
    19134.
    POPE v. CALLAWAY.
   Bloodworth, J.

1. As amended the petition was not subject to the demurrer.

2. The court did not err in ruling out the evidence the rejection of which is complained of in special grounds 1, 2, and 3 of the motion for a new trial.

3. There is no error harmful to the plaintiff in error in that portion of the charge of which complaint is made in ground 4 of the motion.

4. Ground 5 of the motion, which complains of the refusal of the judge to give requested instructions which were in writing, "is not in proper form for consideration, for the reason that it fails to allege that the requested charge was pertinent and applicable to the facts of the case.” Cook v. State, 36 Ga. App. 582 (4) (137 S. E. 640).

Decided November 14, 1928.

Adhered to on rehearing January 16, 1929.

W. A. Slaton, for plaintiff in error. C. E. Sutton, contra.

5. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.

Luke, J.

I dissent from the ruling in paragraph 2 of the decision, because I am of the opinion that the court erred in its ruling upon the admissibility of the testimony pointed out in grounds 1, 2, and 3 of the amendment to the motion for a new trial. I dissent also from the ruling announced in paragraph 3, because I think that the excerpt from the charge of the court, complained of in ground 4, was erroneous for the reason assigned.  