Gresham v. Stewart

119 S.E. 445, 31 Ga. App. 25, 1923 Ga. App. LEXIS 708

• Court: Court of Appeals of Georgia
• Decided: October 3, 1923
• Docket: 14681
• Status: Published

Opinion

Bloodworth, J.

In Cotter v. Gazaway, 141 Ga. 534 (1) (81 S. E. 879), the Supreme Court held: “At common law the earnings of the wife belonged to her husband. In Georgia, since the act of 1866, the husband may, by consent or agreement with his wife, express or implied, allow her to engage in an independent business on her own account, and to keep as her separate estate any earnings that she may make in such business. Sams v. Thompson Hiles Co., 110 Ga. 648 (36 S. E. 104); Roberts v. Haynes, 112 Ga. 842, 844 (38 S. E. 109); Belcher v. Craine, 135 Ga. 73 (68 S. E. 839).” There was evidence in this case from which the jury could infer that the husband of plaintiff at least impliedly consented that she could board the defendant and retain the money thus made as her separate estate. In East & West Railroad Co. v. Sims, 80 Ga. 807 (2) (6 S. E. 595), it was held: “If there be any evidence whatever to sustain the action, it must go to the jury, the court having no discretion in the matter of granting a nonsuit.” In Moseley v. Patterson, 27 Ga. App. 135 (107 S. E. 624), Judge Hill, after quoting section 5942 of the Civil Code of 1910, said: “The general rule announced by the Supreme Court is that a motion for non-suit should not be granted when there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff. In Vickers v. Atlanta & W. P. R. Co., 64 Ga. 307, Judge Bleckley expressed the rule in the following original and lucid language: f Nonsuit is a process of legal mechanics: the case is chopped off. Only in a clear, gross case is this mechanical treatment proper. Where there is any doubt another method is to be used—a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.' Bearing in mind the above statutory provision and the rulings of the Supreme Court, the question arises: Was there any evidence, direct or circumstantial, tending to sustain the plaintiff's action and from which the jury could fairly deduce an inference favorable to the plaintiff? If there was, the case should not have been ‘ chopped off' by the action of the court, but should have been left to the ‘ chemists of the law,' the jury, to examine ‘ every molecule of the evidence' and determine whether it possessed any probative force favorable to the plaintiff's cause of action."

As there was some evidence “tending to sustain the plaintiff's action and from which, the jury could fairly deduce an inference favorable to the plaintiff,” the court erred in granting a nonsuit. See Reid v. Tyson, 19 Ga. App. 677 (2) (91 S. E. 1066), and cases cited.

Judgment reversed.

Broyles, G. J., and Lulce, J., concur.