
    16503.
    Louisville & Nashville Railroad Company et al. v. Mitchell.
   Bell, J.

1. As to all questions save one, this case is controlled by the decision this day rendered in the companion ease of Louisville & Nashville R. Co. v. Studdard, ante, 570 (130 S. E. 532) ; and the error pointed out in the tenth division of the syllabus in that case will likewise result in a new trial in this case.

2. In the present case the plaintiff was not the owner of the building alleged to have been destroyed by the fire, but claimed to have been the owner of certain corn and fodder situated therein, for the alleged destruction of which he sought to hold the defendant liable. The jury could have found, from the testimony of one of. the witnesses, that there was no corn or fodder in the building at the time of the fire. The court instructed the jury that the plaintiff’s measure of damages, should they “find for the plaintiff, would be the value of the property, the corn and fodder, etc., that was in the barn and adjacent to it when it was destroyed.” The defendant excepted to this excerpt, “because it was not an undisputed fact that the barn contained corn and fodder,” and because the charge assumed the truth of the issue in favor of the plaintiff. This charge might possibly have been understood as stating a variable rule to be followed by the jury in accordance with whether they found that the barn contained the quantity of these products alleged, or a lesser quantity, or none at all. In this view there would have been no error. It can not be said, however, that the excerpt was well expressed; and, as a precaution, the issue should be left more distinctly for the jury upon another trial. Since a new trial must result because of the error referred to in the preceding paragraph, it is unnecessary to determine whether there was prejudicial error in the excerpt here complained of.

Decided November 18, 1925.

Action for damages; from Walton superior court—Judge Fort-son. April 20, 1925.

B. L. & H. G. Cox, Miles W. Lewis, for plaintiffs in error.

J. G. Knox, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.  