Loeb v. Whitton

• Decision Date: 02 October 1948
• Docket Number: No. 32154.,32154.
• Citation: 49 S.E.2d 785
• Court: Georgia Court of Appeals
• Parties: LOEB. v. WHITTON.

49 S.E.2d 785

LOEB.

v.WHITTON.

No. 32154.

Court of Appeals of Georgia, Division No. 1.

Oct. 2, 1948.

Rehearing Denied Oct. 14, 1948.

Syllabus by the Court

1. The excerpt from the charge complained of in ground 4 of the amended motion does not show error.

2. The charge instructing the jury to reconcile any conflicting evidence in the case so as to impute perjury to no witness, if improper, was not harmful and shows no reversible error.

3. The evidence clearly supported the the verdict.

Error from City Court of Decatur; D. P. Philips, Judge.

Action for loss of automobile stolen from parking lot by W. F. Whitton against Cordelia Loeb. To review the judgment, the defendant brings error.

Affirmed.

Smith, Partridge, Field, Doremus & Ringel and Ogden Doremus, all of Atlanta, for plaintiff in error.

Young H. Fraser, of Atlanta, for defendant in error.

PARKER, Judge.

This was an action for damages for the loss of plaintiff's automobile stolen from a parking lot owned and operated for profit by the defendant.

The undisputed material facts briefly stated show that the plaintiff was a customer or patron of the defendant, that he parked his car on the lot owned and operated by the defendant by delivering it with its keys to the attendant and employee of the defendant about 8:00 o'clock in the morning, receiving from the attendant a parking ticket or check bearing the name and telephone number of the parking lot, the figures "15$*" and these words: "Lock your car if you have valuables. We close 6:00 P.M. Not responsible after closing;" that upon calling for the car around 3:30 in the afternoon of the same day the plaintiff found that it was missing, and he was told by the attendant that two men got in the car and drove it away; that he, the attendant, tried to jump in front of the car and stop it, and the driver tried to run over him; that he got on the running board in an effort to stop the car, but that it was not possible for him to do so; that he ran after the car and hollered; that he was the only employee on duty when the car was stolen, and was about a half a mile away at the other end of the lot parking another car when he first saw the strangers in the plaintiff's car; that there were around two to three hundred cars parked there that day, and in the words of the attendant, testifying for the defendant, "there was nobody down there to keep the car from being taken out of the car lot."

The jury returned a verdict for the plaintiff. The defendant moved for a new trial on the general grounds and on two special grounds assigning error on the charge. Her motion for new trial was overruled and she excepted.

1. Ground 4 of the amended motion alleges error in the following excerpt from the charge: "But it is alleged and contended by the plaintiff and there was a contract of warranty between him and the defend ant by which the defendant warranted to keep safe and protect his automobile. Whether or not there was such a contract, is a question of fact for the jury to determine from the testimony that has been presented to you. I charge you that the burden is upon the plaintiff to prove to your satisfaction by a preponderance of the evidence that there was such a contract, and that the defendant has breached the same resulting in the loss of plaintiff's automobile."

The only exceptions to this charge are (a) that it was hurtful, harmful and prejudicial to defendant for the reason that it was an intimation on the part of the court that there was a contract of warranty between the parties, and (b) that said charge was hurtful, harmful and prejudicial to the defendant in that it indicated to the jury that the defendant was an insurer, in addition to being a bailee. The charge was not an intimation by the court that there was a contract of warranty between the parties, but it left this question for the jury to determine, and the charge did not indicate to the jury, as contended by the defendant, that the defendant was an insurer. The charge was not error for any reason assigned.

2. The charge instructing the jury to reconcile conflicting evidence, if there was such evidence in the case, so that all witneses will be made to speak the truth and perjury imputed to none of them, was not harmful error requiring a new trial. The defendant cites and relies on the case of Richmond & Danville R. Co. v. Mitchell, 92 Ga. 77, 18 S.E. 290, holding that it is error for the court to assume that there is a conflict in the evidence when there is none and to charge the jury on that subject. That case, however, states that no harm would have been done by an instruction merely to reconcile conflicts in the evidence if any existed, and that was the substance and...