
    20415.
    City of East Point v. Christian.
    Decided June 10, 1930.
    
      Ezra E. Phillips, W. B. Enighl, for plaintiff in error.
    
      E. W. McLarly, Charles G. Bruce, contra.
   Bboyles, O. J.

1. The excerpt from the charge of the court complained of in the motion for a new trial, when considered in the light of the remainder of the charge and the facts of the case, was not error for any reason assigned. See City of East Point v. Christian, 40 Ga. App. 81 (149 S. E. 50).

2. When on a second trial of a case the judgment rendered for the plaintiff on the former trial was taken to the jury-room, over the objections of the defendant, and remained with the jury until they returned a verdict in favor of the plaintiff, the presumption is that the jurors read it before arriving at their verdict, and that the defendants’ cause was prejudiced thereby. However, where all the jurors testify by affidavit that they did not read the judgment before -arriving at their verdict, the presumption ■ is rebutted and a new trial is not required. Abbott v. State, 24 Ga. App. 367 (3) (100 S. E. 759).

3. Under all the facts of the case this court can not hold that the verdict (for $5,000) was excessive.

4. The verdict was authorized by the evidence.

5. This court not being convinced that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error that damages be assessed against the plaintiff in error is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  