Trawick v. Chambliss

Decision Date12 December 1930
Docket Number20345.
Citation156 S.E. 268,42 Ga.App. 333
PartiesTRAWICK v. CHAMBLISS.
CourtGeorgia Court of Appeals

Syllabus by Editorial Staff.

Erroneous admission of testimony is usually not cause for new trial where same fact was shown by other testimony unobjected to.

Allegation that defendant operated automobile causing injury is supported by evidence that automobile was operated by defendant's servant acting within scope of employment.

Evidence that defendant owned and was riding in automobile but not driving authorized inference that driver was defendant's agent and that defendant was in control of automobile.

Inference that defendant was in control of automobile held not conclusively rebutted by defendant's witnesses testifying to contrary but contradicted as to other relevant matters.

Relationship between owner and driver of automobile at time of collision held for jury.

New trial should not be granted for new evidence, unless not discoverable before trial by ordinary diligence.

Where pleadings disclosed no facts showing inability to discover new evidence by diligence before trial, trial judge was not required to find movant exercised diligence.

Error from Superior Court, Hancock County; James B. Park, Judge.

Action by Mrs. O. W. Chambliss against K. T. Trawick. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed.

John C Lewis, of Sparta, for plaintiff in error.

Sibley & Sibley, of Milledgeville, and Hallie B. Bell, of Macon, for defendant in error.

Syllabus OPINION.

BELL J.

1. The erroneous admission of testimony as to a certain fact is usually not cause for a new trial, where the same fact was shown by other testimony to which no objection was made. Louisville & Nashville R. Co. v. Lovelace, 26 Ga.App. 286(3), 106 S.E. 6; Bullard v. Metropolitan Life Ins. Co., 31 Ga.App. 641(6), 122 S.E. 75.

2. In a suit for damages for injury by an automobile, an allegation that the automobile was operated by the defendant is supported by evidence that it was operated by a servant of the defendant acting within the scope of his employment there being no material variance between an averment that the defendant committed an act and evidence that the act was committed by him through his authorized servant or agent. Yellow Cab Co. v. General Lumber Co., 35 Ga.App. 620(1), 134 S.E. 190; Bessemer Coal Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A. (N. S.) 389; Gathman v. City of Chicago, 236 Ill. 9, 86 N.E. 152, 19 L.R.A. (N. S.) 1178, 15 Ann.Cas. 830; 39 C.J. 1352, § 1576, and cit.

3. Evidence that the defendant owned the automobile which caused the injury, and was riding in it but not driving it at the time of the occurrence, was sufficient to authorize the inference that the driver was the defendant's agent or servant and that the defendant was thus in control of the operation of the vehicle. Fielder v. Davison, 139 Ga. 509(2), 77 S.E. 618; Lewis v. Amorous, 3 Ga.App. 50, 59 S.E. 338; Yellow Cab Co. v. Nelson, 35 Ga.App. 694(1), 134 S.E. 822, and see note in 42 A.L.R. 898.

4. Where, from evidence introduced by the plaintiff, the jury were authorized to infer that the defendant was in control of the operation of the automobile, such inference was not conclusively and as a matter of law rebutted by evidence of witnesses of the defendant who testified to the...

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