Patterson v. State Highway Department

203 Ga. 327

Opinion

Atkinson, Justice.

(After stating the foregoing facts.) The defendants in error insist that the evidence, though conflicting, being substantially the same on the final trial as that on the interlocutory hearing, the judgment directing a, verdict in their favor should be affirmed.

Where upon a final hearing the evidence, which was conflicting, is substantially the same as that adduced upon an interlocutory hearing, wherein the judgment was based upon questions of law and evidence, the jury is not bound to follow the same interpretation of the evidence as the trial judge did on the interlocutory hearing. Collins v. Carr, 116 Ga. 39, 41 (42 S. E. 373); Albany Theatre v. Short, 173 Ga. 121, (1) (159 S. E. 688); Voyles v. Carr, 173 Ga. 627 (3) (160 S. E. 801).

Accordingly, since there was an issue of fact in the present case, to wit, whether the plaintiff in error purposely avoided the efforts of the assessors to notify her of the date and time of the hearing, the case should have been submitted to a jury, and the trial court erred in directing a verdict in favor of the defendants.

Judgment reversed.

All the Justices' concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.