Forte v. Lewis, 33287
| Decision Date | 28 February 1978 |
| Docket Number | No. 33287,33287 |
| Citation | 243 S.E.2d 38,241 Ga. 109 |
| Parties | Walton F. FORTE v. Thad A. LEWIS et al. |
| Court | Georgia Supreme Court |
Bennett, Wisenbaker & Bennett, Reginald C. Wisenbaker, Valdosta, for appellant.
Perry & Franklin, W. S. Perry, Nashville, for appellees.
This is a land line case involving the location of the original land lot line dividing the parties' property. Plaintiff Forte contended at the jury trial that the line ran along certain fences and down the middle line of a public road, closed officially by the county in 1974. Lewis, who presented testimony by a surveyor placing the line inside Forte's fence, argued that the entire road belonged to him. The jury found in favor of Lewis. Forte appeals. We affirm.
1. In view of this conflicting testimony, the trial court did not err, as Forte urges, in refusing to grant his motion for directed verdict, motion notwithstanding the verdict and motion for new trial as to the location of the land line. We do not find that Lewis stipulated that the middle of the road was the original land lot line dividing the parties' property. Enumerations of error 1, 2 and 3 thus have no merit.
2. In his fourth enumeration of error, Forte contends that trial court erred in sustaining Lewis' objection to his testimony regarding a statement made by a member of the survey party to him at the time the survey was made. The ground of the objection was hearsay. Forte claims the objection was improperly sustained because it was a statement against interest made by the principal's agent during the course of the survey, the res gestae. We do not agree.
In Blair v. Smith, 201 Ga. 747, 748, 41 S.E.2d 133, 135, (1947), quoting the Court of Appeals, we said: "Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or that of employee and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." There is nothing in the record to indicate that the surveyor was anything but an independent contractor under this definition. Since the surveyor was not Lewis' agent, his statements, even if related to the res gestae the location of the land lot line, were not binding on Lewis as admissions against interest under the hearsay exception. A fortiori, a statement by the surveyor's employee would, likewise, not be admissible under this exception.
3. In Forte's fifth enumeration of error, he contends that the court erred in permitting his...
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...certain definite results in corformity to the contract. Blair v. Smith, 201 Ga. 747, 748, 41 S.E.2d 133 (1947); Forte v. Lewis, 241 Ga. 109, 110, 243 S.E.2d 38 (1978); Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901 (1932). Variations of, or elaborations on, that standard phraseology are ......
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