Opinion
33523.
DECIDED APRIL 25, 1951.
Bail trover; from Troup Superior Court — Judge Boykin. January 29, 1951.
J. T. Thomasson, for plaintiff in error.
Wyatt, Morgan Sumner, contra.
In this trover action the plaintiff in error undertook by brief to raise the point under the general grounds of the motion for a new trial that the verdict which was in the amount shown by the evidence to be the value of the property at the time of the conversion plus interest at 7% per annum from that date to the date of the verdict cannot stand because it shows interest eo nomine. However, the point that the verdict should have specified the damages in solido instead of finding a designated sum with interest thereon cannot be raised under the general grounds of a motion for a new trial.
DECIDED APRIL 25, 1951.
Charles Smith filed a bail-trover proceeding against F. F. Clayton in the Superior Court of Troup County for a 1948 Chevrolet automobile of the value of $1485. The undisputed evidence showed that the plaintiff owned the automobile in question and sold it to the defendant on June 13, 1949, at an auction sale; that the defendant was high bidder in the amount of $1485; that this was the market price of the car at that time; that he gave the plaintiff a check for that amount and took the car and thereafter disposed of it; that the check was returned and the defendant had never paid the plaintiff any amount. A verdict for the plaintiff was directed by the trial court, as follows: "We, the jury, find for the plaintiff in the amount of $1485 with interest at 7% per annum since June 13, 1949, against the defendant and the sureties on his bond." The judge then entered up judgment against the defendant and his sureties in the amount of $1636.58 and costs on the 28th day of November, 1950.
A motion for a new trial on the general grounds was filed and overruled, and the defendant brings error.
The sole contention of the plaintiff in error is that the verdict is illegal because it finds against the defendant for principal and interest in separate amounts. If this contention were sustained the effect would be, not to reverse the case unconditionally for a new trial, but to condition an affirmance upon the writing off of the amount found as interest. See Stephens v. Wilson, 58 Ga. App. 24 ( 197 S.E. 350); Adams v. Webb, 72 Ga. App. 66 ( 32 S.E.2d 922); Ayash v. Georgia Show Case Co., 24 Ga. App. 661 ( 101 S.E. 815); Drury v. Holmes, 145 Ga. 558 ( 89 S.E. 487). These cases also hold that while interest is allowable as an element of damage when the plaintiff elects a money verdict based on the value of the personality as of the date of conversion, nevertheless, interest is not to be awarded eo nomine (the trover action being ex delicto) but may be computed by the jury at the legal rate and considered in arriving at the total damages assessed. These cases, and others cited therein, hold that where the jury returns a verdict containing one sum as damages and another as interest eo nomine the interest should be written off. This is only true, however, where there is a special assignment of error attacking the form of the verdict, as it is a defect which goes to form only. In the instant case, had the verdict been for $1636.58 as stated in the judgment instead of for its equivalent, "$1485.00 with interest at 7% per annum since June 13, 1949" it would have been a good verdict, for the reason that the only evidence as to value introduced was the value of the automobile on the date of conversion. See O'Neill Mfg. Co. v. Woodley, 118 Ga. 114 (1) ( 44 S.E. 980).
A special assignment of error on the form of a verdict which enters up principal and interest separately is necessary for this court to consider whether or not the form of such verdict is proper, and any decision of the appellate courts based on this point, in which the record shows that no such assignment of error was in fact made, is obiter. See Beaver v. Magid, 56 Ga. App. 272, 282, 283 ( 192 S.E. 497). The general rule is as follows: "The point that the verdict should have specified the damages in solido, instead of finding a designated sum with interest thereon, cannot be raised under the general ground that the verdict is contrary to law and contrary to the evidence." AEtna Insurance Co. v. Peavy, 9 Ga. App. 759 ( 72 S.E. 300); Scott v. Davis, 22 Ga. App. 32 (2) ( 95 S.E. 332).
The evidence showing the value of the automobile to be that fixed by the verdict on the date of conversion, it cannot be said that it fails to support the verdict, which is the only question that can be raised by the general grounds of the motion for a new trial in this court. Since the general grounds are not sufficient except in regard to this contention, and they are not sufficient to invoke a ruling upon it, the judgment of the trial court overruling the motion for a new trial must be
Affirmed. MacIntyre, P. J., and Gardner, J., concur.