 ( 1893 )

Simmons, Justice.

1. In some counties of this State the sessions of the superior court last for several months. Formerly, under the code, a party desirous of moving for a new trial had until the end of the term at which the case was tried to make his motion and file his brief of evidence; and the court then had power, by special order granted in term, to extend the hearing to a day in vacation. The successful party on the trial was often compelled to wait until the end of the term to ascertain whether there would be a motion for a new trial or not. To prevent this long delay in applications for a new trial, the legislature, by the act approved November 12th, 1889 (Acts-1889, p. 83), amended the code by declaring that “ when said term continues longer than thirty days, said application shall be filed within thirty days from said trial,, together with a brief of evidence, as provided by law,, subject to the approval of the judge, subject to the same right of amendment as is now allowed in applications for a new trial,” etc. Properly construed, this act means that the term of the court, unless sooner adjourned, ends as to the particular case at the expiration of thirty days from the trial, so far as the application for a new trial and the filing of a brief of evidence are concerned. If the losing party fails within that time to file his application for a new trial, the term of the court is closed as to him the same as if it had adjourned. The old law required the losing party to make his application for a new trial during the term in which the trial was had, except in extraordinary cases; and if he failed to move during the term, he was remediless; but if he made his motion during the term, he could ask the judge for an order granting him further time in vacation to perfect his motion and file his brief of evidence. So under the new law, if he fails to move in thirty days after the trial, he is barred; but if he makes his motion within the thirty days, he still can ask the judge for further time in which to perfect his motion and file his brief of evidence, and the judge still has power to grant the application. In this respect the act of 1889 does not change the prior law. It appearing in -this case that the motion for a new trial was filed within thirty days from the trial, the court had the right to order as he did that further time be allowed for filing the brief of evidence. The motion to dismiss the motion for a new trial, on the ground that the brief of evidence was not filed within thirty days from the trial, was therefore properly overruled.

2. The action was for damages from'personal injuries alleged to have been sustained by the plaintiff, Mrs: Gale, from the giving away of earth under her while walking upon a public street of the city, causing her to fall into a hole, this resulting from the negligence of the defendant in replacing the earth over a place where a ditch had been dug for the purpose of laying piping therein. The court in charging the jury read from section 3067 of the code that part of it which declares that “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors.” It was error to give in charge this section of the code as applicable to the case under consideration; for it is only applicable as a whole to that class of cases where the entire iniury is to the peace, happiness or feelings of the plaintiff. But where, as in this case, a married woman sues for physical injuries and the pain and suffering resulting therefrom, and cannot recover for loss of earnings, medical attention, etc., the principle of the section is applicable, inasmuch as her damages can be measured only by the enlightened conscience of an impartial jury. She is not allowed, however, to prove, nor can the jury take into consideration, as provided by this section, the worldly circumstances of the parties, the amount of bad faith in the transaction, etc. Georgia Railroad v. Homer, 73 Ga. 251.

3, 4, 5. Other grounds of the motion for a new trial, which are ruled upon in the 3d, 4th and 5th head-notes, do not require further discussion.

6. The jury returned a verdict for $10,000.00 damages. The court ordered a new trial unless the plaintiff would write off from the verdict $2,500.00. In a case of this kind, as we have said, where the action is for a personal injury and for pain and suffering resulting therefrom, and there are no other elements of damage for which a recovery can be had, such as loss of earning capacity, etc., there is no guide or criterion by which the amount of damages may be measured, except the enlightened conscience of impartial jurors. There is no criterion, therefore, by which the court can estimate the proper amount of damages, and he has no power to reduce the verdict by ordering a certain amount written off. If the verdict is so excessive as to cause him to suspect bias or prejudice, he can set it aside and order a new trial before another jury, but he must do this unconditionally. In actions on contracts, or for torts to property, in relation to which some fixed rules for the measure of damages are recognized, he may order a certain amount written off'; and in an action for the homicide of a person, where the value of a life may be shown, according to certain recognized rules, he might perhaps have power to reduce an excessive verdict to an amount which would be proper under the proof. S. F. & W. Ry. Co. v. Harper, 70 Ga. 119. And see C. R. R. v. Crosby, 74 Ga. 739.

Judgment on the main bill of exceptions reversed, and on the cross-bill affirmed.