Moritz v. Sunbeam Appliance Service Co.

146 Ga. App. 49 | Ga. Ct. App. | 1978

Deen, Presiding Judge.

1. Moritz sued the Sunbeam Appliance Co. and a nonresident veterinarian jointly for the electrocution of his dog. The court directed a verdict in favor of both defendants in an order which stated (a) that the plaintiff had failed to prove the value of the animal, (b) that the plaintiff had showed no right to the recovery of punitive damages, and (c) that the plaintiff had failed to prove negligence against the corporate defendant. The plaintiff filed two enumerations of error, complaining that (a) the ruling that appellant failed to introduce admissible evidence as to value was error, and (b) that it was error to direct a verdict in regard to the claim for punitive damages. We agree that it was error, under the evidence in this case, to direct a verdict against the plaintiff on these grounds. Code § 105-2001; NEDA Const. Co. v. Jenkins, 137 Ga. App. 344 (223 SE2d 732) (1976); Hodges v. Pine Product Co., 135 Ga. 134 (1) (68 SE 1107) (1910); Westberry v. Hand, 19 Ga. App. 529 (91 SE 930) (1917).

Argued May 1, 1978 Decided May 17, 1978. Davis, Casto & Norvell, Philip M. Casto, for appellant. Richard L. Ormand, Long, Weinberg, Ansley & Wheeler, Dan B. Wingate, Ben L. Weinberg, Jr., for appellees.

2. Nevertheless, we find no enumeration of error against the court’s direction of a verdict in favor of the resident defendant on the ground that negligence had not been shown as to this defendant. It is therefore the law of the case that a verdict was properly directed in favor of the corporation. This being so, the trial court had no jurisdiction over the nonresident co-defendant. The proper order as to Dr. Tipton is not the direction of a verdict in his favor but, after disposing of the resident defendant by the direction of a verdict, an order dismissing the nonresident for lack of jurisdiction. StedingPile Driving Corp. v. John H. Cunningham & Assoc., 137 Ga. App. 165 (1) (223 SE2d 217) (1976).

Judgment affirmed as to Sunbeam Appliance Service Co.; judgment reversed as to Malcolm Tipton with direction that the court enter an order dismissing the nonresident defendant.

Smith and Banke, JJ., concur.