Glover v. Summerour

144 S.E. 246, 166 Ga. 784, 1928 Ga. LEXIS 401

Opinion

Gilbert, J.

The first ground of the motion contains a lengthy colloquy between counsel, the court, and a witness introduced in behalf of plaintiffs with reference to the admissibility of evidence. The rulings of the court show that at first the evidence was held admissible, but that later the court announced that it would be excluded. To this announcement counsel for the defendants, one of whom is the plaintiff in error, replied: “I think that is right, your honor.” Movant complains that the announeemeht of the presiding judge, excluding the evidence, “came too late to take from the minds of the jury the damaging effect of the evidence; . . that the statement made by the presiding judge to movant’s counsel was not sufficient and did not have the effect to withdraw this evidence from the jury; that the judge erred in not instructing the jury that this evidence was withdrawn from them and for them not to consider it, which he failed to do either in the statement made or in his charge to the jury.” This ground does not show error.

The second ground complains that the court erred in charging the jury as follows: “Now, gentlemen, the court instructs you that in either event you will find a verdict in favor of the plaintiff in this case.” The criticism is that this charge was a direct instruction to the jury to find for the plaintiffs, and, construed in its literal sense, meant for the jury to find against movant. Construed in connection with that portion of the charge immediately following the portion quoted, the excerpt complained of was not erroneous. The court explained that the suit was against two defendants; that the jury could find against either or both or in favor of both; and the court also explained the forms of verdict.

The verdict is supported by evidence, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur, except Russell, G. J., dissenting.