Sheridan v. Haggard

99 S.E.2d 163, 95 Ga. App. 792, 1957 Ga. App. LEXIS 920

• Court: Court of Appeals of Georgia
• Decided: April 4, 1957
• Docket: 36582
• Status: Published

Opinions

Nichols, J.

1. Thel first special ground of the motion for new trial complains that the trial court erred in charging, on the matter of where the preponderance of the evidence lay, that the jury should “take into consideration all the facts and circumstances of the case as they have transpired here in your presence.” The error assigned here is that the words “as they have transpired here in your presence” were words of limitation and restricted the jury as to what it should consider.

It appears from an examination of the whole charge that, at the time the above excerpt of the charge was given to the jury, the court was charging Code § 38-107 which should have been given to the jury either verbatim or in substance in the present case. The excerpt complained of is not embodied in the Code section; however, Code § 110-108 prohibits a juror from acting on his private knowledge where he has not been called and examined in the case. The phrase complained of above does not, as contended by the defendants, limit the jury to a consideration only of the facts and circumstances of the case as they happened on the trial of the case, but does properly limit the jury to a consideration of the facts and circumstances of the case as they were disclosed to the jury on the trial of the case. Roget’s Thesaurus of English Words and Phrases, p. 197 gives “transpire” as a synonym of “disclose,” “come to light,” “come in sight,” etc., and although the Merriam-Webster New International Dictionary, 2d ed., Unabridged, p. 2693 does show that, while the word “transpire” is sometimes used in lieu of “happen” or “occur,” such usage is not correct. Since trial jurors are selected for their intelligence and uprightness (Bank of Loganville v. Briscoe, 93 Ga. App. 558, 559, 92 S. E. 2d 326, and citations), it hardly seems likely that they would interpret this excerpt of the charge to restrict them in their consideration of the case to “happenings” on the day of the trial and not to the facts of the incident as testified to on the trial of the case. Accordingly, this ground of the motion for new trial is without merit.

2. Special ground 2 complains that the trial court erred in failing to charge the provisions of Code § 38-107 that the jury might consider the witnesses’ “means and opportunity for knowing the facts to which they testified.”

It has often been held that in close cases it is reversible error for the trial court to charge a portion of this Code section and to fail to charge all of it. See Turner v. Joiner, 77 Ga. App. 603, 615 (48 S. E. 2d 907), and citations. In the present case practically all the evidence was circumstantial and was in sharp conflict as to the one controlling question, to wit: “Did the truck owned by the defendant Garrison and being driven by the defendant Sheridan strike the mowing machine being used by the plaintiff?” Under these circumstances all of Code § 38-107 should have been given in charge even without request, and the failure to include the portion thereof relating to the witnesses’ means and opportunity of knowing the facts to which they testified was reversible error.

3. The special ground of the motion for new trial which assigns error on the court’s charge on “loss of earnings” is without merit since this was an item sued for and an item of damages supported by the evidence. See Southern Ry. Co. v. Groover, 41 Ga. App. 746 (4) (154 S. E. 706), and citations.

The matters complained of in the remaining ground of the motion for new trial are not likely to recur, and the general grounds of the motion for new trial are not passed on since under the ruling in the second division of this opinion the case must be tried again. The trial court erred in denying the defendants’ motion for new trial.

Judgment reversed.

Gardner, P. J., Carlisle and Quillian, JJ., concur. Felton, C. J., and Townsend, J., dissent.