Richter v. Atlantic Co.

• Decision Date: 16 July 1941
• Docket Number: 28833.
• Citation: 16 S.E.2d 259,65 Ga.App. 605
• Parties: RICHTER et al. v. ATLANTIC CO.
• Court: Georgia Court of Appeals

16 S.E.2d 259

65 Ga.App. 605

RICHTER et al. v. ATLANTIC CO.

No. 28833.

Court of Appeals of Georgia, Division No. 1.

July 16, 1941

Rehearing Denied July 31, 1941.

Syllabus by the Court.

MacDougald Troutman & Arkwright, of Atlanta, and Bennet &amp Peacock, of Albany, for plaintiffs in error.

S. B. Lippitt, of Albany, for defendant in error.

MacINTYRE Judge.

For a statement of the pleadings in the instant case, see Richter Brothers v. Atlantic Company, 59 Ga.App. 137, 200 S.E. 462, when the case was here before, the pleadings being in effect the same as they were then. The instant case proceeded to trial resulting in a verdict and judgment for the defendant. The plaintiff's motion for new trial was overruled and exceptions are filed to this court.

1. The judge charged the jury as follows: "The defendant contends before this jury that this fire, the origin of this fire was unknown to them, that the fire originated through no act of negligence on their part. [If you believe that this fire originated through no act of negligence upon the part of this defendant, Atlantic Company, you would not be authorized, under those conditions to bring in a verdict for these plaintiffs, but, on the other hand, it would be your duty to bring in a verdict for this defendant.]" He had previously charged: "Gentlemen of the Jury, no bailee will be permitted, under the laws of Georgia, to make a contract whereby it could exempt itself from its own negligence in case of fire. However, the defendant in this case would not be responsible for the loss by fire in this case, under investigation, if it exercised ordinary care and diligence in the preservation of this property, [and the fire was occasioned by other things over which the defendant company could not have exercised control by the exercise of ordinary care and diligence.]" (Brackets ours.) The plaintiff contends in ground 4 that the excerpts from the charge in brackets above eliminated from the jury all the grounds of negligence claimed by the plaintiff except that relating to the "origin" of the fire, and that the other allegations of negligence were the most important because they claimed the defendant was negligent in allowing the pecans to be exposed to the noxious gases for a prolonged period of time.

We do not think the part of the charge excepted to is erroneous for the reason that it had the effect of eliminating the other charges of negligence, for when the charge excepted to is read in connection with the other portions of the charge, this complaint entirely disappears. The first acts of negligence set out in the petition related to the origin of the fire, and from the context of the charge and the use of the words "under those conditions," it appears that this part of the charge was dealing with the law of negligence as it related to the origin of the fire and not to the other alleged acts of negligence which were subsequently alleged. In addition to the charge excepted to, he charged: "If the evidence shows that any of the plaintiff's pecans, described in their pleadings, were damaged by fire, or by the vapors and gases resulting from the fire, or by water used in fighting the fire, as claimed by the plaintiffs and that such damage was the result of any one, or more of the alleged acts of negligence on the part of the defendant, or its agents, as set out in the plaintiff's pleadings, then you should find for the plaintiffs in some amount." And further: "Plaintiffs do not claim in this case that the entire damage was done by the actual burning of the pecans in question, but claim, on the contrary, that by far the greater part of the damage done was the result of water used in fighting the fire and of noxious gases and vaporized oil from the pecans, resulting from the fact that some of the pecans on storage with the defendant were actually burned, and thereby said gases and vapors were generated and went into different rooms and floors of the defendant where the nuts were stored, and that said nuts absorbed said gases and vapors, so that the nuts became thereby unfit for human consumption, thereby were greatly lessened in value." Still further he charged them in effect that the question to be determined was "whether the defendant or its agents were guilty of any one, or more of the acts of negligence charged in plaintiffs' pleadings, and" if so whether the alleged negligence was the proximate cause of the damage.

As has been many times held, a charge must be considered in its entirety and not in disjointed fragments. Brown v. Matthews, 79 Ga. 1, 4 S.E. 13. The charge in the instant case is no exception. This particular instruction excepted to, when considered in connection with the charge immediately preceding it, dealt with a contention of the defendant that the origin of the fire was unknown to them and originated through no negligence on their part and the law relative thereto, and when considered, as it should be, in connection with the fair and explicit statement by the court of the respective contentions of the plaintiff, and the further instructions given in immediate connection with the one complained of, no reversible error appears. "A charge torn to pieces and scattered in disjoined fragments, 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." Brown v. Matthews, supra (1). When the excerpts complained of in brackets are considered with the other portions of the charge in immediate connection therewith, and with the charge as a whole, we do not see cause for a new trial for the reasons assigned. Smith v. State, 29 Ga.App. 178, 114 S.E. 581; Sims v. Martin, 33 Ga.App. 486(4), 126 S.E. 872; Prescott v. Fletcher, 133 Ga. 404(1), 65 S.E. 877.

2. Ground 5 contends that the judge committed error in charging repeatedly in reference to the defendant's warehouse receipts by which the defendant sought to exempt itself from liability for the fire, whereas the jury should have been charged simply to disregard said provisions in the receipt.

In all, the charge made 6 references to the receipt and its provisions relieving the defendant of liability, all of which are complained of in this ground. We have thoroughly read and studied the judge's charge and find that the first four references to the warehouse receipt therein were in reading the defendant's answer to the jury. The other two references thereto were in the charge proper and immediately after the first charge with reference thereto, the judge charged the jury: "Gentlemen, of the jury, no bailee will be permitted under the laws of Georgia, to make a contract whereby it could exempt itself from its own negligence in case of fire;" and immediately after the second charge in reference thereto, he charged: "The court charges you as a matter of law, that the printed provisions, just quoted, are not to be considered by you as affording any defense to the defendant, Atlantic Company, as the defendant's contention, as to that feature of the case, is overruled by the court as a matter of law, and the Court charges you that any and all of those provisions quoted by the Court from said printed form of receipt, are to be disregarded by you entirely, so far as they are claimed to furnish any defense on the part of the defendant." It was not reversible error to read the pleadings to the jury. The judge, after setting forth the receipt and the defendant's contention of no liability thereunder, on two separate occasions, in immediate connection therewith told the jury in effect that the defendant could not rely on the said exceptions and relieve itself from liability and that the provisions in the receipt should be disregarded in its entirety. We can not see that any reversible error appears in this ground of the motion for new trial, when the excerpts complained of are read in connection with the instructions of the court to disregard said provisions in the receipt.

3. It was not reversible error, as contended in ground 6, to charge the jury Code, § 12-106, as follows: "In order for a bailee to avail himself of the act of God or exception under the contract as a defense, he must establish not only that the act of God or excepted fact, ultimately occasioned the loss, but that his own negligence did not contribute thereto." 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. Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 708, 181 S.E. 315; Southern Marble Co. v. Pinyon, 144 Ga. 259(2), 86 S.E. 1086; Gaskins v. Gaskins, 145 Ga. 806, 89 S.E. 1080; Central Georgia Power Co. v. Cornwell, 139 Ga. 1(2a), 76 S.E. 387, Ann.Cas. 1914A, 880. The plaintiff contends that this rule is here applicable and controlling adversely to the defendant. We can not see that it was harmful to the plaintiff, for under the charge, whether the defendant relied on an act of God or an exception under the contract, still the defendant must show that "his own negligence did not contribute" to the loss, which was its burden in the instant case. It is apparent that the jury were not misled by the charge and was not reversible error. See Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131, 148, 194 S.E. 536, and cit.

4. Ground 7 contends that the judge committed reversible error in charging the theory of accident. In its proper use the term "accident" excludes negligence; that is, an accident is an event which occurs without the fault carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that...