Georgia Ry. & Power Co. v. Head

• Decision Date: 15 March 1923
• Docket Number: 3326.
• Citation: 116 S.E. 620,155 Ga. 337
• Parties: GEORGIA RY. & POWER CO. v. HEAD ET AL.
• Court: Georgia Supreme Court

116 S.E. 620

155 Ga. 337

GEORGIA RY. & POWER CO. v. HEAD ET AL.

No. 3326.

Supreme Court of Georgia

March 15, 1923

Syllabus by the Court.

In the fourth ground of its motion for new trial, the plaintiff in error alleges that the court erred in ruling out the answer of its witness to an interrogatory, said answer being as follows: "Georgia Railway & Power Company did not have any agent in Lumpkin county, Ga., at any time during the year 1918, nor at any other time"--and, after allowing said witness to testify that J. M. Hulsey was employed as a gatekeeper, being only an employee or servant of the company refused to permit said witness to testify that "J. M Hulsey was not in any sense an official, agent, or representative of the company." In the fifth ground it is alleged that the court erred in ruling out the answer of F. W. Hadley to an interrogatory, said answer being as follows: "The Georgia Railway & Power Company had no agent in Lumpkin county in March, 1918, nor at any time during that year, upon whom service of suit could have been legally made. There has never been at any time an agent of the Georgia Railway & Power Company located in Lumpkin county, Ga." In the sixth ground it is alleged that "the court erred in refusing to allow a witness, F. W Hadley, to answer the fifth interrogatory, which was as follows: 'J. M. Hulsey was never treated as an agent of the Georgia Railway & Power Company, nor looked upon as such.' " In the seventh ground it is alleged that "the court erred in refusing to allow the witness, F. W Hadley, to testify, in answer to the fifteenth interrogatory to the effect that 'never at any time has the Georgia Railway & Power Company had an officer, agent, or agency in Lumpkin county, Ga.' " Held, treating these grounds of the motion as good in form, the court did not err in ruling out this evidence, because: (a) The sole issue being whether a person upon whom service was perfected was the agent or a mere employee of the plaintiff, it was a mere conclusion of the witness, who will not be permitted to usurp the functions of judge and jury by stating a conclusion of law, as, for instance, the existence and character of an agency (17 Cyc. 219; Berry v. State, 10 Ga. 511 [16]; Woodward v. Gates, 38 Ga. 205); (b) a witness will not be permitted to decide the very question which the jury are to pass upon, but must state the relevant facts, and let the jury draw their own conclusion therefrom (Foote & Davies Co. v. Malony, 115 Ga. 985, 42 S.E. 413; McCrary v. Pritchard, 119 Ga. 876 [5], 47 S.E. 341; G. F. & A. Ry. Co. v. Temples, 143 Ga. 312 [1], 85 S.E. 197).

In the eighth ground of the motion for new trial the plaintiff in error alleges that the court erred in refusing to allow a witness, F. W. Hadley, to answer an interrogatory as follows: "I and the parties who accompanied me made a detailed examination of the J. K. P. Head property, and in my opinion the property was not damaged in any way by the maintenance of the dam. After making this careful investigation, I reached the conclusion that Mr. Head had suffered no damages on account of the backwater from the Chestatee dam." The court did not err in refusing to permit this witness to testify as above; because, while it might have been permissible for the plaintiff to show it had a good defense to the action in which the defendant obtained judgment against it, it was not proper and permissible to do so by allowing this witness to give his opinion as to whether the defendant had been damaged and as to the lack or the amount of such damage. Woodward v. Gates, 38 Ga. 205; Brunswick, etc., R. Co. v. McLaren, 47 Ga. 547; Central R. Co. v. Kelly, 58 Ga. 107; Foote & Davies Co. v. Malony, 115 Ga. 985, 42 S.E. 413; McCrary v. Pritchard and G., F. & A. Ry. Co. v. Temples, supra; Butler v. Sansone, 144 Ga. 553, 87 S.E. 771.

In the ninth, tenth, eleventh, and twelfth grounds of the motion for new trial it is complained that the court erred, when timely requested in writing so to do, in refusing to give to the jury the following instructions: "(9) Neither would ordering lumber from a sawmill for repairs to the dam change a man from the position of an employee to the position of an agent of the company. (10) I charge you that, if it became necessary in repairing machinery to have a blacksmith to repair broken parts of the machinery or furnish new bolts and the man in charge of such machinery obtained them from a blacksmith shop near by, this would not change an employee and constitute him an agent of the company. (11) I charge you that merely sending in the bills for such repairs or lumber or blacksmith work or the time of the men employed temporarily to help repair the dam or machinery of the company, and receiving checks for such amounts and delivering the checks to the men or parties entitled to them, would not constitute a man an agent of the company nor change the man from the position of an employee to that of an agent of the company. (12) I charge you further that, if you believe from the evidence that at the time service was made by the sheriff upon J. M. Hulsey [he] was the only man then in charge of the plant and having the key to the place, and living near by, this fact would not of itself constitute said Hulsey an agent from an employee of the company to an agent of the company." In each of the instructions sought in these requests the court was asked to charge the jury upon the probative value and effect of a simple fact in establishing the agency sought to be proved by the plaintiff. Held, that the court did not err in refusing the above instructions, because: (a) As the court fully and properly instructed the jury, the law applicable to the issue involved in the case, the refusal of requests to give instructions containing general propositions of law, though pertinent, is not cause for a new trial (Macon Ry., etc., Co. v. Barnes, 121 Ga. 443, 49 S.E. 282); (b) where requests single out particular facts which bear upon the issue to be tried, and which are favorable to one side, they should not be given because calculated to impress upon the jury that they are of special weight and value ( Flowers v. Flowers, 92 Ga. 688 [3], 691, ...