Chattahoochee Brick Co. v. Sullivan , 1890 Ga. LEXIS 181 ( 1890 )

Bleckley, Chief Justice.

The facts appear in the official report.

1. There was no error in the charge of the court set out in the fifth ground, of the motion for a new trial, which instructed the jury that if they found a certain state of facts by which the plaintiff suffered damage, he would be entitled to recover therefor. The point is made that the court gave the jury no rule for determining the kind of damage or for measuring the amount. Of course the charge is to be applied to the evidence, and that shows that the damage consisted of the plaintiff’s expense incurred pending certain intervals of time during which the plaintiff could not proceed with the work by reason of the failure of the defendant to have ready for his use preliminary work which was essential. The evidence also furnished material from which the amount of the damage could be computed by the jury. It is said also that, if the delays occurred, it was the plaintiff’s duty to keep his hands engaged on “back work,” and that he was not hound to pay, and never did pay, his laborers when they were kept idle by delays; also that testimony was introduced on this question, and that the court withheld from the jury that part of the defence and the testimony relating to it. This criticism is met by the clause of the charge which made it a condition of recovery that the defendant should have broken its contract and that thereby the plaintiff’s force were necessarily and unavoidably kept idle, and that the plaintiff suffered damage from this cause. Had more specific instructions been desired, the attention of the court should have been called to it by way of request to amplify and particularize.

2. The sixth ground of the motion for a new trial takes issue with the court as to what was or was not insisted upon by the plaintiff and the defendant respectively. We understand the court to mean that each party insisted upon something at the trial, and that what each insisted upon was thus and so. This statement must be taken here as correct, inasmuch as the judge neither certifies that it is incorrect nor that he was requested to vary or modify it. The same may be said of the ninth ground of the motion, which makes a like criticism upon the charge of the court as to what the plaintiff insisted upon. It seems to be thought'by the learned counsel for the defendant (the plaintiff in error here) that the court was endeavoring to make a summary, not of the plaintiff’s claim, but of his testimony. We see nothing to indicate that the court was attempting, in this part of the charge, to follow the plaintiff as a witness, but only to state his position as a party. It was for the jury to determine whether or not what he insisted upon as a party was supported by his own or any other testimony.

3. The seventh ground of the motion states that the testimony did not show what part of the time, if any, during delays was actually lost by the force. We think the evidence affords data upon which to make a fair computation of the amount of damages resulting from lost time; at all events, that the minimum, if not the maximum, of loss could be ascertained.

4. The eleventh ground of the motion excepts to the court’s charge touching the agreement of the parties made pending the trial as to admitted and contested items, the court saying: “You should credit the plaintiff with what is admitted in this agreement to be due him, and charge him with the amount admitted to have been received by him, that is, credit him with $19,634.96, and charge him with $10,143.50.” The complaint is, that this limited the amount admitted by the plaintiff to $10,143.50, and prevented the jury from considering all of the $9,142.50 admitted in the declaration and the plaintiff’s testimony. This criticism is altogether unfounded. The court was charging specifically upon the agreement made at the trial, and its effect as to two aggregate sums, the one to be placed on one side of the account, and the other on the other side. Surely what the court said was literally correct, and to our minds it would carry no implication as to how any item or items not included in the agreement were to be dealt with. It is not pretended that an express negative was put upon the allowance of any sum admitted in the declaration or,in the plaintiff’s testimony, and to imply such a negative, the jury would have to place upon the court’s language a strained and distorted construction. We do not mean to say that the agreement itself would not bear that construction, for we rather think it would, so far as any admissions in the declaration are concerned, one of the purposes of the agreement seeming to bo to group together all the admitted and disputed items for and against each party. We can discover no clear reason why the court, the counsel and the jury should not have looked to the agreement for all the material, or rather for a description of it, out of which the full account between the parties was to be constructed. But what we rule is, that -this part of the charge was not erroneous.

5. The twelfth ground of the motion complains that the court charged in a way to exclude from the consideration of the jury the effect of an admission made in the declaration upon certain items, one for $950, the other for $745, claimed by defendant. If either of these items was included in the admission of the gross sum of $9,142.50 set out by the plaintiff in his declaration, we think the attention of the court should have been called to that fact. It does not appear that the court knew or was informed that these items entered into that gross sum, or that the defendant claimed that such was the fact. The court, thinking no doubt that the question of the allowance of these items turned on the evidence and not on the pleading, instructed the jury accordingly, and if they were in fact covered up and comprehended in a larger sum, so as not to be recognizable without*an examination of the pleadings, why did counsel remain silent and forego -the beuefit of an admission which, as now süggested, was contained in the declaration itself? We can find no such admission in the declaration, that is, none which identifies these items as matters included in the gross sum of $9,142.50 designated in the declaration as cash paid by the defendant to the plaintiff, without the specification of any particulars. The declaration is silent as to particulars.

6. According to Gholston v. Gholston, 31 Ga. 625, it was not correct practice to send out with the jury the written charge of the court read to them from the bench. There is no statutory provision in this State on the subject, and that being so, were we to follow the rule which prevails in some jurisdictions, we could hold the matter'subject to the discretion of the court. 2 Thompson on Trials, §2583. The reason given by the trial judge for allowing the charge to go out in this instance, was that it had in it many- statements as to amounts, etc., which the jury could not remember and for which they would want to make reference to the charge. We find this to be so, and as no objection was made by counsel to sending the charge out, we think it is no cause for a new trial. ^ Indeed, some of us regard it as a wholesome practice for every case. But we all agree that at most it is only an irregularity, and that the omission to object was a waiver of objection. Bass v. Winfry, 20 Ga. 634, opinion by Benning, J.

7. It is complained that the court charged the jury, in speaking of the credibility of witnesses, to consider the character of each witness and his opportunity to know the facts about which he testifies. There was no testimony as to the character of any witness. For this reason the charge, while it was irrelevant, could not have been more hurtful to one party than to the other. There is -no cause for treating it as prejudicial to the defendant rather than to the plaintiff. It would not be sound law to grant a new trial on account of an irrelevant charge not necessarily hurtful to either party, unless it was likely to have influenced the verdict. In this case, we can see no reason for suspecting that this allusion to character had any influence whatever. Indeed, on account of certain facts in the record, the defendant has much less cause to complain of it than the plaintiff. It will be observed that the charge made no express reference to any knowledge which the jurors themselves might have touching the character of witnesses, and in this respect it differs from the cases of Anderson v. Tribble, 66 Ga. 584, Head v. Bridges, 67 Ga. 227, and Howard v. The State, 73 Ga. 84. We were requested to review these cases, in so far as they sanction the mere personal knowledge of jurors touching the character of witnesses as a factor in the determination of credibility. We are strongly inclined to the opinion that in this respect they are unsound, but we can make no authoritative ruling upon the question in disposing of the present case; for the charge now under examination, fairly construed, does not present the point. It was inapplicable in its terms, for the reason that there was no evidence to which the jury could properly apply it, and they were not instructed to apply it to their own information or personal knowledge. This is all we deem necessary to say. on this topic at present.

8. The court erred in charging the jury as set out in the fourth ground of the motion for a new trial, in one particular, which was, after saying that if the jury found that the four miles of railway extending from Rome to the Rome and Decatur junction was included in the contract, they would give the plaintiff credit for $1,200,in adding, “of course subject to a counter-charge for the reasonable cost of the work.” We think there was no evidence to warrant the jury in looking to the reasonable cost of the work for a measure of the correct counter-claim against this $1,200 item. If this four miles were embraced in the contract, the plaintiff would he entitled either to the difference between $1,200 and the cost to the defendant of doing the work by convict labor, or to the difference between $1,200 and the price of the convict labor, as contended for by the defendant. There was evidence tending to show that the reasonable cost of the work was $1,100, the plaintiff having testified that his profits on the work done by himself averaged $25 a mile. If the jury followed the instructions of the court, they most probably allowed the plaintiff' $100 for these four miles. We cannot ascertain from the evidence, certainly not without a great deal of study and calculation, what it actually cost the defendant to do this work by convict labor. Nor can. we make an accurate estimate of how much the convict labor, estimated at the price contended for by the defendant, would amount to for this particular part of the work. But on no basis of calculation which the evidence anywhere points out, would the cost of doing this work* at the prices claimed by the defendant for convict labor, exceed $300 a mile, the compensation which by the original contract was to be paid to the plaintiff for doing it. We think the results of the error in the charge of the court maybe wholly eliminated by assuming that the jury could not have allowed, and did not allow, for this item more than $25 per mile, as the difference between the reasonable cost given them as a standard in the charge of the court and the $300 per mile which the plaintiff would have been entitled to receive, had he done the woi*k himself. We think, therefore, that if a new trial were had on account of this error, it would not involve exceeding $100 as matter fairly in dispute, on which the error of the court could have had any influence. Eather than order a new trial unconditionally on account of this disputed item, we prefer to reverse the judgment overruling the motion for a new trial, with direction that if the plaintiff will write off from the verdict one hundred dollars and the interest recovered on that sum, the judgment, modified to conform thereto, then stand affirmed.

9. The newly discovered evidence is fairly open to the objection that it is cumulative, and to the further objection that there was no full diligence in procuring some of it in time to be used on .the trial. "With these infirmities, we cannot hold it good cause for a new trial. Touching the payment covered by the newly found receipt, there was evidence at the trial from both sides, and there is no certainty or even probability that the jury did not follow the defendant’s evidence as to the amount of the payment, which was the same amount shown by the receipt. Judgment reversed, with direction.