Southern Cotton Oil Co. v. Thomas , 155 Ga. 99 ( 1923 )

Russell, C. J.

The complaint contained in the first special ground of the motion for a new trial, if that ground be considered without reference to the charge as a whole, is not well founded, although the judge referred to one or two matters which were not specifically referred to in the evidence. It is a well-settled rule that the instructions of a court are improper if inapplicable to the evidence. If possible, the instructions of a trial judge should fit the evidence as snugly as a skilful tailor could make a suit of clothes to fit the human body. Counsel for plaintiff in error insists that it does not appear from the evidence that there was a whistle at the defendant’s peanut mill; and that the expression that the peanuts were unloaded and carried into the building by suction was inapplicable, because the evidence showed that they were unloaded with shovels. However, there must be a conjunction of injury with the mere error, to constitute error in its full legal sense as applied to courts of review, and it does not appear that because the judge incorrectly stated the manner in which the peanuts were removed, or because he was mistaken in saying that the noise from the mill engine or boiler was caused by a whistle, either or both of these misstatements as to the evidence caused or could cause any injury to the plaintiff in error, or that they could in anywise have affected the probable finding of the jury. It was not error for the judge to tell the jury that they might find that the operation of the mill was a nuisance if “ some of those conditions, as alleged by the plain.tiff, was the cause of it.” One is not debarred from showing the existence of a nuisance if he proves that any one of several alleged conditions brought about by the defendant created a nuisance, although he may not be able to prove all of the alleged facts. Viewed in connection with other portions of the charge, we do not think there was any' harmful error in the first excerpt from the charge of which complaint is made. There must be not only latent error, in the sense in which that word is commonly used, but concurrent injury, to create error of law — such error as to warrant reversal. Trivial errors are barren until vitalized by conjunction with substantial injury.

We do not think there was any error in the excerpt from the charge contained in the second special ground of the motion for a new trial. It is true that the word "disturbed” as complained of was inapt, but it is apparent that the immediate use of the words " and injured ” following it corrected any misapprehension on the part of the jury that might have arisen from the use of the word " disturbed,” which immediately preceded it. The judge in charging the jury evidently saw that he had used an inapt word, and immediately used the only proper word applicable to the case at bar; and this practice is so universal in every conversation in all the daily affairs of life that it would be quite a strain to hold that the jury were misled merely by the use of an inapt word for which a proper word was substituted in the same breath. We think this little error was, in a juridic sense, harmless. We bear in mind the rule that where a really materially erroneous instruction is given, the presumably evil effect can not be cured except by express reference at the time to the error and a plain and clear withdrawal of the erroneous instruction from the jury. But we do not-deem that such an instance is now before us. However, if we be in error as to this, any apparent error was removed by the instructions given throughout the charge, especially upon the point that the plaintiff in the case could only recover for injuries to her property.

The exception contained in the third special ground will next be considered. The exception as contained in (a) is not sufficiently specific to present anything for our consideration. It is assigned as error that the instruction does not accurately state the law, but it is not pointed out wherein the law is not correctly stated, nor what is the correct law, in the opinion of the plaintiff in error. The complaint in (b) raising the point that the court used the words “ acts alleged against the defendant,” in telling the jury that they would “ ascertain the depreciation by reason of the acts alleged against the defendant that has been caused to her property,” does not complain, though it seems to intimate, that this was perhaps an expression of opinion on the part of the court. But the exception is insufficient to raise that point. The assignment of error simply raises the point that the allegations have no evidentiary value and no bearing bn the measure of damages. If we were to sustain this exception, we would impeach the intelligence of the jury, and of juries generally; because there is no reason to misunderstand, or to believe that the jury misunderstood, that nothing was further from the mind of the court than to give the jury an instruction that they were authorized to find a verdict upon the allegations themselves instead of upon the proof adduced in support of those allegations.

There was no error in the excerpt from the charge of which complaint is made in the fourth ground, heretofore quoted in the report of this case. The instruction was applicable to and authorized by the evidence, and, in so far as it related to the depreciation of the rent, was more favorable to the defendant than was authorized. The fact that the court did not call attention to special conditions which the defendant insists contributed to the depreciation was not error, certainly not in the absence of an appropriate request for instructions upon that subject.

It is not necessary to rule upon the exception to the charge upon the subject of the injunction, inasmuch as the jury did not find in favor of an injunction, and it does not appear from reading the charge as a whole that the instruction as to the injunction could in any wise have affected the finding of the jury as to damages.

The assignment of error in the sixth ground can not be sustained, for the reason, as stated 'in the fourth division of this opinion, that there was no request, although it may be that the issues were sharply drawn, as insisted by the plaintiff in error.

An assignment that the verdict is contrary to the law as given in charge by the court amounts to no more than a general assignment that the verdict is contrary to law. In the seventh ground the plaintiff in error insists that inasmuch as the jury did not find specifically, in the verdict itself, that the operation of the peanut-mill was a nuisance, they were not authorized to find damages. It appears to us that this is a non sequitur. The judge correctly instructed the jury that damages could be found only on condition that the jury found that the operation of the peanut mill was a nuisance. This was an instruction as to their ultimate conclusion from the evidence as to whether the peanut mill was or was not a nuisance; an instruction that unless they came to a conclusion from all the evidence that it was a nuisance, the plaintiff could not recover. But he was not required to instruct them that they should incorporate in their finding as to this preliminary result in their consideration of the ease, that it should be entered in the verdict. And he should not have done so.

The verdict is challenged as being excessive. We think the trial judge properly overruled this ground of the motion for a new trial. A verdict is never excessive, in legal contemplation, unless it is so grossly out of proportion with the evidence which authorizes any recovery at all by the plaintiff, as to the shock the moral sense. The jury, under proper instructions, are the judges of the credibility of the witnesses in actions for damages, as in all other cases; and if the finding of the jury is within the range of the testimony, the court can not enter into the question of whether the damages are excessive or not, unless the amount is so large as to lead the -court to believe that the finding was due to prejudice or bias, either on the part of the witnesses or on the part of the jury. The power of setting aside a verdict of a jury upon the ground that the finding is excessive is one to be very sparingly used; and since, in this case, there is evidence on the part of witnesses unimpeached that the diminished value of the property was over $4000, and the jury only found damages to the amount of $1000, we do not think the present case presents an instance in which the lower court should have interfered, or one in which our intervention should be granted. Though there is much conflict in the testimony, there is sufficient evidence to authorize the verdict; and when the entire charge is considered as a whole, there was no material error in the trial. As said by Chief Justice Bleckley in Brown v. Matthews, 79 Ga. 1 (4 S. E. 13). “A charge, torn to pieces and scattered in disjointed 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.”

Judgment affirmed l'y operation of law.

Bussell, C. J., Beck, P. J., and Gilbert, J., favor an affirmance. Atkinson, Hill, and Hines, JJ., favor a reversal.