Knudsen v. Duffee-Freeman, Inc.
| Decision Date | 29 April 1959 |
| Docket Number | 37564,Nos. 37563,DUFFEE-FREEMA,INC,No. 2,s. 37563,2 |
| Citation | 109 S.E.2d 339,99 Ga.App. 520 |
| Parties | K. P. KNUDSEN v.v. K. P. KNUDSEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where the trial court, in approving the brief of evidence as prepared by the movant in the motion for new trial, certifies that the brief as thus approved contains all of the evidence necessary to a decision of the questions made by such motion, such certificate must be taken as prima facie true.
(a) Where opposing counsel move to strike the motion for new trial on the ground that the brief of evidence as approved is incomplete in that it omits material portions of the evidence adduced upon the trial and where they fail to incorporate in such motion to strike the evidence which they contend has been omitted and is necessary for a consideration of the motion for new trial, such motion to strike the motion for a new trial presents no question for dicision and is without merit.
(b) That no proper brief of the evidence is included in the motion for new trial on which error is assigned, is not a ground for dismissing the writ of error, but if it is made to appear to this court by a proper showing that no proper brief of the evidence was in fact incorporated in the motion, this court will merely affirm the judgment of the trial court insofar as a consideration thereof requires a consideration of the evidence.
2. The evidence in this case was sufficient to authorize the jury to find that the plaintiff was an invitee on the premises of the defendant and the trial court erred in directing a verdict on the theory that the was a mere licensee.
Johnson, Hatcher, Meyerson & Irvin, Atlanta, for plaintiff in error.
Marvin G. Russell, Turner Paschal, Welborn B. Cody, Harry J. Mehre, Jr., Atlanta, for defendant in error.
Kenneth Knudsen sued Duffee-Freeman, Inc., for damages for personal injuries allegedly sustained by him a fall on the stairway of a building owned and maintained by the defendant. The substantial allegations of the plaintiff's petition are set forth in Duffee-Freeman, Inc. v. Knudsen, 90 Ga.App. 111, 82 S.E.2d 44, and will not be repeated here. On the trial of the case and at the conclusion of all the evidence, the trial court directed a verdict for the defendant 'on the sole ground that the evidence affirmatively showed that the plaintiff was not an invitee and that there was no evidence showing actual knowledge of the defendant of any alleged defect' in the premises. Thereafter, the plaintiff made a motion for a new trial on the usual general grounds which he thereafter amended by expressly waiving the original general grounds and by adding or substituting in lieu thereof a special ground of the motion complaining of the direction of the verdict and contending therein that there was evidence which would have authorized a verdict for the plaintiff. The court overruled that motion, and the error assigned in the main bill of exceptions is to that judgment. The defendant made a motion to dismiss the motion for new trial on the ground that there was no regular and duly approved brief of the evidence in the case as required by law, which motion the trial court overruled and in a cross-bill of exceptions error is assigned on that judgment. The defendant has also moved to dismiss the writ of error on the main bill of exceptions on the ground that, the assignment of error in that bill of exceptions being to the overruling of the motion for new trial on all the grounds in the original and amended motion, a full brief of the evidence adduced at the trial of the case is indispensable; that the record discloses that only a partial brief of the evidence was filed in the court below and therefore, there was no valid motion for new trial in the lower court on which the main bill of exceptions can be predicated.
1. The questions presented for decision by the cross-bill of exceptions and by the motion to dismiss the writ of error on the main bill of exceptions are substantially the same and will be decided together. The brief of the evidence in this case was approved by the court in the following language: 'The foregoing brief of evidence consisting of 134 pages of testimony and five photographs is hereby approved as a true and complete brief of all the evidence adduced upon a trial of the foregoing case material to a consideration and decision upon all issues before the court on the plaintiff's motion for a new trial, a verdict having been directed by the court in favor of the defendant at the conclusion of all the evidence in the case on the sole ground that the evidence affirmatively showed that the plaintiff was not an invitee, and that there was no evidence showing actual knowledge of the defendant of any alleged defect in the defendant's premises of which the plaintiff complained, and all further evidence in the case having dealt solely with other matters not material to the verdict directed and to the sole issue of an invitee of licensee raised by this motion.'
Where the court in approving the brief of evidence states that no brief of evidence is needed under Code, § 70-301.1, or that the brief of evidence as prepared is complete as to the sole issue raised by the motion for new trial, such statement in the certificate must be taken as prima facie true. This court will accept it was such if it is not contested. If either party desires to contest and disprove the statement in the certificate, the plaintiff in error may do so by mandamus to compel the trial court to specify the remainder of the evidence, and if the defendant in error desires to contest it he may do so by cross-bill of exceptions in which he brings up that portion of the evidence not specified by the plaintiff in error or the trial court, thereby leaving to the decision of this court whether such part of the brief of evidence is essential or not. See Gulick v. Mulcahy, 95 Ga.App. 158, 97 S.E.2d 362, adopting the language of the special concurrence in Stevens v. Wright Contracting Co., 92 Ga.App. 373, 385, 88 S.E.2d 511. Where a motion for a directed verdict is made based on a single issue in the case, only that part of the evidence relating to such issue is properly includible in the brief of evidence, and it is error for the trial court to refuse to approve the brief of evidence which contains all of the vidence relating to such issue on the ground that it is not a brief of all the evidence in the case. Bank of Georgia v. Aiken, 98 Ga.App. 782, 106 S.E.2d 817. Prima facie, the brief of evidence as approved by the trial court here is correct and complete on the only issue upon which the trial court directed the verdict, which action is the only one before this court on appeal, and it would have been error for the trial court, over the objection of the plaintiff in error, to compel him to bring up the entire brief of evidence relating to other and irrelevant issues. If the...
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Mitchell v. Gay, 41074
...who for any lawful purpose come upon the premises at the express or implied invitation of the owner.' Knudson v. Duffee-Freeman, Inc., 99 Ga.App. 520, 526, 109 S.E.2d 339, 343 and citations; Findley v. Lipsitz, 106 Ga.App. 24, 26(1), 126 S.E.2d 299. See Mandeville Mills v. Dale, 2 Ga.App. 6......
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...Paving Co. v. Gaines , 231 Ga.App. 565, 571–572, 499 S.E.2d 722 (1998) (citation omitted). See also Knudsen v. Duffee–Freeman, Inc. , 99 Ga.App. 520, 525, 109 S.E.2d 339 (1959) (landlord impliedly invited persons having business with tenant to come upon its premises for that purpose).Dublin......
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Findley v. Lipsitz
...sons who for any lawful purpose come upon the premises at the express or implied invitation of the owner.' Knudsen v. Duffee-Freeman, Inc., 99 Ga.App. 520, 526, 109 S.E.2d 339, 343, and cases cited. The plaintiff and the defendant shared a common interest and a mutual advantage in the plain......
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...Central's trainman, Jones, was an invitee upon the property. The duty owed to him was to keep the premises safe. Knudsen v. Duffee-Freeman, Inc., 99 Ga.App. 520, 109 S.E.2d 339. The court has found a breach of this duty as negligence and a proximate cause of the injury to Jones. That findin......