Christine Mullally sued Lehue Bennett for injuries she sustained when his truck struck her while she was crossing a street on foot, in a crosswalk. The first jury trial resulted in a defense verdict, and the trial court subsequently granted Mullally’s motion for a new trial. The second jury returned a verdict for Mullally in the amount of $128,359 in damages, and the trial court entered judgment against Bennett for that amount, plus pre-judgment interest of 12 percent on $100,000 from May 2, 1999 to the date of the judgment. Bennett appeals, contending that the trial court erred in granting the motion for new trial, in allowing a police officer to offer opinion testimony, and in granting pre-judgment interest. For the reasons that follow, we affirm. 1. Bennett contends that the trial court judge, who did not preside over the first trial, erred in granting Mullally’s motion for a new trial after the first verdict. Mullally argued in her motion for a new trial that she was unduly prejudiced because the judge who presided over her trial failed to strike two jurors for cause. Those jurors’ responses during voir dire showed that they were biased against her and that their opinions that they would not award damages for pain and suffering were fixed. Mullally argued that the “court did not engage in any meaningful juror rehabilitation.” In granting her motion for a new trial, the trial court held, “It is clear that juror Moore had the opinion that the Defendant should prevail on Plaintiff’s claim for pain and suffering.”
Bennett asserts that the discretion of a successor judge who did not preside over a trial is more limited in scope than the discretion of the judge who did preside. In considering the appellate standard of review on the grant of a motion for new trial, the Georgia Supreme Court first noted that, “The scope within which the discretion to grant a new trial may be exercised, in the consideration of the evidence, by a judge who did not preside at the trial is not as extensive as in the case of the judge who heard and observed the witnesses and who, in a sense, is to be considered as the thirteenth member of the jury.” Head v. CSX Transportation , 271 Ga. 670, 672 2 524 SE2d 215 1999, citing Throgmorton v. Trammell , 90 Ga. App. 433, 435 2 a 83 SE2d 256 1954. The court in Throgmorton continues: “There is no language in . . . the Code from which it can be inferred that the grant of a first new trial is ever an abuse of discretion, unless the verdict set aside was demanded by the evidence adduced upon the trial.” Id.
