Opinion
33162.
DECIDED JULY 14, 1950.
Complaint; from Fulton Civil Court — Judge Robert Carpenter. April 27, 1950.
Marvin G. Russell, Turner Paschal, for plaintiff in error.
Edgar A. Neely Jr., Neely, Marshall Greene, contra.
1. Since the verdict is supported by some evidence and has the approval of the trial judge, this court is without authority to set it aside on the general grounds.
2, 3. The special grounds assigning error on the charge of the court are too incomplete to be considered by this court.
4. The general grounds of a motion for new trial do not raise the question of excessiveness of a verdict, and where there is no specific ground in the motion that the verdict is excessive, such question is not before this court.
DECIDED JULY 4, 1950.
Robert S. Bradley, whom we shall call the plaintiff, brought an action in the Civil Court of Fulton County against D. H. McFarland, d/b/a Bell and McFarland Parking lot, hereinafter called the defendant.
Briefly stated, the petition alleged that the defendant was indebted to the plaintiff in the amount of $1500 by reason of the loss of an automobile bailed by his brother with the defendant; that on September 28, 1948, the plaintiff was the owner of a 1941 Ford automobile, and that on that date the plaintiff's brother drove the said automobile into the defendant's parking lot and left it in the defendant's care. The plaintiff further alleged that his brother returned some hours later, surrendered his claim ticket to an agent of the defendant, but that the automobile could not be found on the parking lot and was never surrendered to him. He charged negligence on the part of the defendant in that the defendant failed to prevent some person or persons unknown from illegally removing the automobile from the parking lot. The petition was amended in minor respects, but the above states the gist of the action.
The defendant answered, admitting only that he owned the parking lot, but denying other material allegations of the petition, and specifically denying that he had ever had the plaintiff's automobile in his possession on the parking lot.
Mrs. Cleo Belle McFarland filed a petition alleging that the defendant, D. H. McFarland, had been declared incompetent and that she had been appointed his guardian. By order, the case proceeded with Mrs. McFarland substituted as defendant.
The sharp conflict apparent in the pleadings was reflected in the evidence at the trial. The plaintiff introduced only his brother, who testified in support of the material allegations of the plaintiff. The defendant introduced several witnesses who testified as to the general methods used in checking automobiles in and out of the parking lot, but only one who was actually on duty at the lot on the day in question, the former manager, and he testified positively that he remained all day in a position where he could see and check all incoming and outgoing automobiles and that the plaintiff's car was not parked at the parking lot that day.
There was evidence as to the value of the automobile in question, the plaintiff's brother testifying that "we thought it ought to be worth $1500," and a witness for the defendant testifying that a 1941 Ford automobile on the date in question was of a fair market value of $700.
There was no direct evidence as to what happened to the automobile after the testimony of the plaintiff's brother left it in charge of the attendants at the parking lot.
The jury returned a verdict for the plaintiff for $1200 principal and $124 interest. The defendant filed her motion for new trial on the usual general grounds and amended by adding two special grounds assigning error on the charge of the court. There were no exceptions shown to the evidence. To the overruling of this amended motion, the defendant excepted and assigns error on the same in this court.
1. Issues of fact arising at the trial are for the decision of the jury under proper instructions from the court. All the contentions of the plaintiff under the general grounds resolve themselves into issues of fact only, and this court is without authority to overrule, on the general grounds, a verdict supported by some evidence and approved by the trial judge, even though the evidence would have authorized the jury to have found a contrary verdict.
2. Special ground 1 of the amended motion for a new trial assigns error as follows: "Because the court erred in charging the jury as to the duty of a bailee to protect property from being stolen. Movant avers that said charge was misleading, prejudicial, not applicable to the evidence adduced upon the trial of the case, and tended to give the jury the impression that the automobile in question had been stolen. Movant shows that the court charged as follows: `The duty is not deferred or postponed until such time as the bailee discovers there are thieves in the car about to get away with it. There is a duty on the parking lot [attendants] to keep a watch over all cars in such manner that a small number of employees can with reasonable safety keep the cars from being stolen.'
"Movant contends that said charge was not applicable to the issues as raised by the evidence; was, therefore, improper, prejudicial, misleading and harmful to movant."
Counsel for the defendant contend that this ground is incomplete for various reasons and presents no question for consideration by this court. One reason urged is that, though error is assigned on the excerpt quoted as being unauthorized by the evidence, none of the evidence is set out in the ground or attached as an exhibit thereto. With this reasoning we agree. See Georgia-Florida Motor Lines Inc. v. Slocumb, 45 Ga. App. 204 ( 164 S.E. 166). But considering this assignment of error on the merits, let us fit this excerpt into the charge as a whole. After defining a bailment and giving the rule as to the burden of proof being on the bailee, after proof of loss, to show proper diligence, the court charged: "The duty upon the bailee to exercise care and diligence in protecting and keeping safely the thing bailed begins with the delivery of the property to the bailee and continues until the object of the bailment has been carried out in conformity with the purpose of the trust. The duty is not deferred or postponed until such time as the bailee discovers that there are thieves in the car about to get away with it. There is a duty on the parking lot [attendants] to keep a watch over all cars in the lot at all hours or have the lot enclosed in such a manner that a small number of employees can, with reasonable safety, keep the cars from being stolen, or require any other safety measure they might see fit to protect the property, and it will be a question for you to say whether they used proper care in the protection of this property. If they used proper care in the protection of this property, then they would be discharged from any liability." The judge further charged: "I do not express an opinion for or against either of these parties. I submit the entire matter as a question of fact for you to pass upon — first of all, for you to say whether or not there was a bailment and a loss; and second, if you should find there was a bailment and a loss, whether or not the defendant in the case used proper care and diligence under the instructions I have given you." Thus viewed in its context, and considered in the light of the charge as a whole, this excerpt can hardly be construed as giving the jury "the impression [that the judge was intimating an opinion] that the automobile in question had been stolen," and were we ruling on this assignment, we do not think that it would show error.
3. Special ground 2 assigns error as follows: "Because the court erred in charging the jury as to the measure of damages awarded in cases of this kind. The court charged as follows: `The measure of damages in cases of this kind is the reasonable value of the property at the time the loss occurred.'
"Movant contends that said charge was misleading and tended to give the jury the impression that they could find for an amount they thought reasonable without limiting and instructing them to the legal and correct measure of damages, as by law provided.
"Movant further contends that said charge as given was improper and misleading and failed to instruct the jury as to the proper manner of arriving at the damages in the case in the event they found for the plaintiff." This ground is not complete and can not be considered by this court. It is not clear from the ground alone what counsel contend the court should have charged. The contention is made in their brief that the court should have charged "the market value at the time of loss" as the correct measure of damages. In this connection see Sapp v. Howe, 79 Ga. App. 1 (2) ( 52 S.E.2d 571); Koplin v. Shartle Machine Co., 150 Ga. 509, 512 ( 104 S.E. 217). See also Stembridge v. State, ante, p. 214.
4. Counsel for the plaintiff contend in their brief that the verdict is excessive. The general grounds of a motion for a new trial do not raise the question of excessiveness of a verdict, and where there is no specific ground in the motion that the verdict is excessive, the question is not before this court. See Central of Ga. Ry. Co. v. Berry, 114 Ga. 274 ( 40 S.E. 290); Barnes v. Kittrell, 55 Ga. App. 319 ( 190 S.E. 39).
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.