Garner v. Young, 20011
| Decision Date | 11 April 1958 |
| Docket Number | No. 20011,20011 |
| Citation | 214 Ga. 109,103 S.E.2d 302 |
| Parties | Hugh L. GARNER v. J. A. YOUNG et al. |
| Court | Georgia Supreme Court |
Eberbardt, Franklin, Barham & Coleman, Valdosta, for plaintiff in error.
Robt. R. Forrester, A. L. Kelley, Jr., Tifton, M. Dale English, Adel, for defendant in error
Syllabus Opinion by the Court
1. It is reversible error for any judge of a superior court, in any case, whether civil or criminal, or in equity, to express or intimate his opinion as to what has or has not been proved, either in his charge or during the progress of the trial. Code, § 81-1104; Sanders v. Nicolson, 101 Ga. 739(3), 740, 28 S.E. 976; Smith v. State, 109 Ga. 479(3), 484, 35 S.E. 59; Florida Central & P. R. Co. v. Lucas, 110 Ga. 121(3), 35 S.E. 283; Robinson v. State, 207 Ga. 337(3), 339, 61 S.E.2d 475. The 4th, 5th, and 6th grounds of the motion for new trial complain of excerpts from the charge of the court which, in substance, state that the issue in the case relates to a public alley between 9th and 10th Streets, in that the court thus made clear and unequivocal statements that such an alley existed, when the very issue was whether or not there had been an alley. The statements thus made amount to an expression of opinion by the court that the alley existed. This was harmful error, which was not cured by other parts of the charge, where the trial judge explained that the defendants contend there was no alley. Even though the statements complained of were unintentional, they were sufficient to mislead the jury and constitute reversible error. The court erred in denying the motion for new trial as urged in grounds 4, 5, and 6.
2. The charge as follows, 'I think the pleadings and the testimony and the evidence in this case show that the dedication, if any, was an implied dedication,' is an expression by the court that there was an implied dedication. And the words 'if any' contained therein do not remove its injurious effect. Therefore, the court erred in so charging, and the motion should have been granted for the reasons urged in the 7th ground complaining thereof.
3. Complaint is made in the 8th ground because of the charge that, if the jury finds there was both a dedication and acceptance by the city, either expressed or implied, the verdict should be for the plaintiff, on the basis that this charge excluded from the consideration of the jury the question of whether the alley, if in fact dedicated, had thereafter been legally abandoned. There was some evidence of nonuse of the alleged alley, but no evidence that it had ever been legally abandoned. The mere non-use of a dedicated street is insufficient to show abandonment. See Code, § 85-410; Ford v. Harris, 95 Ga. 97, 22 S.E. 144; Gaston v. Gainesville & D. Electric R. Co., 120 Ga. 516, 48 S.E. 188; Kelsoe v. Town of Oglethorpe, 120 Ga. 951, 48 S.E. 366; 102 Am.St.Rep. 138; City of Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625, 9 A.L.R. 419; Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349; Tietjen v. Meldrim, 172 Ga. 814, 159 S.E. 231; Harris v. Powell, 177 Ga. 15, 169 S.E. 355; Hyde v. Chappell, 194 Ga. 536, 22 S.E.2d 313; ...
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...to an abandonment of it." Young v. Sweetbriar, Inc. , 222 Ga. 262, 268 (2), 149 S.E.2d 474 (1966). See also Garner v. Young , 214 Ga. 109, 110 (3), 103 S.E.2d 302 (1958) ("The mere non-use of a dedicated street is insufficient to show abandonment."); Pass v. Forestar GA Real Estate Group , ......
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...of opinion by the trial court as to what has or has not been proved during the course of a trial is reversible error. Garner v. Young, 214 Ga. 109, 103 S.E.2d 302 (1958). Due to the circumstantial nature of the evidence and the difficulty of the jury in reaching a unanimous opinion we canno......
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...words, and no man could dare say they were not thereby influenced to some extent, at least.' Alexander v. State, supra; Garner v. Young, 214 Ga. 109, 103 S.E.2d 302. The effort by the trial judge to eradicate the effect of his acknowledged erroneous expressions cannot be treated as sufficie......
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