Richter v. Atlantic Company , 65 Ga. App. 605 ( 1941 )

The writer feels impelled to dissent from the majority opinion in regard to the errors assigned in grounds 6, 11, and 13 of the amended motion for new trial.

1. Ground 6 complains that the judge erred in charging Code, § 12-106, as follows: "In order for a bailee to avail himself of the act of God or exception under the contract as a defense, he must establish not only that the act of God or excepted fact ultimately occasioned the loss, but that his own negligence did not contribute thereto." The majority opinion sustains the defendant's contentions that this charge was not reversible error; that the court had charged the jury that this contract furnished no protection to the defendant; that it was an additional protection to the plaintiffs and was most favorable because it was the statutory law being charged in the language of the statute, and was to the effect that no exception under the contract was a defense unless the defendant bailee's negligence in no way contributed thereto. I can not agree with these contentions.

The Code section was, I think, in nowise applicable to the instant case. There was clearly no evidence that the goods in question were destroyed or damaged by an act of God, which covers only natural consequences such as lightning, earthquakes, tempests, and the like. Central Line of Boats v. Lowe,50 Ga. 509. The theory of a defense under an "exception under the contract" was as a matter of law excluded from this case on demurrer. It was reversible error to charge thereon. Hare v.Southern Ry. Co. 61 Ga. App. 159, 161 (6 S.E.2d 65);Groover v. Cudahy Packing Co., 61 Ga. App. 707, 709, 710 (7 S.E.2d, 287); Atkinson v. Martin, 14 Ga. App. 588 (2) (81 S.E. 799); Savannah Electric Co. v. Fosterling, 16 Ga. App. 196 (84 S.E. 976); Birmingham Atlantic Railroad c. Co. v. Walker, 101 Ga. 183 (3) (28 S.E. 534); Livingston v.Hudson, 85 Ga. 835 (8), 840 (12 S.E. 17). It is true that previously to the charge here complained of the judge charged the jury that the defendant's contention that it was relieved of liability under an exception under the contract would not relieve the defendant of liability and all the exceptions under the contract on which the defendant relied were to be disregarded by them, but to then subsequently charge the above Code section was in effect telling the jury that the exceptions were valid and could be relied on by the defendant. In any event, it was greatly confusing and misleading to the jury, and must have left them in doubt as to whether or not the defendant could defend under the exceptions of the contract. The general rule is that a charge to the jury which is not authorized by evidence and which is calculated to mislead and confuse the jury requires a new trial.Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 708 (supra); Southern Marble Co. v. Pinyon, 144 Ga. 259 (2) (supra); Gaskins v. Gaskins, 145 Ga. 806 (supra); CentralGeorgia Power Co. Cornwell, 139 Ga. 1 (2 a) (supra). I do not think that the facts in the present case make the principle above charged and excepted to in any degree applicable.

2. Ground 11 of the motion complains that F. W. Beasley, for the defendant, was allowed to testify over objection in examining a picture of the interior of the warehouse that "This, of course, is a 75-watt globe." The plaintiffs contended that the fire was started by an electric globe against the sacks of nuts and that there was a material issue of fact as to what watt globe was used in the warehouse. The witness then testified: "So I say it just to me stands to reason, if the conditions were such as to make available a large globe — the burning of a larger globe being there, or anything pertaining to the switches that was irregular — it just stands to reason to me that they would have that up here in the form of pictures." After this testimony objection was made by the plaintiffs on the ground that this was a mere conclusion, and counsel for the defendant stated: "We offer it as a conclusion made from an investigation of the physical facts, and as commenting on the evidence which has already been introduced." The judge remarked: "Just state what was there, Mr. Beasley." The witness was further allowed to testify: "There has been no criticism of our property in any way, shape or manner by the insurance companies who write insurance for the customers who store their products with us, and of course we are still continuing to store nuts, generally speaking, for people who had them stored there at the time of the fire, including the plaintiff; he had 58,000 pounds there, if I understand correctly, and yesterday evening he stored some 11,000 pounds more. Surely if anything was wrong with us physically the same people would not continue to store their articles of merchandise with us." The same objection in effect was interposed by counsel for the plaintiffs, and the judge again remarked: "Just state facts, Mr. Beasley, but don't draw your conclusions from the facts." Whereupon the witness stated: "That is my conclusion." The judge again remarked: "Mr. Beasley, just state the facts."

The evidence was objectionable as involving a conclusion or opinion of the witness. Harris v. State, 188 Ga. 745, 746 (4 S.E.2d 651). The admission of this evidence, when taken in connection with the other evidence given by the same witness as to the transaction and the whole evidence in the case, would furnish ground for reversal. Brewer v. New England MortgageSecurity Co., 144 Ga. 548 (4) (87 S.E. 657).

3. I consider now the assignment of error in ground 13. The most important theory of the plaintiffs' case is not that their pecans were actually burned by fire, but that the defendant negligently allowed their pecans to be exposed to noxious gases engendered by fire which burned pecans belonging to other persons who had them stored in the same storage room. In connection therewith the plaintiffs charged the defendant with negligence in five different ways: (1) failing to have a watchman to inspect said bailments once each hour of the day and night; (2) failing to have a sprinkler system which would have stopped the fire almost immediately; (3) failing to provide hermetically sealed doors between each compartment of the storage room; (4) failing to have more than one entrance and exit where the pecans were stored, so that the fire fighters could quickly put out the fire; and (5) failing to have three pilot lights at the elevator in working condition (as the company originally did) which would have notified any one on the elevator whether the lights on either floor were burning, and thus call attention earlier to some one to go and turn off the lights and thus have discovered the fire sooner and prevented any greater damage to the pecans. The plaintiffs timely requested in writing the court to charge the following requests:

A. "One of the grounds of negligence alleged by the plaintiffs against the defendant, is as follows: `Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely said things bailed, in that ordinary care and diligence required that said defendant should have and maintain a watchman who would inspect and visit said pecans in each storeroom at least once each hour of the day and night, and the defendant failed to provide such watchman to inspect and visit said pecans that often.' If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damage sued for by plaintiffs, then you should return a verdict for the plaintiffs for the amount of damages you find under the rules I give you to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendant and its servants were not guilty of the charge of negligence just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs' goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in the case."

B. "One of the grounds of negligence alleged by the plaintiffs against the defendant is as follows: `Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely said things bailed, in that ordinary care and diligence required that said defendant, with so valuable an amount of goods on hand, especially where the goods were of such inflammable nature, should have the storage rooms in which they were stored amply equipped with a sprinkler system, to guard against the danger of fire, and said defendant failed to have any such sprinkler system operating in said rooms on the occasion herein referred to.' If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damage sued for by plaintiffs, then you should return a verdict for the plaintiffs for the amount of the damages you find under the rules I give you to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendants and its servants were not guilty of the charge of negligence just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs' goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in that case."

C. "One of the grounds of negligence alleged by the plaintiffs against the defendant is as follows: `Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely said things bailed, in that it stored said pecans of said plaintiffs in a storage room, along with about a half million pounds of pecans of other persons, of the value of about $100,000, in three different compartments, separated from each other by brick walls, but with large openings, six feet and ten inches high and four feet and one inch wide, between each of said compartments, all without any doors or other means of closing the same, and the plaintiffs aver that ordinary diligence on the part of the defendant required that it should have provided air-tight doors separating said compartments, so as to prevent the smoke and fumes and noxious gases produced by a fire among the pecans in one compartment from spreading into the other compartments, and said defendant failed to provide such doors or other means of hermetically closing said openings, but left said compartments opening into one another on the occasion herein referred to, with the result that when fire broke out among the pecans in compartment number 1, the southernmost compartment on the fourth floor, on the night of February 21, 1937, said fire burned a large quantity of pecans in that compartment, with the result that the heat engendered by the burning of said pecans distilled and charred into noxious gases and vaporized oil the pecans thus superheated by said fire, with the result that said noxious gases and vaporized oil from said pecans went into every nook and cranny of said storage rooms, and into each and every one of the compartments where said pecans were stored, with the result that said noxious gases and said vaporized oil penetrated within the shells of the pecans throughout all three compartments, thereby causing said pecans to have a fearful stench and an extremely disagreeable taste, so that the same had no value for human consumption, and could be used only for feed for livestock, it being a fact that all of said plaintiffs' pecans were then and there stored in the northernmost compartment of said fourth floor, furtherest from said southernmost compartment where said pecans were burned, and said pecans of plaintiff in said northernmost compartment would have been fully protected from said noxious gases and vaporized oil if said openings between said compartments had been hermetically closed.' If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damage sued for by plaintiffs, then you should return a verdict for the plaintiffs for the amount of damages you find under the rules I give you to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendant and its servants were not guilty of the charge of negligence just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs' goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in the case."

D. "One of the grounds of negligence alleged by the plaintiffs against the defendant, is as follows: `Said defendant failed to exercise ordinary care and diligence in protecting and keeping safely the things bailed, in that it stored said nuts of plaintiffs along with about five hundred thousand pounds of pecans of other persons, of the value of about $100,000, in its storage room on the fourth floor of its building in Albany, Georgia, and provided for said fourth story in the storage room where said pecans were stored only one entrance and exit, to wit, an entrance and exit by way of a freight elevator at the south end of the building, said room where said pecans were stored being provided with no other entrance or exit by which fire fighters could control the fire which started therein, and the plaintiffs allege that ordinary care on the part of said defendant required that, in view of the highly inflammable nature of this large and valuable quantity of goods thus stored, the defendant should have provided more than one means of entrance and exit for said storeroom, and especially one other than said freight elevator, so that when a fire broke out in said storeroom the same could be controlled and put out quickly and with very little damage to the goods stored therein. The result of the foregoing was, that when a small fire started in said storeroom on the night of February 21, 1937, and after the same had been smoldering in the air-tight room for some time, when the same was finally discovered at 7:40 a. m. on the morning of February 22, 1937, and a fire alarm turned in, and the efficient fire force of the City of Albany came to the scene to put out the fire, said force were met by the extreme danger presented by the said negligent failure on the part of the defendant to provide any other means of access and ingress to, or exit from, said storeroom other than said freight elevator, with the result that it was impossible for said efficient fire force to control said fire, or put out the same, for about six hours after the same was discovered, during which time the damaging to plaintiffs' pecans was continuing by the noxious gases and vaporized oil mentioned above, part of which would have been prevented if said defendant had provided additional entrances and exits for said storage rooms.' If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damage sued for by the plaintiffs, then you should return a verdict for the plaintiffs for the amount of damages you find under the rules I give you to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendant and its servants were not guilty of the charge of negligence just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs' goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in the case."

E. "One of the grounds of negligence alleged by the plaintiffs against the defendant is as follows: `That said defendant, Atlantic Company, had originally provided in the elevator shaft, on each of the four floors of its said warehouse, three pilot lights, one of which was strung on each of the three circuits on that particular floor, and would burn whenever the incandescent electric lights on said circuit were burning, and would thus show to any one on the elevator, and some floors below, whether any of said electric lights in said storage room were burning, yet nevertheless said defendant Atlantic Company had, for some months prior to February 22, 1937, the date of the fire, failed to replace the burned out or destroyed bulbs in said pilot lights, and thus left said pilot lights wholly ineffective for the purpose of showing whether any of the lights in any particular room of said storage warehouse were burning, and plaintiffs aver that ordinary care on the part of said defendant, Atlantic Company, required that it should continue to maintain said pilot lights, and that the failure to maintain the same was one of the proximate causes of the damage to plaintiffs' pecans complained of in plaintiffs' pleadings, as the fact that said incandescent electric lights were burning on the fourth floor during the night of February 21, 1937, could and would in all likelihood have been discovered by the employees of said Atlantic Company before any considerable damage had been done by the same, if said pilot lights had thus been maintained.' If, under the evidence in this case and the rules of law given you in charge, if you believe under the evidence and said rules that the charge of negligence here quoted is true, and that that was negligence, and proximately caused any of the damage sued for by plaintiffs, then you should return a verdict for the plaintiffs for the amount of damages you find under the rules I give you to have been suffered by the plaintiffs as a result thereof. On the other hand, if you find under the evidence and said rules that defendant and its servants were not guilty of the charge of negligence just quoted to you, or that said facts alleged did not constitute negligence, or that they did not proximately cause any damage to the plaintiffs' goods as alleged by the plaintiffs, then you should eliminate from your further consideration that charge of negligence, and address yourselves to the consideration of other charges of negligence and other issues in the case."

The defendant contends that the failure to charge in the precise language of the foregoing requests is no cause for a new trial where it appears that the principles involved were sufficiently covered by the general instructions. The writer has no difference of opinion with the contention of the defendant, as approved by the majority opinion, as a sound and correct principle of law, but does not think that that rule of law is applicable to the facts and circumstances of the instant case. It is true that the judge read in full the petition of the plaintiffs, which included all their contentions, but it is one thing to state the contentions from the pleadings of a party and another and very different thing to state the law applicable to such contentions as proved by the evidence. Atlanta, Knoxville Northern Railway Co. v. Gardner, 122 Ga. 82 (8) (49 S.E. 818); Groover v. Cudahy Packing Co., 61 Ga. App. 707, 709 (supra). It is also true that the judge charged generally that if the jury believed the defendant guilty of any one of the acts of negligence charged in the petition they would find for the plaintiffs if they believed such act was the proximate cause of the damage; but, as was said by Judge Lumpkin in Haynes v. State,17 Ga. 465, 483, "Ordinarily, general charges, however abstractly true, are worse than useless, . . and the only instructions which are worth anything are such as enable the jury to apply the law to the precise case made by the proof." In Slade v. Paschal,67 Ga. 541, 545, the Supreme Court held: "To charge an abstract principle of law is well enough, but when the request goes further and seeks a charge that applies that principle to the facts of the case, if the proof justifies its application, to refuse it is error. An abstract principle given may make but a slight impression on a jury, but when it is applied hypothetically to the facts, it aids the jury to a correct result, and is one of the most potent means in the hands of the court of having the law applicable to the facts fairly administered." In an even stronger case than the instant case the Supreme Court in reversing this court held that it was reversible error to refuse to charge in the exact language of the request. In the body of the opinion (two dissents) the court said: "The Court of Appeals did not rule that the requests to charge were not appropriate and pertinent, but held, in substance, that they were sufficiently covered by the portions of the charge as given relating to the subjects with which the requests to charge dealt. But this court is of the opinion that the requests to charge dealt in a direct way with material issues in the case; that they were more exactly fitted to those issues than the charge as given; and under the provisions of the statute which we have just quoted [Code, § 70-207, allowing grant of new trial for failure to charge as requested], it was error to refuse to give the charges in the language as written and requested, and for that reason the refusal of the court to grant a new trial was error."Gaines v. Brown, 175 Ga. 66, 68 (164 S.E. 806). SeeGaines v. Brown, 45 Ga. App. 525 (165 S.E. 454);Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S.E. 409). Even though the defendant exercised ordinary care and diligence in respect to the origin of the fire, nevertheless it may be liable for not protecting the goods bailed after the fire started. Code, § 12-103. See Barrett v. Southern Railway Co.,41 Ga. App. 70 (4) (151 S.E. 690). While the court, in reading the plaintiffs' pleadings, stated these allegations of negligence to the jury and charged them abstractly and generally thereon, yet the court nowhere specifically charged the law with reference to any one of these charges of negligence (which were authorized by the pleadings and the evidence), any one of which would have authorized a finding for the plaintiffs. The requests to charge correctly and fairly stated the issues and the law applicable thereto. Each request not only stated the plaintiffs' allegations of negligence and the law applicable thereto, but in addition and in immediate connection therewith stated the alternative which would authorize a finding in favor of the defendant. No damage was done to the plaintiffs' pecans by actual burning. The damage was by the noxious gases and the water, etc., in putting out the fire, the burning pecans belonging to others, all of which was caused after the fire started. The case was a close one under the evidence; therefore I think the judge committed reversible error in failing to charge these important issues of the plaintiffs' case in the language of the requests, or at least in substantial detail, each of which was adjusted to the pleadings and the evidence.

It is plain to the writer that the gravity of the errors herein set forth is sufficient to demand a reversal. Particularly is this true when the charge as a whole is read. In reading the whole charge there will be found much repetition of principles favorable to the defendant, and argumentative passages likewise more favorable to it, all of which emphasize the probable harm of the errors herein specifically set out. On the part of the trial court this was no doubt unintentional, but lack of intention could not lessen the harm done. Then, to hold these assignments of error not issuable, particularly in reference to the very apt and pertinent requests to charge, would in effect hold that the refusal of a written request to charge was never error when the principles were generally dealt with only in one or more obscure passages in the whole charge, ofttimes very lengthy. To do so would nullify that great principle announced in Slade v.Paschal, supra, to wit: "It aids the jury to a correct result, and is one of the most potent means in the hands of the court of having the law applicable to the facts fairly administered." For this reason the writer would like to see retained and encouraged on the part of the bar the law and practice of special, pertinent written requests of the particular principles of law applicable to the issues of fact to be determined by the jury, and as the law now stands, when such are made as in this case, they should at least in substance be given in some detail. A general reference to the law governing such issues on which requests are made will not suffice.