Nelson v. Huber & Huber Express Inc. , 79 Ga. App. 721 ( 1949 )

1. It is reversible error to instruct the jury on the law of a contention by a party to a case as to which there is no evidence, although the charge be correct in the abstract, unless it is apparent that the jury could not have been misled.

2. It is not error for the trial court to instruct the jury as to the legal preponderance of the evidence by which a cause of action must be established, because only a part of the items sued for are unsupported by evidence.

3. On the trial, either party has a right to support by evidence the allegations contained in the pleadings as laid.

4. No decision is made on the general grounds of the motion for a new trial and special ground 1 of the amended motion, which is only an amplification of the general grounds.

DECIDED JULY 16, 1949. The plaintiff in error, E. E. Nelson, herein referred to as the plaintiff, filed suit in the Civil Court of Fulton County against Huber Huber Motor Express Inc., herein referred to as the defendant.

The petition as amended alleged substantially: that the plaintiff is the assignee of a six-year lease contract with the defendant under the terms of which the lessor agreed to erect a warehouse and office, a building to house greasing facilities, and a fence, the locations and specifications thereof to be agreed upon between the parties; that the lessor was not to make any repairs or improvements of any sort; and that the lessee would return the premises at the expiration of the lease in as good order and repair as when first received, natural wear and tear excepted. The plaintiff further alleged that, as a result of the defendant's abuse of the premises and failure to restore them to the condition in which they were received, natural wear and tear excepted, the plaintiff has been damaged in the amount of $9573.56, according to an itemized statement annexed to the petition and made a part thereof.

The defendant denied the allegations of liability set out in the petition and counter-sued for $6274.80, claiming various items of damage which allegedly grew out of breaches of the lease agreement on the part of the plaintiff lessor.

The jury returned a verdict for the defendant. The plaintiff filed his motion for a new trial on the general grounds, which was later amended by adding four special grounds, and the judgment overruling this motion is assigned as error. 1. By special ground 2 of the amended motion for a new trial it is contended that the trial court erred in charging the jury in substance that, if they found that the plaintiff had breached the contract by his failure to build a fence, then and in that event, the measure of damages would be the cost of building the fence, rather than the cost of maintaining a night watchman on the premises.

By its cross-action, the defendant is seeking to recover $4824.88, which it is alleged was the amount paid to a night watchman, made necessary because the plaintiff breached the contract by his failure to build the fence specified in the lease agreement. That part of the contract referring to the fence is as follows: "The lessor will also furnish a fence around those portions of the boundary line that will be agreed upon between the parties as to the type of said fence and the places where the same must be built."

The excerpts from the charge complained of are contended to be error on the grounds that there is no evidence which would authorize the jury to find that the lease agreement had been breached by the plaintiff in regard to the fence, and that there is no evidence as to what would have been the cost of erecting the fence.

There is no evidence to show that the defendant ever called upon the plaintiff to construct the fence, that the boundary line upon which the fence was to be located was ever pointed out, or that the type of fence which was to be built, or the places where the fence was to be located, were ever agreed upon. It was, however, undisputed that, when the question of the fence was being discussed by the plaintiff with an agent of the defendant, the latter said, "Let's forget about the fence." The point is also well taken that there is no evidence to show what might have been the cost of constructing the fence.

The charge, therefore, authorized the jury to return a verdict in favor of the defendant as to an item on the cross-bill which was unauthorized by the evidence. This is error and is presumed to be harmful. See Pelham Manufacturing Co. v. Powell, 6 Ga. App. 308 (64 S.E. 1116); Western Atlantic R. Co. v.Sellers, 15 Ga. App. 369 (83 S.E. 445).

It is reversible error to instruct the jury on the law of a contention of a party to the case as to which there is no evidence, although the charge be correct in the abstract, unless it is apparent that the jury could not have been misled. SeeCitizens Southern Nat. Bank v. Kontz, 185 Ga. 131 (6) (194 S.E. 536); Poland v. C. C. Osborne Lumber Co., 34 Ga. App. 105 (2) (128 S.E. 198).

It is contended by counsel for the defendant that the error here is harmless because the jury found against the defendant's cross-action. This may be true, because the verdict, being for the defendant, was against both the plaintiff's action and the defendant's cross-bill. However, the jury may have found that the defendant owed the plaintiff for some items sued for in the original action. They may also have found that the plaintiff breached his contract in failing to build the fence, and may have undertaken to have offset what they decided the plaintiff was due with this item of the defendant's cross-action. It is, therefore, apparent to us that the jury could have been misled by the erroneous charge.

2. By special ground 3 it is contended that the trial judge erred in charging the jury as follows: "The defendant has the same duty to make out by a legal preponderance of the evidence, as just given you in charge, the material obligations of his cross-bill in order to be able to recover." This is alleged to be error because two of the items sued for in the cross-action are unsupported by evidence. Assuming that the two items set up as unsupported by evidence in this ground of the motion were without evidence to support them, other items in the cross-action may have been supported by some evidence. Therefore, it was not error for the trial court to charge the correct rule with reference to the weight of the evidence by which the cross-action must be sustained in order for the defendant to recover thereon. See Barbre v. Scott, 75 Ga. App. 524 (43 S.E.2d 760).

3. By special ground 4 it is contended that the trial court erred in permitting the manager of the defendant's Atlanta business to testify regarding the serviceability of the warehouse doors. Paragraph 4-a of the defendant's cross-bill alleges that these doors were of inferior quality, improperly constructed, and not serviceable, and that he tried to repair them at a cost of $258.92. He sought to recover this sum as one of the items of damage for the alleged breach of the contract. There was no demurrer to this paragraph. The trial court properly admitted evidence in support of this contention of the defendant as laid. See Overstreet v. W. T. Rawleigh Co., 75 Ga. App. 483 (2) (43 S.E.2d 774).

4. Special ground 1 of the amended motion for a new trial is only an amplification of the general grounds. It and the general grounds are not passed upon for the reason that there is no way of determining what the evidence may be on another trial of the case.

The judgment of the trial court overruling the motion for a new trial as amended is error for the reason set out in headnote 1 and the corresponding division of this opinion.

Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.