Swope v. McKenney , 36 Ga. App. 168 ( 1926 )

Per Curiam.

1. The exception to the judgment denying the motion for a nonsuit will not be considered, since thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant’s motion for a new trial included the ground that the verdict was contrary to the evidence and without evidence to support it.

2. The rulings upon the admissibility of evidence, complained of in grounds 4 and 5 of the motion for a new trial, were not error.

3. The excerpts from the charge of the court, as set forth in grounds 6, 7, 8, and 9 of tbe motion for a new trial, when considered in the light of the entire charge' and the facts of the case, are not erroneous for any reason assigned. The charge was exceedingly full, and ably and fairly presented the issues in the case, the contentions of both parties, and the law applicable thereto.

4. The motion for a new trial complains of the following charge: “If you believe, under the rules of law, that the plaintiff is entitled to recover, the form of your verdict would be 'We, the jury, find for the plaintiff’ so many dollars, 'together with costs,’ in one lump sum, together with costs of suit. However, if you do not believe the plaintiff' is entitled to recover, then it would be your duty to find for the defendant, in which event the form of your verdict would be, 'We, the jury, find for the defendant.’” The instruction that the jury should find for the plaintiff the' costs of the suit if they found a verdict in her favor was error, as in an ordinary civil suit it is the duty of the court, and not of the jury, to assess the costs. Southern Express Co. v. Maddox, 3 Ga. App. 223 (2) (59 S. E. 821). This error, however, does not require another hearing of the case.

5. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error. .

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Blood-worth, J., absent on account of illness.