24735 | Ga. Ct. App. | Jan 10, 1936
The plaintiff in the municipal court of Atlanta obtained a verdict and judgment against the Masonic Belief Association. A motion for new trial was overruled by the trial judge. An appeal was taken to the appellate division of the municipal court, assigning error upon that ruling. A new trial was granted by the appellate division, and the plaintiff excepted.
The defendant insists that the evidence demanded a verdict in its favor, or that a verdict for the plaintiff was without any evidence to support it; also that the appellate division of the municipal court had the power to grant a new trial in its discretion, and, this being the first grant of a new trial, that it should not be disturbed. The plaintiff insists that there was a conflict in the evidence; and that, the trial judge having exercised his discretion in denying a motion for new trial, the appellate division, created for the correction of errors of law alone, had no discretion, where. the evidence was conflicting, to grant a new trial. The action was on a fraternal relief association policy of insurance similar to that in Masonic Relief Association v. Hicks, 47 Ga. App. 499 (171 S.E. 215" court="Ga. Ct. App." date_filed="1933-09-13" href="https://app.midpage.ai/document/masonic-relief-assn-v-hicks-5623319?utm_source=webapp" opinion_id="5623319">171 S. E. 215), which does not expire at the end of each period for which the premium, dues, or assessments have been paid (being renewable only by further periodic payments as provided for), but is a contract for life made in consideration of the periodic payments of the premium, dues, or assessments. The payment of premiums, dues, or assessments is not a condition precedent to the continuation of the policy or certificate for the life of the insured, but the condition that the policy or certificate becomes lapsed or void, for non-payment of premium, dues, or assessments, as required by the terms of the contract, is a condition subsequent, by which the policy becomes lapsed or void upon condition of non-payment of premiums or dues as required by terms of policy. “The plaintiff’s right to recover is established prima facie, without proof of payment of the required premiums, on proof of possession of the policy by the plaintiff, and its introduction in evidence, and proof of all other essentials to recovery under the policy. The burden is then upon the defendant, in order to defeat recovery, to adduce evidence tending to establish the invalidity of the contract of in
The judge having approved this verdict by denying the motion for new trial, did the appellate division of the municipal court have the same discretion as the trial judge to set aside the verdict, when there was some evidence to support it? The Supreme Court, in Jeter v. Turman-Brown Co., 169 Ga. 30 (149 S.E. 555" court="N.C." date_filed="1929-09-25" href="https://app.midpage.ai/document/concrete-steel-co-v-rose-3666711?utm_source=webapp" opinion_id="3666711">149 S. E. 555), held that an appeal to the appellate division of the municipal court of Atlanta must assign error upon the ruling of the trial judge in denying the motion for new trial. Further it was said: “Consequently, although the proceeding is still denominated an appeal, it savors more of a review by an appellate court, of the investigation by the trial judge, to determine only errors of law. . . In this view of the matter the so-called appeal to the appellate division is somewhat similar to the bill of exceptions to a court of review.” Is the first grant of a new trial by the appellate division reviewable when the law and the facts do not demand a particular verdict? The Code of 1910, § 6204, declares that the first grant of a new trial will not be disturbed, unless the judge abused his discretion, or the law and the facts require the verdict notwithstanding the judgment of the trial judge. There can be no question that the discretion of a judge of the superior court in granting a new trial on certiorari will not be interfered with where the evidence is conflicting. Bryant v. Ridgeway, 126 Ga. 733 (55 S.E. 932" court="Ga." date_filed="1906-11-13" href="https://app.midpage.ai/document/bryant-v-ridgway-5575384?utm_source=webapp" opinion_id="5575384">55 S. E. 932). That case, however, was a certiorari from a justice court, which itself has no authority to grant a new trial. No principle is more firmly fixed than that where the evidence warrants the verdict the discretion of the trial judge in refusing a new trial will
Judgment reversed.