Knight v. Northey

93 S.E. 535, 21 Ga. App. 46, 1917 Ga. App. LEXIS 410

• Court: Court of Appeals of Georgia
• Decided: September 19, 1917
• Docket: 8553
• Status: Published

Opinion

Jenkins,- J.

1. There was evidence to authorize the recovery by the plaintiif of the property sued for in trover, and also to warrant the verdict for its hire. See Woods v. McCall, 67 Ga. 506 (2), 507.

(a) Reviewing courts will not consider an assignment of error upon a verdict, on the ground that it is “grossly excessive,” unless it is made to appear that the verdict was due to prejudice and bias, or gross mistake, on the part of the jury. No such grounds appearing, and the trial judge having approved the finding of the jury in this particular, his discretion will not be controlled: Seaboard Air-Line Railway v. Miller, 5 Ga. App. 402 (1), 405, 406 (63 S. E. 299); McCaulla v. Murphey, 86 Ga. 475, 476 (2, 5), 480 (12 S. E. 655). See also Civil Code, §§ 4483, 4514, 5930.

2. The excerpts from the charge of the court which are assigned as error are mere fragments of sentences, and when read with their context, and in' the light of the entire charge, are not erroneous for any of the reasons assigned, and, under the pleadings and the evidence, even as isolated in the exceptions, contain no reversible error.

3. The assignment of error in ground 5 of the motion for a new trial is without merit, especially since no objection was made or exception taken to the question propounded by the trial judge, nor a ruling invoked thereon.

Decided September 19, 1917.

Trover; from city court of Cartersville — Judge Moon. December 12, 1917.

James R. Whitaker, A. W. Fite, R. R. Arnold, for plaintiff in error. G. G. Pittman, contra.

4. Grounds of a motion for a new trial, which complain that the court did not charge certain propositions of law that he should have given in charge, but which do not show that his attention was especially called to these questions, ordinarily present no issue upon which this court can pass (Higgins v. Cherokee Railroad, 73 Ga. 149 (1)), and, no request so to charge having been made in this ease, the assignment of error upon the omission of the court to charge a principle of law, as set forth in ground 6 of the motion for a new trial, is without merit.

5. The alleged newly discovered evidence, the basis of ground 7 of the motion for a new trial, being wholly cumulative and impeaching in character, affords no ground for a new trial. Civil Code (1910), §§ 6085, 6086.

6. Ground 8 of the motion for a new trial is without merit. The jury returned a verdict “for the' plaintiff,” add further, “$5 per month for eight months,” for hire. Under the pleadings and the evidence this was sufficiently certain to make valid the judgment entered thereon. See, in this connection, Spence v. Holman, 30 Ga. 646.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.