Macon, D. & S.R. Co. v. Joyner

• Decision Date: 21 December 1907
• Citation: 59 S.E. 902,129 Ga. 683
• Parties: MACON, D. & S. R. CO. v. JOYNER.
• Court: Georgia Supreme Court

59 S.E. 902

129 Ga. 683

MACON, D. & S. R. CO. v. JOYNER.

Supreme Court of Georgia

December 21, 1907

Syllabus by the Court.

The charge of the court below states the contentions of the parties fairly and with sufficient fullness and clearness. And certain inaccuracies appearing in the statement of the contentions of the defendant were not so material as to require the grant of a new trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 705, 718.]

A charge to the jury, instructing them, in effect, that the law requires of an employé the exercise of only ordinary diligence to prevent the injury to himself, will not be cause for a new trial, where it further appears from the charge that the jury were distinctly instructed that the employé could not recover unless he was himself free from fault.

It was error for the court to instruct the jury that they should add whatever amount the plaintiff "would be entitled to for pain and suffering to such sum as they might find he is entitled to for damages," inasmuch as pain and suffering in themselves constitute an element of the damages which plaintiff was entitled to recover; but the error was not hurtful to the defendant, as it is clear upon considering the entire charge that, by the use of the word "damages," the court meant and intended the jury to understand such damages as resulted from impaired or diminished earning capacity.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4219-4228.]

A refusal to give a written request to charge is not error unless the charge requested is in itself correct and perfect.

The evidence authorized the verdict.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 950-953.]

Error from Superior Court, Toombs County; B. T. Rawlings, Judge.

Action by G. F. Joyner against the Macon, Dublin & Savannah Railroad Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Minter, Wimberly, Akerman & Akerman, for plaintiff in error.

T. W. Hardwick, J. E. Hyman, and Jas. K. Hines, for defendant in error.

BECK J.

1. Several grounds of the motion for a new trial in this case embraced lengthy extracts from the court's charge, which contained a statement of the respective contentions of the plaintiff and defendant, and the complaint made in the grounds of the motion referred to is that those portions of the charge were argumentative, and presented with too much stress and detail the contentions of the plaintiff, and ignored and minimized the contentions of the defendant. But, upon a reading of the entire charge, it will appear that the judge fairly stated the contentions of each side. While it is undoubtedly true that the contentions of the plaintiff were stated more at length than those of the defendant, it cannot be inferred from this fact that undue stress was laid upon, or undue prominence given to, the contentions of the former. In the first place, the contentions, so far as appear from the pleadings of the plaintiff, are set forth fully and distinctly in his petition, properly paragraphed, and the defendant contented itself, as it had a right to do, with a bare denial of the allegations in the petition. If the plaintiff's case requires a full, definite, and affirmative allegation of certain facts, and the defense to the cause of action as stated rests upon a mere denial of the allegations in the petition, and the trial judge sums up the contentions of both parties by a fair statement of the material allegations in the petition, and then states that these allegations are denied by the defendant, how can it be said that he has failed to state the contentions of either party? But in the case at bar the judge, after setting forth in his instructions to the jury the affirmative allegations in the petition, went further, and gave, in substance, the contentions of the defendant as developed in the trial of the case, and it would seem that, if the defendant had desired a more elaborate statement of its contentions, a timely written request for such should have been offered. In the case of the Atlanta Con. St. Ry. Co. v. Bagwell, 107 Ga. 157, 33 S.E. 191, it was said: "In the sixth ground of the motion for a new trial, complaint is made that the court erred in its charge in stating specifically the contentions of the plaintiff, as set out in the declaration, and in regard to the contentions of the defendant merely charged that: 'You will also have the answer of the defendant company, and you can look to that for its contentions.' While the contentions of both parties should be stated by the court to the jury with equal fullness and fairness, yet in this case we do not think the plaintiff in error has any just cause of complaint in this respect, as the court in its charge fully, fairly, and correctly stated the law applicable to every issue in the case. Moreover, the answer of the defendant was simply a denial of the allegations in the declaration." And in the case of the Central Ry. Co. v. McKinney, 118 Ga. 535, 45 S.E. 430, it was held that: "The really important thing is for the judge to give the jury clearly and fairly the law applicable to the issues involved; and, if he does this, his failure to formally state the contentions as shown by the pleadings will not, as a general rule, be cause for a new trial." Nor were the portions of the charge above referred to open to the criticism that they were argumentative, and contained expressions of OPINION as to the evidence upon any of the issues involved in the case.

Complaint is also made that the court erred in charging the jury as follows: "On the other hand, the defendant, the Macon Dublin & Savannah Railroad Company, contends that the plaintiff was in the employment of the company,...