Wooten v. Life Ins. Co. of Georgia , 93 Ga. App. 665 ( 1956 )

On Motion for Rehearing

Plaintiff insists, on rehearing, that since she made out a prima facie case, and since this court held that the evidence relied upon by the defendant to show continuous affliction by epilepsy before and after the execution of the contract of insurance so as to avoid the policy as to this disease was improperly admitted, she is entitled also to have the case reversed on the judgment of the trial court overruling her motion for a judgment notwithstanding the verdict.

The record as it exists at the close of the trial controls as to whether the verdict should be directed and as to whether the motion for judgment notwithstanding verdict should be granted. Henry Shenk Co. v. City of Erie, 352 Pa. 481 (43 Atl. 2d 99); Kotlikoff v. Master, 345 Pa. 258 (27 Atl. 2d 35); Heffron v. Prudential Ins. Co. of America, 137 Pa. Super. 69 (8 Atl. 2d 491); Youngwood Building & Loan Assn. v. Henry, 137 Pa. Super. 124 (8 Atl. 2d 427); Dixon v. Metropolitan Life Ins. Co., 136 Pa. Super. 573 (7 Atl. 2d 549). “Under this rule the trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.” 49 C. J. S. 171, § 60; Cherry v. Mitosky, 353 Pa. 401 (45 Atl. 2d 23); Kenny v. Metropolitan Life Ins. Co., 82 Ohio App. 51 (80 N. E. 2d 677). The record here at the time these motions were made contained evidence which, to say the least, would have authorized a verdict for the defendant. That evidence is dealt with in division 3 hereof and it required a motion for a new trial to obtain a ruling that this evidence had been erroneously admitted. Code (Ann. Supp.) § 110-113 providing for motions for judgment notwithstanding the verdict based on a prior motion for a directed verdict is a procedure wholly unrelated to and in no way dependent upon motions for new trials.. The effect of a motion for a new trial where sustained is to grant such motion. This means that a new trial is to be had. Courts cannot grant a new trial by reason of an error committed on a former trial and at the same time grant a motion for a judgment notwithstanding the verdict of such former trial. The grant of the latter motion is in conflict with the granting of the former. The plaintiff here asked for a new trial. He also asked for a judgment notwithstanding the verdict. If he got the latter he could not get the former, nor would he want it. He was not in position to get the latter here because of evidence erroneously admitted but which until disposed of stood in the way of this motion. To dispose of this evidence a new trial was asked for by the plaintiff and the same had to be granted.