Weathers v. Modern Masonry Materials, Inc.

129 S.E.2d 65, 107 Ga. App. 34, 1962 Ga. App. LEXIS 561

Opinions

PIall, Judge.

1. Plaintiff’s witnesses testified that Nelson’s office address was 70 Fourth Street; that after their first bills became past due they tried to contact Nelson by telephoning and visiting his office, and were unable to contact him or anyone else at his office; that they tried but were unable to find out where he lived; that they called the defendant by October 1960, and both defendant and his wife were unable to tell them how to find him. Disregarding hearsay, this is practically the same evidence as was before this court on the previous appearance of this case, when the court held that the evidence, though circumstantial, was sufficient to take the case to the jury on the question of plaintiff’s claim. Weathers v. Modern Masonry Materials, Inc., 105 Ga. App. 736, 737 (125 SE2d 532). It is therefore the law of the case that the defendant is not entitled to a new trial on the general grounds or to a judgment notwithstanding the verdict.

2. Special ground 4 of the motion for new trial complains that the trial court excluded from evidence an original petition in another suit filed in the Civil Court of Fulton County with return of service of process thereon showing that B. F. Harris, Deputy Marshal, personally served “Raymond Nelson Ind. D/B/A Sou. Ins. & Supply Co. 70 - 4th St.” on August 15, 1960. The plaintiff objected to the document as irrelevant, “in that there is no showing that the defendant is the same party that has absconded in this case,” and in that the date shown on the return is not “material as to the date of abscondence in this case.” The petition in this case alleges that the name of the contractor is Raymond P. Nelson. The evidence shows his office address as 70 Fourth Street. We note that plaintiff’s witness referred to him as Raymond Nelson and some of the plaintiff’s documentary evidence shows his name as Raymond Nelson.

In Clements v. Wheeler, 62 Ga. 53, 58, deeds offered as proof of title to land were involved. There was a grant from the State to Christopher Day, and a deed recorded later from Christopher P. Day. In the opinion Justice Bleckley stated, “There was no direct evidence that Christopher and Christopher P. were the same person, but both were of Chatham County, and perhaps there were other relevant circumstances tending to establish their identity. It was the province of the jury to determine the effect of all.” This and the similar case of Swicard v. Hooks, 85 Ga. 580 (11 SE 863) are authority for holding that the excluded evidence should have been admitted. See also Banks v. Lee, 73 Ga. 25; Cheshire v. Milburn Wagon Co., 89 Ga. 249 (15 SE 311); Williams v. State, 62 Ga. App. 679 (9 SE2d 697); Enzor v. State, 63 Ga. App. 79 (10 SE2d 213); Thompson v. State, 58 Ga. App. 679 (199 SE 787).

Plaintiff’s second objection is that service on the contractor on August 15, 1960, six months before the suit was filed, is not relevant to the issue whether the contractor had absconded before plaintiff filed his suit. Since in the previous decision, which has become the law of this case, the court held that circumstantial evidence relating to the contractor shortly after the plaintiff’s claim became due, which was more than six months before the suit, tended to establish that the contractor had absconded, it necessarily follows that the evidence excluded was relevant to the question of whether or not he had absconded.

Ground 6 complains of the exclusion of Deputy Marshal B. F. Harris’ testimony that on August 15, 1960, he personally served Raymond P. Nelson with process in Fulton County, Georgia. Mr. Harris had testified that he knew a man by the name of Raymond P. Nelson. We would surmise from the record and from plaintiff’s brief that the defendant offered this testimony to prove the same fact that the return of service which the trial judge excluded could have proved—that the marshal served Raymond P. Nelson (whose name was written “Raymond Nelson” in the return of service) on August 15, 1960. For the reasons stated above, this testimony should have been admitted.

The trial court erred in overruling grounds 4 and 6 of the motion for new trial.

3. Ground 5 complains of the exclusion from evidence of a petition in still another suit in the Civil Court of Fulton County with return of service of process thereon showing that on September 26, 1960, a deputy marshal “Served the defendant Southern Insulation & Supply Co., a corporation, at 70 - 4th St. N. W., by leaving a copy of the within action and summons with Mr. Nelson, agent in charge of the office and place of doing business of said corporation in Fulton County, Georgia. . .”

In the absence of evidence that the alleged contractor Raymond P. Nelson had any connection with the corporation named in this return of service, or that the alleged individual contractor was the same Mr. Nelson served as agent of the corporation, we are of the opinion that the trial judge did not err in excluding this evidence. A name “has been defined as the word or combination of words by which a person is distinguished from other individuals” and “consists, in law, of a given or Christian name, and a family surname . . . The Christian or first name . . . has been used from early times to distinguish a particular individual from his fellows . . . Consequently, it has always been considered an essential part of a person’s name . . . The prefix ‘Mr.’ ... is no part of a person’s name but is a mere title.” 38 Am. Jur. 594, § 2 et seq.; 65 CJS 2, § 2 et seq.

The trial court did not err in overruling ground 5 and the general grounds of the motion for new trial, nor in overruling the motion for judgment notwithstanding the verdict.

Judgment reversed for the reasons stated in Division 2.

Car-lisle, P. J., Nichols, P. J., Bell, Frankum, Jordan, Eberhardt, and Bussell, JJ., concur. Felton, C. J., dissents.