Wood v. Mobley ( 1966 )

Bell, Presiding Judge,

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 accorded by the 1966 amendment, it seems to me that now a motion for judgment notwithstanding the verdict affords only the additional service of allowing the trial judge a longer time for study and reflection on the evidence. That difference is only a practical difference and not a substantive one. On appellate review there is no difference at all.

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 Practice Act of 1965 (Ga. L. 1965, p. 18), as amended by an Act approved March 24, .1965 (Ga. L. 1965, p. 240) and enacted in lieu thereof a new Section 2, part (b) which is as follows: “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.” Even if the latter Act has application here, where the refusal to direct a verdict and the appeal to this court occurred prior to the effective date of such Act (see Alexander v. Chipstead, 152 Ga. 851 (1) (111 SE 552); City of Valdosta v. Singleton, 197 Ga. 194 (28 SE2d 759); Fulton County v. Spratlin, 210 Ga. 447 (80 SE2d 780)), it would not affect the above ruling as the appellant here did “enumerate as error the overruling of the motion for directed verdict” and except for the law of the case we would have here reviewed and considered upon this appeal the order of the trial court overruling the motion for directed verdict and the enumeration of error thereon, and would have held, in accordance with numerous decisions of this court and the Supreme Court, that this action of the trial court is not error. We would then have complied with the Act of 1966. There is nothing in the Act of 1966 which requires a finding of error where the trial judge refuses to direct a verdict. This amendment to the Appellate Practice Act was apparently based upon a misconception of the rule applicable in such cases.

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, 161 Ga. 414 (1) (131 SE 158), which does not sustain the ruling, the case cited holding that the failure to direct a verdict is not reversible error. Both before and after these Court of Appeals cases, this court and the Supreme Court have applied the ruling that the refusal to direct a verdict is not reversible error, or is not ground for reversal in numerous criminal cases. Therefore, it appears that a proper decision of this question involves a determination of which is the correct rule. Prior to the Code of 1885, which first contained the language of Code § 110-104 permitting the direction of a verdict under certain conditions, it was error to direct a verdict even though the evidence demanded it. See Stell v. Glass, 1 Ga. 475; Holder v. State, 5 Ga. 441 (1); Beall v. Mann, 5 Ga. 456 (5); Manning v. Mitchell, 73 Ga. 660. Although, where verdicts were directed under such circumstances, later cases held the error to be harmless. See Davis v. Kirkland, 1 Ga. App. 5, 9 (58 SE 209); Hobby v. Alford, 73 Ga. 791. Code § 110-104, therefore, merely granted permission to direct a verdict when demanded by the evidence and prevented such direction from being error; it did not make the failure or refusal to direct a verdict an error. As was said in Kelly v. Strouse, 116 Ga. 872, 881 (3) (43 SE 280), “The judge of a trial court may in a proper case direct a verdict, but this court will not require him to give a case this direction. If he sees fit to submit to a jury a case which can have only one lawful termination, he may do so. See Western & A. R. Co. v. Callaway, 111 Ga. 889 (36 SE 967); Owen v. Palmour, 115 Ga. 683 (1) (42 SE 53).” It would seem, therefore, that the basis for the rule is that the refusal to direct a verdict is not erroneous rather than the statement that it is not reviewable, and even if the amendment of 1966 should be construed as eliminating the ruling in those cases holding that such a ruling is not reviewable, this amendment did not eliminate the ruling in numerous cases which did review and did consider the alleged error and held that the action of the court in refusing to direct a verdict was not error. To make such action of the trial judge error, an amendment to Code § 110-104 would have accomplished that purpose by amending the Code section so that it would read as follows: “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, and wpon motion shall, direct the jury to find for the party entitled thereto.”

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 the basis of reversible error, but where that statute is pursued, the error is not in failing to direct the verdict in the first instance, but in failing to grant the motion for a judgment notwithstanding the verdict.” Bromberg v. Drake, 91 Ga. App. 118, 122 (2) (85 SE2d 160).

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 decided by this court which erroneously held that the refusal to direct a verdict was not reviewable or did not present a question for consideration by the appellate courts, and while accomplishing a “repeal” of this erroneous rule, did not in any manner change the correct one, based upon the common law. So long as Code § 110-104 which makes the direction of a verdict permissive only, and not mandatory, remains unamended, either expressly or by implication, we must adhere to the law as written,—it is not error to refuse to direct a verdict. The Act of 1966 merely provided a method for claiming an alleged error in an appeal to this court. I have never heard of any case where such a change in appellate or post trial procedure of a remedial nature, could, under any circumstances, effect a change in the trial procedure and make the action of the trial judge upon the trial of the case reversible error when heretofore such action was never error.