35 S.E.2d 581 | Ga. Ct. App. | 1945
1. The motion of the defendant in error to dismiss the writ of error upon the ground that the plaintiff in error "has attached to the brief of evidence, which is incorporated in the bill of exceptions, seven (7) documents which are included in full, and no effort was made to brief said documentary evidence so as to include only the material portions thereof, but much that is immaterial is included, and such failure to brief such evidence is a violation of the rules of this Court," is denied under the rulings in Brawner v. Maddox,
2. Under the testimony of the plaintiff she had such title in herself at *80
the time of the filing of the suit, and such right of immediate possession in the automobile for which she sued, as would authorize the maintenance of her suit and a recovery by her, in the absence of proof to the contrary, and she was not estopped from asserting her title and right of possession under the rulings of this Court in Watts v. Taylor,
3. "Any distinct act of dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner's right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other's use. . . In an action for the recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence, of the conversion; and where the conversion is shown by other evidence, such proof is not essential." Merchants Miners Transportation Co. v. Moore,
4. The evidence must be taken most strongly in favor of the plaintiff, in passing on the question whether or not the court rightly awarded the nonsuit. National Land Coal Co. v. Zugar,
5. The court erred in granting a nonsuit.
Judgment reversed. Sutton, P. J., and Felton, J.,concur.
This testimony of the plaintiff was not contradicted or rebutted by any other witness. She admitted on cross-examination that when her husband first went overseas she opened a bank account in his name and hers, which she later changed to her name only, without consulting him. She further testified that she used the *82 allotment money for living expenses, including hospital bills, doctor's bills and funeral expenses of a baby that died, and that the money she used in purchasing the automobile was from her own earnings as a bookkeeper and stenographer; that she had always worked except during the time of advanced pregnancy and when she was in the hospital. She also admitted that she knew her husband reported the purchase of the car in his name, and that he bought the license tag in his name, but she didn't know he was going to take the bill of sale in his name when she gave him the money, and she didn't know the bill of sale had been taken in his name until they were back at the house. In answer to a question whether her husband agreed to let her use the car while he was gone, she said, "that was understood."
At the conclusion of the plaintiff's evidence, on motion of counsel for the defendant, the court granted a nonsuit in order and judgment as follows: "The plaintiff having failed to show legal title in herself a nonsuit is hereby ordered in the within stated cause and action." Error is assigned in this court on that judgment and the sole question for decision is whether the evidence was sufficient to carry the case to the jury.