Gray v. Schlapp , 92 Ga. App. 261 ( 1955 )

92 Ga. App. 261 (1955) 88 S.E.2d 536

GRAY
v.
SCHLAPP et al.

35683.

Court of Appeals of Georgia.

Decided June 17, 1955.

Fulcher, Fulcher & Hagler, for plaintiff in error.

Bussey & Hardin, John F. Hardin, contra.

NICHOLS, J.

1. "When a court passes upon a motion for a nonsuit it decides only one question, that is, do the allegation and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff ``proves his case as laid,' he is entitled to prevail as against a nonsuit; but it by no means follows from this that he is entitled to recover on the facts ``as laid.'" Kelly v. Strouse, 116 Ga. 872, 883 (43 S.E. 280). See also Flewellen v. Flewellen, 114 Ga. 403 (40 S.E. 301); Barge v. Robinson, 115 Ga. 41 (41 S.E. 258); McCandless v. Conley, 115 Ga. 48 (41 S.E. 256).

2. In the present case the plaintiff presented evidence to support the allegations of the petition; and assuming but not deciding that the allegations made and proved were insufficient to support a verdict in his favor, they nevertheless were sufficient to withstand a motion for nonsuit. Accordingly, the judgment of the trial court granting the motion for nonsuit must be reversed.

Judgment reversed. Felton, C. J., and Quillian, J., concur.