Western & A.R. Co. v. Branan
| Decision Date | 03 August 1905 |
| Citation | 51 S.E. 650,123 Ga. 692 |
| Parties | WESTERN & A. R. CO. v. BRANAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
To properly bring under review the correctness of a ruling as to the admissibility of evidence which a trial judge declines to exclude, the complaining party must make it appear not only that the evidence was admitted over his objection, but also what grounds of objection he urged at the time the evidence was offered.
In an action to recover damages of a warehouseman because of an alleged failure on his part to comply with the duties imposed upon him by law with respect to the proper storage and care of goods intrusted to his care, the plaintiff must recover if at all, upon proof of the specific acts of negligence which he sets forth in his pleadings; and the trial judge should not, in his charge to the jury, give the plaintiff the benefit of any theory of recovery not covered by the allegations of his petition.
If the plaintiff fails to sustain by evidence a charge of negligence made against the defendant, the judge should eliminate this feature of the case when instructing the jury as to the issues upon which they are called to pass, and not leave them to determine whether the defendant was negligent in the respect alleged but not proved.
In so far as the written requests to charge presented by the defendant in this case were pertinent and in accord with the law controlling the questions at issue, they were substantially covered by the charge which the judge gave of his own motion.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Charles I. Branan against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Payne & Tye, for plaintiff in error.
Mayson Hill & McGill, for defendant in error.
EVANS J. (after stating the facts).
1. Error is assigned upon the admission in evidence, over the defendant's objection, of certain receipts issued to the plaintiff by the defendant company as a warehouseman, and also five "expense bills" issued to him by the Nashville, Chattanooga & St. Louis Railway, showing the weight of the peaches. What objection was urged against the introduction of this evidence at the time it was offered does not appear, and for this reason the assignment of error cannot be considered. Powell v. Railway Co., 121 Ga 803, 49 S.E. 759.
2. Exception is taken to a charge of the court in which the judge submitted to the jury, as one of the contentions of the plaintiff, the question whether or not the company was negligent in failing "to admit air into the warehouse, in view of its heated condition, in a proper way, and at proper times and periods." The complaint made of this charge is that there was no allegation in the petition upon which the same could be predicated. The plaintiff did not in point of fact so contend, and the charge presented to the jury an additional ground of negligence in no way claimed by the plaintiff himself. The assignment of error upon this instruction is well taken. The allegations of negligence upon which the plaintiff based his right of recovery were (1) that the company undertook to store his peaches in a wareroom which it knew was not suitable, because of the heat generated in the basement below and communicated to and through the warehouse; and (2) that the peaches were piled in huge masses, sack upon sack, so that the air could not penetrate them. The plaintiff confined himself to an effort to prove the first of these two charges of negligence by showing that the wareroom was so situated, relatively to the engine room, that a man of ordinary care and observation should have known that the excessive heat generated in the basement rendered the wareroom an...
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