Summerlot v. Crain-Daly Volkswagen, Inc.
| Decision Date | 02 March 1977 |
| Docket Number | CRAIN-DALY,No. 31464,31464 |
| Citation | 238 Ga. 546,233 S.E.2d 749 |
| Parties | Terry L. SUMMERLOT v.VOLKSWAGEN, INC. |
| Court | Georgia Supreme Court |
Joseph H. King, Jr., Atlanta, for appellant.
T. Jackson Bedford, Jr., Atlanta, for appellee.
This court granted an application for a writ of certiorari to review the decision of the Court of Appeals in Summerlot v. Crain-Daly Volkswagen, Inc., 138 Ga.App. 839, 227 S.E.2d 463 (1976).
The decision of the Court of Appeals rested primarily on a procedural ground, and it was for this reason that this court granted the writ. The decision of the Court of Appeals referred to what applicant calls a "typographical error in the complaint" an "admission in judicio " that estopped the plaintiff "from showing to the contrary."
The applicant contends that Paragraphs 3, 4, and 5 of Count 1 of the complaint, when construed together, showed clearly that applicant was relying on a breach of warranty by the defendant with respect to the engine block. Also, applicant contends that the summary judgment evidence submitted to the trial judge showed that this was the issue for decision.
1. We agree with the applicant on the procedural issue. The Civil Practice Act provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. It also provides that pleadings may be amended so as to conform to the evidence, but failure to so amend does not affect the result of the trial on the issues actually tried. Code Ann. § 81A-115(b).
As we read this record, the issue of breach of warranty was considered and determined on its merits by the trial judge.
Therefore, we do not consider the alleged typographical error in the complaint to be an admission in judicio that barred the applicant from showing to the contrary.
2. On the merits of the issue determined by the trial judge, we do not agree with the contention of the applicant.
Applicant's summary judgment evidence did not expressly show that the block was warranted by the respondent or that the block was cracked at the time of the sale by the respondent to the applicant.
Respondent's summary judgment evidence was very explicit on this point. The respondent's mechanic by affidavit testified: ...
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Walker v. Jack Eckerd Corp., s. A93A0691
...Reynolds, supra; Four Square Constr. Co. v. Jellico Coal etc. Co., 145 Ga.App. 650, 244 S.E.2d 612. In Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547(1), 233 S.E.2d 749, the Supreme Court observed that "[t]he Civil Practice Act provides that when issues not raised by the pleadings are......
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Wahnschaff v. Erdman
...the pleading to withdraw the admission in judicio before such evidence may be submitted. OCGA § 9-11-15; Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547(1), 233 S.E.2d 749 (1977); Head v. Lee, 203 Ga. 191, 203(8), 45 S.E.2d 666 (1947); Strozier v. Simmons U.S.A. Corp., supra at 602-603......
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1600 Barberry Lane 8 LLC v. Cottonwood Residential O.P. LP
...to be an admission in judicio that barred the applicant from showing to the contrary.’ " (quoting Summerlot v. Crain-Daly Volkswagen, Inc. , 238 Ga. 546, 233 S.E.2d 749, 750 (1977) )). As we have explained, Georgia courts generally will not allow parties to disprove judicial admissions made......
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Heston v. Lilly, A01A0570.
...objection to the introduction of evidence of plaintiff's pre-existing injury, waiving such objection. See Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547(1), 233 S.E.2d 749 (1977); Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 518(1), 434 S.E.2d 63 (1993); Stephens v. Tate, 147 Ga. App......