Bradford v. City of Commerce , 91 Ga. App. 581 ( 1955 )

91 Ga. App. 581 (1955) 86 S.E.2d 645

BRADFORD
v.
CITY OF COMMERCE.

35400.

Court of Appeals of Georgia.

Decided February 3, 1955. Rehearing Denied March 2, 1955.

Kermit C. Bradford, H. W. Davis, Jack S. Davidson, for plaintiff in error.

T. J. Syfan, Wheeler, Robinson & Thurmond, contra.

GARDNER, P. J.

"Regardless of whether a petition sets out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit." Clark v. Bandy, 196 Ga. 546 (27 S.E.2d 17). See also Williams v. Smith, 210 Ga. 325 (80 S.E.2d 289); Buchanan v. Heath, 210 Ga. 410 (1) (80 S.E.2d 393); Garmon v. Boozer, 210 Ga. 542 (81 S.E.2d 456). The phrase "other undisputed facts," establishment of the existence of which may defeat the action, refers to evidence barring the plaintiff's right to recover other than that pleaded as the cause of action. Fogarty v. Hartley, 89 Ga. App. 437 (1) (79 S.E.2d 409). There is some evidence in this record to support every material allegation of the petition, for which reason the grant of a nonsuit was error.

Judgment reversed. Townsend and Carlisle, JJ., concur.