Poythress v. Hagan Grocery Co. ( 1924 )

Stephens, J.

1. A charge that the plaintiff could recover interest when it was not sued for was not an expression of an opinion upon the facts, and could not prejudice the jury against the defendant. Such charge was error so far as it authorized a recovery beyond the amount sued for; and where the jury found interest in addition to the amount sued for, the writing off of the interest cured the error in the charge and in the verdict.

Decided February 22, 1924. Ulmer & Bright, for plaintiff in error. Oliver & Oliver, contra.

2. As to the alleged newly discovered evidence, that referred to in ground 14 of the motion for a new trial could have been discovered by the exercise of ordinary diligence prior to the trial, and that referred to in ground 13 was altogether impeaching in its character, and none of it was of such a nature as would likely produce a different result upon another trial.

3. The remaining grounds of the motion for a new trial, which contain exceptions to the charge and to remarks of the trial judge, and to rulings upon the admissibility of evidence, are without merit.

4. The evidence supports the verdict rendered for the plaintiff, and no error of law appears.

Judgment affirmed,.

Jenkins, P. J., and Bell, J., concur.