Opinion
39106.
DECIDED OCTOBER 6, 1961. REHEARING DENIED OCTOBER 25, 1961.
Complaint. Fulton Civil Court. Before Judge Wright.
Parks Eisenberg, David S. Eisenberg, for plaintiff in error.
Lipshutz, Macey, Zusmann Sikes, contra.
Where a general demurrer to a petition is overruled and no exception is taken the plaintiff is entitled to a verdict if he proves his case as laid to the satisfaction of the trior of facts and no additional uncontradicted facts which would bar his right of recovery are shown.
( a) A judgment of this court, after the grant of a nonsuit, adjudicating that the evidence adduced by the plaintiff proved his case as laid establishes the law of the case, and on the retrial of such case where substantially the same evidence is adduced it is the law of the case that such evidence proves the case as laid so as to authorize a finding in the plaintiff's behalf where the petition sets forth a cause of action and the defendant's evidence merely tends to contradict or impeach the plaintiff's case as laid.
DECIDED OCTOBER 6, 1961 — REHEARING DENIED OCTOBER 25, 1961.
This is the second appearance of this case before this court. On the first appearance ( Cadranel v. Wildwood Construction Co., 101 Ga. App. 630, 115 S.E.2d 415), it was held that the allegations of the petition were supported by the evidence and that the trial court erred in granting the defendant's motion for nonsuit at the conclusion of the plaintiff's evidence. On the second trial the case was heard by the trial court without the intervention of a jury and a judgment was rendered for the plaintiff. Thereafter, the defendant's motion for new trial based on the usual general grounds only was overruled, and it is to such judgment adverse to it that the defendant now excepts.
On the first appearance of this case before this court it was held that the plaintiff introduced evidence in support of each of the allegations of his petition and that a nonsuit should not have been entered. Such decision established as the law of the case, that such evidence would authorize a finding that the plaintiff proved his case as laid. On the second trial the plaintiff's evidence was substantially the same as that adduced on the first trial, and while the defendant's evidence tended to contradict such evidence, still a question was presented for the trior of facts as to whether the evidence of the plaintiff or that of the defendant was to be believed.
Prior to the second trial the defendant's general demurrer to the plaintiff's petition as amended was overruled and no exception has been taken to such judgment, and as long as such judgment stands unreversed the law of the case is that the petition set forth a cause of action. See Cloud v. Stewart, 92 Ga. App. 247, 249 ( 88 S.E.2d 323), and citations.
Where a petition sets forth a cause of action and the plaintiff proves his case as laid by a preponderance of the evidence his is entitled to a recovery. See McKool v. Naddra, 100 Ga. App. 171 (1) ( 110 S.E.2d 409), and citations.
While certain of the defendant's evidence contradicted the plaintiff's evidence and sought to impeach the plaintiff's evidence yet the finding for the plaintiff was authorized. The trial court did not err in overruling the defendant's motion for new trial.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.