Brand v. City of Lawrenceville

• Decision Date: 08 February 1941
• Docket Number: 28796.
• Citation: Brand v. City of Lawrenceville, 64 Ga.App. 357, 13 S.E.2d 214 (Ga. App. 1941)
• Parties: BRAND v. CITY OF LAWRENCEVILLE.
• Court: Georgia Court of Appeals

13 S.E.2d 214

64 Ga.App. 357

BRAND v. CITY OF LAWRENCEVILLE.

No. 28796.

Court of Appeals of Georgia, Division No. 2.

February 8, 1941

William A. Thomas, of Atlanta, for plaintiff in error.

John C. Houston and Hope D. Stark, both of Lawrenceville, for defendant in error.

FELTON Judge.

G. M Brand sued the City of Lawrenceville for injuries alleged to have been sustained by him on October 23, 1937, when he stepped into an open drain or hole in a street of Lawrenceville. The case was tried in the superior court of Gwinnett county, and a verdict and judgment for the defendant was rendered March 6, 1940. The plaintiff filed his motion for new trial and an amendment thereto, and upon hearing on the amended motion, the new trial was denied. The exception is to that ruling.

1. There is no merit in the general grounds of the motion. The evidence authorized the verdict, and having the approval of the trial judge will not be disturbed.

2. The only ground of the amended motion is that the plaintiff in error, since the trial of the case, has discovered certain material evidence, the probable effect of which on another trial would be to produce a different result and one favorable to the movant. In his affidavit attached to the amended motion as an exhibit the plaintiff in error swore substantially that on the night he was injured he knew that the truck (on which he was going to ride to Atlanta) was a big truck; that he did not know that it was a White Provision truck, and that as soon as he became able after his accident he diligently tried to find out the name of the truck or the company which owned it, hoping to be able to find the driver of the truck; that be became convinced that the truck was a White Provision truck, and went to that company and described the driver to the superintendent; that he was told that there was no such man there at that time that as time passed he made every effort to contact the driver of the truck but was unable to do so; that after the trial of the case he went back to the White Provision Company and was informed that J. L. Loner probably was driving the truck on the night in question; that even after this he went to the house of Loner five times before he found him; that he exercised every diligence in trying to locate the driver. Also attached to the amended motion is an affidavit of J. L Loner to the effect that on the night of the accident he was employed by the White Provision Company and had been so employed for twelve years; that at the time he lived at 1048 Tumlin Street in Atlanta, and was living there at the present time; that the persons whose names were included in the affidavit were acquainted with him resided in his community and knew of his character and credibility. The affidavits of the people who knew the witness stated that they had known him for periods of six years, six years, ten years, and twelve years, respectively. The affidavit of counsel for plaintiff in error states that he was employed on November 23, 1937, and from the time of his employment he made every effort to locate the driver of the truck; that after he learned that the truck was probably a White Provision Company truck he "contacted" the superintendent of that company and was unable to locate the man who was driving on the night of the accident; that he urged his client up to and including the time of the trial to try to find this man; that from time to time his client notified him that he was unable to locate the driver. During the course of the trial of the case, while the...