Mayor of Madison v. Bearden , 1918 Ga. App. LEXIS 346 ( 1918 )

Broyles,'P. J.,

concurring specially. I agree that the'judgment of the lower court overruling’ the motion for a new trial should be reversed, but not for the reason stated in the opinion of the majority of this court. I do not think that the error in the excerpt from the charge, as complained of in the 4th special ground of the motion for a new trial, requires a new trial, as, in my opinion, this error was cured by the supplemental charge, in which the correct rule of law was so plainly stated that I do not see how the error in the preceding charge could have misled the jury.

The plaintiff sued for general damages, and for pain and suffering. The petition did not claim any special damages, and none were proved. Under such circumstances, it was, in my opinion, erroneous for the judge to charge upon the subject of special damages, and I think it is probable that this charge confused and misled the jury. For this reason I agree with my colleagues that a new trial of .the ease is required.