35 S.E.2d 364 | Ga. Ct. App. | 1945
1. Where paragraph 13 (b) of the petition alleged that the landlord "knew, or by the exercise of ordinary care, would have known that, regardless of every care exercised by the occupant and tenant of said store, minute slippery substances would find their way onto said glazed-tile entrance and increase its hazard to life and limb of the invitees of said store," it was not erroneous, on demurrer, to strike this paragraph on the ground that "the allegation therein is wholly irrelevant and immaterial, and fails to allege any act of negligence on the part of defendant, because nowhere in said petition is it alleged that there were minute slippery substances on said tile entrance, and nowhere is it alleged that plaintiff's injury resulted from the increased hazard of minute slippery substances on said tile entrance."
2. It was not reversible error to strike the allegations in the petition which were superfluous and immaterial, and which might have tended to prejudice the minds of the jury.
3. "Unless the landlord retains some control, or right of control, or assumes control, over the premises, he is ordinarily under no duty to inspect their condition while the tenant remains in possession, and is not chargeable with liability for a defective construction not made by him or under his direction, or for a failure to make repairs, unless and until he is given notice or obtains actual knowledge of the condition, or on his own initiative assumes to remedy or repair the defect." Dobbe v. Noble,
4. Under the pleading and the evidence, it was not reversible error, as being harmful to the plaintiff, to charge the Code, § 61-112, and, immediately following, to charge section 105-401.
5. The excerpts from the charge complained of in special ground 2 were correct principles of law, and it can not be reasonably presumed, from a consideration of the charge as a whole, that the excerpts were misleading to the jury to the prejudice of the plaintiff.
6. "The general rule is that in the trial of issues witnesses must testify as to facts only, and not as to their opinion deduced from facts, the latter being left as a proper function for the jury." Metropolitan Life Ins. Co. v. Saul,
7. The exceptions as well as the general rule are stated in the Code, § 38-1708, as follows: "Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible."
8. "Opinions, even expert opinions, are allowed by way of exception to the general rule that a witness is to give facts observed, but not his conclusions from them, and they are to be allowed only when there is real helpfulness or a necessity to resort to them."
9. Where, as here, the subject under investigation is whether the entrance to a store building was dangerous, and it is possible for the jury to take the same elements and constituent factors which guide the witnesses to their conclusion, and from them alone make an equally intelligent judgment of their own, independently of the opinion of others as to whether the entrance was dangerous, it is not error for the judge to rule out the testimony of the witnesses that the entrance was dangerous.
10. The verdict for the defendant being affirmed, it is not necessary to pass upon the questions raised by his cross-bill.
2. The defendant specially demurred to and moved to strike so much of the petition, above quoted, as alleges that "and she has become, on account of said injuries, a charge upon her children," as well as the part which alleges that "she is dependent on her own earnings for support and maintenance," on the ground that "said allegations are wholly irrelevant and immaterial to any issue raised by plaintiff's petition and add nothing to her cause of action." These allegations were superfluous and not material, and the court did not commit reversible error in sustaining this ground of the demurrer. The plaintiff raised this same question by seeking to ask the plaintiff the following questions: (1) "Are you dependent on your earnings for support?" and "Do you work for your living?" The court ruled out these questions and the affirmative answers thereto. In view of these unstricken allegations of the petition and the proof and support thereof, and, particularly, the part of her testimony that she had worked at Kraft's Store for seven years and had made $22 per week; that she was a widow; that her condition was such that she could not wait on herself at times and could not work, the question of whether she was or was not dependent on her earnings, or what she did with her earnings, should have had no legitimate influence on the decision of the case, and would have tended only to incite the sympathy of the jury to the prejudice of the defendant. The exclusion of this evidence was not reversible error. See, in this connection, Central of Georgia Ry. Co. v. Prior,
3. (Special ground 1.) When the owner leases his land and fully parts with possession, and the tenant erects a structure thereon, the owner is transformed into what the law denominates a landlord, a particular kind of owner whose rights, as they relate to such leased premises, are restricted, and whose liabilities are correspondingly limited. In reference to a charge to the jury, it has been said: "It is the duty of the judge to declare to the jury what the law is with its exceptions and qualifications." Cammons v. State,
4. (Special ground 2.) In elaborating or explaining "defective construction," as used in the Code, § 61-112, the judge instructed the jury as follows: "I charge you, gentlemen of the jury: [The liability of a landlord for injuries occasioned by defective construction exists only in cases where the structure is built by him in person or under his supervision]; the landlord will not be liable for injuries to the tenant on account of defective construction of the rented premises which the landlord has not constructed or caused to be constructed." (Brackets and italics ours.) The part of the above excerpt in brackets is taken verbatim from the case of Ross v. Jackson,
5. Special grounds 4 and 5 complain that witnesses, after testifying that they had worked in the store in question for about a year and were familiar with the entrance in question, were not permitted to testify that the entrance to the building was dangerous. The petition alleged "defective construction,"in that the entrance was constructed of glazed tile which was sloping, slippery, and hazardous, and likely to cause injury. The witnesses were permitted to testify to all the facts they knew concerning the entrance, but were not permitted to express their opinion that the entrance was dangerous. "Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible." Code, § 38-1708. "Opinions, even expert opinions, are allowed by way of exception to the general rule that a witness is to give facts observed but not his conclusions from them, and they are to be allowed only when there is real helpfulness or necessity to resort to them." Metropolitan LifeInsurance Co. v. Saul,
In Mayor of Milledgeville v. Wood,
The issue here was not one of opinion merely, but the matter of fact to be tried was one of a tort (negligence). The primary question and ultimate fact to be determined by the jury was whether the entrance was defectively constructed, and if the witnesses had been allowed to testify that its construction was defective, *837 in that it was so slippery and sloping that it was dangerous for these reasons only, they would have been testifying from the preliminary facts, detailed by them, to their conclusion that the defendant was guilty of the act of negligence relied on for a recovery.
From the nature of the subject under investigation, i. e., as to whether the entrance to a store building was dangerous, the facts could have been presented or depicted to the jury precisely as they appeared to the witnesses and it was practical for the witnesses, from the nature of the subject, to have related the facts without supplementing their description with their conclusion. Where, as here, it is possible for the jury to take the same elements and constituent factors which guide a witness to his conclusion and from them alone make an equally intelligent judgment of their own, independently of the opinion of others, then undoubtedly it should be done. Taylor v. State,
6. (Special ground 6.) The witness, Mrs. Perry, was allowed to testify to all the facts and circumstances she knew concerning the entrance to the store in question; and, from the very nature of the patent defects, if any, to which she testified, the jury could have taken the same elements and constituent factors which guided the witness to her conclusion, and from them alone could have made an equally intelligent judgment of their own independently of the opinion of others. If this were possible, then undoubtedly it should have been done. This ground is not meritorious.
7. The rule in Lankford v. Holton,