Opinion
41545.
ARGUED SEPTEMBER 14, 1965.
DECIDED OCTOBER 15, 1965.
Complaint. Fulton Civil Court. Before Judge Parker.
Frank W. Scroggins, for plaintiff in error.
Hilton M. Fuller, Jr., Alford Wall, contra.
When testimony is uncertain, or is that of an interested witness, or when there are circumstances the jury can weigh in determining the weight and credibility of the testimony, the jury is not bound to accept it as true although it is not contradicted by direct evidence.
ARGUED SEPTEMBER 14, 1965 — DECIDED OCTOBER 15, 1965.
The plaintiff filed suit against the defendant warehouse corporation praying for recovery of property stored with the defendant or the value thereof. The defendant filed a plea contending that the right of possession of the property had been adjudicated by a judgment of the United States District Court in proceedings instituted by the United States against 235 bags of dry milk solids distributed by the plaintiff corporation, for the seizure and condemnation of said property in the defendant's possession, and that the plaintiff had notice of these proceedings. The court directed a verdict in favor of the defendant upon this defense. The plaintiff assigns error on the direction of the verdict and on the overruling of his motion for new trial complaining specifically that the direction of the verdict removed from the jury's consideration disputed issues as to whether the defendant gave the plaintiff required notice of the court proceedings against the property.
As a general rule a bailee is excused from returning the subject matter of the bailment where the goods are taken from him by authority of law and the bailee gives notice or the bailor has knowledge thereof, so that the bailor has an opportunity to litigate his right to the property. Witherington v. Laurens County Farmers Co-Op. c. Co., 23 Ga. App. 307 ( 98 S.E. 228); Hancock v. Anchors, 26 Ga. App. 125 ( 105 S.E. 631); Jones v. Williams, 40 Ga. App. 819 ( 151 S.E. 695); 8 CJS 463, Bailments, § 37; 8 Am. Jur. 2d 1072, Bailments, § 187.
The controlling issue in this case is whether the evidence demanded a finding that the defendant gave notice to the plaintiff, through its agents, of the fact that the defendant was served by a United States deputy marshal on January 9, 1964, with the court proceedings for seizure and condemnation of the property, which gave notice of a hearing thereon in the United States District Court on February 7, 1964. For the defendant, Mrs. Mason testified that she was an officer of and owned an interest in the defendant company, and operated its business office. She testified that she was positive that she telephoned the Lanier Company (the plaintiff's agent) on January 9, 1964, and notified it that the papers had been served; she talked with either Mr. Heard or Mr. Lanier — to the best of her recollection it was Mr. Heard. She testified that on February 19, 1964, when the goods were seized, she again called the Lanier Company and, the best she could recollect, talked with Mr. Lanier and told him that the goods were being picked up. Mr. Heard of the Lanier Company testified that the only conversation he had about this matter with Mr. Mason was on February 19 and that he did not recall talking with her except on that date. Mr. Lanier did not testify. Mr. Heard's testimony contradicted Mrs. Mason's testimony that to her best recollection she talked with him on January 9. Her testimony that she called the Lanier Company on January 9 and that it could have been Mr. Lanier she talked with is not directly contradicted. We are left with the question whether this evidence demanded a finding — necessary to support the directed verdict — that Mrs. Mason notified the Lanier Company on January 9 of the service of the proceedings for seizure and condemnation of the milk. When testimony is uncertain, or is that of an interested witness, or when there are circumstances the jury can weigh in determining the weight and credibility of the testimony, the jury is not bound to accept it as true although it is not contradicted by direct evidence. Lewis v. Patterson, 191 Ga. 348, 357 ( 12 S.E.2d 593; Redd Co. v. Lathem Sons, 32 Ga. App. 214 ( 123 S.E. 175); Wilson v. Gray, 34 Ga. App. 320 ( 129 S.E. 297); Newsom v. Reynolds Chevrolet Co., 43 Ga. App. 376 ( 158 S.E. 763); McRae v. Wilby, 59 Ga. App. 401, 409 ( 1 S.E.2d 77); 32A CJS 727 et seq., § 1038; 20 Am. Jur. 1030, § 1180. In the present case that aspect of Mrs. Mason's testimony that was not directly disputed did not demand belief that she gave the notice in dispute to the Lanier Company on January 9. The trial court erred in directing the verdict.
Judgment reversed. Bell, P. J., and Frankum, J., concur.