Evans v. Grier

• Decision Date: 08 February 1923
• Docket Number: 13309.
• Citation: 115 S.E. 921,29 Ga.App. 426
• Parties: EVANS v. GRIER.
• Court: Georgia Court of Appeals

115 S.E. 921

29 Ga.App. 426

EVANS v. GRIER.

No. 13309.

Court of Appeals of Georgia, Second Division

February 8, 1923

Syllabus by the Court.

Any act of dominion by a bailee over the property bailed, not in pursuance of the contract of bailment, but adverse to the title of the bailor, amounts to a conversion by the bailee ( Lucas v. Durrence, 25 Ga.App. 264, 103 S.E. 36), and no demand on the bailee to redeliver to the bailor is necessary (Merchants' & Miners' Transportation Co. v. Moore, 124 Ga. 482, 52 S.E. 802; Rushing v Tharpe, 88 Ga. 779, 15 S.E. 830; Loveless v Fowler, 79 Ga. 134, 4 S.E. 103, 11 Am.St.Rep. 407; Liptrot v. Holmes, 1 Ga. 381).

Where in a suit in trover, there was evidence to the effect that the property sought to be recovered--to wit, an automobile--belonged to the plaintiff and had been left by him with the defendant for the purpose of being repaired, and that the defendant, who denied receiving the property from the plaintiff, but who claimed title to the property from a third person, had sold the property before suit was brought even though the plaintiff had made no demand on the defendant for a return of the property, a verdict for the plaintiff was authorized.

Before the trial judge is authorized to grant a new trial on newly discovered evidence, it must appear that the movant or his counsel could not, by ordinary diligence before the trial, have discovered such evidence offered as newly discovered. Since a motion for a new trial upon the ground of newly discovered evidence, and the showing made in support of such motion, are addressed to the sound discretion of the trial judge (Burnett v. Neves, 82 Ga. 241, 9 S.E. 128; Featherston v. Rounsaville, 73 Ga. 617; Exchange Bank v. Cone, 18 Ga.App. 432, 89 S.E. 489; Civ. Code 1910, §§ 6085, 6086), a bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered "could not have been discovered by the exercise of ordinary care" is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence (Taylor v. State, 132 Ga. 235, 237, 63 S.E. 1116; Patterson v. Collier, 77 Ga. 292, 3 S.E. 119).

Where one of the witnesses, from whom it is alleged new evidence has been discovered to the effect that the plaintiff had admitted to the witness that the property was not the property of the plaintiff, had testified on the trial to the effect that the plaintiff had stated to witness that the plaintiff did own the property in question, the judge below was authorized to conclude that the evidence offered could have been discovered by ordinary diligence on the part of movant or his counsel. McNair v. Newsome, 16 Ga.App 392, 85 S.E. 616; ...