10 S.E.2d 267 | Ga. Ct. App. | 1940
1. Reasonable definiteness and certainty in pleading is all that should be required to render it exempt from attack by special demurrer. The petition in the instant case, as amended, shows the jurisdiction of the court, that the defendant was under a duty to the plaintiff, that there was a breach of the duty, and that damage resulted from such breach. The judge did not err in overruling the general demurrer.
2. The judge committed reversible error in charging the jury, in part, as follows: "You will be governed and decide the issues in this case by a preponderance of the evidence in favor of whichever party that preponderance lies with. By a preponderance of the evidence the law means simply that superior weight of the evidence, while not enough to satisfy your minds beyond a reasonable doubt, is yet sufficient to convince your minds to a moral and reasonable certainty of one side, rather than the other, of the issues." (Italics ours.)
3. The remainder of the special grounds of the motion for new trial do not disclose reversible error, and it becomes unnecessary to pass upon the general grounds.
The defendant filed special and general demurrers to the petition and to the petition as amended. The judge overruled the demurrers to the petition, except as to paragraph 6, which, as it appears in the original petition, alleged "That said burns were due to the carelessness and negligence of the operator of said permanent-wave machine, or due to a defective machine; that said burns were of a serious nature and caused the child of petitioner a great deal of suffering and severe pain; that due to the carelessness and negligence of the operator of said beauty shop said burns became infected, and necessitated your petitioner employing a physician to wait upon and treat his child for these said burns; that the physician charged for said services the sum of $17, the child having to make seventeen trips to the physician's office for treatment for *875 these said burns on her head." (This paragraph 6 of the original petition was of course so amended as to read as indicated in the preceding paragraph of this opinion.) The judge overruled the demurrers to the petition as amended, and the defendant excepted pendente lite. The defendant filed her answers. On the trial the jury returned a verdict in favor of the plaintiff for $250 principal, and $26.50 costs. The defendant's motion for new trial was overruled, and she excepted.
1. Without setting forth the petition as originally drawn, we think it sufficient to state that the original petition and the petition as amended shows the jurisdiction of the court, that the defendant was under a duty to the plaintiff, that there was a breach of the duty, and that damage resulted from such breach. Therefore the contention that the petition failed to set forth a cause of action, and that there was nothing to amend by, is without merit. North Augusta Electric Co. v. Martin,
2. Ground 7 of the motion for new trial complains that the judge erred in charging the jury as follows: "By a preponderance *876
of the evidence the law means simply that superior weight of the evidence, while not enough to satisfy your minds beyond a reasonable doubt, is yet sufficient to convince your minds to a moral and reasonable certainty of one side, rather than the other, of the issues." The defendant contends that the excerpt complained of misled the jury to believing that she would have to prove her defense "to a moral and reasonable certainty," and that the use of these words was highly prejudicial. Immediately preceding the excerpt quoted above, the judge charged the jury: "You will be governed and decide the issues in this case by a preponderance of the evidence in favor of whichever party that preponderance lies with." Then he defined preponderance of the evidence as above stated. The Code, § 38-106, declares: "By preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue, rather than to the other." It appears that the judge in effect charged the first part of § 38-106, and then toward the last substituted the words "to convince your minds to a moral and reasonable certainty of one side, rather than the other, of the issues," for the words "to incline a reasonable and impartial mind to one side of the issue, rather than to the other," as stated in the Code. This we think constituted reversible error; for it placed a greater burden upon the defendant than was required by law; that is, it required the defendant to prove her contentions "beyond a reasonable doubt," whereas the law requires her to prove her contentions to such a degree as is "sufficient to incline a reasonable and impartial mind to one side of the issue, rather than to the other." For "moral and reasonable certainty" and "beyond a reasonable doubt" are identical in meaning. Bone v. State,
3. Special grounds 1 and 2 complain of the refusal of the judge to allow the introduction of evidence that the plaintiff had another injury at the time in question. This evidence was properly excluded, and the judge did not abuse his discretion in controlling the cross-examination, as complained of. These grounds are not meritorious.
4. As to grounds 3 and 4. The court properly refused to admit the evidence referred to in these grounds, which was with reference to the use of other waving machines and the manner of giving permanent waves. The question of damages in this case depends upon what was done by the defendant in using the machine in question, and in giving the plaintiff the wave which resulted in her alleged injury, and not what occurred on previous occasions or with reference to other machines. See Louisville Nashville R. Co. v. Studdard,
5. The excerpts from the charge complained of in grounds 5, 6, and 8, when considered in connection with the charge as a whole, do not disclose reversible error.
6. A new trial being granted on a special ground of the motion for new trial, it is unnecessary to consider the general grounds.
Judgment reversed. Broyles, C. J., and Gardner, J., concur. *878