Let me say first that I concur in the judgment of reversal because of the refusal of the requests to charge, but do not concur in all the reasoning on this subject in the fourth division of the foregoing opinion. Further comment as to this is deferred for the moment.
1. I agree that it was error to overrule the demurrer to the cross-action, but do so with the reservation that such an error would ordinarily be harmless, where, as in this case, the jury on submission of the cross-action found against the complainant therein. But since the judgment must be reversed for other reasons, I consider the ruling proper. See Hudgins ContractingCo. v. Redmond, 178 Ga. 317 (4) (173 S.E. 135); Ellis v.First National Bank of Atlanta, 182 Ga. 641 (4) (186 S.E. 813); Harris v. Neuman, 183 Ga. 398 (3) (188 S.E. 689).
2. For similar reason, I would consider as harmless the error in the charge relative to the cross-action, although, as I understand, there is being made in this case no express ruling contrary to this view. See McBride v. Georgia Railway Electric Co., 125 Ga. 515 (54 S.E. 674); Byrd v. Grace,43 Ga. App. 255 (5) (158 S.E. 467). It can only be assumed that the jury was possessed of intelligence and uprightness, and would understand and apply the instructions given to them.
3. I concur unqualifiedly in the ruling in the third division.
4. Now, with reference to the question discussed in the fourth division: I can not agree that the previous decisions of this court are in conflict on the question as to refusal of requests to charge, as indicated in that division. It therefore seems to me that we have in this case no occasion for applying the rule that if there are conflicts in the decisions, the older, if unanimous, will govern. The opinion not only states the rule, but, after reviewing numerous *Page 236 decisions, declares: "We now follow, however, the older and therefore binding authorities on the subject." This latter statement is in my opinion unnecessary, and can only serve to create confusion, where none exists. So, although I am agreeing that in this case it was error to refuse the requests, I am not doing so upon any theory that we are following "the older" decisions to the exclusion of later ones that are supposed to be in conflict.
It is declared in the Code, § 102-102 (6): "A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment." This statement was embodied in the Code of 1863 as section 5; and while that Code was not adopted until after passage of the act of 1854, the principle so stated, I take it, was in existence previously and had been from time immemorial. Compare Brown v. Brown, 184 Ga. 827, 830 (193 S.E. 754);Guffin v. Kelly, 191 Ga. 880 (4), 891 (14 S.E.2d 50). Likewise, in the field of contracts, a substantial compliance is all that may be required of either of the parties. Code, § 20-1101; Henderson Warehouse Co. v. Brand, 105 Ga. 217 (2) (31 S.E. 551); Bandy v. Frierson, 138 Ga. 515 (6) (75 S.E. 626). As I understand the decisions, they have followed this principle in dealing with the act of 1854; that is to say, the refusal to give a pertinent legal charge in the language requested has generally been held erroneous, unless there was "a substantial compliance;" but in case of such compliance, it has been "deemed and held sufficient."
It is true there may be obiter here and there, and also ambiguous or unhappy expressions; but when the obiter is disregarded and the other pronouncements are construed in the light of their particular facts, the decisions are in principle harmonious. It is further true that there may have been occasional misapplications of the recognized rule of law, in specific cases; but, as pointed out in the foregoing opinion, instances of this type should not be considered as precedents, except in later cases involving identical facts; and I am not aware of any such situation, as applicable to the present inquiry.
In dealing with the point under consideration, we may lay aside as irrelevant all of those decisions in which it has been held that *Page 237 requests to charge were properly refused because they were not presented in time, or were inherently objectionable for some reason. Taking it as a premise, then, that a correct and pertinent legal charge was duly requested in writing, we have in the main two lines of cases, but not a confusion of cases as suggested. First, cases in which it was held that the requested instruction should have been given and that its refusal was error requiring a new trial, the general charge containing no instruction in the same or substantially the same language. Second, cases in which it was ruled that the request was substantially covered in the general charge; and this being so, that its refusal was not erroneous. For cases of the formerclass see Terry v. State, 17 Ga. 204; Lamb v. Girtman,26 Ga. 625; Slade v. Paschal, 67 Ga. 541, 544 (2) OceanSteamship Co. v. McAlpin, 69 Ga. 437 (4); Mitchell v.State, 71 Ga. 128 (7); Thompson v. Thompson, 77 Ga. 692 (2) (supra); Metropolitan Street Railroad Co. v. Johnson,90 Ga. 500 (5) (supra); East Tennessee, Virginia GeorgiaRailway Co. v. Smith, 91 Ga. 176 (supra); Snowden v.Waterman, 105 Ga. 384 (5) (supra); Roberts v. State,114 Ga. 450 (supra); Crawford v. State, 117 Ga. 247 (4) (43 S.E. 762); Central of Georgia Railway Co. v. Goodman,119 Ga. 234 (2) (supra); Brooks v. State, 128 Ga. 261 (57 S.E. 483, 12 L.R.A. (N.S.) 889); Wooten v. Morris, 175 Ga. 290 (4), 293 (165 S.E. 626); Rowe v. Cole, 176 Ga. 592 (168 S.E. 882); McCrea v. Georgia Power Co., 179 Ga. 1 (5), 14 (174 S.E. 798); Cooper v. State, 180 Ga. 612 (2) (180 S.E. 103). For examples of the latter class see Western Atlantic Railroad Co. v. Clements, 60 Ga. 319 (3); Murphy v. Peabody, 63 Ga. 522 (4); Augusta Summerville RailroadCo. v. Dorsey, 68 Ga. 228 (16); Carter v. Dixon,69 Ga. 82 (5); Papot v. Southwestern Railroad, 74 Ga. 296 (9); Battle v. State, 105 Ga. 703 (32 S.E. 160); SouthernCotton-Oil Co. v. Skipper, 125 Ga. 368 (3) (54 S.E. 110);Southern Railway Co. v. Reynolds, 126 Ga. 657 (3) (55 S.E. 1039); Slaughter v. Heath, 127 Ga. 747 (2) (57 S.E. 69, 27 L.R.A. (N.S.) 1); Millen Southwestern Railroad Co. v.Allen, 130 Ga. 656 (4) (61 S.E. 541); Armstrong v.State, 181 Ga. 538 (5) (183 S.E. 67); Douberly v. State,184 Ga. 577, 580 (6) (192 S.E. 226); Johnson v. Sherrer,185 Ga. 341 (195 S.E. 149); Griffin v. Barrett, 185 Ga. 443 (4), 446 (195 S.E. 746); McCoy v. State, 191 Ga. 516 (3) (13 S.E.2d 183). *Page 238 Of the first class let us take for instance Thompson v.Thompson, 77 Ga. 692 (supra), where it was said: "Where several distinct matters involving diligence are presented to the jury, while it is proper to charge a general principle applicable to them all, yet if a specific charge, which is legal, apt, and precisely adjusted to one of them, be requested, it is proper to give the latter also, if it would materially aid the jury in applying the general principle to this one of the several matters for their consideration. . . Now, the law is not only to be submitted to the jury, but it is to be applied by them; and where its application is materially aided by a specific requests, there seems as much reason to give that request as to give the principle; and looking to the evidence in this case, we have no doubt that the request was a proper one. It was bringing the general principle down to this specific instance; and the jury would have been helped materially by having the very words of this request delivered to them as a part of the charge of the court."
Another leading example of the first class is MetropolitanStreet Railroad Co. v. Johnson, supra, in which it was ruled: "A specific charge which is legal and adjusted to a distinct matter in issue, involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court." Of the second class, see, for illustration. Augusta Summerville Railroad Co. v. Dorsey, 68 Ga. 228 (16), supra, in which it was said: "A close and critical examination of the charge as set out in full in the record, satisfies us that the judge understood thoroughly the law of the case, and gave it in a clear, concise, and satisfactory manner to the jury. So that when this is done, we can not see how a failure to repeat what may be good law, but has been substantially charged, should be any good ground of error." Another example of the same type is Slaughter v. Heath, supra, in which it was held: "If on the trial of an issue formed by a caveat to the propounding of a will the judge fully and fairly charges the law on the subject of testamentary capacity, it is not necessary that he should, on request to charge, repeat and reiterate in different forms or modes of expression what has already been sufficiently given."
Numerous other examples on each side might be quoted; but *Page 239 these four decisions are typical, and will illustrate what may be concluded from them all, namely, that the two lines of decision are not in conflict, but hold consistently that where a request is refused and the general charge does not contain an instruction substantially in the language requested, a new trial should be granted; otherwise not. In other words, the gist of all the decisions, though expressed in various terms, seems to be that "The court is not bound to charge in the exact language of a request; and a new trial will not be granted because of a refusal to charge as requested, when the charge given substantially covers the request." Southern Railway Co. v. Reynolds, supra.
The statute on the subject provides in effect that a new trial should be granted where the judge refuses "to give a pertinent legal charge in the language requested." It says nothing about applying the law to a specific issue, and the decisions as to such application to a distinct or specific issue are based only upon the requirement that a requested charge should be given " in the language requested," or substantially so. Stated differently, if the request is specific, so must the charge be specific; if the request itself merely embodies an abstract principle, so may the charge be abstract. Such, I think, is the meaning of the decision in Thompson v. Thompson, 77 Ga. 692 (2), supra, where, as indicated in the opinion, it was the wording of the request itself that brought "the general principle down" to the "specific instance," and the same is true of the decision inMetropolitan Street Railroad Co. v. Johnson, supra, and others of like import.
The act of 1854 should be construed in connection with other well-established principles which were in existence at the time, among them: a new trial will not be granted for insubstantial error, nor for any error where it affirmatively appears from the record that the error was harmless: and the law at all times looks to substance rather than form.
While the statute was addressed both to the trial courts and to the Supreme Court, it can only be assumed that it was intended to be in furtherance of justice, and did not have for its purpose the injustice, or, as I might say the foolishness, of granting new trials for insubstantial or harmless error. Not only does this appear to be its proper construction, but, in the opinion of the writer, it has been consistently so construed in the various decisions *Page 240 concerning it, even so in the early cases of Terry v. State,17 Ga. 204 (2), and Lamb v. Girtman, 26 Ga. 625, supra, when they are studied in the light of the facts on which they were predicated.
What must have been intended by the phrase "in the language requested"? In the law, we are simply trying to get at the substance of things regardless of form. Language is only themeans of expressing thought or feeling, and is thus a mere form or vehicle. This statute therefore must have been concerned with the thought or principle to be expressed, and not with the meremode of expression. So it was evidently not its purpose to require a charge even in words of similar form or structure, where in the general charge the principle invoked is just as plainly and understandably expressed, and as concretely related, as in the request presented; the mere matter of words not being controlling. Thus it is my view that all of the decisions on the question here presented may be reconciled in principle, and that, too, without straining. See, in this connection, 14 R. C. L. 751, § 22.
In view of what has been stated, was it error to refuse the request on the subject of estoppel? I think so. It sought application of the principle of estoppel to a specific issue "in this case," as between "the defendant corporation" and "the plaintiff or his agents," and thus the request itself brought "the general principle down to this specific instance." The general charge on estoppel, however, was in general or abstract terms, and did not relate the principle to the specific issue involved. The charge also failed to submit, in concrete terms or otherwise, the theory that the defendant may have acted "upon its own judgment and information as to the land line of its property." Accordingly, the general charge was not even substantially "in the language requested," and the refusal to give the requested instruction constituted error requiring a new trial. The case thus falls within the first class to which reference has been made, but a reversal of the judgment is still entirely consistent with the decisions of the second class.
5. I agree also that it was erroneous to refuse the request to charge quoted in the fifth division of the foregoing opinion. It seems that this request was made for the purpose of correcting some erroneous impression that might have been made upon the jury by improper argument of opposing counsel. While counsel *Page 241 for the defendant might have avoided such impression by objecting at the time, the improper argument was not waived by failure to act immediately. In such case there may be a waiver by silence or inaction throughout the trial; but there are several things that may be done during the trial, one of which is to request instruction. For instance, in Brooks v. State, 183 Ga. 466 (188 S.E. 711, 108 A.L.R. 752), it was said: "When an improper argument is made, the adversary must act, if redress is desired; if not, the incident is closed. The adversary may (1) waive by silence; (2) he may request a rebuke by the court; (3) he may request instructions to the jury either at that moment or as a part of the general instruction; or (4) he may move for a mistrial. Possibly other motions may be made or rulings invoked."
6. I agree fully to what is stated in the sixth division.
For reasons given in divisions 4 and 5 of the instant opinion, I concur in the judgment of reversal. I am authorized to say that Mr. Justice Jenkins concurs in this opinion.