114 Ga. 558 | Ga. | 1902
The Columbus Power Company brought against the City Mills Company an equitable action. Eor convenience we will hereinafter, when, referring to the parties by name, call the plaintiff “the Power Company” and the defendant “the Mills Company.” It was in the petition alleged that there was upon the property of the Mills Company a “natural head and fall of water,” in the Chattahoochee river, of not exceeding five feet; that this company had constructed in the river a dam of greater height and also a power-house, and that by means of these structures it was maintaining a private nuisance and thus causing an unlawful back-flow of water upon the property of the plaintiff. There were in the petition prayers for an injunction and for damages. The answer, while denying most of the material allegations of the petition, did admit that the defendant was maintaining a back-flow of water on the property of the plaintiff, but distinctly set up that it had, by a prescription of more than twenty years continuance, the right to do so. At the trial the claim for damages was abandoned. The case was submitted to a jury upon special questions, and, after their findings thereon had been returned into court, a judgment in favor of the defendant was entered. The plaintiff made a motion for a new trial, which was overruled. It then sued out a bill of exceptions, and therein assigned error upon various rulings made while the case was in progress, and upon the denial of a new trial. ¥e will now dispose of the questions thus presented for our determination, and in so doing state such additional facts as may be essential to an understanding of what we decide.
The failure of a jury to whom an equity case is submitted upon special issues of fact to answer a question that is immaterial, whether so ab initio or made so by an answer to another question, can not result injuriously to the plaintiff; and this is equally true of the submission to them by the court of immaterial questions which they do answer. The two propositions embraced in the last sentence are certainly consistent with common sense, if not with law; but, as a rule, these things are in harmony. Suppose A. sued B. for services rendered in building a house, and, under the pleadings, they were at issue on all the points indicated by the first five of the following questions: (1) What.price was A. to receive for building the house ? (2) Did he build it according to contract ? (3) If not, how much should be deducted for failure to do so? (4) Has he actually been paid the full amount of the contract price? (5) If not, what, if anything, is yet due him ? (6) Is B., the defendant, a man of large or small means? Now if the case was submitted to a jury upon these six questions, it is obvious that a failure to answer the last would be a matter of no consequence whatever, it being immaterial ab initio. It is equally obvious that if they answered the fourth question “ No,” the other four questions should be distinctly answered. But suppose they answered that question “Yes,” what possible difference -would a failure to answer all the others make ? Beyond doubt, if A. actually received all- that he was in any event to get,B. would be entitled to a judgment discharging him from liability, no matter what was the -truth of the other controverted issues. This simple illustration seems to afford a satisfactory demonstration of the correctness of the first two headnotes, and they are in fine with the previous decisions of this court. In Lake v. Hardee, 57 Ga. 466, it was held that the questions submitted “ must elicit all the facts necessary to found the decree on the verdict.” This case was also previously dealt with in 55 Ga. 667. In Coleman v. Slade & Etheridge, 75 Ga. 61, it was ruled that when a case is tried on special issues, the judge should submit to the jury “such issues as will enable him to make a judgment or decree in the case from the verdict and pleadings and the undisputed facts; but he need not sift the jury or enter into particulars; nor need he submit issues requested by counsel, if he has already pro
Judgment on main bill of exceptions affirmed; cross-bill dismissed.