Payne v. Cheshire

Bloodworth, J. (After stating the foregoing facts.) 1. In the condition in which we find the record in this case we cannot say that there is any merit in the exception that' the court erred in excluding from the jury “the testimony of Mr. Walker and Mr. Woodall in so far as anything they may have [326] said tended to bear on the question of unusual congestion of freight,” the objection urged thereto being that “the defendant has failed to couple it up, or to show that it was accidental, or that they had no opportunity to foresee it, or that they gave notice.” 2. In the bill of exceptions error is assigned on “ the judgment of the court directing a verdict,” because “the same is contrary to law and the evidence.” In support of their contention, counsel for the plaintiff in error insist in their brief that “no proof [was] made as to the market value of the cake at the time and place when it should have been delivered.” In the trial of the case the plaintiff confined his claim and his proof of damages to the invoice value of the goods plus the freight which he had prepaid, and it does not appear from the record that the defendant made in any way in the trial court the point that the plaintiff had chosen an incorrect measure for his damages This point was raised for the first time by counsel for the plaintiff in error in their brief filed in this court. The writ of certiorari lies for the correction of errors committed by the trial court. Accordingly, this court will not consider any question not passed upon by the trial court but raised for the first time in the briefs of counsel for plaintiff in error filed in this court. Masters v. Southern Express Co., 23 Ga. App. 642 (99 S. E. 144); Davis v. Town of Gibson, 24 Ga. App. 814 (102 S. E. 466), and citations; Fox v. State, 150 Ga. 673 (104 S. E. 631). Judgment affirmed. Broyles, G. J., and Lulce, J., concur.