Nobles v. H. W. Durham & Co.

173 S.E.2d 733, 121 Ga. App. 304, 1970 Ga. App. LEXIS 1207

Opinion

Pannell, Judge.

The judgment of this court, on appeal from the sustaining of a motion for “summary judgment” by the defendants as to the defense raising the question of venue, which affirmed the trial judge in holding there was no issue of fact relating to the question of whether H. W. Durham & Company, Inc., was a contract carrier for hire and that the evidence adduced demanded a finding that it was not, and sustaining the defense of lack of venue predicated solely upon the fact that H. W. Durham & Company, Inc., was not a motor carrier for hire, having been reversed by the Supreme Court, the judgment of affirmance of this court is hereby vacated, and in accordance with the mandate of the Supreme Court that an issue of fact exists as to whether H. W. Durham & Company, Inc., was engaged in “controlling, operating or managing any motor propelled vehicle used in the business of transporting . . . property for hire over any public highway in this State . . .” the judgment of the trial court sustaining the defense of lack of venue on the ground there was no issue of material fact involved in hereby reversed with direction that the issue be determined in accordance with the provisions of Section 12' (d) of the Civil Practice Act (Code Ann. § 81A-112).

Decided March 4, 1970. Richard D. Phillips, for appellant. Pierce, Ranitz, Lee, Berry & Mahoney, John F. M. Ranitz, Jr., Howard A. McGlasson, Jr., for appellees.

Judgment reversed with direction.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Deen, Quillian, and Whitman, JJ., concur. Evans, J., not participating.