We believe that the ends of justice, and equality of right and privilege between parties, will be best promoted by the following rule, to wit: a party shall not dismiss or be nonsuit in any case, after the publication of the verdict, and it shall be considered as published, eo instanti, in which it is handed to the plaintiff's counsel or other person directed by the Court to receive it. ”); WellStar Health Sys., Inc. v. Sutton, 318 Ga.App. 802, 804(2), 734 S.E.2d 764 (2012) (“Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is published.” (punctuation omitted)); Bell v. State, 163 Ga.App. 672, 674(1), 295 S.E.2d 147 (1982) (same); Irvine, 15 Ga.App. at 269, 82 S.E. 819 (same) ; see also Hannula v. Ramey, 177 Ga.App. 512, 513(1), 339 S.E.2d 735 (1986) (“When a verdict has been received by the clerk of the court, and read at the direction of the judge, it has been published.”); Haughton v. Judsen, 116 Ga.App. 308, 311(2), 157 S.E.2d 297 (1967) (“The record indicates that when the jury had reached a consensus and returned to the box the judge inquired of them whether they had reached verdicts in the cases; one of them replied that they had and the judge then directed the clerk to receive and publish the verdicts. Thereupon the clerk took the petitions on which the verdicts had been written and read the verdicts in open court.
Id. Howe Associates also asserts that the Court of Appeals erroneously based its decision on authority holding that an announcement by a trial judge of its intention to rule precludes the filing of a voluntary dismissal, despite the language of OCGA § 9-11-41 (a). See, e.g., Jones v. Burton, 238 Ga. 394 (1) ( 233 SE2d 367) (1977); Hannula v. Ramey, 177 Ga. App. 512 (1) ( 339 SE2d 735) (1986). A proper reading of Howe Assoc, supra, however, shows that the court merely "analogized" to that line of authority.
However, a charge is only justified when there is some evidence upon which to base it, and in this case, there was no such evidence. See Hannula v. Barney, 177 Ga. App. 512, 513 (2) ( 339 SE2d 735) (1986). "The burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated."
Emphasis supplied. See Hannula v. Ramey, 177 Ga. App. 512, 513 (1) ( 339 SE2d 735) (1986); Vanderbreggen v. Hodge, 171 Ga. App. 868 (2) ( 321 SE2d 218) (1984); Smith v. Forrester, 145 Ga. App. 281, 283 ( 243 SE2d 575) (1978). See Vanderbreggen, supra.
In such cases, the trial courts routinely set aside the dismissals and reinstate the actions to effect the announced decision. See, e.g., Leary v. Julian, 225 Ga. App. 472, 473-474 (1) ( 484 SE2d 75) (1997); Hannula v. Ramey, 177 Ga. App. 512 (1) ( 339 SE2d 735) (1986). In a similar manner, the existence of the OCGA § 15-19-14 (b) attorney's lien prevents a plaintiff from filing an effective dismissal of the complaint sufficient to defeat that lien, and allows the trial court to vacate the dismissal, revive the original action, and preserve the lien.
Jones v. Burton, 238 Ga. 394 ( 233 SE2d 367) (1977).Hannula v. Ramey, 177 Ga. App. 512 ( 339 SE2d 735) (1986).Groves v. Groves, 250 Ga. 459 ( 298 SE2d 506) (1983).
OCGA § 9-12-5; Fried v. Fried, 208 Ga. 861(3) ( 69 S.E.2d 862) (1952). See Hannula v. Ramey, 177 Ga. App. 512, 513(1) ( 339 S.E.2d 735) (1986).Davis v. Wright, 194 Ga. 1, 6(4) ( 21 S.E.2d 88) (1942).
Based upon the verdict, the jury did, in fact, apply evidence of failure to mitigate; the jury, in fact, reduced the damages awarded based upon evidence of failure to mitigate, and reached the same result. The evidence before the jury justified the jury instruction on USFG's duty to mitigate its damages by the exercise of ordinary care. Southern Bell Tel. c. Co. v. Don Hammond, Inc., 198 Ga. App. 517 ( 402 S.E.2d 112) (1991); Hannula v. Ramey, 177 Ga. App. 512 ( 339 S.E.2d 735) (1986); Thico Plan, Inc. v. Ashkouti, 171 Ga. App. 536 ( 320 S.E.2d 604) (1984); Butler v. Anderson, 163 Ga. App. 547 ( 295 S.E.2d 216) (1982); Gleason v. Rhodes Center Pharmacy, 94 Ga. App. 439 ( 95 S.E.2d 293) (1956); Smith v. Hightower, 80 Ga. App. 293 ( 55 S.E.2d 872) (1949). The trial court, believing that the evidence raised issues of comparative and contributory negligence, erroneously charged OCGA § 51-12-33, which authorizes a jury that it "may apportion its award of damages" and may disregard joint and several liability of joint tortfeasors when the plaintiff also was "to some degree responsible for the injury or damages claimed."
Such a dismissal, however, is precluded as soon as the trial court announces a finding, judgment, or decision that serves to terminate the litigation. Jones v. Burton, 238 Ga. 394, 396 ( 233 S.E.2d 367) (1977); see also Hannula v. Ramey, 177 Ga. App. 512 ( 339 S.E.2d 735) (1986). When a judicial determination is made in open court, there is no requirement that its substance be memorialized in writing or reduced to an order to be effective against the parties or the plaintiff's right to dismiss the claim.
There being some evidence authorizing the charge on automatic couplers, the trial court did not err in presenting this issue to the jury. Hannula v. Ramey, 177 Ga. App. 512, 513 (2) ( 339 S.E.2d 735). Defendant's sole objection to the charge at issue was that it was not authorized by the evidence.