Cope v. Pettit

Jenkins, P. J.

1. The verdict for $150, recovered by the plaintiff in this case for injury to his crops and land alleged to have been occasioned by the breaking of the defendant’s dam, and the washing and overflowing of the land and crops with mud, was amply sustained by the evidence, under the charge as given by the court.

2. “ An exception based upon the refusal of the court to award a nonsuit will not be considered, where, subsequently thereto, the ease is submitted to the jury, and a verdict being rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.” Trapnell v. Bird, 21 Ga. App. 21 (1) (93 S. E. 498), and cit.

3. The reference In the charge to the amount of damages claimed by the plaintiff had manifest reference to the allegation made by the petition, which was stated to be without probative value, and while such reference was inapt, since the evidence for the plaintiff only authorized a recovery in a much lesser sum, still, since the charge as a whole clearly and correctly limited the jury to a finding in the amount of damages proved, such reference could not have been misleading, and will not justify setting the verdict aside.

4. The remaining grounds of the motion for a new trial, relating mainly to exceptions taken to the charge of the court, are all based upon the theory of the movant that the evidence fails to sustain the plaintiff’s contentions, and none of them authorize the court to set the verdict aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.