2 Ga. App. 511 | Ga. Ct. App. | 1907
After a very painstaking consideration of the record and of the very exhaustive briefs of the counsel in this case, we feel obliged to reverse the judgment of the lower court refusing a new trial Viewing the countenance of the case as delineated by the evidence, we were inclined to the opinion that the plaintiff was entitled to the recovery awarded by the jury; for the record presented such an instance of discriminatory partiality on the part of the Central of Georgia Eailway Company as, in our individual opinion, calls justly for the application o£ punitivo and
In the light of the evidence adduced, were the complaint as to-the admission of Mr. Daniel’s evidence the only error, we would have no hesitation in ruling that the verdict of the jury was right,, and that the error in the admission of testimony was immaterial-
Though the grant of a new trial because of the expression of an opinion on the part of a judge is mandatory, the exception^ taken, to the charge upon this ground, with one exception, are eliminated when the charge is considered as a whole. As well argued by counsel' for defendant in error, the evil to be avoided was the danger of the judge influencing the jury; and while in some portions of the charge it may at first sight appear that the judge intimated an opinion, a second reading dispels the impression, by showing-that the opposite contention was immediately presented to the jury, and that they were told that they were the exclusive judges of the facts.
In the eighth ground of the motion for new trial it is insisted that the court erred in charging the jury as follows: "If you find it was wilful, they would be entitled to exemplary damages; and'in considering that, you consider all the aggravating circumstances surrounding the violation of the rule and connected with and incident to it, and the intent and purpose of the parties in violating the rule, as shown by the evidence.” This was error, because it assumed that the rule had been violated and that aggravating circumstances liad been shown. The very able counsel for defendant in error insists that the complaint of error is not well founded, because the language used by the judge was no inva-' sion of the province of the jury, and also because other portions of the charge clearly and distinctly left it for the jury to decide:
The charge of the learned trial judge, in several of. the, extracts to which exception is taken, is.diametrically opposed to the adjudication of the Supreme Court. The theory of the charge, and of the decision of the Supreme Court are wholly in conflict. In the case of Central Ry. Co. v. Augusta Brokerage Co., supra, the Supreme Court held, that, “As to issuing through bills of lading or furnishing its cars to connecting carriers, in order that shipments may be carried to ultimate destination without reloading ,<at terminal points, a carrier may discriminate against cottonseed, provided all shippers of that commodity are treated alike.” That such discrimination is dictated by the business interests oí the carrier and really affects but a single shipper, because he -is the only person at a terminal point who is engaged in shipping cottonseed out of the State, can not alter the matter.” The plaintiff proved the discrimination, but did not prove that any commodity was discriminated against except cottonseed. It proved that the discrimination was dictated alone by the selfish interest of the carrier; but as the evidence shows no one else who was affected save itself, the discrimination, no matter how injurious to the plaintiff, in the language of the Supreme Court, “can not alter the matter.” To quote from the decision of the Supreme Court (for the evidence, on both trials appears to have been practically the same), “th.e situation may thus be summarized: the oil-mills-at Augusta depended largely, for a supply of cottonseed, upon the territory through which ran the defendant railway company’s line; they delivered to it their manufactured products for shipment; so the railway company got a short haul on the raw cottonseed, and also a long haul on the reshipments made over its line of the manufactured products. It was not to the business interests of the railroad company that cottonseed grown at local stations on its Augusta and Savannah branch should bo shipped to oil-mills located in South Carolina; for none of the manufactured products
The request to charge set forth in the ninth ground of the motion should have been granted. The railroad company denied that there was discrimination against the plaintiff by withholding from it privileges accorded to other patrons. It was, therefore, proper for the court to have instructed the jury that" the plaintiff
Judgment reversed.