Cook v. Coffey

Cobb, J.

There was no error in ruling that the plaintiff was entitled to the opening and conclusion in the case. If in a case like the present one the defendant could assume the burden and take the opening and conclusion, it is necessary that he should do so before the plaintiff offers any evidence. It appears from the certificate of the trial judge, attached to the motion for a new trial, that the defendant did not offer to assume the affirmative in the case until after the plaintiff had made out a prima facie case. This being true, it was proper to hold that the right to open and conclude was in the plaintiff. See Abel v. Jarratt, 100 Ga. 732.

Complaint is made that the court erred in refusing to admit in evidence extracts from a book purporting to contain the opinion of experts on special diseases of horses. There was no error in this ruling. Johnson v. R. & D. Railroad Co., 95 Ga. 685.

Another ground of the motion for a new trial assigns as error the refusal of the court to allow counsel for defendant to use in his argument to the jury certain sections on certain pages of “U. S. Department of Agriculture,” to show that the 'symptoms in the standard works for the diseases in lung fever conformed to the facts of the present case. It is impossible to ascertain from this assignment what book, paper, or document is referred to; and therefore we can not tell whether or not its contents were proper matter for argument before the jury. This ground, therefore, presents no assignment with which we can deal.

The evidence on the two controlling issues in the case was directly conflicting; the charge excepted to was not erroneous for any reason assigned; and there was no error in refusing to grant a new trial.

Judgment affirmed.

All the Justices concurring.