
    5441.
    Bank of Oglethorpe v. Hicks.
    Decided September 1, 1914.
    Trover; from city court of Oglethorpe—Judge Greer. December 2, 1913.
    J. J. Bull & Son, for plaintiff in error.
   Russell, C. J.

1. Except as ruled hereinafter, the special grounds of the amendment to the motion for a new trial require no discussion, and none of the assignments of error require the grant of a new trial.

2. Where there is a money verdict for the plaintiff in trover, a judgment granting a new trial only in case the prevailing party refuses to reduce the verdict in his favor, so that it shall conform to the evidence, is not necessarily such error as to demand a reversal, although a recovery in trover is, in a technical sense, an award of damages. In the instant case some of the articles enumerated in the petition were not shown to have been in the possession of the defendant, and for that reason a finding in favor of the plaintiff for the value of these chattels was unauthorized. The defendant, however, can not complain that his liability was reduced by the voluntary act of the plaintiff, since the evidence fully supported a finding in favor of the plaintiff for the value of the remainder of the articles involved in the action, and since it is axiomatic that the error which requires the grant of a new trial is an error accompanied or followed by injury to the complaining party.

Judgment affirmed.

Roam, J., absent.  