Devoe v. Best Motor Co.

109 S.E. 689, 27 Ga. App. 619, 1921 Ga. App. LEXIS 310

• Court: Court of Appeals of Georgia
• Decided: November 17, 1921
• Docket: 12450
• Status: Published

Opinions

Per Curiam:

1. In order for the rejection of testimony to be a ground

for a new trial, the motion for a new trial must show upon what ground the testimony was excluded (unless it is shown that the judge rejected the testimony upon his own motion), and that it was excluded over the objections of the plaintiff in error or his counsel, made to the court at the time of the exclusion. Central of Ga. Ry. Co. v. Jaques, 23 Ga. App. 396 (2) (98 S. E. 357); Steed v. Cruse, 70 Ga. 168 (4); Summerlin v. State, 25 Ga. App. 568, 571, 572 (103 S. E. 832); Davis v. State, 26 Ga. App. 485 (106 S. E. 309). Under the above ruling, the first ground of the amendment to the motion for a new trial is too defective to be considered.

2. The question as to whether the plaintiff, who could not read or write, understood what he was signing when he made his mark to the settlement paper should have been submitted to the jury. It was not necessary, under his testimony, for him to tender back the money before he could plead fraud in getting him to sign a paper in settlement of his claim. See Butler v. Richmond & Danville R. Co., 88 Ga. 594 (2) (15 S. E. 668).

3. Under the above rulings it was error for the court to direct a verdict for the defendant.

Judgment reversed.

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