Opinion
18413.
SUBMITTED NOVEMBER 10, 1953.
DECIDED JANUARY 12, 1954.
Injunction, etc. Before Judge Renfroe. Screven Superior Court. September 5, 1953.
Howard Hunter, for plaintiff in error.
Hollingsworth Hollingsworth, contra.
1. The trial court did not err, as complained of in the first special ground of the motion for new trial, in refusing to require the petitioner while on cross-examination to answer whether or not she recognized the fact that named streets and lanes in the block where she lived had been dedicated to the city, for the reason that the above question called for a legal conclusion by the petitioner, and therefore the refusal to allow the answer was not in violation of the defendant's right to a thorough and sifting cross-examination. Code § 38-103; Post v. State, 201 Ga. 81 ( 39 S.E.2d 1); Revill v. State, 210 Ga. 139 ( 78 S.E.2d 12).
2. The finding, "We the jury find in favor of the plaintiff and recommend that an alley be maintained and markers," placed according to a named plat, was a general verdict, the recommendation being mere surplusage; and, accordingly, the second special ground, complaining because the trial court on motion of the defendant refused to return the jury to their room for the purpose of having them return a general verdict, is without merit. Compare Fried v. Fried, 208 Ga. 861 (3a) ( 69 S.E.2d 862). Furthermore, the defendant could not have been harmed, since the recommendation was included in the final decree.
3. The portion of the trial court's charge dealing with the question of burden of proof, complained of in the third special ground, while inapt when standing alone, yet, when considered in connection with the entire charge and the issue upon which the case was tried, was not harmful and reversible error.
4. Where, as here, neither the city nor the petitioner sought any relief against the vouchee, the city could not, as complained of in the fourth special ground, have been harmed by the charge of the court as to the form of verdict the jury could use in the event they found in favor of the vouchee.
5. The evidence, though conflicting, was sufficient to support the verdict in favor of the petitioner, and the trial court did not err for any reason assigned in denying the city's amended motion for new trial.
SUBMITTED NOVEMBER 10, 1953 — DECIDED JANUARY 12, 1954.
Mrs. Virginia S. Miller filed in Screven Superior Court, against the City of Sylvania, a petition seeking to enjoin a trespass by the driving of garbage trucks over her lot. The city answered, denying material allegations of the petition, and averring that its trucks passed over a 10-foot strip of land which had been both expressly and impliedly dedicated as a public alley, and further that it had title by prescription, having used the strip of land for more than 20 years. The city vouched Mrs. Audrie Bland into court to defend its right to use the alley. The uncontroverted evidence showed that there was a 10-foot alley south of the petitioner's lot, but the evidence was conflicting as to whether the strip of land as presently used encroached on her property. The jury returned a verdict for the petitioner. The city's amended motion for new trial was denied, and the case comes to this court upon its exceptions to that judgment.
1, 2, 4, 5. The rulings announced in the first, second, fourth, and fifth headnotes do not require elaboration.
3. The third special ground complains because the trial court, after charging that the burden of proving the petitioner's case was upon her, instructed the jury: "Likewise, the same burden rests upon the defendant in this case to satisfy the jury by a preponderance of the evidence of their contentions, that is, that they have not trespassed upon any of the property of the plaintiff in this case."
It is plain from the record that, on the trial of the case, the principal issue was as to whether or not the city had title to the strip of land in question by dedication and prescription, and therefore the acts complained of did not constitute a trespass. The trial court fully instructed the jury that the city contended that it had not trespassed upon the land of the petitioner because of its assertion of title as above stated. It must be admitted that, after the court, in the excerpt complained of, used the word "contentions," it was inapt to merely characterize such contentions as a denial that the city had "trespassed upon any of the property of the plaintiff in this case," without explaining that the city was making such denial because of the affirmative contention that it had title by dedication and by prescription. However, it cannot reasonably be said, in view of the presented issue of title as claimed by the city and the instruction by the court in this connection, that in the isolated instance complained of the court confused the jury into thinking that the contentions of the city amounted merely to a denial of the acts complained of and not its assertion of title as claimed, the burden of establishing which rested upon the city. Code § 38-103; Brown v. Caraker, 147 Ga. 498 (5a) ( 94 S.E. 759); Hyde v. Chappell, 194 Ga. 536 (1) ( 22 S.E.2d 313). Accordingly, while the latter portion of the excerpt from the charge standing alone was inapt, yet, when considered in connection with the entire charge and the issue upon which the case was tried, it was not harmful and reversible error.
The present case is distinguished by its facts from Wooten v. Morris, 175 Ga. 290 (3) ( 165 S.E. 626), which is relied upon by the city, but did not involve an affirmative negation.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.