Opinion
33995.
DECIDED JUNE 4, 1952.
Complaint; from DeKalb Superior Court — Judge Vaughn. September 6, 1951.
James R. Venable, H. C. Morgan, for plaintiff in error.
W. Harvey Armistead, contra.
The court did not err in denying the motion for a new trial.
DECIDED JUNE 4, 1952.
C. J. Smith filed suit against R. L. Tribble, as agent for his wife Mrs. Annie Belle Tribble, Mrs. Annie Belle Tribble, individually, and Charles C. Upshaw, in the Superior Court of DeKalb County. The petition as amended alleged substantially as follows: On January 12, 1948, the plaintiff entered into a contract with the defendants, Mrs. Annie Belle Tribble and her agent R. L. Tribble, wherein the defendants agreed to convey to the plaintiff a certain tract of land. At the time, the defendants were in the process of constructing a house on the property. Some time subsequent to that time, but before the completion of the house, the defendants permitted the plaintiff to move in. Thereafter on April 17, 1948, the defendants sued out a dispossessory warrant in the Justice Court of DeKalb County in order to evict the plaintiff from the property. The plaintiff filed a petition to enjoin the defendants from dispossessing him, and alleged therein that the contract of January 12, 1948, provided that the defendants were to sell the plaintiff the property described in the petition, together with a four-room house thereon, for the total sum of $4500, payable $250 cash and the balance at the rate of $45 per month, with interest at 6%. After the contract was entered into, the plaintiff entered into possession of the property and paid the $250 cash. The plaintiff had an agreement with the defendants that he was to be given until March 28, 1948, to pay the down payment of $250 in instalments. This understanding was had between the parties after the original contract was entered into. The plaintiff paid the $250 as agreed upon, and requested the defendants to make a deed to him for the property and to present to him the notes for $45 per month and a loan deed, for his signature, all of which the defendants refused and failed to do. The defendants requested the plaintiff to move from the premises or be summarily dispossessed. The defendant Mrs. Annie Belle Tribble sued out a dispossessory warrant against the plaintiff on April 17, 1948. In the execution of the warrant, the defendant Charles C. Upshaw, a constable, notified the plaintiff to vacate the premises. Upshaw entered the house in the absence of the plaintiff and his wife, and moved the furniture into one room preparatory to removing it from the premises. The plaintiff had done everything necessary to carry out his part of the agreement, by paying the $250 down payment and by offering to sign the loan deed and notes agreed upon at the time the plaintiff went into possession of the property. The defendant, with full knowledge of the agreement, surrendered the property to the plaintiff and collected and retained the $250, but now seeks to repudiate the agreement, causing the plaintiff's home to be broken into during his absence, and requesting a neighbor, Chadwick, to keep the plaintiff and his wife from coming on the property, and threatening to prosecute the plaintiff if he entered the premises. The defendants have injured and damaged the plaintiff in the sum of $5000 in suing out the warrant, contrary to the laws with reference to such cases, and in instructing Upshaw to execute the warrant, and in entering the plaintiff's home during his absence and moving his furniture out into the yard, where it was exposed to the rain. The plaintiff also sued for exemplary damages in the sum of $2500 for the alleged wrongful, malicious, and oppressive eviction.
Only one of the defendants, R. L. Tribble, as agent for Mrs. Annie Belle Tribble, filed an answer. He denied all material allegations, and contended that he had been ready at all times to comply with the terms of the oral agreement between himself and the plaintiff, but that the plaintiff had avoided him, and had refused to meet with him and execute the proper papers in the matter, although the defendant had made many efforts to get the matter properly closed. He contended that the plaintiff had breached the agreement himself, in that he had failed and refused to make payments as agreed, and that the plaintiff had moved out of the premises and abandoned the agreement to purchase. He alleged that he had been damaged in the sum of $5000, in that he had been deprived of the use and enjoyment of his property, and that the plaintiff had injured and damaged the property and prevented the sale of it.
The case proceeded to trial and resulted in a verdict in favor of the plaintiff. The defendant's amended motion for a new trial was overruled. To this judgment the defendant excepted.
1. Special grounds 4, 5, and 7, which except to excerpts from the charge on the ground that they express an opinion by the court prejudicial to the defendant are without merit. Each of these grounds takes a sentence or a part of a sentence and separates it from the remainder of the charge. An examination of the entire charge shows that the court stated no opinion prejudicial to the defendant, but properly charged the issues in the case and the contentions of the parties. In Brown v. Matthews, 79 Ga. 1 ( 4 S.E. 13), Chief Justice Bleckley said: "A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall."
2. Special ground 6 was stricken from the record by counsel for the movant.
3. Special ground 8 contends that the court erred in charging the jury as follows: "In such case, no measure of damages can be prescribed except the enlightened conscience of you impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all of the attendant facts should be weighed by the jury." It is contended that this language was not authorized by the evidence, and erroneously instructed the jury that in fixing punitive damages they might consider the worldly circumstances of the defendants. There is no error. The charge was proper, since it was restricted to punitive damages and not applied to the part of the case for which there was a measure of damages. Coleman v. Allen, 79 Ga. 637 (5) ( 5 S.E. 204).
4. The evidence was sufficient to authorize the verdict; and there being no error of law, the court did not err in denying the motion for a new trial.
Judgment affirmed. Sutton, C.J., and Felton, J., concur.