Baxter v. State Highway Department , 108 Ga. App. 324 ( 1963 )

108 Ga. App. 324 (1963) 132 S.E.2d 863

BAXTER et al.
v.
STATE HIGHWAY DEPARTMENT.

40172.

Court of Appeals of Georgia.

Decided September 18, 1963.

John E. Wiggins, Pittman & Kinney, R. Carter Pittman, for plaintiffs in error.

Joe B. Tucker, Eugene Cook, Attorney General, Carter Goode, Richard L. Chambers, Assistant Attorneys General, contra.

FRANKUM, Judge.

The jury should not be left to decide between conflicting propositions contained in the court's charge, and where in instructing the jury the judge gives them an incorrect instruction it is not sufficient that he thereafter, without expressly withdrawing the incorrect charge, merely charges them correctly on the same proposition. Savannah Elec. Co. v. McClelland, 128 Ga. 87 (2) (57 S.E. 91); Citizens &c. Nat. Bank v. Kontz, 185 Ga. 131, 146 (194 S.E. 536). A charge which thus contains two distinct statements, conflicting one with the other, is calculated to leave the jury in such a confused condition of mind that they cannot render an intelligent verdict. Tietjen v. Meldrim, 169 Ga. 678 (2), 696 (151 S.E. 349); Plaspohl v. Atlantic C. L. R. Co., 87 Ga. App. 506, 508 (2) (74 SE2d 491) Such a charge requires the grant of a new trial. Even if it be said, however, that the grant of a new trial is not demanded in such circumstances, nevertheless, where the trial judge grants a new trial expressly on a ground of the motion complaining of such a charge, his judgment in this regard ought to be affirmed unless the record clearly, unmistakably, and unequivocally demonstrates that the error contained in the charge was harmless. Rice v. Matthews, 104 Ga. App. 593 (122 SE2d 175). This court cannot say that under the facts of this case the charge complained of in ground 4 of the motion for a new trial did not influence the jury to render a verdict for the condemnee in an amount larger than it would otherwise have rendered, and that it was therefore not harmful to the movant. Accordingly, the grant of a new trial on this ground will not be disturbed.

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.