*1 decision, in that stated “We a do not hold that mere contract for the sale goods buyer either a both, makes seller, 'contractor’ within the Code meaning section 114-112], [Cro. § but we are committed sell view that when the contract to accompanied by undertaking by party either to render sub- stantial goods services in sold, party meaning 'contractor’ within of the section.” secondarily award of the board Evans finding that liable employees under Code Walker 114-112 § board, evidence before and the superior is affirmed. Eberhardt, J., affirmed. 41946. STATE HIGHWAY DEPARTMENT HANDLEY. April Submitted July

Arthur Bolton, Attorney K. General, E. J. Rich- Summerour, ard L. Chambers, Assistant Attorneys General, Thurman E. Duncan, Deputy Attorney Assistant General, William Trot- for appellant. ter, Jr.,

Richter & Birdsong, Horace E. A. Richter, W. Birdsong, for appellee. Judge. Chief 1. In condemnation case the court

Felton, as charging the follows: “You will determine what represents amount taken property a value of State Department for Highway you will return a verdict, you damages find property, you consequential damages will you may add whatever find as you represents to the amount find that the value of the property you Highway Department, taken will add whatever you damaged in this case has been may find injured, easement, as result of the establishment of damaged, lump and let be in your has verdict one sum.” Exception to the time the .was made jury. submitted to the It is in the the vice *2 charge excepted to is that it failed include the instruction that benefits remaining to the land should be consequential damages. deducted from the The court at least charged similarly charge one additional time the to the jury excepted -gave charge during to. The court the the also correct course his of instructions. think that the court have We should exception charge. sustained the to this It was the last instruc- given tion jury’s out in and have stood the mind for that could practically reason. it identical And, similarly with another charge. opportunity clarify incorrect The court an the had jury before the the case and could im- considered have pressed point the with jury question. the correct law in appellant excepted to the other incorrect good exception. it and would been a see reason have We no an why except could not make election to to the excerpt last judgment in its jury last the to the would have cured the error. At rate opportunity clarify the court had jury understanding our that and appellate was the practice requires of new law which for trial court to correct errors in charges its juries. before cases are considered The court in correcting charge.

2. There was no issue made in respecting the case inconve- nience to the occupant in the dwelling on the property involved, located and the trial court did not in err refusing request the condemnor’s jury that the condemnee for could not recover mere except inconvenience adversely insofar as inconvenience affected the of the value property. condemnee’s For to have so charged in injecting merely resulted into case to the confusion jury pleadings issue not made of or the evidence. J., reversed. Hall, Eberhardt and Jordan,

Pannell, JJ., Nichols, Deen, Frankum and JJ., made Judge, dissent from the dissenting. I

Frankum, of the in Division 1 of the aware, from am of reversal in this case. I course, well should of the rule that established in a manner as to leave contradictory having pick in and choose between position a confused case, in this an exami correct an incorrect But together reading nation with a of the entire complained leaves, my opinion, in in no proper its context doubt of the that the enactment interpreted applied, here 1965, as always it has would not have been error. Prior to this decision Georgia ascertaining a portion been the whether context, read in charge excepted error it must be its to is charged had been before is, what portion charged thereafter, and while what *3 upon be examination of may error, alone seem to when read charge, appear the whole it does not for the confused, or will not be cause misled grant par in some small merely of a new trial because was, prior to the de incomplete. Nor was inaccurate or ticular, majority in this case “. . . incum cision rendered upon bent judge, in instructing respect to legal propositions different they are to render consider, [in ing repeat, in their to connection with instruction verdict] on proposition, qualifications each all the other and elements that they reaching are to consider in their is verdict. It suffi all cient if qualifications essential and elements are cov Spainhour Nolind, ered as a v. whole.” 97 Ga. (103 154). App. 362, connection, 365 SE2d See also (126 Martin, App. 486, 872); Sims v. 487 Neville 33 Ga. SE (135 (1) v. National &c. Ins. Co., App. 315); 36 Ga. 8 SE Life (187 App. 139, 221); General Oil Co. v. 147 Crowe, 54 Ga. SE (118 Gale, Southern R. v. App. 742); Co. 103 Ga. SE2d Livingston Taylor, Terry 343; v. Buffington, 11 Ga. (182 (63 (1) 694); Britt, Ellis v. 181 Ga. Ga. 1 SE 596). SE

n foregoing in the first authorities the held Under the certainly to be most division of the error error not have been constitute reversible held Act passage Appellate Practice Act. That thereof that procedure providing Section 17 changing assigning error prerequisite as a attention to erroneous counsel must have called court’s to cor- afforded the and thus have purpose limit error, any. rect its of that section right complain merely parties to erroneous to have been the court likely which was harmful. What raising calling the act of to the court’s doing here amounts to dignity attention of a re- allegedly erroneous fails quest judge time the trial saying to be erroneous no matter how to correct a insignificant may been, error risks harmless such he objection refuses notice of being to take reversed if certainly It most of the section of the Appellate to, change modify Practice referred Act, above require in any way the substantive so as to this court or Supreme not, prior Court that a which had to hold Act, to the enactment that section of the But, be been held to cause for reversal. this the undoubted makes, ruling, and in effect of the now I think error. it commits Presiding Judge

I am to state that Nichols Judge Deen concur

41957. SMITH v. ALLSTATE INSURANCE COMPANY.

Argued April 29, 1966 July 19, 1966