Southern Railway Co. v. Easley Cotton Mills

129 S.E. 19, 34 Ga. App. 192, 1925 Ga. App. LEXIS 142

Opinion

Beoyles, O. J.

1. The former ruling of this court in this case (32 Ga. App. 768, 125 S. E. 480), that the evidence and the law did not demand a finding in favor of the railway company, became the law of the case. Therefore, upon a consideration of the trial now under review, the evidence being the same as upon the first trial, it must be held that a verdict for "the cotton mills was authorized, under the law and the evidence.

2. The overruling of a general demurrer to the defendant’s answer, upon the first trial of the ease (the ruling not having been excepted to by the plaintiff), while conclusive upon the points of law necessarily involved, was not an adjudication that the defendant was absolutely entitled to a verdict in its favor provided it proved its defense as laid. See, in this connection, McDuffie v. Ocean Steamship Co., 5 Ga. App. 125, 129 (62 S. E. 1008).

Decided July 14, 1925. McDaniel & Neely, Kendrick L. Scott, Rembert Marshall, for plaintiff in error. Horace Russell, Watkins & Asbill, contra.

3. The plaintiff was not entitled as a matter of right to recover interest on the amount of damages assessed by the jury against the defendant, and the judge erred in instructing the jury to the contrary.

4. The other grounds of the amendment to the motion for a new trial show no harmful error, and the verdict, except as to the item of interest, was authorized by the evidence. It is, therefore, directed that the plaintiff, when the remittitur from this court is made the judgment of the trial court, write off from its judgment the sum of $41.43 (the amount evidently returned by the jury as interest). It is also adjudged that the costs of prosecuting this writ of error be taxed against the defendant in error.

Judgment affirmed, mth direction.

Luke and Bloojioorth, JJ., concur.