Opinion
36941.
DECIDED JANUARY 16, 1958. REHEARING DENIED FEBRUARY 13, 1958.
Action to recover overpayments. Fulton Civil Court. Before Judge Henson. September 27, 1957.
Fraser Shelfer, Henry M. Henderson, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, J. Corbett Peek, Jr., contra.
1. The verdict of the jury was authorized by the evidence.
2. No reversible error was shown by the special grounds of the motion for new trial dealing with the court's charge on the burden of proof and preponderance of the evidence.
3. Although under the Act of 1957 (Ga. L. 1957, pp. 224, 232), it is not necessary, in order for a ground of a motion for new trial to be complete, to set forth the evidence or other portion of the record relied on in such ground, it is necessary that the location of the evidence (in the brief of the evidence), or the portion of the record be referred to by page number as provided for by such act.
DECIDED JANUARY 16, 1958 — REHEARING DENIED FEBRUARY 13, 1958.
Whitlock-Dobbs, Inc. (formerly Whitlock Equipment Company, Inc.), brought an action in two counts against George H. Kirby in which it sought to recover a sum of money allegedly paid the defendant in excess of commissions due him while he was employed by the plaintiff as a salesman. Count 1 sought to recover on the account and count 2 sought to recover on a check in such amount issued by the defendant to the plaintiff after the relationship of employer and employee was terminated.
The defendant filed a cross-action to each count of the plaintiff's petition in which he sought to recover a sum of money which he contended was due him as compensation in addition to the amount paid him during the term of employment under his contract with the plaintiff. The jury returned a verdict for the plaintiff which was made the judgment of the trial court. The defendant filed a motion for a new trial on the usual general grounds which he later amended by adding several special grounds. The motion for new trial as amended was denied, and it is to this judgment that the defendant excepts.
1. Special ground numbered 4 of the amended motion for new trial is but an amplification of the usual general grounds and will therefore be considered in connection with them.
The evidence adduced on the trial of the case was in sharp conflict, with almost every phase of the plaintiff's evidence being contradicted by the defendant and almost every phase of the defendant's evidence being contradicted by the plaintiff's witnesses. It is unnecessary to go into great detail concerning such evidence for if the jury believed the evidence of the plaintiff corporation, which it was authorized to do, to the effect that the check issued by the defendant to the plaintiff corporation was in settlement of the account which the defendant then acknowledged was due, and that no further commissions were due the defendant, then the verdict was authorized and the usual general grounds of the motion for new trial are without merit.
2. Special ground 7 complains of an excerpt from the court's charge with reference to the burden of proof. The court charged that the preponderance of the evidence was the superior weight of the evidence. "It need not be sufficient to wholly free your mind from doubt, but it should be sufficient to incline the mind of a reasonable person to one side of the issue, rather than to the other." (Italics supplied). The complaint is made that the trial court should have prefaced the word "doubt," italicized above, with the word reasonable, and the word "reasonable," italicized in such excerpt, should have been followed with the words and impartial.
The above charge was given in connection with the burden of proof as placed on the plaintiff in the main bill, and in special ground numbered 8 complaint is made that the same burden of proof was placed on the defendant with reference to his cross-action.
By the above it is seen that the same burden of proof was placed on both parties as to their respective contentions and that both were required to carry the "burden of proof" as it applied to them by a "preponderance of the evidence." There was no greater burden placed on the plaintiff in error by the excerpts of the charge complained of than there was on the defendant in error; both the main bill and the cross-bill were considered by the jury on the same basis and the above excerpt complained of in special ground 7, if error, was at most a lapsus linguae and not ground for reversal since it could not have misled the jury. See Fievet v. Curl, 96 Ga. App. 535 ( 101 S.E.2d 181); and Limbert v. Bishop, 96 Ga. App. 652 ( 101 S.E.2d 148), and citations. This is especially true since trial jurors are selected for their intelligence and uprightness. Bank of Loganville v. Briscoe, 93 Ga. App. 558, 559 ( 92 S.E.2d 326); Sheridan v. Haggard, 95 Ga. App. 792 (99 S.E.2d 163). Accordingly, these grounds of the motion for new trial are without merit.
3. The remaining special grounds of the amended motion for new trial require, for an understanding of such grounds, a consideration of various portions of the evidence and record. The evidence and parts of the record necessary to an understanding of such grounds is not set forth in such grounds nor is it referred to by page number, as is allowed by the Act of 1957 (Ga. L. 1957, pp. 224, 232). Without referring to the evidence or other parts of the record it is impossible to determine if any hurtful error was committed by the trial court. Therefore, since these special grounds are incomplete they will not be considered by this court. See Brewer v. Henson, 96 Ga. App. 501, 503 ( 100 S.E.2d 661).
No reversible error being shown by the motion for new trial as amended, the judgment of the trial court denying such motion must be affirmed.
Judgment affirmed. Quillian, J., concurs. Felton, C. J., concurs in the judgment.