Western & Atlantic Railroad v. Third National Bank , 125 Ga. 489 ( 1906 )

Cobb, P. J.

The Third National Bank of Atlanta brought an action against the Western and Atlantic Railroad Company. The material allegations in the petition will be found in the opinion rendered when the case was before this court on a former occasion. See Third National Bank v. W. & A. Railroad Co., 114 Ga. 890. The headnote in the case was in the following language: “When a plaintiff’s petition sets forth a particular state of facts and thereupon alleges liability on the part of the defendant, it must, if not challenged by demurrer, be treated as legally sufficient to support a recovery; and if the plaintiff estáblishes by evidence all the material allegations of such petition, he is,, nothing more appearing, entitled to a verdict.” It was said in the opinion, “It appears from the brief of evidence that everjr material allegation of the plaintiff’s petition .was fully sustained by uncontradicted evidence; and as there was no defense in, except a denial of the allegations of the . petition, a verdict for the plaintiff was. demanded, .the case having been proved as laid.” There was cited, to support this proposition, Phillips v. Southern Ry. Co., 112 Ga. 197, and Flewellen v. Flewellen, 114 Ga. 403, and cit.

When the case was tried a second time, the defendant, at the conclusion of the plaintiff’s evidence, made a motion for a nonsuit, which was overruled; and error is assigned upon this ruling. There was no error in overruling the motion for a nonsuit. On such a motion the only question is whether the evidence is sufficient in law to maintain the issue- in fact made by the pleadings; and no exception can be taken to defects in the pleading upon a motion of this character. Kelly v. Strouse, 116 Ga. 873 (4 b). There was no other motion made at the trial. The court directed a verdict for the plaintiff. The case is now here upon a bill of exceptions assigning error upon the direction of the verdict, the assignment of error being that neither under-the pleadings nor the evidence is the plaintiff entitled to recover. Under the ruling in Kelly v. Strouse, 116 Ga. 897, this assignment of error is sufficient not only to bring up for decision the question as to whether the evidence authorizes the recovery, but also whether the petition set forth a cause of action. If it were not for the former decision in the case now under consideration, the ruling in Kelly v. Strouse would be controlling. But the former decision was in effect an instruction to the judge to direct a verdict for the plaintiff if the evidence sustained the allegations of the petition, and the sufficiency of the petition was not in any way challenged at the trial. Whether this decision was right or wrong on the facts in the case is now immaterial; for the parties to the case are bound by the judgment in that case, if at a subsequent trial the facts remain substantially the same. Southwestern Railroad v. Wright, 68 Ga. 312 (7); Adams v. Bank of Stewart County, 102 Ga. 562; Myers v. Bernstein, 102 Ga. 579(2); So. Mut. Ins. Co. v. Hudson, 115 Ga. 638; McLendon v. R. Co., 123 Ga. 253.

The rule laid down when the ease was here before, and which, was laid down in the other cases therein cited, has not been followed by this court since the decision in Kelly v. Strouse; but the judgment in each of these eases is binding upon the parties thereto, although the principle has been overruled and the ruling disapproved. The trial judge obeyed the instructions of this court, and we will not reverse his judgment.

Judgment affirmed.

All the Justices concur, except Lumpkin, J., disqualified.