Johnson v. Franklin, 28748

• Decision Date: 07 May 1974
• Docket Number: No. 28748,28748
• Citation: 206 S.E.2d 19,232 Ga. 227
• Parties: Spencer JOHNSON et al. v. Caroline P. FRANKLIN et al.
• Court: Georgia Supreme Court

Page 19

206 S.E.2d 19

232 Ga. 227

Spencer JOHNSON et al. v. Caroline P. FRANKLIN et al.

No. 28748.

Supreme Court of Georgia.

May 7, 1974.

Ham, Mills & Freeman, W. Franklin Freeman, Jr., Forsyth, for appellants.

Alfred D. Fears, Jackson, Byrd, Groover & Buford, Denmark Groover, Jr., Macon, for appellees.

Syllabus Opinion by the Court

NICHOLS, Presiding Justice.

The plaintiffs sued the defendants to enjoin a continuing trespass and to recover for timber cut from their land. The defendants' answer alleged that they and not the plaintiffs, owned the land in question. The issues as thus made were (1) who owned the land, (2) had timber been cut thereform by the defendants, (3) what was the value of the timber cut if it was cut from the plaintiffs' land, and (4) should a permanent injunction issue? The jury returned a verdict for the plaintiffs which awarded damages and found that the defendants should be restrained. The defendants' amended motion for new trial was overrruled and the present appeal filed.

1. "It is not improper, in charging the jury, to state the contentions made by the allegations of the petition (Barbre v. Scott, 75 Ga.App. 524, 534, 43 S.E.2d 760), or to give them by a narrative reading of the petition (McGee v. Bennett, 72 Ga.App. 271, 273, 33 S.E.2d 577), even though some of the contentions in either instance be unsupported by the evidence (Armour & Company v. Roberts, 63 Ga.App. 846, 847, 12 S.E.2d 376).' Moffett v. McCurry, 84 Ga.App. 853, 858, 67 S.E.2d 807, 813.' Limbert v. Bishop, 96 Ga.App. 652, 653, 101 S.E.2d 148, 150. Accordingly, it was not error for the trial court, when instructing the jury as to the contentions of the parties to state the amount of money damages sought by the plaintiffs.

2. The excerpt from the charge complained of in the second enumeration of error contains a slip of the tongue as to the burden of proof and if read alone such excerpt from the charge would be confusing to the jury and in fact an unintelligible statement. However, when such excerpt is read in light of the entire charge the jury could not have been misled as to the burden the plaintiffs had to prove their case. No reversible error is shown by this enumeration of error.

3. Enumerations of error numbered 3 through 10 complain of excerpts from the charge, all relating to establishment of boundary lines between adjoining land owners and the establishment of title to land. The complaint in each enumeration of error is that the evidence did not authorize such charge, as to one that such excerpt was incomplete, and as to one that it is not a correct statement of the law.

'A charge, torn to pieces and scattered in disjointed framents, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall . . . To warrant the court in charging the jury on a given topic, such as whether certain land was included in a purchase by certain persons of other land, it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim, but is truth nevertheless.' Brown v. Matthews, 79 Ga. 1(1, 2), 4 S.E. 13. This often quoted language is applicable and controlling as to these enumerations of error.

When the whole charge is considered and the entire transcript of evidence is read the excerpts of the charge complained of in these enumerations of error were authorized by the evidence and complete.

The excerpt complained of in the 6th enumeration of error discloses, as the second enumeration of error did, a slip of the tongue which could not have been misleading to the jury.

4. 'That the court in his charge to the jury intimated an opinion upon an uncontested and undisputed fact in the case is not cause for a new trial.' Daniel v. Charping, 151 Ga. 34(3), 105 S.E. 465. Accordingly, it was not reversible error to instruct the jury with reference to the timber cut where such fact was alleged in the plaintiffs' complaint, admitted...