Brown v. Carmanni, 37745
| Decision Date | 09 September 1959 |
| Docket Number | No. 2,No. 37745,37745,2 |
| Citation | 100 Ga.App. 116,110 S.E.2d 543 |
| Parties | Harry BROWN v. M. C. CARMANNI et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The trial court did not express an opinion as to what had been proved in the case when, in instructing the jury and in stating the contentions of the defendants as made by their answers and cross-petitions, he used the expression 'defendant shows' rather than 'defendant contends,' or 'defendant alleges,' where the expression used was the same as that employed in the answers and cross-petitions and where he otherwise fully informed the jury that he was merely stating the contentions of the parties, and fully instructed the jury that the defendants had the burden of proving the contentions made by their cross-petitions by a preponderance of the evidence.
2. The portions of the charge complained of in special grounds 3, 4, 5 and 6 of the motion for new trial were not erroneous for any of the reasons assigned.
3. 'An exception to an entire charge is not good unless the whole charge is subject to such exception.' The charge of the court in this case was not so defective as to be subject to this kind of an exception.
4. The exclusion of evidence which went only to prove an issue which had been eliminated from the case by a ruling of the court directing a verdict for the plaintiff as to that issue, was not harmful to the plaintiff, and consequently, if error, is not cause for a reversal.
5. A ground of a motion for new trial which fails to set forth therein evidence which is necessary to be considered in passing on it, or which does not refer specifically to the location of such evidence in the record, is too incomplete to be considered.
6. Since the testimony of one of the defendants, that on a particular morning there were enough trucks on the job to keep it going, if it was a conclusion or opinion of the witness, was supported by specific facts testified to, and its admission was not harmful error.
7. The evidence authorized the verdict for the defendants.
Harry Brown, trading as Harry Brown, General Contractor, sued M. C. Carmanni and Jack Cox in the Superior Court of Baldwin County for damages for an alleged breach of contract. He alleged that he had the prime contract on certain highway projects in Baldwin County and that the defendants contracted with him to haul all subgrade treatment material and all base material for those contracts, all work to begin on May 26, 1958, and continue uninterruptedly as far as possible until the road contracts were completed. He alleged that the defendants began work on May 25, 1958, and without completing the work ceased their work on June 11, 1958, before the said contract on the project was completed; that he was ready, willing and able to perform the agreement and had done everything possible on his part to get the defendants to perform their part of the contract but that they had failed and refused to perform, and he laid his damages at $2,500. The defendants filed their answers and cross-petitions in which they denied the existence of a contract, but alleging in effect that they were employed by the plaintiff to haul the material and to be paid on the basis alleged in the plaintiff's petition; that they hauled material starting on May 26 and continued until June 11, 1958; that for the work which they did the total due them was $783.62 as to the defendant Carmanni, and $794.28 as to the defendant Cox, on which amounts plaintiff had paid each $100, leaving a balance due of $683.62, and $694.28, respectively, for which amounts the defendants sought judgment in their cross-action. On the trial the jury returned a verdict for the defendants separately in the amounts claimed by them, and on that verdict judgments were entered. The plaintiff made a motion for new trial on the general grounds and on 11 special grounds. The trial court denied that motion, and the exception here is to that judgment.
Eva L. Sloan, Milledgeville, for plaintiff in error.
Robert H. Green, Milledgeville, for defendants in error.
1. The first and second special grounds of the motion for new trial complain of error because the trial court stated to the jury near the beginning of his instructions to them, and while stating the contentions of the parties as set forth by their pleadings, 'The defendant, Carmanni, for further plea and answer, shows that he had a separate agreement with Harry Brown to haul certain material at a price of 12cents per cubic yard plus an additional price of 2.02cents per cubic yard overhaul per each load of material that this defendant hauled,' and, 'And for further plea and answer, the defendant Cox, shows that he had a separate agreement with Harry Brown to 'haul certain material at a price of 12cents per cubic yard plus an additional price of 2cents per cubic yard plus an additional price of 2cents per cubic yard overhaul for each load of material that the defendant Cox, hauled.'' It is contended that these instructions were equivalent to statements by the court of an opinion as to what had been proved by the defendants in the case, and that they were confusing, misleading and prejudicial to the plaintiff in that they led the jury to believe that the defendants had proved their case or that they were relieved of the burden of proving their case by a preponderance of the evidence.
This contention is without merit. Prior to making the statements complained of, the court had stated to the jury that the plaintiff in his petition made the following contentions and he then stated substantially the contentions as set forth in the petition of the plaintiff. After doing that the court told the jury, The court then made the statements to the jury which are complained of the these grounds, and immediately following those statements the court instructed the jury:
answers are not evidence, but such facts as you may find to be admitted in the defendants' answers, if any, in response to the allegations of the plaintiff's petition, you may consider as established fact. But with that exception, the pleadings are solely for the purpose of determining the issues in the case.
Next followed the usual instructions as to the preponderance of the evidence. The language used in stating the contentions of the defendants was taken from their answer and cross-action, and when viewed in its context as set forth above, it cannot be said that it constituted an expression of opinion by the court or that the jury was misled thereby. Roberts v. Foster, 86 Ga.App. 131, 136, 70 S.E.2d 875.
2. Special grounds 3, 4, 5 and 6 all complain of various portions of the charge to the jury on the grounds in substance that the court omitted to charge in connection with the various portions excepted to in those grounds other pertinent propositions of law. Special ground 3 refers to a portion of the charge which instructed the jury that if they should find that the plaintiff was entitled to recover from the defendants jointly, and if they should find that the defendants were entitled to recover from the plaintiff jointly on their claim, then the jury would be authorized to set off the respective sums so found and return a verdict for the excess, if any, and error was assigned thereon on the further ground that it was confusing, misleading and prejudicial to the plaintiff in that it led the jury to believe that the plaintiff could not recover on his petition alone without a finding for the defendants. Special ground 6 refers to a portion of the charge in which the court instructed the jury as to the questions they...
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