Imperial Investment Co. v. Modernization Construction Co. , 96 Ga. App. 385 ( 1957 )

96 Ga. App. 385 (1957) 100 S.E.2d 107

IMPERIAL INVESTMENT COMPANY, LTD., et al.
v.
MODERNIZATION CONSTRUCTION COMPANY.

36836.

Court of Appeals of Georgia.

Decided September 18, 1957.

James K. Rankin, Newell Edenfield, for plaintiffs in error.

John W. Wilcox, Jr., Wilson, Branch & Barwick, contra.

TOWNSEND, J.

1. Where it is contended in a special ground of a motion for new trial that an excerpt from the charge of the court is error as containing an expression of opinion on what has been proved, the excerpt will be considered in its context and with the charge as a whole, including a statement of the court that nothing he has said should be construed as an expression of opinion on his part. Hogg v. First Nat. Bank of West Point, 82 Ga. App. 861 (4) (62 S. E. 2d 634).

2. A violation on the part of the trial court of Code § 81-1104 which inhibits the trial judge from any expression of opinion on what has been proved makes reversal mandatory. Alabama Great Southern Ry. Co. v. McBryar, 67 Ga. App. 509, 514 (21 S. E. 2d 173); Phillips v. Williams, 39 Ga. 597 (1). However, it is not a violation of this Code section for the court to state a fact which is uncontested and undisputed under the evidence in the case. Daniel v. Charping, 151 Ga. 34 (3) (105 S. E. 465).

3. The rule is recognized that in fixing the value of services, where no agreement as to value has been reached between the parties, the jury is not absolutely bound by opinion evidence, though undisputed, for in matters of value where the evidence shows the services performed, jurors ordinarily have within their own experience the same means of ascertaining value as is available to nonexpert witnesses. See in this regard Daniell & Beutell v. McRee, 31 Ga. App. 210 (2) (120 S. E. 448) and citations; Chalker v. Raley, 73 Ga. App. 415 (37 S. E. 2d 160); Southern v. Cobb County, 78 Ga. App. 58 (50 S. E. 2d 226); Lammons v. Copeland, 85 Ga. App. 318 (69 S. E. 2d 617).

This should not, however, be construed to mean that jurors may absolutely ignore evidence of value and themselves approximate a verdict "in round numbers" without reference to the value of the separate items sued for in the bill of particulars. Neither does this rule of law constitute "evidence" in the case so as to render erroneous a charge of the court that there was "no evidence which would justify a verdict for round figures for even hundreds of dollars because neither of them is asking for even hundreds of dollars or admitting even hundreds of dollars."

4. Nor is the above charge erroneous as constituting an opinion of the court on what has been proved by the evidence in the case, in violation of Code § 81-1104. The main item involved in this litigation was the balance due on a contract price which admittedly was unpaid, and certain extra items also admittedly due and unpaid. The remainder of the amount sued for concerns 15 disputed items added during the progress of the work, as to which the defendant does not contend that the price charged is unreasonable, but rather contends that no liability exists because the work was either included in the original contract, was unnecessary, or resulted from mistakes on the part of the plaintiff in performing the contract. In stating that neither the plaintiff sought nor the defendant admitted any liability in round figures, the court was stating an undisputed and uncontroverted fact. The instruction, in the context in which it was used, could only have been construed by the jury as a caution against returning a compromise or quotient verdict without regard to the separate items sued for by the plaintiff. That such a verdict would be illegal, see Cromer & Thornton v. Underwood, 64 Ga. App. 519 (13 S. E. 2d 860). An analysis of the amount of the verdict returned shows beyond doubt that the instruction was so construed by the jury, for the amount returned ($11,874.55) could only have been arrived at by adding to the liability admitted by the plaintiff the sums sued for in items 3, 5, 17, 22, 28 and 29 of the bill of particulars. It therefore appears not only that the charge was proper, but that it was correctly understood and applied by the jury.

The trial court did not err in denying the motion for new trial as amended.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.