Avera v. Marshall

Court of Appeals of Georgia

Avera v. Marshall

134 S.E. 187, 35 Ga. App. 573, 1926 Ga. App. LEXIS 990

CourtCourt of Appeals of Georgia

DecidedJuly 13, 1926

Docket17373

StatusPublished

This text of 134 S.E. 187 (Avera v. Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avera v. Marshall, 134 S.E. 187, 35 Ga. App. 573, 1926 Ga. App. LEXIS 990 (Ga. Ct. App. 1926).

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Opinion

Bloodwokth, J.

1. A ground of the motion for a new trial alleges that “the court erred in the following point and particular: The court asked Mr. Avera if he agreed to let the mules go. The witness answered, Yes, sir, they took the: mules. I could not help myself at the time.” Holding that the statement of the witness, “I could not help myself at the time,” was a conclusion, it was ruled out. This was not error. Moreover, this ground is not complete and understandable within itself. It would be necessary to refer to other parts of the record to ascertain what “mules” were referred to, and who it was that was referred to when the witness said: “They took the mules.” (Italics ours.)

2. The first headnote in Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294), is as follows: “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. & A. R. Co. v. Evans, 96 Ga. 481; Freyermuth v. R. Co., 107 Ga. 32; Ray v. Green, 113 Ga. 920; Farmer v. Davenport, 118 Ga. 289. And he ‘is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.’ Southern Bank v. Goette, 108 Ga. 796.” Under the principle announced in the foregoing quotation and the facts of this case, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

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Bloodwokth, J.

1. A ground of the motion for a new trial alleges that “the court erred in the following point and particular: The court asked Mr. Avera if he agreed to let the mules go. The witness answered, Yes, sir, they took the: mules. I could not help myself at the time.” Holding that the statement of the witness, “I could not help myself at the time,” was a conclusion, it was ruled out. This was not error. Moreover, this ground is not complete and understandable within itself. It would be necessary to refer to other parts of the record to ascertain what “mules” were referred to, and who it was that was referred to when the witness said: “They took the mules.” (Italics ours.)

2. The first headnote in Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294), is as follows: “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. & A. R. Co. v. Evans, 96 Ga. 481; Freyermuth v. R. Co., 107 Ga. 32; Ray v. Green, 113 Ga. 920; Farmer v. Davenport, 118 Ga. 289. And he ‘is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.’ Southern Bank v. Goette, 108 Ga. 796.” Under the principle announced in the foregoing quotation and the facts of this case, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

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134 S.E. 187, 35 Ga. App. 573, 1926 Ga. App. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avera-v-marshall-gactapp-1926.

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