Opinion
38905.
DECIDED NOVEMBER 13, 1961. REHEARING DENIED NOVEMBER 28, 1961.
Action for damages. Floyd Superior Court. Before Judge Hicks.
Cecil Franklin, E. J. Clower, for plaintiff in error.
James S. Kilpatrick, James Maddox, contra.
For the reasons stated in Division 1 of the opinion, the trial court erred in denying the motion for new trial.
DECIDED NOVEMBER 13, 1961 — REHEARING DENIED NOVEMBER 28, 1961.
This was a suit brought by the plaintiff lessee against the defendant lessor to recover damages sustained by the plaintiff when an elevator located on the leased premises dropped with the plaintiff aboard. In Covington v. Brewer, 101 Ga. App. 724 ( 115 S.E.2d 368), this court held that the petition stated a cause of action against the defendant and reference may be had to that decision for a full statement of the allegations of the petition. On the trial the jury returned a verdict for the defendant and judgment was entered thereon. The case is now before this court on an exception to the denial of the plaintiff's motion for a new trial as amended.
1. In special ground 11 the plaintiff excepts to the following charge: "Now, Gentlemen, I charge you that should you find under the evidence and the rules of law given you in charge that the defendant was negligent and that the plaintiff could not have avoided the consequences of the defendant's negligence after it was apparent, or should reasonably have been apprehended by him by the exercise of ordinary care and diligence, the plaintiff would not be entitled to a verdict against the defendant."
The charge as given was clearly erroneous since under the conditions set forth therein the plaintiff would have been entitled to a verdict against the defendant. Although, no doubt, the trial judge inadvertently made this error in the charge, the jury had no way of knowing this, and the jury would be required to accept the law as charged. Wilson v. State, 215 Ga. 672, 675 ( 113 S.E.2d 95). The charge as given in effect constituted the direction of a verdict for the defendant; and this erroneous charge requires the grant of a new trial. Even though the trial judge subsequently charged the jury correctly on the above principles of law, he did not expressly call attention to the incorrect statement and retract it, as is necessary to render the charging of the incorrect statement harmless. Snellings v. Rickey, 57 Ga. App. 836 (1), 837 ( 197 S.E. 44); Executive Committee of the Baptist Convention v. Ferguson, 213 Ga. 441 (1), 443 ( 99 S.E.2d 150). See also Citizens Southern Nat. Bank v. Kontz, 185 Ga. 131 (2), 146 ( 194 S.E. 536).
2. Special ground 6 complains of the failure of the trial judge to give a requested charge in the exact language requested. Since it appears from the record that the charge given was in the exact language requested, except for the last sentence thereof in which the trial judge substituted the word "tenant" for the word "agent," it is unnecessary to rule on this ground other than to point out the alleged defect, as it is not likely to recur upon the subsequent trial of this case. See Vaughan v. Vaughan, 212 Ga. 485 (1) ( 93 S.E.2d 743).
3. Special ground 10 complained of the following charge: "I further charge you that applying this law to the facts, that if you find that the defendant Covington under the evidence had no supervision and control of the contractor Byars, other than looking toward the completion of this job, that you would find that any negligence would lie with Byars as an independent contractor, and not with the defendant Covington, as employer owner," it being contended that by such charge the court invaded the province of the jury and expressed an opinion that the status of Byars was that of contractor, or independent contractor, and not that of agent as contended by the plaintiff. Since this case is to be tried again it should be pointed out for the benefit of the trial court that this charge could be framed in more appropriate language if the reference to Byars as "contractor" Byars were eliminated.
4. We have carefully examined the remaining special grounds, all but two of which relate to the charge as given or the failure to charge principles of law requested, and find them to be without merit. The trial court thoroughly and properly charged the jury on the many substantive issues in this case and we are constrained to reverse the judgment in this case only for the inadvertent charge considered in Division 1 of the opinion. Since the case is to be tried again, the general grounds are not ruled upon.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.