Armour & Co. v. Roberts

• Decision Date: 05 December 1940
• Docket Number: 28406.
• Citation: 12 S.E.2d 376,63 Ga.App. 846
• Court: Georgia Court of Appeals
• Parties: ARMOUR & CO. v. ROBERTS.

12 S.E.2d 376

63 Ga.App. 846

ARMOUR & CO. v. ROBERTS.

No. 28406.

Court of Appeals of Georgia, Division No. 1.

December 5, 1940

D F. McClatchey, Hirsch, Smith & Kilpatrick and A. Steve Clay, all of Atlanta, and Kelley & Brannon, of Gainesville, for plaintiff in error.

Wheeler & Kenyon and Chas. J. Thurmond, all of Gainesville, for defendant in error.

GARDNER Judge.

1. In charging the jury it is not reversible error for the court to state correctly the contentions as made by the allegations of the parties, or give them by a narrative reading of the allegations of the petition, even though some of the contentions, in either instant, be unsupported by the evidence. Mayor and Council of Americus v. Gammage, 15 Ga.App. 805(1), 84 S.E. 144; Georgia Railway &amp Electric Co. v. Carroll, 143 Ga. 93(2), 84 S.E. 434; Matthews & Company v. Seaboard Air-Line Railway, 17 Ga.App 664(1), 87 S.E. 1097; Western & Atlantic R. R. Co. v. Lochridge, 39 Ga.App. 246, 257, 146 S.E. 776; Southern Railway Company v. Wright, 6 Ga.App. 172(5), 180, 64 S.E. 703; Hunt v. Pollard, 55 Ga.App. 423(5), 190 S.E. 71; Taber Mill v. Southern Brighton Mills, 49 Ga.App. 390, 398, 175 S.E. 665. The plaintiff in error relies strongly on the decision in Americus Gas & Electric Co. v. Coleman, 16 Ga.App. 17(2), 84 S.E. 493, in which it was said: "Where a paragraph in a petition alleges gross carelessness and wanton and willful disregard of life and property because of certain specific facts therein stated, and there is no evidence whatever introduced which tends to sustain such allegations, it is error on the part of the court to read to the jury that portion of the plaintiff's petition." We think one of the best statements in the earliest opinions is as was expressed in Matthews & Company v. Seaboard Air-Line Railway, supra, as follows: "While it is erroneous for the trial judge to submit to the jury an issue not arising under either the pleadings or the evidence, still it is not reversible error for the court, in stating the contentions of the parties, to state these contentions as they are presented in the pleadings, even though there may be no evidence, or insufficient evidence, to support the contention. The well-recognized proposition that error cannot be successfully assigned of a refusal to direct a verdict is merely a corollary of this general proposition." We think this is the same rule, that it is error, but not reversible error, and we think a study on the earlier decisions will disclose that they do not contradict the sound principle as announced in the Matthews case. There is a distinction between "error" and "reversible error." Moreover, as to this assignment of error, from a careful reading of the evidence we think that there was sufficient evidence to support the contention in question, which further makes this assignment without merit.

2. Error is...