Wheeler v. State Highway Dept., 39530
| Decision Date | 12 July 1962 |
| Docket Number | No. 1,No. 39530,39530,1 |
| Parties | J. B. WHEELER v. STATE HIGHWAY DEPARTMENT |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In instruction in the charge which misstated the defendant's contentions, was inconsistent with other portions of the charge and which tended to confuse the jury as to the law involved, was error requiring a new trial.
2. Mere underlining of portions of an excerpt from the charge alleged to be 'erroneous and not sound as an abstract principle of law' was not sufficient specification of the alleged error where the excerpt also contained statements of sound law.
3. The general grounds are without merit.
The State Highway Department of Georgia filed condemnation proceedings against a certain tract of land in Houston County, Ga., owned by John B. Wheeler. After the award of a special master was made the judgment of the superior court, both the condemnor and the condemnee filed appeals to a jury. The issues thus made came on for trial and after a verdict and judgment of $6,631.95 for condemnee, condemnee filed a motion for a new trial on the usual general grounds which he later amended by adding two special grounds. The trial court overruled the amended motion for new trial, and it is to this judgment that the condemnee now excepts.
George Kushinka, Warner Robins, John R. Rogers, Ashburn, for plaintiff in error.
Eugene Cook, Atty. Gen., Carter Goode, Donald E. Payton, Asst. Attys. Gen., Atlanta, David P. Hulbert, Perry, for defendant in error.
1. The two special grounds complain of the following excerpt from the charge to the jury (emphasis by the plaintiff in error):
Special ground 1 complains that the condemnee had never contended, by pleadings or evidence, that he was entitled to consequential damages for the lands actually taken, this being an element of direct or actual damages, and that this charge, along with another instruction that damages for the lands taken could not be considered as an element of both direct and consequential damages, confused and misled the jury.
'In all cases, in stating the contentions of the parties, the contention of each should be alike fairly stated, and, if a statement of the contention or position of a party be attempted, it must be correctly given.' Rouse v. State, 2 Ga.App. 184(4), 58 S.E. 416. An erroneous and prejudicial statement of the contentions of a party is ground for a new trial. Hightower v. Ansley, 126 Ga. 8(6), 54 S.E. 939; Southern Railway Co. v. Thompson, 129 Ga. 367, 368(1), 58 S.E. 1044. Misstatements of a party's contentions which tended to confuse the jury as to such contentions and as to the real issues in the case have frequently...
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