Stembridge v. Fowler , 64 Ga. App. 426 ( 1941 )

1. It is not error for a court to refuse to direct a verdict. This is true whether the exception is made in a motion for a new trial or by direct exception. Sikes v. Norman, 122 Ga. 387 (50 S.E. 134).

2. The proper time for a motion for nonsuit is at the conclusion of the introduction of the plaintiff's evidence. Battle v. Royster Guano Co., 155 Ga. 322 ( 118 S.E. 343); Massoud v. Lamar. Taylor Riley Drug Co., 18 Ga. App. 398 (89 S.E. 442), and it was therefore not error for the court to overrule such a motion made at the conclusion of the introduction of evidence by the plaintiff and the defendant. The question before the court at the time was not whether the plaintiff had made out a case but whether the verdict would or would not be supported by the evidence, and the only way to raise the question is by motion for new trial. Jones v. Pitts, 98 Ga. 521 (25 S.E. 573); Holsey v. Porter, 105 Ga. 837 ( 31 S.E. 784); Sanders v. State, 84 Ga. 217 (10 S.E. 629), and cit.; Ford v. Wilson, 85 Ga. 109 (11 S.E. 559); Gibson v. Maxwell, 85 Ga. 235 (11 S.E. 615); Hyfield v. Sims, 87 Ga. 280 (13 S.E. 554).

3. The assignment of error on the charge of the court is without merit.

DECIDED MARCH 1, 1941. Mrs. Mamie V. Fowler sued Marion W. Stembridge, alleging that the defendant through his agents and employees damaged petitioner's timberlands as a consequence of setting fire to defendant's sawmill site and a spread of the fire to petitioner's lands. At the conclusion of the evidence for both the plaintiff and the defendant the defendant made a motion for nonsuit which was overruled. He then made a motion for a directed verdict which was overruled. The jury found for the plaintiff. The defendant excepted to the overruling of the motions for nonsuit and for a directed verdict, and to the court's charge to the jury.

1, 2. The first and second headnotes do not require elaboration.

3. The court did not err in charging the jury as follows: "No person not a resident of the county where the firing is done, owning lands therein or domiciled thereon, outside of any incorporated town, shall set on fire any woods, lands, or marshes, nor shall such person do so, except between the first of January and the first of March annually. When such person shall desire to set fire within said time, he shall notify all persons who occupy lands adjoining him, by residence thereon, or cultivation, or inclosure of any portion of the tract or settlement, of the day and hour of the firing, at least one day prior thereto. Such notice need not be given if, on a sudden emergency, due caution should require firing to render one's premises safe. Any person setting fire in violation of this section shall be guilty of a misdemeanor." Code, § 26-3601. See Acree v. State,122 Ga. 144 (50 S.E. 180) for a history of this section. In previous Codes the section began with the words, "No person but a resident," etc. In the Code of 1933 the but was changed to not. There was no intention by such change to alter the meaning of the section, which must be construed to mean that non-residents are prohibited from setting fire as prescribed, and that residents are so prohibited except between January first and March first, and then unless notice is given as provided therein. The evidence showed that the fire was set to woods; and as there is no exception in the statute, it must be held to apply even to a sawmill site which is in the woods. Acree v. State, supra, is not to the contrary. It was not error to give in charge the Code section. No error of law appearing, the judgment is

Affirmed. Stephens, P. J., and Sutton, J.,concur.