Richter v. Atlantic Company

16 S.E.2d 259, 65 Ga. App. 605, 1941 Ga. App. LEXIS 360

• Court: Court of Appeals of Georgia
• Decided: July 16, 1941
• Docket: 28833.
• Status: Published

Opinions

MacIntyre, J.

For a statement of the pleadings in the instant case see Richter v. Atlantic Co., 59 Ga. App. 137 (200 S. E. 462), the pleadings being in effect the same as they were then. Trial of the instant case resulted in a verdict and judgment for the defendant. A motion for new trial was overruled, and the plaintiffs excepted.

1. The judge charged the jury as follows: “The defendant contends before this jury that this fire, the origin of this fire was unknown to them, that the fire originated through no act of negligence on their part. [If you believe that this fire originated through no act of negligence upon the part of this defendant, Atlantic Company, you would not be authorized, under those conditions to bring in a verdict for these plaintiffs, but, on the other hand, it would be your duty to bring in a verdict for this defendant.]” He had previously charged: “Gentlemen of the jury, nobailee will be permitted, under the laws of Georgia, to make a contract whereby it could exempt itself from its own negligence in case of fire. However, the defendant in this ease would not be responsible- for the loss by fire in this case, under investigation, if it exercised ordinary care and diligence in the preservation of this property, [and the fire was occasioned by other things over which the defendant company could not have exercised control by the exercise of ordinary care and diligence.]” (Brackets ours.) The plaintiffs contend in ground 4 that the excerpts from the charge in brackets above eliminated from the jury all the grounds of negligence claimed by the plaintiffs except that relating to the “origin” of the fire, and that the other allegations of negligence were the most important because they claimed the defendant was negligent in allowing the pecans to be exposed to the noxious gases for a prolonged period of time.

We do not think the part of the charge excepted to was erroneous for the reason that it had the effect of eliminating the other charges of negligence, for when the charge excepted to is read in connection with the other portions of the charge this complaint entirely disappears. The first acts of negligence set out in the petition related to the origin of the fire, and from the context of the charge and the use of the words “under those conditions,” it appears that this part of the charge was dealing with the law of negligence as it related to the origin of the fire and not to the other alleged acts of negligence which were subsequently alleged. In addition to the charge excepted to the court charged: “If the evidence shows that any of the plaintiffs’ pecans, described in their pleadings, were damaged by fire, or by the vapors and gases resulting from the fire, or by water used in fighting the fire, as claimed by the plaintiffs, and that such damage was the result of any one or more of the alleged acts of negligence on the part of the defendant, or its agents, as set out in the plaintiffs’ pleadings, then you should find for the plaintiffs in some amount.” And further: “Plaintiffs do not claim in this case that the entire damage was done by the actual burning of the pecans in question, but claim, on the contrary, ' that by far the greater part of the damage done was the result of water used in fighting the fire and of noxious gases and vaporized oil from the pecans, resulting from the fact that some of the pecans on storage with the defendant were actually burned, and thereby said gases and vapors were generated and went into different rooms and floors of the defendant where the nuts were stored, and that said nuts absorbed said gases and vapors so that the nuts became thereby unfit for human consumption, and thereby were greatly lessened in value.” Still further he charged them in effect that the question to be determined was “Whether the defendant or its agents were guilty of any one, or more of the acts of negligence charged in plaintiffs’ pleadings,” and if so whether the alleged negligence was the proximate cause of the damage.

It has been many times held that a charge must be considered in its entirety and not in disjointed fragments. Brown v. Matthews, 79 Ga. 1 (4 S. E. 13). The charge in the instant case is no exception. This particular instruction excepted to, when considered in connection with the charge immediately preceding it, dealt with a contention of the defendant that the origin of the fire was unknown to it and had originated through no negligence on its part, and the law relative thereto, and when considered, as it should be, in connection with the fair and explicit statement by the court of the respective contentions of the plaintiffs, and the further instructions given in immediate connection with the one complained of, no reversible error appears. “A charge, tom to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.” Brown v. Matthews, supra. When the excerpts complained of, which are set out in brackets above, are considered with the other portions of the charge in immediate connection therewith, and with the charge as a whole, we do not see cause for a new trial for the reasons assigned. Smith v. State, 29 Ga. App. 178 (114 S. E. 581); Sims v. Martin, 33 Ga. App. 486 (4) (126 S. E. 872); Prescott v. Fletcher, 133 Ga. 404 (65 S. E. 877).

2. Ground 5 contends that the judge committed error in charging repeatedly in reference to the defendant’s warehouse receipt by which the defendant sought to exempt itself from liability for the fire, whereas the jury should have been charged simply to disregard said provisions in the receipt. In all, the charge made six references to the receipt and its provisions relieving the defendant of liability, all of which are complained of in this ground. We have thoroughly read and studied the charge and find that the first four references therein to the warehouse receipt were in reading the defendant’s answer to the jury. The other two references thereto were in the charge proper, and immediately after the first charge with reference thereto, the judge charged the jury: “Gentlemen of the jury, no bailee will be permitted under the laws of Georgia to make a contract whereby it could exempt itself from its own negligence in case of fire.” And immediately after the second charge in reference thereto, he charged: “The court charges you as a matter of law that the printed provisions just quoted are not to be considered by you as affording any defense to the defendant, Atlantic Company, as the defendant’s contention as to that feature of the case is overruled by the court as a matter of law, and the court charges you that any and all of those provisions quoted by the court from said printed form of receipt, are to be disregarded, by you entirely, so far as they are claimed to furnish any defense ■on the part of the defendant.” It was not reversible error to read the pleadings to the jury. The judge, after setting forth the receipt and the defendant’s contention of no liability thereunder, on two separate occasions in immediate connection therewith, told the .jury in effect that the defendant could not rely on the said exceptions and relieve itself from liability, and that the provisions in the receipt should be disregarded in their entirety. We can not see that any reversible error appears in this ground of the motion when the excerpts complained of are read in connection with the instructions of the court to disregard said provisions in the receipt.

3. It was not reversible error, as contended in ground 6, to ■charge the jury Code, § 12-106, as follows: “In order for a bailee to avail himself of the act of God or exception under the contract, as a defense, he must establish not only that the act of God, or excepted fact, ultimately occasioned the loss, but that his own negligence did not contribute thereto.” The general rule is that a charge to the jury which is not authorized by evidence, and which is calculated to mislead and confuse the jury, requires a new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 708 (181 S. E. 315); Southern Marble Co. v. Pinyon, 144 Ga. 259 (2) (86 S. E. 1086); Gaskins v. Gaskins, 145 Ga. 806 (89 S. E. 1080); Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2 a) (76 S. E. 387, Ann. Cas. 1914A, 880). The plaintiffs contend that this rule is here applicable and controlling adversely to the defendant. We can not see that it was harmful to the plaintiffs, for, under the ■charge, whether the defendant relied on an act of God or an exception under the contract, still the defendant must show that “his ■own negligence did not contribute” to the loss, which was its burden in the instant case. It is apparent that the jury were not misled by the charge and that it was not reversible error. See Citizens & Southern National Bank v. Kontz, 185 Ga. 131, 148 (194 S. E. 536), and cit.

4. Ground 7 contends that the judge committed reversible error in charging the theory of accident. In its proper use the term “accident” excludes negligence; that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and in the circumstances in which he was placed. Black’s Law Dictionary, 23. This court has said that an “accident” in its strict sense implies the absence of negligence for which no one would be liable. Stansfield v. Gardner, 56 Ga. App. 634, 645 (193 S. E. 375). The defendant in its answer contended that the damages, if any, were the result of an accident so far as the defendant is concerned. This was in legal contemplation pleading in effect, by way of elaboration or additional statement, that the defendant exercised ordinary care and diligence which is the duty required by law. Code, §§ 12-103, 12-404. And where as here there was evidence to sustain a finding by the jury that the defendant was not lacking in proper care to the plaintiffs under the law, the theory of accident was involved; and this being so, it was not error requiring a new trial to give an instruction thereon. Alabama Great Southern Ry. Co. v. Brown, 138 Ga. 328, 332 (75 S. E. 330); Black & White Cab Co. v. Cowden, 64 Ga. App. 477, 480 (13 S. E. 724); So. Ry. Co. v. Penn, 18 Ga. App. 431 (89 S. E. 489); Brown v. Athens, 47 Ga. App. 820 (3) (171 S. E. 730); Holliday v. Athens, 10 Ga. App. 709 (6) (74 S. E. 67); City of Columbus v. Anglin, 120 Ga. 785 (10), 798 (48 S. E. 318); Enright v. Atlanta, 78 Ga. 288; Fisher Motor Car Co. v. Seymour, 9 Ga. App. 465 (2) (71 S. E. 764).

5. The excerpt from the charge complained of in ground 8 stated a correct principle of law applicable to the pleadings and the evidence, and the judge did not err in charging said excerpt for any reason assigned.

6. Ground 9 contends that the judge erred in repeatedly and unnecessarily charging the jury on five separate occasions that the defendant was not an insurer and that the suit was “for the use of the Pearl Assurance Company, Limited,” and in constantly repeating and reiterating to the jury that they should find for the defendant (in case the defendant’s hypothesis was believed to be true) without ever charging in connection therewith the alternative, to wit, that the jury might find for the plaintiffs on that issue in ease they found such hypothesis of the defendant was not sustained. The practice of several times repeating in extenso the contentions of the parties, while charging the jury, is not to be commended, yet where, as here, they are fairly and impartially stated, the error is harmless. Chattahoochee Valley Ry. Co. v. Bass, 9 Ga. App. 83 (11), 84 (70 S. E. 683). In Laney v. Barr, 61 Ga. App. 145, 147 (6 S. E. 2d, 99), the court quoted approvingly the following statement: “A repetition of a proposition in different instructions may be of such a character as to be in the nature of an argument. However, an instruction is not argumentative merely because it contains unnecessary repetitions.” We do not think the charge here was calculated to impress the jury with the thought that the judge was against the plaintiffs and was of the opinion that they should find against the plaintiffs. “The natural effect of the whole charge was to leave the minds of the jury to be operated on by the convincing power of the evidence.” Laney v. Barr, supra. The mere fact that the defendant’s contentions were stated more at length than the plaintiffs’ did not indicate that undue stress was laid upon or undue prominence given to the former. Phinizy v. Bush, 135 Ga. 678 (3) (70 S. E. 243); Millen & Southwestern R. Co. v. Allen, 130 Ga. 656 (61 S. E. 541). The ground does not disclose reversible error for this reason. It is well settled that if the judge undertakes to state the contentions of one party, he should also state the contentions of the other; but he need not necessarily charge the alternative propositions to the jury in immediate connection with this part of the charge on the defendant’s contentions. The plaintiffs’ alternative propositions were elsewhere given in charge to the jury, and no reversible error appears for this reason. Small v. Williams, 87 Ga. 681, 686 (13 S. E. 589); City & Suburban Railway v. Findley, 76 Ga. 311 (3); Brown v. Everett-Ridley-Ragan Co., 111 Ga. 404 (4), 415 (36 S. E. 813).

7. The excerpt from the charge complained of in ground 10 was not erroneous for any reason assigned. This charge in effect told the jury that in their discretion they could find in favor of the plaintiffs for the full amount sued for, for only a part thereof, or they could find none of the amount sued for, which would be equivalent to a verdict in favor of the defendant, their finding of course being dependent upon where the preponderance of the evidence lay. This was not reversible error. See Georgia Northern Ry. Co. v. Sharp, 19 Ga. App. 503, 505 (91 S. E. 1045).

8. '“It is a general rule that, wherever an expert can give an opinion without the reasons upon which it is based, any other witness, who knows facts upon which he can form an opinion, may state his opinion, by giving the facts upon which he bases it.” Central Railroad v. Senn, 73 Ga. 705 (3). It has also been held that “All the circumstances of a transaction may be submitted to the jury, provided they afford any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad, and if carried out in good faith, would produce the most beneficial results. Accordingly . . it was held, that all facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, are admissible in evidence.” Keener v. State, 18 Ga. 194, 225 (63 Am. D. 269). See also Berry v. State, 10 Ga. 511 (20, 21). Under the rules just stated the judge did not err in allowing the testimony objected to in ground 11.

9. Ground 12 relates to the cross-examination by the defendant of one of the plaintiffs. It should be borne in mind that “The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against them.” Code, § 38-1705. And, “The trial judge has a discretion to control the right of cross-examination within reasonable bounds.” Rogers v. State, 18 Ga. App. 332 (2) (89 S. E. 460). Yet the denial or abridgment of this substantial right of a party to thorough cross-examination of a witness of his adversary is a material error and requires the grant of a new trial. McGinty v. State, 59 Ga. App. 675 (2 S. E. 2d, 134). Applying the rules above to the exceptions in this ground, we do not think the judge erred in allowing the defendant to cross-exaipine the plaintiff as it did in the instant ease. This ground is not meritorious.

10. The judge accurately stated in his charge the contentions of the parties, for he stated them in the very language of the pleadings. Thus, he stated in his charge each specific act of negligence upon which the plaintiffs sought to recover. One of the acts of negligence was set out in paragraph 15 of the plaintiffs’ petition as follows: “Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely said things bailed, in that ordinary care and diligence required that said defendant should have and maintain a watchman who would inspect and visit said pecans in each storeroom at least once each hour of the day and night, and the defendant failed to provide such watchman to inspect and visit said pecans that often.” The judge then declared what the law was with its exceptions and qualifications, and then stated hypothetically several times that if they, the jury, believed the plaintiffs had established by a preponderance of the evidence the existence of any one of those acts of negligence alleged, to which he had previously called the jury’s attention in the charge, the plaintiffs would be entitled to recover if such act or acts were the proximate cause of the damage. The judge also charged: “The plaintiffs in this case base their suit upon several alleged acts of negligence, alleged by the plaintiffs against the defendant, Atlantic Company, and its agents, and alleged to have caused the damages sued for; and I charge you that in order for the plaintiffs to prevail it is not necessary that you believe that the defendant, Atlantic Company, and its servants were guilty of all of said several acts of negligence charged; but if the defendant or its servants committed any one of said acts of negligence charged, or two or more of them, without committing all of them, and the one act of negligence, or two or more acts of negligence, which the defendant or its servants did commit, was or were the proximate cause of any of the damages sued for, then the plaintiffs would be entitled to recover the amount of the damages proved to result from that negligence proved, even though you should decide that the defendant and its agents were not guilty of some several acts of negligence charged in the plaintiffs’ pleadings, or though you believe that some of the acts of negligence which did exist may not have been the proximate cause of the damage done. If the evidence shows that any of the plaintiffs’ pecans, described in their pleadings, were damaged by fire, or by the vapors and gases resulting from the fire, or by water used in fighting the fire, as claimed by the plaintiffs, and that such damage was the result of any one or more of the alleged acts of negligence on the part of the defendant, or its agents, as set out in the plaintiffs’ pleadings, then you should find for the plaintiffs in some amount even though you believe from the evidence that the damage was not as great as claimed by the plaintiffs.” One of the plaintiffs’ requests to charge, set out in ground 13, was as follows: “One of the grounds of negligence alleged by the plaintiffs against the defendant, is as follows: Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely said things bailed, in that ordinary care and diligence required that said defendant should have maintained a watchman who would inspect and visit said pecans in each storeroom at least once each hour of the day and night, and the defendant failed to provide such watchman to inspect and visit said pecans that often. If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damages sued for by plaintiffs, then you should return a verdict for the plaintiffs for the amount of damages you find, under the rules I give you, to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendant and its servants were not guilty of the charge of negligence, just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs’ goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in the case.” We do not think it was reversible error in this case to refuse this correct requested instruction. It was clearly, substantially (even fully), and fairly covered by the general charge. We think the general charge made it clear to the jury that if they believed this one act of negligence had been proved, and was the proximate cause of the damage, the plaintiffs were entitled to recover. Other requests to charge were set out in ground 13, but the ruling just made is controlling as to each of the other requests. We do not think the judge erred in failing to give in charge the requested” instructions either separately or collectively. This ground is not meritorious. Gramling v. Pool, 111 Ga. 93 (36 S. E. 430); Wheatley v. West, 61 Ga. 402 (4); Parker v. Georgia Pacific Ry. Co., 83 Ga. 539 (5) (10 S. E. 233); Millen & Southwestern R. Co. v. Allen, supra; Atlantic Coast Line R. Co. v. Odum, 5 Ga. App. 780 (2) (63 S. E. 1126); Liberty National Life Insurance Co. v. Stinson, 61 Ga. App. 344 (6 S. E. 2d, 199); Roach v. Terry, 164 Ga. 421 (138 S. E. 902). See Gaines v. Brown, 175 Ga. 66 (164 S. E. 806).

11. The evidence authorized the verdict.

Judgment affirmed.

Broyles, G. J., concurs.