Delta Corp. v. Knight, 40291
| Decision Date | 24 January 1964 |
| Docket Number | No. 40291,40291 |
| Citation | 135 S.E.2d 56,109 Ga.App. 3 |
| Parties | DELTA CORPORATION v. D.W. KNIGHT, JR., et al. . 3 |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the only contested issues are as to the liability of the defendant and the amount of damages inflicted and a verdict in favor of the defendant is returned by the
jury, a charge of the court calculated to affect the finding of the jury on the question of the amount of damages only, and not calculated to affect their finding upon the question of the defendant's liability or nonliability, will not require a new trial whether erroneous or not.
2. Special ground 4 is incomplete.
3. (None of the special grounds considered in this case and in these headnotes which assert error on the failure of the trial court to charge written requests, assign error on the failure of the court to give the request in the exact language of the request.)
(a) Where error is assigned on the refusal of a trial court to charge a request submitted in writing and there is no assignment of error complaining that the request was not given in the exact language of the written request, the appellate court will only consider whether the request was sound as a matter of law, adjusted to the issues and evidence, and not substantially covered by the charge given by the court.
(b) The trial judge having failed to cover the principle of law requested by the writing and it having presented a correct statement of law adjusted to the issues and evidence, the trial court erred in refusing to give it in its instruction to the jury.
4. The written requests to charge which the trial court refused to give to the jury and which failure is assigned as error in special grounds 6 and 7 were supported by count 2 of the petition and by the evidence. The matter not having been covered by the general charge, the trial judge erred in failing to charge these requests.
5. Although the portions of the instructions of the trial court assigned as error in special grounds 9 and 10 were erroneous, the instructions were favorable to the complaining party and were harmless as to him.
6. The court having charged the principle of law set forth in the written request quoted in ground 12, the court did not err in refusing to give it. Ground 13 has no merit.
7. The assignments of error pertaining to the general grounds have no merit.
The plaintiff heating company filed suit to foreclose an alleged lien for $5,455.88 on real property owned by the defendants. The claim is based on plaintiff's having furnished and installed heating equipment in a building owned by the defendants and used as a chicken hatchery. Defendants denied any liability for the heating system, alleging that their tenant, the now insolvent Chemell Hatchery, had contracted with plaintiff for the heating system without their knowledge, consent, or subsequent ratification, and that the defendants had expressly informed the plaintiff prior to installation that they would not pay for the expensive heating system that Chemell wanted.
The jury returned a verdict for the defendants. Plaintiff then filed a motion for new trial on the general grounds and 13 special grounds, all of which relate to what the judge charged, failed to charge without request, and refused to charge on written request. This appeal has been brought on plaintiff's exception to the court's action in denying all grounds in the motion.
Nelson & Nelson, Carl K. Nelson, Jr., Dublin, for plaintiff in error.
Jones & Douglas, Paul J. Jones, Jr., Dublin, for defendant in error.
. 1. Special grounds 1, 2, 3, 5 and 11 complain that the trial judge erred in charging the jury to find that the plaintiff was either entitled to recover the full amount of $5,455.88 or nothing at all. This question is governed by the general rule that where the only contested issues were the liability of the defendant and the amount of damages inflicted by it, and a verdict in favor of the defendant was returned, the charge of the court calculated to affect the finding of the jury on the question of the amount of damages only, and not calculated to affect their finding upon the question of the defendant's liability or nonliability, will not require a new trial whether erroneous or not. Conant v. Jones, 120 Ga. 568, 574(12), 48 S.E. 234; McBride v. Ga.Ry. and Elec. Co., 125 Ga. 515, 517(1), 54 S.E. 674; Phillips v. Ga.Ry. and Power Co., 27 Ga.App. 21, 107 S.E. 357; Thompson v. Powell, 60 Ga.App. 796, 806, 5 S.E.2d 260; Carstarphen v. Central of Ga. Ry. Co., 8 Ga.App. 162, 68 S.E. 848; Cohen Bros. v. Krumbein, 28 Ga.App. 788, 789(3), 113 S.E. 58; Daughtry v. Ga. Power Co., 61 Ga.App. 505, 513(9), 6 S.E.2d 454. As applied to count 1 of the petition which alleges an express contract, the trial court did not err in overruling special grounds 1, 2, 3, 5, and 11 of plaintiff's amended motion for new trial.
2. Special ground 4 is incomplete.
3. Special ground 8 asserts as error the refusal of the trial court after written request to charge certain principles related to implied contracts. There was no assignment of error complaining that the request was not given in the exact language of the request. Therefore, it is only incumbent on this court to determine whether the request was sound as a matter of law, adjusted to the issues and evidence, and not substantially covered by the charge given by the court. Griffith v. Newman, 217 Ga. 533, 540, 123 S.E.2d 723; Dillard v. Jackson's etc. Concrete Co., 105 Ga.App. 607, 125 S.E.2d 656; State Farm etc. Insurance Co. v. Rogers, 105 Ga.App. 778, 125 S.E.2d 893; Butler v. Reville, 107 Ga.App. 345, 347, 130 S.E.2d 161. The charge as requested was as follows: "Ordinarily, where one renders in behalf of another valuable services which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same, although no formal or express contract to pay has been made." This is a correct statement of law and is derived in part from...
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