Branch v. Bishop

.Atkinson, J. 1. The grounds of the motion for new trial, based on rulings of the court as to the admissibility of evidence, so far as they were approved by the judge, and the ground's relative to the charge to the jury, so far as approved by the judge, do not disclose any such errólas to require the grant of a new trial. [111] September 21, 1910. Action for damages. Before Judge Brand. Oconee superior court. July 19, 1909. B. E. Thrasher, F. O. Foster, Brown <£ Randolph, and R. S. Parker, for plaintiff in error. Gobb & Erwin, George G. Thomas, and W. M. Smith, contra. 2. The action was for damages for malicious prosecution. In Iris answer the defendant did not specially plead that although there might not have been probable cause for causing the arrest, yet upon information he believed there was such cause and acted in good faith and not in a spirit of malice, and rely on allegations of that character either as a defense to the action or as mitigation of damages. But there was evidence tending to establish the facts above enumerated; and it was complained in one of the grounds of the motion for new trial that the court, although not requested in writing, omitted to charge such theory of defense. It appears from other portions of the charge that the judge instructed the jury in effect that there could be no recovery unless the defendant in causing the warrant to issue was “moved by malice.” The matters alleged to have been erroneously omitted from the charge were merely elaborative of the instructions actually given to the jury, in so far as they bore on the non-liability of the defendant, and were collateral in so far as they related to mitigation of damages. In either ease, in the absence of appropriate and timely written requests, the omission to charge was not sufficient cause for the grant of a new trial. Savannah Electric Co. v. Jackson, 132 Ga. 559 (64 S. E. 680) ; Savannah El. Co. v. Bennett, 130 Ga. 597 (61 S. E. 529) ; and cases cited; Savannah El. Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056), and eases cited. 3. The verdict was supported by the evidence, and there was no error in refusing to grant a new trial. Judgment affirmed. All the Jxistices concur.