Downer v. Bazzell

• Decision Date: 06 April 1961
• Docket Number: No. 21180,21180
• Citation: 216 Ga. 712,119 S.E.2d 556
• Parties: Annie DOWNER, Admx., et al. v. William BAZZELL.
• Court: Georgia Supreme Court

Page 556

119 S.E.2d 556

216 Ga. 712

Annie DOWNER, Admx., et al. v. William BAZZELL.

No. 21180.

Supreme Court of Georgia.

April 6, 1961.

Syllabus by the Court

The evidence being sufficient to support the verdict, and the special grounds being without merit, it was not error to deny the amended motion for new trial.

Cassandra E. Maxwell, Atlanta, for plaintiff in error.

Leonard Pennisi, Atlanta, for defendant in error.

GRICE, Justice.

William Bazzell brought an action in the Superior Court of Fulton County, Georgia, against Annie Downer, as administratrix of the estate of Susie Morton and others, all her heirs at law, for cancellation of a deed and for other relief. The plaintiff alleged that Annie Downer and Susie Morton, by fraud, undue influence, and induced intoxication, caused him to execute a warranty deed to Susie Morton. The administratrix answered by denying the material allegations of the petition. The case proceeded to trial, and a verdict and judgment declaring the deed null and void resulted. The amended motion for new trial by the defendant administratrix being overruled upon each and every ground, she assigned the same as error in her bill of exceptions.

1. As to the general grounds of the motion, there was sufficient evidence to support the verdict, and therefore the trial judge's discretion will not be disturbed.

2. Ground 1 of the amended motion complains that the court erred 'in not charging that testimony of [a] party which is self contradictory, vague, or equivocal must be construed most strongly against such witness.' There was no written request that this be charged, and therefore the failure to do so was not error. Scott v. Gillis, 202 Ga. 220, 226, 43 S.E.2d 95.

3. Grounds 2 and 3 of the amended motion may be treated together. The former complains that the court erred in not charging 'that the petitioner was incompetent to testify in the case, especially in cases where the only issue was concerning [an] alleged contract between petitioner and defendant.' The latter recites that the court erred in failing to charge 'what the law is as to testimony of [a] survivor to a transaction and thus injuring and damaging the estate of the deceased immeasurably.' These two grounds do not set forth any definite principle of law which the movant contends should have been charged. Therefore they are without merit. Ehrlich v. Mills, 203 Ga. 600 (3), 48 S.E.2d 107; Pepper v. Flanagan, 204 Ga. 265(4), 49 S.E.2d 525.

4. Grounds 4 and 5 of the amended motion fall into the same category and also may be considered together. Number 4 contends that the court erred in charging as follows: 'The law also directs, Gentlemen, that it is your duty where it can be done, to reconcile the conflicts in the evidence, if there be such in this case, so as to make all the witnesses speak the truch and perjury be imputed to none of them. However, after considering the evidence in this case, if you find it in such irreconcilable conflict that this cannot be done, then you would believe the evidence which is most reasonable and most credible to you and settle the issues by the greater weight or preponderance of the evidence as you find it to be.' The movant urges that this charge was erroneous in that a plaintiff is not entitled to recover if his testimony is...