Opinion
43665.
SUBMITTED MAY 7, 1968.
DECIDED JULY 8, 1968.
Action on account. Hall City Court. Before Judge Smith.
Reed Dunn, Robert J. Reed, for appellant.
Raymond F. Schuder, for appellee.
1. There was no demonstrably harmful error to the defendant in excluding the deposition taken of plaintiff's president.
2. The evidence demanded a verdict for the plaintiff in the amount sued for, and the trial judge did not err in directing a verdict for the plaintiff.
3. The motion for nonsuit is controlled by the ruling made relative to the directed verdict.
SUBMITTED MAY 7, 1968 — DECIDED JULY 8, 1968.
Ultra-Life Laboratories brought suit on account against North Georgia Feed Poultry Company in the City Court of Hall County. The complaint sought to recover the sum of $1,185.23, plus interest from March 1, 1967, allegedly due for merchandise, to wit, poultry feed, sold by the plaintiff to the defendant. The defendant filed an answer which admitted purchasing the merchandise but denied that it owed the amount due and set out that the poultry feed was not reasonably suited for the use intended; that after using a quantity it was discovered that the feed was worthless. Thus, the defendant by way of cross action sought recovery of sums paid to the plaintiff.
Prior to the trial of the case the deposition of Glenn P. Andrews, President of Ultra-Life Laboratories, was taken at the instance of the plaintiff to be used as evidence at the trial. Upon the case coming on for trial, counsel for the defendant stated he was unable to proceed with the cross action due to the absence of the defendant. The only witness called by the plaintiff was its treasurer who gave testimony concerning the amount due. At the close of the plaintiff's evidence the plaintiff moved for a directed verdict and the defendant sought to introduce the deposition of the plaintiff's president. The trial judge excluded the deposition, overruled the defendant's motion for nonsuit and upon the defendant's resting its case without introducing any evidence directed a verdict for the plaintiff in the amount sued for.
From the judgment entered on the verdict the defendant appeals and enumerates as error: (1) the ruling of the trial judge excluding the deposition of the plaintiff's president offered by the defendant; (2) the overruling of the defendant's motion for nonsuit; and (3) the direction of the verdict for the plaintiff.
1. The defendant complains that the trial judge erred when he excluded the deposition of the plaintiff's president which the defendant attempted to introduce into evidence. At that time counsel for the defendant explained that plaintiff's witness had testified that certain credits were given to the defendant by reason of merchandise which the defendant had returned; that this witness had given as an explanation for the difference in the amount originally charged and that amount which was credited to the defendant's account resulted from feed costs which the plaintiff charged to the defendant. Counsel for the defendant stated that he wished to introduce the deposition for two reasons: (1) to show that the actual cost of the difference resulted from a decrease in the market price of the feed substance, and (2) that additional feed was "put into interstate commerce" to be returned to the plaintiff by the defendant. Counsel stated, "We expect to show that even though that feed was purportedly damaged or lost in transit, that the feed was received at East St. Louis by the plaintiff and that the plaintiff's claim would be on the motor carrier for that damaged merchandise rather than on the shipper."
While a deposition is admissible under Code Ann. § 81A-126 (d) (Ga. L. 1966, pp. 609, 635; 1967, pp. 226, 233) (former Code Ann. § 38-2101 (d); Ga. L. 1959, pp. 425, 426) and it may be error to exclude such deposition, the correctness of its admission or exclusion is still predicated on the harmful error rule. Morris v. Johnson, 222 Ga. 76 ( 148 S.E.2d 392). The instant deposition, which was included in the record, contains no testimony to the effect that the difference in the price originally charged and that credited to the defendant was a result of a decrease in the market value of the items involved. Furthermore, while there is evidence from which it may be inferred that the plaintiff was aware of the defendant's returning additional items, there was no testimony that such items were actually received by the plaintiff. Since the deposition did not support the defendant's contentions, there was no error harmful to the defendant in excluding it.
2. The evidence as given by the officer of the plaintiff corporation conclusively showed that the defendant was indebted to the plaintiff for the full amount sued for. On cross examination when the witness was questioned as to the basis of the credit memorandum he denied that the market value had anything to do with the credit allowed on the poultry feed and further disclaimed any knowledge of any feed that might have been lost in shipment stating, "We gave them credit on what we received." Therefore, there was no evidence that the plaintiff was entitled to any less than the full sum for which he received judgment, that is, $1,185.23, and the plaintiff was entitled to a directed verdict.
While it is true that the actual motion for directed verdict was made prior to the time the defendant closed his case, as pointed out in the case of Cox v. Zucker, 214 Ga. 44, 59 ( 102 S.E.2d 580), a motion for directed verdict is not essential where the evidence demanded a verdict.
3. Any issue raised by the enumeration of error regarding the motion for nonsuit is controlled by the ruling we have made in the second division of this opinion relative to the directed verdict.
Judgment affirmed. Bell, P. J., and Hall, J., concur.