Spooner v. Cobb

Him, J. 1. Tlie petition set out a cause of action for the recovery oí the possession of the land in controversy, and for specific performance of the parol contract relied on for recovery; and the court did not err in overruling the demurrer thereto. 2. The court in his charge to the jury stated concisely the essential contentions of the plaintiff and the defendant; and if any fuller statements as to the details of such contentions were desired, a timely request therefor should have been made. (a) The assignments of error as to the failure of the court to give in charge stated propositions are not cause for reversal; as these propositions, where legal and adjusted to the facts of the case, were covered by the general charge of the court. 3. The following question and answer were not inadmissible over the objection that it was permitting the witness to state her conclusion and not the facts, viz.: “ Q. Did you take charge of the land under the belief that it was yours, or did you take charge of it as a tenant? A. I could not help but believe that it was mine, because my father said it was mine and that he would make me a deed.” 4. It was not error, under the facts of the case, for the court to fail to charge that “ The exclusive possession by the children of lands [459] belonging originally to the father, without payment of rent for the space of seven years, shall create conclusive presumption of a gift and convey title to the land, unless there is evidence of a loan, or a claim of dominion by the father acknowledged by the child, or of a disclaimer of title on the part of the child.” No. 3382. April 12, 1923. 5. Error is assigned because the court charged: “The court charges you, gentlemen of the jury, that in this case Mrs. Lilla Spooner Cobb, the plaintiff, carries the burden of proof; and in order to establish her case, that is, in so far as the gift of the land is concerned, the evidence must be so clear and so strong as to satisfy the jury that such gift was made, and not leave that in doubt as to whether such gift was made or not.” Movant assigns error on this charge, for the reason that immediately after giving the foregoing instruction the court followed it in the following language: “ In so far as to the question of improvements, whether valuable and permanent improvements were made on the land, it is incumbent upon the plaintiff .to show that fact by a preponderance of evidence, which means that superior weight of evidence upon the issues involved which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline the fair and impartial minds of the jury to one side of the issue rather than to the other.” It was not error to give these charges together, on the ground that to do so was confusing and misleading, or for any other reason assigned, as was held in Tidwell v. Garrick, 149 Ga. 290 (99 S. E. 872). '(a) No exception is taken to that part of the first charge that “The evidence must be so clear and so strong as to satisfy the jury that such gift was made, and not leave that in doubt as to whether such gift was made or not,” on the ground of the omission of the word “ reasonable ” before the word “ doubt.” This omission renders the charge inaccurate; yet the omission of the word “reasonable” is more favorable to the defendant than was authorized. 6. Other grounds of the motion for new trial not specifically dealt with are without merit. 7. The verdict is supported by the evidence, and the court did not err in refusing a new trial. Judgment affirmed. All the Justices coneur. Hartsfield & Conger and ~W. I. Ceer, for plaintiff in error. E. E. Cox and B. L. Cox', contra.