Louisville & Nashville Railroad v. Mitchell

Court of Appeals of Georgia

Louisville & Nashville Railroad v. Mitchell

130 S.E. 534, 34 Ga. App. 573, 1925 Ga. App. LEXIS 420

CourtCourt of Appeals of Georgia

DecidedNovember 18, 1925

Docket16503

StatusPublished

Cited by1 cases

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Bluebook

Louisville & Nashville Railroad v. Mitchell, 130 S.E. 534, 34 Ga. App. 573, 1925 Ga. App. LEXIS 420 (Ga. Ct. App. 1925).

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Opinion

Bell, J.

1. As to all questions save one, this case is controlled by the decision this day rendered in the companion ease of Louisville & Nashville R. Co. v. Studdard, ante, 570 (130 S. E. 532) ; and the error pointed out in the tenth division of the syllabus in that case will likewise result in a new trial in this case.

2. In the present case the plaintiff was not the owner of the building alleged to have been destroyed by the fire, but claimed to have been the owner of certain corn and fodder situated therein, for the alleged destruction of which he sought to hold the defendant liable. The jury could have found, from the testimony of one of. the witnesses, that there was no corn or fodder in the building at the time of the fire. The court instructed the jury that the plaintiff’s measure of damages, should they “find for the plaintiff, would be the value of the property, the corn and fodder, etc., that was in the barn and adjacent to it when it was destroyed.” The defendant excepted to this excerpt, “because it was not an undisputed fact that the barn contained corn and fodder,” and because the charge assumed the truth of the issue in favor of the plaintiff. This charge might possibly have been understood as stating a variable rule to be followed by the jury in accordance with whether they found that the barn contained the quantity of these products alleged, or a lesser quantity, or none at all. In this view there would have been no error. It can not be said, however, that the excerpt was well expressed; and, as a precaution, the issue should be left more distinctly for the jury upon another trial. Since a new trial must result because of the error referred to in the preceding paragraph, [574]*574it is unnecessary to determine whether there was prejudicial error in the excerpt here complained of.

Decided November 18, 1925. B. L. & H. G. Cox, Miles W. Lewis, for plaintiffs in error. J. G. Knox, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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Bell, J.

1. As to all questions save one, this case is controlled by the decision this day rendered in the companion ease of Louisville & Nashville R. Co. v. Studdard, ante, 570 (130 S. E. 532) ; and the error pointed out in the tenth division of the syllabus in that case will likewise result in a new trial in this case.

2. In the present case the plaintiff was not the owner of the building alleged to have been destroyed by the fire, but claimed to have been the owner of certain corn and fodder situated therein, for the alleged destruction of which he sought to hold the defendant liable. The jury could have found, from the testimony of one of. the witnesses, that there was no corn or fodder in the building at the time of the fire. The court instructed the jury that the plaintiff’s measure of damages, should they “find for the plaintiff, would be the value of the property, the corn and fodder, etc., that was in the barn and adjacent to it when it was destroyed.” The defendant excepted to this excerpt, “because it was not an undisputed fact that the barn contained corn and fodder,” and because the charge assumed the truth of the issue in favor of the plaintiff. This charge might possibly have been understood as stating a variable rule to be followed by the jury in accordance with whether they found that the barn contained the quantity of these products alleged, or a lesser quantity, or none at all. In this view there would have been no error. It can not be said, however, that the excerpt was well expressed; and, as a precaution, the issue should be left more distinctly for the jury upon another trial. Since a new trial must result because of the error referred to in the preceding paragraph, [574]*574it is unnecessary to determine whether there was prejudicial error in the excerpt here complained of.

Decided November 18, 1925. B. L. & H. G. Cox, Miles W. Lewis, for plaintiffs in error. J. G. Knox, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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130 S.E. 534, 34 Ga. App. 573, 1925 Ga. App. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisville-nashville-railroad-v-mitchell-gactapp-1925.

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