Opinion
21507.
SUBMITTED JANUARY 9, 1962.
DECIDED FEBRUARY 8, 1962.
Cancellation. Barrow Superior Court. Before Judge Russell.
Marvin D. Pierce, Jr., Mark Dunahoo, for plaintiff in error.
James W. Paris, contra.
1. Where there is some evidence to support the verdict, the fact that the preponderance of the evidence appears to be against the verdict is not cause to reverse a judgment overruling the general grounds of a motion for new trial.
2. A charge is eminently correct where it is a clear and precise statement of the value to be given opinion testimony, was not confusing or misleading, was in accord with prior holdings of this court and the Court of Appeals, and was adapted to the issues of the case.
3. The remaining special grounds failed to indicate where, in the record, pleadings or evidence necessary to show that the desired instructions were adjusted to the issues of the case may be found. Hence, they were too indefinite and incomplete to be considered.
SUBMITTED JANUARY 9, 1962 — DECIDED FEBRUARY 8, 1962.
Mrs. W. A. Page instituted an equitable action in the Superior Court of Barrow County against Mrs. Beulah Green Page to cancel a deed she alleged the latter obtained from her by fraud and without consideration. The petition, among other things, alleged that the plaintiff was eighty-five years old, had owned the property described in the deed for sixty-three years, could not read and that Mrs. Beulah Green Page, who was the plaintiff's daughter-in-law, deceived her as to the nature of the instrument. A copy of the deed was attached as an exhibit to the petition, and recited that its consideration was "love and affection and years of caring for me." The defendant filed her answer, in which she denied all of the material allegations of the petition except those relating to venue; that the plaintiff did in fact make the deed, and that she could not read and write. The answer alleged that the deed was for ample consideration, namely the care of the plaintiff in the past, the promise of the defendant to care for her in the future and to bury her when she died.
The plaintiff testified positively to the facts alleged in the petition and related that while the defendant and her husband had lived with her for many years, she had contributed as much in services and money to their support as they had to her, stating in detail the nature of her labors in their behalf and the contributions made by her to the support of the family, including a considerable sum of money derived from the sale of timber on her lands and rents they received from the same. The plaintiff denied that she understood she was signing the paper in the form of a deed conveying her property to her daughter-in-law. She admitted that a gentleman who witnessed the deed read it to her, but she said she was very deaf, could not read and did not understand its purport until her daughter-in-law at a time subsequent to the execution of the deed claimed her farm.
The defendant was especially positive and explicit in her testimony. She gave as her version of the matter that her mother-in-law voluntarily, and without pressure being brought to induce the execution of the deed, made the same when fully aware that it was a deed to her lands. The defendant testified that the plaintiff had been crippled and infirm for years, that she had cared for her and supplied the greater part of her living, and that she, in further consideration of the deed, promised to continue to support the plaintiff during the remainder of her life. Her testimony as to the circumstances under which the deed was executed was corroborated by the witness who saw the same signed by the plaintiff's mark. The plaintiff, according to the evidence, left the home and went to live with her daughter. She requested the return of the deed, which request was refused. The defendant sent checks to the plaintiff for $50 on two occasions which the latter, according to her testimony, declined to cash. There was other evidence in the case, some of which tended to corroborate the testimony of the parties.
The case came on for trial after four years and resulted in a verdict for the plaintiff and a decree cancelling the deed. The defendant filed a motion for new trial, which was subsequently amended by adding special grounds. Upon the motion as amended being overruled, the defendant excepted.
1. The only general ground of the motion for new trial insisted upon in this court is that the verdict was without evidence to support it. While the evidence would have supported a verdict for the defendant, such a finding was not demanded, and there was a conflict of the evidence as to the material issues of the case. Under the familiar rule that where there is some evidence to support the verdict, the mere fact that the preponderance of the evidence would appear to be against the verdict is not cause for reversal of a judgment overruling the general grounds of the motion for new trial. Ga. Fla. Inland Steamboat Co. v. Mercier, 77 Ga. 99; Stephenson v. Meeks, 141 Ga. 561, 562 (4) ( 81 S.E. 851); Williams v. Barnes, 181 Ga. 514, 515 (2) ( 182 S.E. 897); Thompson v. Fouts, 203 Ga. 522 (3) ( 47 S.E.2d 571).
2. The first special ground of the motion for new trial (numbered 4) complains that the judge charged the jury: "Gentlemen, opinion evidence may be accepted by you and considered along with all the other evidence in the case in making up your verdict; however, you are not bound by the opinions of non-experts until you have determined that you will be so bound." The charge is assigned as error because it was confusing and misleading, and tended to impress the jury that the opinion evidence of expert witnesses should be given more weight and credit than the opinions of non-expert witnesses. It is also contended the criticized charge was error because: no testimony of any expert witness having been placed before the jury for their consideration, there should have been no reference to expert witnesses and any indication as to the weight and value of their testimony in the charge to the jury, and the probative value of opinion evidence of non-expert witness and expert witness is for the jury.
The charge was a clear and precise statement of a familiar rule of evidence, and was not confusing or misleading. It was in accord with this court's holding in Boyd v. State, 207 Ga. 567, 569 ( 63 S.E.2d 394), Merritt v. State, 107 Ga. 675, 681 ( 34 S.E. 361), Manley v. State, 166 Ga. 563, 597 ( 144 S.E. 170), and in the case of Allen v. Allen, 71 Ga. App. 272, 276 (4) ( 30 S.E.2d 665), the Court of Appeals approved a charge almost identical to that assigned as error here.
In the Allen case, supra, the charge referred to the weight and credit to be given to opinions of both expert and non-expert witnesses, while the charge in the instant case does not allude to the testimony of expert witnesses.
The explanation of the court having confined the instructions to the subject of non-expert opinions is found in the statement of the ground that there were no expert witnesses sworn upon the trial of the case. There was no intimation in the instructions given as to the opinions of non-expert witnesses that the jury should give more credence to the testimony of expert witnesses. The ground alleges that the charge should not have alluded to the testimony of expert witnesses because there were none, and it is apparent from the charge itself that it made no reference to opinion evidence of expert witnesses.
The ground is without merit.
3. Grounds two, three, four, and five (numbered 5, 6, 7, and 8) of the amended motion for new trial except to the trial judge omitting to instruct the jury in reference to certain rules of law and principles of equity. It is elementary that a charge must be applicable to the issues made by the pleadings and evidence. Bregman v. Rosenthal, 212 Ga. 95, 97 (4) ( 90 S.E.2d 561); Childers v. Ackerman Constr. Co., 211 Ga. 350 (1) ( 86 S.E.2d 227).
None of these grounds sets forth or indicates by page number, or otherwise, where in the record, pleadings or evidence necessary to show the desired instructions were adjusted to the issues of the case may be found. Hence, they are too indefinite and incomplete to be considered by this court. Code Ann. § 6-901 (Ga. L. 1957, pp. 224, 232); Colman v. State, 213 Ga. 9, 11 (4) ( 96 S.E.2d 611); Darden v. State, 208 Ga. 599 (2) ( 68 S.E.2d 559).
Judgment affirmed. All the Justices concur.