Mclendon v. Johnson

• Decision Date: 07 June 1944
• Docket Number: No. 30475.,30475.
• Parties: McLENDON. v. JOHNSON.
• Court: Georgia Court of Appeals

31 S.E.2d 89

McLENDON.

v.JOHNSON.

No. 30475.

Court of Appeals of Georgia,

Division No. 2.

June 7, 1944.

Rehearing Denied July 20, 1944.

Syllabus by the Court.

1. The court appears to have assumed a state of facts not sustained by the evidence, and the charges to the jury, based upon such facts, were erroneous and harmful to the plaintiff, and good cause for a new trial.

2. Under the evidence and as a matter of law a finding was demanded that the transaction wherein the transfer of the principal sum sued for took place was a loan of the sum with a stipulated rate of interest payable thereupon.

3. The defendant's contention that the plaintiff failed to prove her case because of the impeachment of the principal witness is not sustained by the evidence, and is therefore without merit.

Error from City Court of Macon; Cecil A. Baldwin, Judge.

Action by Mrs. W. McLendon, as administratrix of the estate of Miss Mae Mitchell, against Laura H. Johnson, executrix of the last will and testament of Walter M. Huhn, deceased, to recover money allegedly owed plaintiff's intestate. To review an adverse judgment, plaintiff brings error.

Reversed.

Anderson, Anderson & Walker, of Macon, for plaintiff in error.

Martin, Martin & Snow, of Macon, for defendant in error.

PARKER, Judge.

This is the second appearance of this case in this court. See McLendon v. Johnson, 69 Ga.App. 214, 25 S.E.2d 53, in which a full statement of the contentions of the parties and of the evidence upon the first trial will be found. In the first trial a verdict was directed by the court for the plaintiff in error here for $128.25 only, representing interest at six per cent. per annum on $4500, the principal sum sued for, from March 1, 1938, through the date of the death of the plaintiff's intestate on August 21, 1938. On motion for new trial filed by the plaintiff that ruling was reversed by this court. In our decision it was held that the evidence failed to show a gift from Guerardie to Huhn, but that "the evidence was sufficient to authorize a jury to find that the $4500 placed in the hands of Huhn by Guerardie was a loan at six per cent. interest per annum, and to return a verdict in favor of the plaintiff for the amount sued for." We also held that the receipt for $270 given by Miss Mitchell to Walter M. Huhn, identified by the witness Urquhart on the first trial, did not amount to a release or an accord and satisfaction, and that it was not a valid and binding release because the recited consideration was money, which, under the agreement between Guerardie and Huhn, Miss Mitchell was entitled to in all events. The evidence upon the first and second trials was substantially the same, and the testimony of the only witness who testified concerning the circumstances under which the $4500 sued for was delivered by Guerardie to Huhn was the same upon both trials. The defendant in error amended her answer upon the last trial by alleging that Guerardie transferred and delivered to Huhn $4500 in consideration of an agreement by Huhn to pay Guerardie during his lifetime annually the sum of $270, and after his death to pay a like sum annually to Miss Mitchell so long as she might live, and that Huhn had fully complied with said agreement. This amendment set up the contention that the transaction between Guerardie and Huhn amounted to, or was the equivalent of, the purchase of an annuity by Guerardie to be paid by Huhn so long as either Guerardie or Miss Mitchell might live, with no additional obligation or liability on Huhn. The jury found a verdict in favor of this plea of the defendant and against the plaintiff in error as to the $4500. The plaintiff in error moved for a new trial upon the general grounds and three special grounds, the first of these being a re-statement of a general ground, and the other two complaining of the charge of the court. Her motion for new trial was overruled and she excepts to that judgment.

1. The second special ground of the motion complains of a charge of the court as follows: "Should you find, however, that Guerardie and Huhn, under all the circumstances and facts of the case as you find them to exist, understood the placing of the $4500 with Huhn was not to be a loan, but was the consideration for Huhn to pay $270 per year to Guerardie during his life and then to Miss Mitchell during her life, and the understanding was that nothing else was to be done by Huhn and the $4500 was not to be repaid, then the plaintiff would not be entitled to a recovery of the said $4500." The third special ground complains of this charge: "Should you find the transaction was not a loan, but was an arrangement or agreement whereby Guerardie placed $4500 with Huhn as the consideration for a promise by Huhn to pay $270 annually to Guerardie during his life and to Miss Mitchell during her life, then you would find for the defendant in this case". The trial court submitted to the jury in the charges complained of the question whether the transaction was the purchase of an annuity instead of a loan. The main complaint of the plaintiff in error is that these charges were not authorized by the evidence. "The general rule is that a charge to the jury which is not authorized by evidence, and which is calculated to mislead and confuse the jury, requires a new trial." Richter v. Atlantic Company, 65 Ga.App. 605, 608(3), 16 S.E.2d 259, 262, citing Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 708, 181 S.E. 315; Central Georgia Power Co v. Cornwell, 139 Ga. 1(2, a), 76 S.E. 387, Ann.Cas.l914A, 880; Southern Marble Co. v. Pinyon, 144 Ga. 259(2), 86 S.E. 1086; and Gaskins v. Gaskins, 145 Ga. 806, 89 S.E. 1080. "In no trial should the scope of the court's instructions to the jury be more limited or more extensive than the range of the relevant evidence properly submitted therein. The charge of the court should be pertinent and applicable to the issues presented by the evidence, and it is error to charge the jury upon a theory which is not sustained by evidence." Virginia Bridge & Iron Co. v. Crafts, 2 Ga. App. 126(1), 58 S.E. 322. "To charge upon an assumed state of facts is error." McDonald v. Beall, 55 Ga. 288, 289(7). In the first excerpt complained of the court...