ON MOTION FOR REHEARING. Among the first acts of negligence alleged in the petition were some that related to the piling of the sacks of pecans in too close proximity to the electric lights, and might be classified as those acts of negligence relating to the origin of the fire. A majority of the acts of negligence alleged in the petition related to the origin of the fire.
After stating the contentions of the parties in the language of the pleading the judge charged the jury: "Gentlemen of the jury, the petition and amendments filed by the plaintiffs in this case and the answer and amendments filed thereto by the defendant in this case constitute the sole issues for your determination, for the reason that this is a court of record and all pleadings must be in writing, therefore I refer you to the written pleadings in the case that you have just heard me read, in order that you might familiarize yourselves with them and be in a position to pass intelligently upon the issues formed by these written pleadings." He subsequently defined bailment, and then charged the burden of proof as to diligence: "In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence." He subsequently stated that ordinary care was the proper diligence in such cases, and then defined ordinary care. Subsequently he charged the jury: "You will notice that the plaintiffs in this case charge that the defendant did not exercise ordinary care and diligence, alleging that it was careless in the keeping of this property bailed, in permitting the pecans to be piled in the sacks in close proximity to the incandescent electric lights, and that the heat generated by these globes set on fire the pecans, or occasioned the oil to exude from the pecans, saturate the sacks, and thus become ignited by the heat from the light. If you find in your consideration that ordinary care and diligence required that the defendant not pile these pecans in such close proximity to the electric lights, as contended by the plaintiffs, and if they did so, and that alleged act of negligence occasioned the fire, if there was a fire, then, under those conditions, it would be your duty to bring in a verdict for these plaintiffs for whatever amount you find that this act of negligence occasioned. *Page 625 It is, of course, contended on the other hand by the defendant in this case that it was guilty of no act of negligence thatoccasioned this fire in question. This, however, makes the issue, or one of the issues, for this jury to determine. You will of course refer to the plaintiffs' petition and the defendant's answer to determine what the other issues are, if any, in this case." (Italics ours.) He subsequently defined proximate cause, negligence, and actionable negligence. He subsequently charged: "Gentlemen of the jury, no bailee will be permitted under the laws of Georgia to make a contract whereby it could exempt itself from its own negligence in case of fire. However, the defendant in this case would not be responsible for the loss occasioned by fire in this case under investigation, if it exercised ordinary care and diligence in the preservation of this property, [and the fire was occasioned by other things over which the defendant company could not have exercised control by the exercise of ordinary care and diligence]. The defendant is simply bound in this case to have exercised ordinary care and diligence for the preservation and keeping of the property bailed, and if it did exercise ordinary care and diligence in preserving and keeping safely the property, under its agreement, it would be your duty under those conditions to bring a verdict for this defendant company. If, on the other hand, the defendant company failed to exercise ordinary care and diligence in keeping and preserving this property bailed, and, by reason of such failure to exercise ordinary care and diligence this fire occurred and destroyed these pecans, then, of course, underthose conditions, if those were the conditions and if you find those to be the conditions, under a preponderance of the evidence, it would be your duty to bring a verdict for these plaintiffs for whatever amount you find they have suffered byreason of this fire. These are matters solely within the province of this jury to determine as you alone are empowered by the law to pass upon the facts in this case." (Brackets and italics ours.) He subsequently stated the alternative of the proposition as to the acts of negligence as they related to the origin of the fire in this language: "The defendant contends before this jury that this fire, the origin of this fire was unknown to them, that the fire originated through no act of negligence on their part. [If you believe that this fire originated through no act of negligence upon the part of this defendant, Atlantic Company, you *Page 626 would not be authorized, under those conditions, to bring in a verdict for these plaintiffs, but, on the other hand, it would be your duty to bring in a verdict for this defendant.]" (Brackets and italics ours.) Down to this point the judge had been charging as to the origin of the fire. He subsequently cautioned the jury to consider the charge as a whole; that "In considering the law as given by the court it is well not to pick out any isolated part of the law as given you, but try to recollect the whole charge and see how one part of it is related to another; because it would be impossible for the judge to give you in a paragraph, in a sentence, or a page, all of the law that would relate to and be applicable to a case of this kind." He subsequently charged the jury as follows: "The plaintiffs in this case base their suit upon several alleged acts of negligence, alleged by the plaintiffs against the defendant, Atlantic Company, and its agents, and alleged to have caused the damages sued for; and I charge you that in order for the plaintiffs to prevail it is not necessary that you believe that the defendant, Atlantic Company, and its servants were guilty of all of said several acts of negligence charged; but if the defendant or its servants committed any one of said acts of negligence charged, or two or more of them, without committing all of them, and the one act of negligence, or two or more acts of negligence, which the defendant or its servants did commit, was or were the proximate cause of any of the damage sued for, then the plaintiffs would be entitled to recover the amount of the damages proved to result from that negligence proved, even though you should decide that the defendant and its agents were not guilty of some several acts of negligence charged in the plaintiffs' pleadings, or though you believe that some of the acts of negligence which did exist may not have been the proximate cause of the damage done. If the evidence shows that any of the plaintiffs' pecans, described in their pleadings, were damaged by fire, or by the vapors andgases resulting from the fire, or by water used in fighting thefire, as claimed by the plaintiffs, and that such damage was the result of any one or more of the alleged acts of negligence on the part of the defendant, or its agents, as set out in the plaintiffs' pleadings, then you should find for the plaintiffs some amount, even though you believe from the evidence that the damage was not as great as claimed by the plaintiffs. But if you believe that the plaintiffs' pecans were damaged in the manner *Page 627 set out in plaintiffs' pleadings but in an amount less than the amount claimed by the plaintiffs, then you should find for the plaintiffs only such less amount of damages, which you believe the evidence shows to be the damage done by the negligence proved, if any." (Italics ours.) He subsequently charged the jury with reference to the acts of negligence which would have caused damages by water used in fighting the fire and noxious gases and vaporized oil as follows: "Plaintiffs do not claim in this casethat the entire damage was done by the actual burning of the pecans in question, but claim on the contrary that by far thegreater part of the damage done was the result of water used infighting the fire and of noxious gases and vaporized oil from thepecans, resulting from the fact that some of the pecans on storage with the defendant were actually burned, and therebysaid gases and vapors were generated and went into the differentrooms and floors of the defendant where nuts were stored, andthat said nuts absorbed said gases and vapors, so that the nutsbecame thereby unfit for human consumption, thereby were greatlylessened in value. I charge you that, if any of the plaintiffs'pecans were so damaged [italics ours], as thus claimed by the plaintiffs, and that damage was the result of any one or more of the acts of negligence charged by the plaintiffs against the defendant and its servants in plaintiffs' pleadings, then you should find in favor of the plaintiffs the amount of such damage, even though some, or all of plaintiffs' pecans, were not actually consumed by fire at all."
Thus it seems to us that the part of the charge here excepted to and enclosed in brackets, and which was discussed in division 1 of the opinion, was dealing with the acts of negligence as they related to the origin of the fire, and that later in the charge the judge, not in juxtaposition with the excerpt complained of, dealt with the negligence as it related to the noxious gases and vapor oil and made it clear that any one of the acts of negligence entitled the plaintiffs to recover. We do not think that the charge, when taken as a whole, led the jury to understand that the judge eliminated from their consideration all of the acts of negligence claimed by the plaintiffs except those that related to the origin of the fire, or that they so understood it. All the grounds considered, the motion for rehearing is denied.
Rehearing denied. Broyles, C. J., concurs. Gardner, J.,dissents. *Page 628