Cook v. Attapulgus Clay Co.

Jenkins, P. J. The purpose of the very able trial judge in seéking to facilitate a final disposition of the case by having this court pass on the evidence without the cost and expense of another trial is to be commended; and we have diligently sought to ascertain if it lay within our power to pass upon the questions of evidence made by the record as now presented. After mature consideration we have reached the conclusion that we can not do so. [612] Neither of the cases cited in the judgment and opinion of the trial judge as authority for his grant of a nonsuit after verdict and judgment and in vacation (Hill v. Vanduzer, 37 Ga. 293, and Central of Ga. Ry. v. Harden, 113 Ga. 453, 38 S. E. 949), involved a nonsuit; but both cases arose on writs of error from orders granting or refusing a new trial. The judgment rendered on the hearing of the motion for new trial was as follows: “The plaintiff’s petition alleges that defendant created and maintained several nuisances which caused the breeding of malaria-bearing mosquitoes, and that said mosquitoes infected her husband with malaria from which he died on August 19, 1933. The defendant denies all the allegations in the petition and also pleads that the alleged nuisances were not' created by defendant, but if created and maintained at all, that they were created by some one else, and that if the deceased had malaria, he did not get it from either of the alleged nuisances, but from some other source, probably from fishing at other places which were infested with malaria-bearing mosquitoes. The evidence was voluminous, there being more than a hundred witnesses, the trial consuming several full days and resulting in a verdict for the plaintiff for $10,000. The defendant made a motion for a new trial and on the hearing of the motion urgently insisted upon the general grounds in the motion to the effect that the evidence does not support a verdict for the plaintiff. I am so firmly rooted and grounded in the belief that verdicts of juries ought not to be disturbed and set aside by the courts until I have made a critical study of all the evidence in a conscientious effort to approve the verdict rendered by the jury. If the defendant killed plaintiff’s husband, the verdict is demanded and is as moderate as could be expected, but if it did not cause his death, it should not be penalized in any sum. By the very nature of the case the plaintiff is dependent upon circumstantial evidence for her proof that her husband’s infection with malaria, which undoubtedly killed him, was caused by the alleged nuisances. Not only did I pay close attention to the evidence during the trial, but I have read it over several times since, and being unable to become satisfied from reading it, I have gone to the trouble to segregate from the record all the plaintiff’s evidence that bears upon the proximate cause, and have studied it separately. As I understand the law, where a case depends upon circumstantial evidence, the facts proved must be so [613] strong as to exclude every other reasonable hypothesis. Ga. Ry. & El. Co. v. Harris, 1 Ga. App. 714 [57 S. E. 1076], In applying this rule to this case, one prominent question arises. Does the evidence exclude a reasonable idea that Mr. Cook may have received his infection from some other source ? I think it is entirely reasonable to assume that the malaria infection which resulted in his death may have come from, not one, but several sources other than • either of the alleged nuisances. The evidence of the plaintiff does not close all other doors through which the infection could very reasonably have entered. "Having arrived at this conclusion at this late day, the next question to consider is what is the right and proper thing for me to do. I am convinced that I should have entered a judgment of nonsuit at the conclusion of the plaintiff’s evidence, and that I made an error in not doing so. That being true, according to the law as I understand it, and as specifically set forth in Hill v. Vanduzer, 37 Ga. 294, and Central Railroad v. Harden, 113 Ga. 453 [38 S. E. 949], it now becomes my duty to go back and correct this error. Moreover, if I simply grant a new trial, the plaintiff could not review my idea of the case in the higher court, for the reason that the granting of a first new trial is in the discretion of the trial judge, and the Court of Appeals would not pass upon the sufficiency of the plaintiff’s evidence. In addition thereto, another trial would bring us back to the same question with which I am now confronted, but in getting to the question again by the route of a new trial, considerable trouble, work, and expense would be necessary. If, instead of entering a nonsuit, the .judge directed a verdict for the defendant, the high court have adopted the rule of affirming the judgment of the lower court with direction that the verdict and judgment directed should be set aside and a judgment of nonsuit entered. See Barnes v. Carter, 120 Ga. 895 [48 S. E. 387], Hines v. McLellan, 117 Ga. 845 [45 S. E. 279], Eady v. Napier, 96 Ga. 736 [22 S. E. 684], and Exposition Mills v. W. & A. R. Co., 83 Ga. 441 [10 S. E. 113]. I am unable to see any reason why I can not do at this time what the Supreme Court could, and what I believe they would direct me to do. By setting aside the verdict and judgment at this time and entering] an order of nonsuit, the case will be expedited, the plaintiff can review by direct bill of exceptions my holding that a [614] prima facie ease has not been made, which will thereby save conderable time, work, and expense. If I happen to be right in the conclusion I have reached, another trial will not be necessary unless the plaintiff is able to strengthen her case by the procurement of additional evidence. On the contrary, if the Court of Appeals should hold that the plaintiff’s evidence is sufficient to make out a prima facie case, we will then know in the next trial whereabouts we are at. The motion for new trial came on regularly to be heard at the time appointed by the previous order, and having been held up under consideration since that time, it is now ordered that the verdict and judgment rendered in said case be vacated and set' aside and a judgment of nonsuit is hereby ordered.” Judgment reversed. Stephens and Sutton, JJ., concur.