Opinion
40804.
DECIDED NOVEMBER 24, 1964. REHEARING DENIED DECEMBER 16, 1964.
Action for damages. Morgan Superior Court. Before Judge Carpenter.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., Warner R. Wilson, Jr., for plaintiff in error.
James M. Newsome, Jr., Guy R. Dunn, contra.
1. An allegation that the plaintiff's reliance on the defendant's representation, not wilfully made, that a furnace it had installed was safe to operate, was an allegation of the defendant's negligence in connection with the installation; therefore the amendment did not set out a separate, new and distinct cause of action from that seeking damages for the negligent installation.
2. The verdict for the plaintiff was supported by the evidence; therefore, it was not error to overrule the motion for a new trial on the general grounds, the motion for judgment notwithstanding the verdict, and the first two special grounds of the motion for new trial which were amplifications of the general grounds.
3. The defendant's motion to strike certain paragraphs of the petition relating to damages for injury to personal property, on the grounds that there was not sufficient evidence to sustain a finding by the jury as to the value of these items, was overruled by the trial judge. "According to the practice in this State, the failure of the plaintiff to support some of the allegations in his declaration by evidence, is no reason why the allegations should be stricken out on motion of counsel for the defendant." Richmond D. R. Co. v. Worley, 92 Ga. 84 (1) ( 18 S.E. 361); Andrews v. Andrews, 85 Ga. 276, 282 (1) ( 11 S.E. 771). Accordingly, the overruling of the defendant's motion was not error.
4, 5. Special grounds 8, 9, 10, and 11 were properly overruled.
DECIDED NOVEMBER 24, 1964 — REHEARING DENIED DECEMBER 16, 1964.
Fred L. White brought suit against Georgia Hydratane Gas, Inc. to recover damages in the amount of $18,382.28 for the loss of two buildings and their contents by a fire alleged to have been caused by the defendant's negligence in the installation of a gas furnace. The petition as finally amended alleged substantially as follows: That in September 1961, the plaintiff purchased from the defendant, which was engaged in the business of selling, distributing and delivering liquefied petroleum gases, gas appliances and installing said appliances, a household heating floor furnace which the defendant knew was to be used for the purpose of curing sweet potatoes in the plaintiff's dairy house adjacent to his dairy barn; that the furnace was installed on September 28 and 29, 1961, and on October 2, 1961, the defendant connected the thermostat on the furnace and lit the pilot light; that the defendant promised the plaintiff that the furnace would be correctly and safely installed, would be free from defects and would correctly and safely furnish heat for curing sweet potatoes; that the plaintiff, having no knowledge of such things, relied solely on the defendant's experience and knowledge in the installation and safety of the furnace; that the furnace caused the loss by fire on October 5, 1961, of the plaintiff's dairy house, barn and contents as a direct and proximate result of the negligent acts of the defendant, to wit: Installation of the furnace in the center of a wooden interior wall which was approximately 8" directly above the grill and top of the furnace and in the direct line of the heat flow discharged from the furnace; failure to insulate the furnace, its connections, and the walls around and above the furnace; failure to install a flue pipe as large as the flue collar on the diverter; failure to extend or install any flue pipe through the wall or a chimney or any other place; failure to install the proper vent pipe or to extend any chimney above the roof; failure to take into consideration the fact that an ordinary man experienced in this type of installation would have known, by the exercise of reasonable care and prudence and by reasonable and ordinary examination of the gas furnace, that it was being improperly installed and at the completion of the same would have known that it was improperly installed; leaving the furnace pilot light on following improper installation of the furnace, notwithstanding notification by the plaintiff of his belief of an improper installation and the fact that Messrs. Bridges and Steve Mathis, agents and employees of the defendant in the business of their employer, should have known of the danger existing due to the improper installation, but instead assured the plaintiff that the furnace was absolutely safe to operate; installation of the furnace in a partitioned wall when it was well known and could have been known to the defendant that it was not designed for such installation and that it must absolutely be vented according to manufacturer's specifications attached as exhibits to the petition; use of the highly dangerous combustible material of wood as braces to maintain the furnace in upright position, rather than metal braces as called for in the installation of the furnace; placing of the furnace in a frame wall, half in one room and half in another, with only one thermostat to control it, rather than two, as was needed to provide adequate protection; failure to warn plaintiff of the danger and hazard of using an improperly installed furnace; failure to leave the gas off at the tank after improper installation.
The following evidence was adduced at the trial: J. W. Brittan, the defendant's branch manager at the time the furnace was installed, testified that the two employees who installed it were acting under his instructions; that he gave them no other instructions other than that they could set it in the dividing wall or on the floor in one room; that he knew it was not designed for installation in a partition wall; that after the installation he checked it, found it installed in the partition, checked only the turning on and off functions, and did not see any ventilating pipes, heat deflectors or panels, or insulation around the installation; that to his knowledge the employee Bridges had never installed any furnaces; that the two employees did not do the installation as he had instructed; that the employees told him that Mr. White had instructed them to place the furnace within the partition; that because of the construction of the furnace, insulation around it was not necessary; that the purpose of venting is to remove the burned gases as a safety factor; that venting has nothing to do with the workings of the furnace itself, is not necessary for proper installation, and is used in homes to prevent the formation of condensation caused by the burned gases; that he left the thermostat on its lowest setting, 50°, when he left it; that he had sent one of their employees, Sheppard, to check on a report that the furnace wasn't working properly; that he personally checked it out after Sheppard had checked it and reported it to be working properly.
B. J. Armistead, vice-president of a distributor of this brand of furnaces, testified that the primary heat exchange could become red hot if there was a restriction in it; that venting is not necessary for the proper operation of the furnace but is desirable for safety purposes; that this furnace is not designed to be installed in a partition wall but that it would function there; that wooden braces are normally used to support the furnace; that the sides of the furnace remain at approximately room temperature due to the circulation of cool air down the sides; that the vents would not be important unless the moisture was objectionable; that there is no need to insulate the sides of the furnace and that it is never done as far as he knows; that all of the heat comes out of the center part of the furnace and he would think that there should be some kind of deflector if the wood was close to the grate; that the ignition temperature of pine wood is approximately 700° in one minute's time or 450° in 15 minutes' time.
Millert Peeples, who lived on the plaintiff's land, testified that he saw the fire early in the morning, woke up Governor Simms, an employee of the plaintiff, and the plaintiff and helped them put water from a well on the fire; that the well pump was still working at that time; that the potato house burned first then he saw it spread to the barn.
Governor Simms testified that Peeples had wakened him and that he had gotten to the scene of the fire as quickly as possible; that he helped pour water on the fire and remove a truck and tractor near the barn to save them from the fire; that the potato house burned first and the fire then spread to the barn, which was about a driveway's width away from the potato house; that the previous night was about the coldest night they had that fall, with a temperature of around 45 or 50 degrees.
The plaintiff testified that on October 5, 1961, he was awakened by Peeples, got up and immediately called the Madison Fire Department and went out to the fire, where the potato house was beginning to collapse and the hands were pouring water on the fire; that the potato house had been thoroughly cleansed and swept out ready for the potatoes; that its walls and floor were cement, as was the 3-foot foundation of the partition wall; that he had not known anything about the installation of the furnace, so was leaving it up to Mr. Brittan and the defendant's workmen; that he had suggested that they install it on the floor between the rooms, but while he was going to get a concrete chisel they began installing it in the wooden portion of the partition; that he hadn't insisted on putting it on the floor because they seemed to know what they were doing and he didn't know too much about it; that the employees left the furnace so that the grill was from 8 to 12 inches under the double wooden wall, which was constructed with 100-year-old original pine; that he had gotten a little uneasy because he wasn't going to use the furnace for a couple of weeks and he asked them to cut off the gas at the tank, but they said that there was no need to since it would be trouble to light the pilot light and it wouldn't use much gas anyway; that they had to get another pilot light and install it and light it another day; that the furnace had no vent pipes on it; that the furnace was installed on September 28th, the pilot light lit on October 2nd, and the fire occurred at about 5 a. m. on October 5th; that he thought the thermostat was set for a 60 to 80 degree range; that the potato house was wired soon after it was built and he didn't think it had been rewired; that he hadn't used it for anything for several years.
Lt. K. G. Davis, of the Fire Prevention Bureau of the City of Atlanta Fire Department, testified that he had investigated the site of the fire at the request of the plaintiff's attorney; that in his opinion the furnace as installed constituted a most hazardous condition and that it was very highly probable it could have been the cause of the fire; that the ignition temperature of longleaf pine wood shavings is about 446° at 14.3 minutes, but that where you have confined heat in a trapped area, such as existed in and under the partition, the heat is concentrated like a blowtorch and the ignition temperature would be lower; that by the time sufficient heat is generated to activate the thermostat, the damage would already have been done in this confined area of the partition, which extended up to the ceiling; that a solid board would require either more time or higher temperature to ignite than shavings; that exposure of wood to heat over a period of time causes dehydration of wood fibers, called carbonization, which reaction lowers the ignition temperature after an interval of time.
The plaintiff's son, Captain Grayson White, testified that the dairy barn was 2 inches short of 15 feet from the potato house; that both the potato house and the barn were in good condition prior to the fire; that he was in and out of the potato house at the time of the furnace installation and saw the completed installation; that the furnace was supported from underneath by two wooden boards across the partition; that the defendant's employees needed electricity to operate the switch and the thermostat and, there being no power in the building, he checked the outside wires, finding one of them unconnected about 6 to 10 inches away from the building; that he shut off the power at the house, cleaned off the tips of the wires, twisted them together tightly with pliers and wrapped them very well with plastic tape; that he had worked with electricity many times, having grown up on the farm; that the power worked after he repaired the wire; that when the building was used as a dairy barn there was a pump and a milk cooler compressor motor operating on the same circuit, but that this equipment had not been used for years, the only power use being the lighting; that the well pump, which was on the same circuit as the potato house, was working during the fire; that the defendant's employees did their own electrical work and burned out a transformer by hooking onto a 220, rather than a 110, volt line.
Talmadge Bridges, one of the defendant's employees who installed the furnace, testified that he had been working for the defendant about 3 weeks at that time; that this furnace was the second one he had ever installed; that they had constructed a wooden platform on which to set the furnace; that they allowed 12 to 15 inches clearance between the furnace and the partition to keep it from getting hot, as they were always told to do; that he was not a licensed electrician; that he had not had any schooling, just on-the-job training; that he had not calibrated the flame on the furnace and thought he hadn't known how to do so at that time; that no insulation material was used, but 6 or 7 inches of clearance was left on the sides and the grate was about 15 inches from the ceiling; that they had not vented the furnace; that he had been fired from his job with the defendant because his work was not satisfactory; that they had braced the furnace on the ends with wood; that he thought they had put a piece of tin on the wall to reflect the heat and that they should have, but that he couldn't remember for sure; that he did not remember the plaintiff going to get a concrete chisel and thought he told them to put the furnace where they did put it.
D. M. Sanders, Chief L. P. Gas Inspector for the State Fire Marshal's Office, testified that, based on his investigation of the fire and the information as to the method of heating, wires, etc., he was not able to determine the exact origin of the cause of the fire.
George Cochran, Jr., testified that he had traded in two ten-year-old floor furnaces to Mr. Herbert Smith, of the defendant company, about 2 years previously, because they were getting old and because they didn't have manual operation levers as the newer models had.
Steve Mathis testified that he was employed by the defendant in September 1961, and that he had helped the white employee, Bridges, install the furnace; that the plaintiff had told them to install the furnace on the concrete floor, but that they had installed it in between the wall; that he didn't hear the plaintiff tell Bridges to put it in the wall, but he didn't think he would have put it there on his own; that the furnace had about 2 inches clearance on each side and about 12 inches at the top; that they ran the wires to the furnace, connected the gas tank to the furnace and installed the thermostat, leaving the pilot light on when they left, since they had burned out the transformer and had no power to operate the magnetic valve which controlled the main burner; that the thermostat had a night switch on it which could turn off the furnace; that the furnace came from George Cochran, Jr.; that if he were to install another furnace he would install it the same except that he would vent it, but that the venting would have just kept the moisture down and not made it any safer; that all the furnaces he had installed were always vented; that they had no material with them with which to vent; that he had never had anyone instruct him to put a furnace in a wall before; that the sides of the furnace are not supposed to be hot enough to start a fire; that the furnace weighs 135 to 140 pounds and required two men to handle it. In his deposition he testified that he wasn't supposed to be installing furnaces and was supposed to be a helper; under cross examination he testified that he was there to install the furnace rather than be a helper.
Gerald E. Sheppard testified that he had been employed by the defendant in July, 1960, for installation and service duties, having had no experience in servicing furnaces prior thereto; that on the day after the installation he went down to change the magnetic valve, which the men who installed the furnace said was faulty but there was nothing wrong with it so he didn't replace it; that the manual control button underneath, which enables the furnace to be used when the electricity goes off, was stuck and all he had to do was turn it and let it down; that he lit the pilot light, which was not lit when he arrived there; that he then nailed a wooden board over the furnace to keep the heat from going up and to throw it out to the side; that this furnace did not have a limit switch to shut off the burner in case it got too hot.
Herbert Smith, president of the defendant corporation, testified that he had set a quart of water in a glass container on top of such furnace for three hours, and the water, the boiling point of which is 212° Fahrenheit, did not boil.
The court sustained some of the defendant's demurrers and overruled others. At the close of the evidence the defendant moved for a direct verdict, which motion was denied. Defendant made a motion to strike certain evidence concerning the value of certain items of personal property, which motion was denied. The court then overruled the defendant's motion for a new trial as amended and its motion for judgment n.o.v. The defendant excepts to all of the above rulings adverse to it.
1. The only demurrers argued, hence the only ones ruled on, are those two concerning paragraph 18 of the petition as amended, which alleges that the plaintiff relied on the defendant's representations or assurances that the furnace as installed was safe to operate and that this reliance caused his alleged losses. The demurrers are based on the theory that this allegation was totally irrelevant to any cause of action set out by the plaintiff and that it alleged a new cause of action separate and distinct from that originally sued upon. Such allegations of representations of the safety of defective articles, where the one supplying, repairing or installing the article knew or ought to have known of the defects, have been held by this court to be sufficient as charges of negligence in failing to know of the defects. See Floyd v. Morgan, 106 Ga. App. 332, 335 ( 127 S.E.2d 31), and cases cited. Had this paragraph alleged a wilful misrepresentation, made with the intent of deceiving the plaintiff, it would have set forth another and separate cause of action, but such is not the case here where the allegation is mere negligence in not knowing of the defect or defects. The court did not err in overruling the special demurrers to paragraph 18 of the petition as amended.
2. The court did not err in its judgments overruling the motions for a new trial on the general grounds and judgment n.o.v.
The evidence pointed to two most possible theories of the origin of the fire, i.e., from faulty wiring in the building and from causes arising out of a faulty or improperly installed furnace. The only evidence as to faulty wiring is that the wiring at the time of the fire was probably the original wiring, which was installed around 1927 when the building was erected, that it had not been used for several years after it was used as a dairy barn, and that the plaintiff's son had to repair the wiring on the outside in order to get power. On the other hand, the evidence showed that the wiring had been utilized for lighting, that it was on the same circuit as the well pump, which was operating on the day of the fire, and that the only repair needed to make the power available was the connecting of a wire on the outside of the building, 6 to 10 inches from the building, which work was done in a proper manner. This evidence was not sufficient to demand a finding that faulty wiring was the proximate cause of the fire, certainly, and was not strong enough to exclude the other theory of the cause, i.e., faulty installation of the furnace, as the more probable cause.
The following evidentiary facts were sufficient to authorize the finding that the fire was caused by one or more of the alleged acts of negligence on the part of the defendant: The twelve-year-old used furnace was installed, including all the wiring, by the employees — one of whom had been with the defendant company only about 3 weeks, was not a licensed electrician, had probably installed only one furnace before and was subsequently fired for his unsatisfactory work — the other one being merely a helper who was not supposed to actually install furnaces and who admitted that he had never installed a furnace in a wall like this, that the plaintiff had told them to install it on the concrete floor and that if he were installing it again he would vent it, as they did on all other furnace installations. The defendant's branch manager knew that the furnace was not designed for installation within a wall and when he checked the installation he saw it so installed, contrary to his instructions, and saw no ventilating pipes, heat deflectors or panels or insulation around the furnace. The employees who installed the furnace burned out a transformer by connecting it to the wrong line, necessitating their leaving the pilot light on. They reported that the furnace was faulty (a faulty magnetic valve, they thought) and one of defendant's service men, who had no previous experience in servicing furnaces, did not replace the valve because he thought there was nothing wrong with it, but found the manual control button stuck. He found that the pilot light, which the men installing it had lit, had gone out. He nailed a wooden board over the opening in the wall, just some 8-15 inches directly above the furnace grate, where the full heat of the furnace was discharged. An expert witness testified that it was highly probable that the furnace as installed could have caused the fire, the heat from the furnace being trapped in the confined area acting like a blow torch on the wooden materials. There was evidence that the thermostat had been set to go on at 50° and that the temperature on the night before the fire occurred in the early morning got down to 45-50°. While much of the plaintiff's evidence was circumstantial in nature, it was nevertheless sufficient to show that there were many irregularities in the installation and some inexperience on the part of those installing the furnace which together could very probably have caused the fire. The defendant was in charge of the installation and even if the jury found that the plaintiff might have acquiesced in the location of the installation, they could still find that he was entitled to rely on their judgment and representations as to such a matter which was supposedly within their knowledge and experience in that business. While the evidence did not authorize a finding that the defendant was negligent in all the particulars alleged, it did authorize the finding that it was negligent in at least one and possibly more.
The defendant contends that the measure of damages for the loss of the barn and potato house is the cost of restoring them to the condition they were in when the damage occurred, and that the only evidence introduced as to the value of the buildings was the cost of erecting new buildings; and that as to the personal property, which was totally destroyed by the fire, the measure of damages was the market value at the time of destruction, and that the only evidence was the approximate purchase price when originally purchased. There was considerable evidence as to the age of the buildings; that they were constructed of original pine lumber, which was better than that currently available; that they were in good condition at the time of their destruction by fire. There was evidence detailing the type of construction, the size of timbers, and the type of lumber. There was evidence that the barn could be rebuilt for $3.00 per square foot, that is, about $7,000, and that the shed could be rebuilt at a cost of $2.50 per square foot that is, about $3,300. There was evidence that the labor cost only of replacing the potato house was $660. While the witness who offered this testimony was very positive in stating that this estimate was to rebuild new and not to restore to the condition they were in at the time of the fire, he did testify that such restoration, because of the lack of availability of some of the materials, might cost more. There was evidence as to the age of some of the personal property; there was evidence that none of it was new; there was evidence as to the age of the equipment in the dairy barn by reason of the testimony that the dairy had not been operated since 1948; there was testimony that the approximate cost of some of the personal property destroyed was over $900. As to some of the personal property there was no testimony as to its value. The plaintiff testified that "to reconstruct it, to get as near as we can get at it, it is between $18,000 and $20,000." The evidence amply authorized the finding by the jury that the defendant suffered damage in the amount of $11,000.
The first two special grounds of the motion for new trial complain, respectively, of charges of the court on the measure of damages as to the buildings destroyed by fire (see Morrow v. Johnston, 85 Ga. App. 261, 266, 68 S.E.2d 906), and on the measure of damages as to the personal property destroyed by fire on the grounds of lack of evidence as to the requisite values. These grounds are, for the most part, amplifications of the general grounds, already ruled upon.
Insofar as these special grounds find fault with the charges because of the lack of evidence to support some of the claims of value, thus resulting in the contention that these charges in effect submitted issues of values to the jury as to some of the property, when there was no evidence of these values, is without merit. If the trial judge had eliminated the value of these particular items of property from the consideration of the jury, in order to have avoided the alleged error, this would have been equivalent to directing a verdict as to these items. It is never error to refuse to direct a verdict.
3. Headnote 3 requires no elaboration.
4. Special ground 7 complains of error in the following charge: "Now gentlemen, in order to entitle the plaintiff to recover in this case, the plaintiff must prove by a preponderance of the evidence that the defendant was negligent in at least one of the particular acts of negligence set out in the petition as amended, and that such negligence was the proximate cause of the damages which the plaintiff contends that he sustained, and that the plaintiff is otherwise entitled to recover under the evidence, and the instructions of the court." It is contended that this charge was prejudicial to the defendant in that it indicated to the jury that if they found the defendant guilty of any of the acts charged against it the defendant would thereby be guilty of negligence, whereas whether the alleged acts were negligence was a matter for the jury to determine. While this instruction was somewhat inaptly stated, its meaning is sufficiently clear, namely: that the plaintiff must prove that at least one of the alleged acts of negligence was in fact perpetrated by the defendant, that such act or acts of alleged negligence did in fact constitute negligence, and finally, that such negligence, if it existed, must be found to be the proximate cause of the damages. The court did not err in overruling special ground 7.
5. Special grounds 8, 9, 10, and 11 complain of the court's charge to the effect that the plaintiff's recovery depended upon proof by a preponderance of the evidence that the defendant was negligent in at least one of the alleged particulars of negligence, whereas the evidence failed to show that the alleged particulars with regard to use of vent pipes, failure to follow manufacturer's specifications, use of wooden braces and use of only one thermostat, respectively, did in fact amount to negligence. While it is error to give a charge authorizing a finding upon an issue raised in the pleadings but not supported by the evidence, unless it is apparent from the record that the jury could not have been misled and confused by it, the charge here complained of was not a charge authorizing the jury to make a finding based on grounds of negligence charged in the petition but not supported by the evidence. The charge here was as follows: "Now Gentlemen, in order to entitle the plaintiff to recover in this case, the plaintiff must prove by a preponderance of the evidence that the defendant was negligent in at least one of the particular acts of negligence set out in the petition as amended, and that such negligence was the proximate cause of the damages which the plaintiff contends that he sustained, and that the plaintiff is otherwise entitled to recover under the evidence, and the instructions of the court."
In Williams v. Vinson, 104 Ga. App. 886, 891 (2) ( 123 S.E.2d 281, 91 ALR2d 889), a case where the charge complained of and the complaint made were substantially like the charge and complaint in this case, it was said: "In these grounds it is the contention of the movant that this charge submitted to the jury an issue with respect to grounds of negligence charged in the petition as to which there was no evidence. Assuming, but not deciding, that the contentions of the movant with respect to the absence of evidence in proof of two grounds of negligence alleged are true, this charge was not error for the reason urged. The charge complained of stated an abstractly correct principle of law which was applicable to this case. [citations]. It was not a charge submitting issues to the jury but merely told the jury what minimum facts with respect to the defendant's negligence the plaintiff would have to prove in order to recover." See also Southern R. Co. v. Bullock, 42 Ga. App. 495, 498 (3) ( 156 S.E. 456), and Hix-Green Co. v. Dowis, 79 Ga. App. 412, 416 (1) ( 53 S.E.2d 601), and cits.
The charge here complained of stated a general proposition which could hardly ever be error in a case like this where more than one act of negligence has been charged against the defendant as the basis for the plaintiff's right to recover. None of these grounds of the motion for a new trial can be construed as an assignment of error on the failure of the court to charge some other pertinent and legal proposition of law, and the charge as given was not error for any of the reasons assigned. In his charge to the jury the judge instructed them that the written contentions of the plaintiff as set forth in his petition and the written contentions of the defendant as set forth in its answer would be out with them and that they could look at these pleadings to ascertain in detail the contentions of the parties, and that these pleadings were not evidence in the case and that the burden was on the plaintiff to make out his case by a preponderance of the evidence, which the court then proceeded to define. The court further re-emphasized this point by again instructing the jury later on in the charge that the plaintiff had the burden of proving by a preponderance of the evidence that the defendant was negligent and that its negligence was the proximate cause of the plaintiff's damages.
For these reasons the assignments of error contained in special grounds 8, 9, 10, and 11 were all without merit, and the trial court properly overruled those grounds.
Judgment affirmed. Nicholas, P. J., Bell, P. J., Jordan, Hall, Eberhardt, Russell, and Pannell, JJ., concur. Felton, C. J., dissents.
I dissent from the ruling in Divisions 4 and 5 and from the judgment.
Special grounds 8, 9, 10 and 11 complain of the court's charge to the effect that the plaintiff's recovery depended upon proof by a preponderance of the evidence that the defendant was negligent in at least one of the alleged particulars of negligence, whereas the evidence failed to show that the alleged particulars with regard to use of vent pipes, failure to follow manufacturer's specifications, use of wooden braces and use of only one thermostat, respectively, did in fact amount to negligence. Where an issue, though raised in the pleadings, is not supported by the evidence, it is error to give a charge authorizing a finding upon such issue, and, unless it is apparent from the record that the jury could not have been misled and confused by it, such charge is cause for a new trial. Atlantic C. L. R. Co. v. Godard, 211 Ga. 373 (2) ( 86 S.E.2d 311); Central of Ga. R. Co. v. Keating, 177 Ga. 345 (4a, b) ( 170 S.E. 493); Atlantic C. L. R. Co. v. Anderson, 75 Ga. App. 829 (3) ( 44 S.E.2d 576); Columbus Mfg. Co. v. Gray, 9 Ga. App. 738 ( 72 S.E. 273); Americus Gas c. Co. v. Coleman, 16 Ga. App. 17 ( 84 S.E. 493); Atlantic C. L. R. Co. v. Baker, 32 Ga. App. 513 ( 123 S.E. 909); Western c. R. Co. v. Branan, 123 Ga. 692 (3) ( 51 S.E. 650); Executive Committee of the Baptist Convention v. Ferguson, 213 Ga. 441 ( 99 S.E.2d 150); Investors Syndicate v. Thompson, 172 Ga. 203 (2b) ( 158 S.E.2d 20); Beadles v. Bowen, 106 Ga. App. 34, 36 (4) ( 126 S.E.2d 254); Code Ann. § 70-207, catchwords "Negligence, contributory negligence." Each of the above-mentioned alleged acts of negligence was shown by the evidence to be either not negligent at all, or, even if negligent, not the sole or concurrent proximate cause of the damage. Since there is no way to determine whether the jury found against the defendant on any or all of these issues unsupported by the evidence, the charge could have been misleading; therefore a new trial should be granted on special grounds 8, 9, 10, and 11. Williams v. Vinson, 104 Ga. App. 886, supra, cited by the majority, is contrary to the rule stated in the above cases by this court and the Supreme Court. In no other circumstances have the courts held that before a party can except to the submission of an issue to a jury which is not supported by evidence, he must make some kind of motion to call the matter to the court's attention. I realize that the judgment n.o.v. law authorizes directed verdicts as to separable issues but I do not construe the law and decisions as requiring that the matters be specifically called to the court's attention in other instances such as this one.
I think the court erred in its judgment overruling special grounds 8 through 11 of the motion for a new trial.