Taylor v. Murray

• Decision Date: 27 May 1960
• Docket Number: No. 38207,No. 2,38207,2
• Citation: 115 S.E.2d 776,102 Ga.App. 145
• Parties: Ida B. TAYLOR v. E. N. MURRAY
• Court: Georgia Court of Appeals

Page 776

115 S.E.2d 776

102 Ga.App. 145

Ida B. TAYLOR v. E. N. MURRAY.

No. 38207.

Court of Appeals of Georgia, Division No. 2.

May 27, 1960.

Adhered to on Rehearing July 13, 1960.

Syllabus by the Court

1. Special grounds which fail to point out the portions of the record or evidence necessary for their consideration are too incomplete to passed upon.

2. The instructions of the court as complained of in special ground 4 were not calculated to coerce the jury into making a verdict, and were not erroneous for any reason assigned.

3. There was no evidence that the line between the lands of the parties was along the center of 'Crooked Creek' and the verdict of the jury fixing the line at that point was not authorized.

Robert H. Jordan, Talbotton, for plaintiff in error.

Hatcher, Smith, Stubbs & Rothschild, J. Madden Hatcher, Columbus, for defendant in error.

CARLISLE, Judge.

E. N. Murray brought suit in the Superior Court of Marion County against Ida B. Taylor and Louis M. Phillips, seeking an injunction to restrain the cutting of timber and also seeking damages for the wrongful cutting of timber. All injunctive features having been eliminated, the case proceeded to trial as a suit for damages and the jury returned a verdict of $144 for the plaintiff. The defendant Taylor made a motion for a new trial on the general grounds and on five special grounds. The trial judge overruled that motion and the exception here is to that judgment.

1. It is well settled in this jurisdiction that a ground of a motion for a new trial complaining of the admission of evidence over objection must show what objection was made thereto, and that the objection was made at the time the evidence was offered. A mere general objection is insufficient to present any question for decision by the trial court in considering the motion or by the appellate court on review of that action. Accordingly, the first and second special grounds of the motion for a new trial which show that the only objection to the evidence complained of was in the following language: 'Your Honor, I object to that about where Mr. Miller told him it was,' fail to show that any specific objection to the evidence was made and are entirely too vague and general to present any question for decision, and the trial court did not err in overruling them. Register v. State, 10 Ga.App. 623 (1), 74 S.E. 429; Culpepper v. Hall, 22 Ga.App. 715(1), 97 S.E. 111; Atlanta Life Ins. Co. v. Jackson, 34 Ga.App. 555(2), 130 S.E. 378; Kuusisto v. Wilkins, 56 Ga.App. 405(1), 192 S.E. 639; Kimball v. State, 63 Ga.App. 183, 185(1), 10 S.E.2d 240.

Special ground 3 of the motion contends that one of the jurors was disqualified because he was called as a witness for the plaintiff and his testimony clearly indicated that his mind was not impartial between the parties and that he had formed an opinion as to the issues to be tried by the jury prior to hearing the evidence in the case; that he was a former employee of the party opposed to the movant; that a part of his testimony was illegally admitted by the court, and that knowledge of the opinions expressed by the juror were unknown to the movant at the time the jury was being impaneled. This ground fails to set forth therein or to point out where the evidence may be found in the brief of the evidece which movant contends indicated that the juror's mind was not impartial or that he had formed an opinion as to the issues, and fails to point out or set forth therein what evidence was illegally admitted, and what objection was made thereto, if any. In this condition, this ground presents no question for adjudication by this court.

While it is no longer necessary that special grounds of a motion for a new trial have set out therein portions of the record or the portions of the charge necessary for a consideration of the questions raised thereby, and while it is no longer necessary that such grounds be complete and understandable within themselves, they, nevertheless, must point out with reasonable certainty the essential portions of the record necessary for an understanding of the questions presented for decision. Code § 6-901, as amended by the act approved March 7, 1957 (Ga.L.1957, pp. 224, 232). Accordingly, a ground of the motion for a new trial which complains that the trial court erred in charging the jury 'on the question of punitive damages as set forth in the charge,' but which fails to set forth more specifically just what portion of the judge's charge is complained of is too incomplete to be considered by this court. Smith v. Owen, 112 Ga. 531(1), 37 S.E. 729; Dowdell v. State, 200 Ga. 775, 782(3), 38 S.E.2d 780. Special ground 5 of the motion for a new trial was without merit, and the trial judge did not err in overruling it.

2. While special ground 4 purports to assign error on the entire charge, for the sake of this decision it will be treated as assigning error on only the following portion thereof:

'Well, now, gentlemen, of course, it's your prerogative to not decide on it if you can't decide on it. Nevertheless, of course, you realize that the case needs to be terminated--and it's a matter that will be of continuing importance to the parties and some expense to the county unless it can be completed.

'This jury is a good jury. It is a representative jury of this county and if you can--why, you should make a verdict.

'I would like to give you a little while longer. I don't want to punish you; but it is very desirable and, of course, I know you can see that and understand that--from the viewpoint of the litigants and from the viewpoint of the county and the expense to the county to have this problem to continue in the courts unresolved; and I would like for you to try earnestly a little while longer--see if you can reconcile your differences and, if possible, make a verdict.

'And, of course, if you can't make a verdict--why it will terminate in a mistrial and that means that it would have to be tried over again.

'Suppose you retire and go over it again and see if you can make a verdict; and if you can't--in a reasonable time--why, let that be known to me.'

It is contended that this language brought undue pressure upon the jury to arrive at a verdict merely for the sake of saving the county the expense of trying the case again, and caused the jury, or some of the jurors, to agree upon a verdict contrary to their feeling as to the true boundary lines between the plaintiff and the defendant. Of course, whether the continuation of the case unresolved and the retrial of the case resulting from a mistrial would involve additional expense to the county is a matter which is completely irrelevant to any issue being tried by the jury. Trial judges, therefore, should avoid references to such matters. See Campbell v. State, 81 Ga.App. 834(1), 60 S.E.2d 169. However, in the instant case it is clear that there was no coercion of the jury by the court aside from the use of this language, since the court plainly told the jury that it was their prerogative not to decide the case and that if they couldn't make a verdict in a reasonable time, they should inform the...