Trawick v. Chambliss

• Decision Date: 12 December 1930
• Docket Number: No. 20345.,20345.
• Citation: 156 S.E. 268,42 Ga.App. 333
• Parties: TRAWICK. v. CHAMBLISS.
• Court: Georgia Court of Appeals

42 Ga.App. 333

156 S.E. 268

TRAWICK.

v.CHAMBLISS.

No. 20345.

Court of Appeals of Georgia, Division No. 2.

Dec. 12, 1930.

Syllabus by Editorial Staff.

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 Hal-lie B. Bell, of Macon, for defendant in error.

Syllabus Opinion by the Court.

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. 6-11(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. 100; Bessemer Coal Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389; Gathman v. City of Chicago, 236 111. 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 contrary, but who were contradicted as to other matters relevant to their testimony and to the case. Hence, In the present case the evidence presented a jury question as to the true relationship between the owner of the vehicle and the person driving it at the time of the collision. Whiddon v. Hall, 155 Ga. 570(6), 118 S. E. 347; Haas v. Godby, 33 Ga. App. 218(4), 125 S. E. 897; Blount v. Dunlap, 34 Ga. App. 666 (4), 130 S. E. 693, and cit

5. A new trial should not be granted upon the ground of newly discovered...