May Bros. v. Srochi

Wade, C. J.

1. The general grounds of the original motion for a new trial, and grounds 1 and. 9 of the amendment to the motion, not being referred to in the briefs of counsel for the plaintiffs in error, will be treated as abandoned.

2. It is complained in ground 2 of the amendment to the motion for a new trial that the verdict is contrary to law because the plaintiff in her petition seeks to recover only for mental pain and suffering, and not for any physical injury. This exception is without merit, since the petition (paragraphs 10 and 11) shows clearly that the plaintiff sued for an unprovoked assault and battery, praying “compensation for the injuries inflicted,” and, by reason of certain alleged aggravating circumstances, asked for punitive or exemplary damages. See Civil Code (1910), §§ 4422, 4503; Berkner v. Dannenberg, 116 Ga. 954 ( 43 S. E. 463 , 60 L. R. A. 559). This ruling applies also to ground 7, as to the charge of the court.

3. It is complained that the judge in charging the jury failed to set forth fully and fairly the contention of the defendants, whereas he “charged at. much greater length and with greater detail the contentions of plaintiff.” This exception is likewise without merit. “In the instruction given the court stated the contentions of the parties fairly and with sufficient clearness and *36 fullness. The mere fact that the contentions of the plaintiff were stated at more length than those of the defendant did not indicate that undue stress was laid upon, or undue prominence given to, the former. Millen, &c R. Co. v. Allen, 130 Ga. 656 ( 61 S. E. 511 ).” Phinizy v. Bush, 135 Ga. 678 (3) ( 70 S. E. 243 ). See also Atlanta Con. St. Ry. Co. v. Bagwell, 107 Ga. 157 ( 33 S. E. 191 ).

4. Error is assigned on the following excerpt from the charge of the.court, as to contentions of the defendants: “They say the diamonds were brought there and that they were employed to change them into a ring, and that they did change them into a ring, and that subsequently the- plaintiff came back and in an offensive manner charged them with intentionally substituting the diamonds, that the diamonds were those that she had left, and that this was maliciously false, and that they ordered her out of their place of business, but did not touch her and did not use any opprobrious language to her.” It is alleged that this was error, because “nowhere in their answer, nor in their testimony, do the defendants set up that defendant Harry May was acting within the scope of his employment, or was acting as agent for defendant May Brothers Inc., when he ordered the plaintiff out of the place of - business of May Brothers Inc.,” and that the court’s statement of contentions was so worded as to convey the meaning that the defendants admitted that the act of Harry May was the act of the defendant corporation. This exception is fully answered by the testimony of Harry May, which shows clearly that he was in the place of business of the defendant corporation, transacting the business of the corporation, and acting within the scope_ of his employment, when the alleged assault and battery was committed. .

5. The 10th ground assigns error in that “the court nowhere in its charge instructed - the jury as to the law governing principal and agent, nor as to the law governing thé responsibility of a principal for the acts of his agent.” The movants contend that the omission so to charge the jury was error for the reason that the petition alleges that the acts of the defendant Harry May were committed by him as agent of the defendant May Brothers Inc., and that this allegation was expressly denied by the answer. There is no merit in this exception. Although.it is true that the defend *37 ants’ answer denied the allegation as to agency, no evidence whatever was submitted to sustain such deniel, but, to the contrary, the only reasonable' and intelligent construction that can be placed on the testimony of the defendant Harry May is that, at the time of the alleged controversy, he was an officer of the defendant corporation, in charge of its place of business, and therefore its lawfully constituted agent to transact the business of the corporation. Under these circumstances it was at least incumbent upon the defendants to request in writing a proper charge upon the subject of agency, before it could be said that an omission to charge was reversible error.

6. Error is assigned upon the following excerpt from the charge: “If the plaintiff’s contention in the case is correct, and she believed that the diamonds she had left were not the ones that were returned to her, she had a right to go to the defendant’s place of business -and ask them, in a proper manner, if it were possible that a mistake had occurred, and if she went in ,a proper manner and asked them if it were not possible that a mistake had occurred, and did not charge them with intentionally having substituted the diamonds, she had a right to do that; and if she did that and nothing more, they had no right to order her out of the place of business, and had no right to touch her.” The exception taken to this excerpt is that it was erroneous “because defendant, May Brothers Inc. were operating a private business, as distinguished from a public utility, and that they had the right to order plaintiff out of their place of business, regardless of the belief or state of mind of plaintiff when she entered the place of business of May Brothers Inc., and'regardless of the nature and manner of her questions.” This contention is without merit when viewed in connection with the particular facts of the case" and with the entire charge, as the language of the excerpt was followed immediately by instructions that “If they put their hands on her, any physical touch on her, that was an assault and battery, was a physical injury for which she would have a right to recover. If the plaintiff’s contention is not true, and if it be true that she went back and in an offensive manner charged them with intentionally substituting the diamonds and that was not true, that they had not substituted the diamonds, they had a right to order her out of the place of .business, and if she did not go they had a *38 right to use such force-as was necessary to put her out; but if she did not decline to go, they- had no right to touch her or use any force, although she might have been offensive to them. They had no right to use force unless she declined to go after they had ordered her to go. Id: this charge was true and they had made a mistake and substituted the diamonds, they had no right to order her out; she had a right to ask them if they had made a mistake, provided she did it in a proper manner, without any charge that they had intentionally substituted the diamonds.”

7. Ground 6 of the motion for a new trial complains that the court erred in charging the jury as follows: “Those are the contentions of the parties. If the plaintiff’s theory is correct, she is entitled to recover.” This ground is incomplete and can not be understood, standing alone and without reference to other parts of the charge. A ground which is not complete and understandable without examination of the charge of the court is not in proper form for consideration. Brown v. Smith-Hall Grocery Co., 146 Ga. 157 (4), 160 ( 91 S. E. 33 ).

8. It is complained that the court erred in charging the jury as follows: “If you find for the plaintiff, she would have a right to recover against both the defendants, and if you find that she is not entitled to recover, the form of your verdict would be: ‘We, the jury, find for the defendants;’ ” the error assigned being that where, 'as in this case, there are joint defendants, it is error to charge the jury without qualification that the plaintiff, if she recovers, can recover against doth defendants. This charge, if error at all, was harmless, since the action was against two defendants as joint tort-feasors, and the evidence adduced on the trial shows conclusively that the defendants, if liable, would be liable jointly and not separately. / Judgment affirmed.

Jenkins and Luke, JJ., concur.