Daniels v. Arlington Wholesale Co. , 1926 Ga. App. LEXIS 609 ( 1926 )

Bloodworth, J.

1. The first of the two special grounds of the motion for a new trial alleges that “the court erred in not giving in charge to the jury, even without any request to do so, the rule of law in reference to the preponderance of evidence; and because nowhere in the entire charge did the court inform the jury that the burden was upon the plaintiff to make out his case by a preponderance of the evidence.” There is no merit in this ground. The 4th headnote in Western Union Telegraph Co. v. Travis, 144 Ga. 110 (86 S. E. 221), is as follows: “In the absence of a timely written request, the failure of the court to charge upon the subject of the burden of proof and the preponderance of evidence is not ground for the grant of a new trial. Small v. Williams, 87 Ga. 681 (13 S. E. 589).” In Brooks v. Griffin, 10 Ga. App. 497 (5) (73 S. E. 752), this court held: “The court is not required to charge the jury upon the preponderance of testimony unless requested so to do.” Moreover, the judge did charge the jury that “if you believe by the greater weight of evidence that this note,” etc.

2. While in the excerpt from the charge of which complaint is made in the other special ground of the motion there is a slight inaccuracy as to what “the defendant sets up in his plea,” this is not such an error, in view of the facts, as likely misled the jury.

3. The jury passed upon the disputed questions of fact, determined the issue in favor of the plaintiff, and, in the absence of any material error of law committed on the trial, this court can not interfere with the verdict supported by evidence and approved by the judge who tried the case.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.