State Highway Dept. v. Smith, Nos. 41051
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | Eugene Cook, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., James H. Wood, Asst. Atty. Gen., Atlanta, Sam Whitmire; FRANKUM; BELL, P. J., and HALL |
| Citation | 141 S.E.2d 590,111 Ga.App. 292 |
| Decision Date | 10 March 1965 |
| Docket Number | Nos. 41051,41052,No. 3 |
| Parties | STATE HIGHWAY DEPARTMENT v. Bennie H. SMITH. STATE HIGHWAY DEPARTMENT v. Jestie V. BOWEN et al |
Page 590
v.
Bennie H. SMITH.
STATE HIGHWAY DEPARTMENT
v.
Jestie V. BOWEN et al.
Page 591
Eugene Cook, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., James H. Wood, Asst. Atty. Gen., Atlanta, Sam Whitmire, J. Roy Mills, Jr., Barnesville, for plaintiff in error.Kennedy, Kennedy & Seay, Harvey J. Kennedy, Barnesville, for defendants in error.
Syllabus Opinion by the Court
[111 Ga.App. 292] FRANKUM, Judge.
1. 'The right to open is important. It enables the party to give direction to the case, very often to [111 Ga.App. 293] choose the ground on which the battle shall be fought. And the right to conclude is more important still. Even in fair and legitimate argument, the party concluding has the advantage of knowing precisely the line of his opponent, and therefore of directing his attention to it, and arraying everything in the case, that fairly illustrates and sustains his view of it.' Buchanan v. McDonald, 40 Ga. 286, 288. The denial of the right to open and conclude the argument to the jury to the party entitled thereto is cause for a new trial. Chapman v. Atlanta & West Point R., 74 Ga. 547; Hart v. State, 88 Ga.App. 334(2), 76 S.E.2d 561.
2. A prima facie case is made by the party upon whom the burden of proof rests by the introduction of evidence sufficient to authorize the jury to render a verdict in his favor, if no other evidence be introduced, or if evidence to the contrary be disregarded. Spivey v. Spivey, 202 Ga. 644, 649, 44 S.E.2d 224; Black's Law Dictionary (4th Ed.) 1353. See also McKemie v. McKemie, 76 Ga.App. 212, 45 S.E.2d 456, and Bank of America National Trust & Savings Ass'n v. Reserve Life Ins. Co., 90 Ga.App. 332(8), 83 S.E.2d 66.
3. Ordinarily, the right to open and conclude the argument belongs to the plaintiff, and in the usual case the defendant is not entitled to the opening and conclusion unless he, by admissions contained in his answer, admits a prima facie case for the plaintiff. Dorough v. Johnson, 108 Ga. 812 (1), 34 S.E. 168; Du Bignon v. Wright, 122 Ga. 263, 50 S.E. 65. Where the party upon whom the burden of proof does not rest in the first instance undertakes to admit a prima facie case in favor of the other party for the purpose of obtaining the right to open and conclude the argument to the jury, he must admit facts sufficient to satisfy the requirements of a prima facie case, as above defined, in order to obtain such...
To continue reading
Request your trial
-
Lumpkin v. State Highway Dept., No. 41850
...matter about which the condemnor cannot complain, for it made the allegation and had the burden of proof. State Highway Dept. v. Smith, 111 Ga.App. 292(4), 141 S.E.2d Consequently, the grant of a new trial was error. Judgment reversed. FELTON, C.J., BELL, P.J., and HALL and DEEN, JJ., concu......
-
Hodsdon v. Whitworth, No. 63722
...it has not shifted to the defendant. See also Little v. Dolvin, 25 Ga.App. 264, 103 S.E. 35; State Highway Department v. Smith, 111 Ga.App. 292, 141 S.E.2d 590. Being under a plea of justification the defendant must admit enough to entitle the plaintiff to a verdict. See Brunswick & Western......
-
Justice v. Georgia Power Co., No. 65068
...evidence. However, condemnor argues that this rule has no applicability to condemnation cases, citing State Highway Department v. Smith, 111 Ga.App. 292, 294(5), 141 S.E.2d 590, since the burden of proof is always on the condemnor no matter which party appeals to the superior court. Aliter ......
-
Canada Dry Bottling Co. v. Campbell, No. 41278
...Co. v. Morgan, 110 Ga. 168, 35 S.E. 345; Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 39 S.E. 551; State Highway Dept. v. Smith, 111 Ga.App. 292, 141 S.E.2d 590 applies only where both parties have introduced evidence. Simmons v. Brannen, 155 Ga. 494, 496, 117 S.E. The trial court er......
-
Lumpkin v. State Highway Dept., No. 41850
...matter about which the condemnor cannot complain, for it made the allegation and had the burden of proof. State Highway Dept. v. Smith, 111 Ga.App. 292(4), 141 S.E.2d Consequently, the grant of a new trial was error. Judgment reversed. FELTON, C.J., BELL, P.J., and HALL and DEEN, JJ., concu......
-
Hodsdon v. Whitworth, No. 63722
...it has not shifted to the defendant. See also Little v. Dolvin, 25 Ga.App. 264, 103 S.E. 35; State Highway Department v. Smith, 111 Ga.App. 292, 141 S.E.2d 590. Being under a plea of justification the defendant must admit enough to entitle the plaintiff to a verdict. See Brunswick & Western......
-
Justice v. Georgia Power Co., No. 65068
...evidence. However, condemnor argues that this rule has no applicability to condemnation cases, citing State Highway Department v. Smith, 111 Ga.App. 292, 294(5), 141 S.E.2d 590, since the burden of proof is always on the condemnor no matter which party appeals to the superior court. Aliter ......
-
Canada Dry Bottling Co. v. Campbell, No. 41278
...Co. v. Morgan, 110 Ga. 168, 35 S.E. 345; Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 39 S.E. 551; State Highway Dept. v. Smith, 111 Ga.App. 292, 141 S.E.2d 590 applies only where both parties have introduced evidence. Simmons v. Brannen, 155 Ga. 494, 496, 117 S.E. The trial court er......