Opinion
39018.
DECIDED OCTOBER 24, 1961.
Action for damages; assault and battery. Hall Superior Court. Before Judge Kelley.
C. Winfred Smith, for plaintiffs in error.
Telford, Wayne Smith, Jeff C. Wayne, Smith Smith, C. E. Smith, Jr., Whelchel, Dunlap Gignilliat, William P. Whelchel, contra.
1. Under the provisions of Code Ann. § 6-919 the plaintiffs in error were authorized to use one joint bill of exceptions to appeal the judgments complained of since the cases involved the same issues and the same defendants and were tried together.
2. Under the pleadings and evidence the trial court did not err in directing a verdict for the defendants.
DECIDED OCTOBER 24, 1961.
F. L. Turner, individually, and F. L. Turner, as next friend of Jackie Turner, brought two suits in the Superior Court of Hall County against C. W. Wilson, the Sheriff of Hall County, and his surety, the Maryland Casualty Co. to recover damages arising out of an alleged assault and battery committed on the plaintiff's son, Jackie Turner, by two Hall County deputy sheriffs while acting under color of their office. The two cases were tried together before a jury and after the introduction of evidence by both the plaintiffs and defendants, a verdict was directed by the court in favor of the defendants in both cases. The plaintiffs excepted to these judgments, bringing the cases to this court for review by a joint bill of exceptions.
1. The defendants in error have filed a motion to dismiss the writ of error on the ground that this court is without jurisdiction to entertain a joint bill of exceptions upon two unconsolidated cases in which separate verdicts and judgments were rendered in the court below. Under Code Ann. § 6-919, as interpreted by this court in Scales v. Peevy, 103 Ga. App. 42 (1b) ( 118 S.E.2d 193), the plaintiffs in error were authorized to use one bill of exceptions to appeal the judgments complained of since the two cases involved the same issues and the same defendants and were tried together. A formal order of consolidation is not essential where the cases were in fact consolidated for purposes of trial. See Report of the 74th Annual Session of the Georgia Bar Association, 1957, p. 274. The motion to dismiss the writ of error is denied.
2. It is a well established principle of law in this State that there is no error in directing a verdict which is the inevitable and only legal result of the pleadings and the evidence. Code § 110-104; City of Abbeville v. Jay, 205 Ga. 743, 749 ( 55 S.E.2d 129). Since it was alleged in the petitions of the plaintiffs that the assault, which was the subject matter of the suits, was "wholly unprovoked," wilful and uncalled for, the burden of proof was on the plaintiffs to prove said allegations in order to recover. Hanna v. Estridge, 59 Ga. App. 182 ( 200 S.E. 174); Smith v. Cole, 96 Ga. App. 300, 304 ( 99 S.E.2d 907). The evidence adduced upon the trial of the cases, however, was not only insufficient to sustain the plaintiffs' burden of proof on this issue but affirmatively disclosed that the instant assault was effected by the acts and conduct of Jackie Turner, who, while under arrest and in custody of the sheriff's deputies, feigned the possession of a gun and threatened to shoot the officers.
Accordingly, a verdict was demanded for the defendants and the trial judge did not err in so directing.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.