Rowland v. Gardner , 79 Ga. App. 153 ( 1949 )

One ground of the motion for a new trial is an exception to the charge of the court, directing the jury to find for the plaintiff in a lump sum if they found for the plaintiff on both counts, the exception being that the defendant was entitled to know how much was found on each count or how much was found on only one count, and whether or not in such case the jury found anything on the other count. We think that the complaint is meritorious. Both counts set forth a good cause of action with different measures of damage, both allowable at law if proved. No election between the two counts could have been demanded by the defendant. There was no evidence to authorize a finding that there was any damage to to the realty under count two, the evidence of the plaintiff in this respect being: "I observed that they had done a little damage to the young timber. In getting it out they ran over the young trees. I asked for $1000 damage done on account of that and I do not think I was unreasonable." We do not think that the testimony of the plaintiff amounted to a statement of her opinion under oath as to the actual damage done either with or without the slight facts given upon which her statement was apparently based. The facts do not bring this case within the rule in Central of Georgia Ry.Co. v. Banks, 128 Ga. 785 (58 S.E. 352), and Gainesville Dahlonega Electric Ry. Co. v. Austin, 127 Ga. 120 (4) (56 S.E. 254). The rule in Southern Ry. Co. v. Hardin, 107 Ga. 379 (33 S.E. 436), more nearly applies. There it was held that, where the evidence did not authorize a verdict under one of two counts, a general verdict could not stand because of the uncertainty as to whether it was rendered on the count which was or was not proved. See also Blanchard v. Tucker, Willingham Co., 34 Ga. App. 405 (129 S.E. 908). In this case it cannot be determined whether part of the verdict was based an the second count. Sutton, C. J., concurs in the foregoing dissent.