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Lawskills.com Georgia Caselaw
ALLEN v. MCDERMOTT et al.
40991.
Action for damages. Fulton Superior Court. Before Judge Shaw.
EBERHARDT, Judge.
1. It is not error to overrule the general demurrer to the petition after a verdict on the plea to the jurisdiction finding the defendant to be a resident of the county in which the suit was filed.
2. Where a man of full age and single obtained regular employment in a locality away from the home of his father where he had theretofore resided and rented a room or apartment in the locality of his job, spending five nights each week there as a rule, the jury was authorized to find that he had moved his residence to the locality of his job. This is particularly true where it appeared that he had obtained a telephone listing in the new location, and gave that as his address for the employer to carry on the payroll records, although he may have voted at his former address, registered with the Selective Service Board there, paid taxes there and returned to the home of his father each week end.
3. The exclusion of documentary evidence is harmless where a witness has been permitted to testify concerning the documents and their contents without objection, particularly where admissibility of the documents is doubtful.
4. In a trial of a plea to the jurisdiction, where the evidence might support a finding of the defendant's residence in either of two places it is not error for the court to charge the provisions of Code 79-402, relative to the situation where one resides indifferently in two or more places.
Mrs. Grace M. McDermott and her husband, Edward McDermott, brought suits in Fulton Superior Court to recover damages on account of personal injuries alleged to have been suffered by Mrs. McDermott when the automobile in which she was riding collided with that of J. F. Allen, Jr. at a street intersection, specifying certain acts of negligence on the part of Allen. To these petitions Allen filed general demurrers, pleas to the jurisdiction alleging that he was not a resident of Fulton County but of Jefferson County and answered subject to the demurrers and pleas. The pleas to the jurisdiction were consolidated for the purpose of trial. Allen testified that at the time of the collision and at the time of the service of the petitions and process upon him he was a single man, living with his father, mother, brother and sister at Louisville in Jefferson County; that he was a registered voter, paid taxes and purchased his automobile and license tag in that county, made his Federal and State income tax returns from the Louisville address, and registered with the Selective Service Board in Louisville and was drafted by it for military service in 1954. However, he further testified that upon his release from the service he attended Middle Georgia College at Cochran for a while, then entered Georgia State College in Atlanta for a quarter, after which he obtained a regular job with Avisco Film Corporation in Atlanta on March 21, 1957, and that he had continuously held that job for nearly seven years--up to the time of trial; that as a matter of convenience he had throughout the time rented a room or an apartment in Atlanta near his job and stayed there except for week ends when, unless called upon to work on Saturday, he usually went home to Louisville.
He admitted that at the time of the collision he gave to the McDermotts and to the police his Atlanta address, making no claim at that time of his Louisville residence, that he had purchased insurance giving the Atlanta address, had obtained an Atlanta telephone listing, that he was shown in the city directory as residing in Atlanta and that he was carried on the payroll records of his employer as residing there.
Allen tendered his Selective Service registration certificate issued by the Jefferson County Board and dated February 19, 1951, and a notice of classification by the board dated June 28, 1956. These were excluded upon the objection that they were too remote in time to have probative value as to his place of residence on the date of the collision or the date of service of the petitions.
The jury returned a verdict finding Allen to be a resident of Fulton County. Thereupon the trial judge entered an order overruling the general demurrers to the two petitions. To these orders and to an order overruling his motion for new trial as amended, Allen excepts.
1. The exception to the overruling of the general demurrers is without merit; nor does it matter that the orders were entered after the return of the verdict on the pleas to the jurisdiction. See McLaurin v. Fields, 4 Ga. App. 688 (1) (62 SE 114).
2. The evidence raised a question of fact as to whether Allen was a resident of Fulton County or of Jefferson County. It did not demand a finding that he was a resident of either county. He was admittedly of full age, was single and was spending at least five nights of each week in Atlanta where he was working. Hinton v. Lindsay, 20 Ga. 746 (1). For the purposes of Code 79-401 he was without family. See Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 268 (52 SE 898). The jury was authorized to find that his "most notorious place of abode" was in Fulton County; consequently, his residence. Cunningham v. Maund & Wade, 2 Ga. 171, 172.
3. We doubt that there was error in excluding the Selective Service registration certificate dated in 1951 or the classification notice in 1956, but if there was, it was harmless, for Allen was permitted without objection to testify about these documents, stating their contents, Southern R. Co. v. Garner, 101 Ga. App. 371 (114 SE2d 211); Williams v. Colonial Pipeline Co., 109 Ga. App. 815, 816 (137 SE2d 667) and citations.
4. Error is assigned upon the charge of Code 79-402 relative to a situation where one resides indifferently at two or more places in the State. The evidence would have supported a finding that Allen resided in Fulton County or in Jefferson County, though it did not demand a finding of either. See Knight v. Bond & Brother, 112 Ga. 828 (2) (38 SE 206); Bellamy v. Bellamy, 187 Ga. 804, 805 (1) (2 SE2d 413). The charge was not error.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
Kermit C. Bradford, contra.
Marshall L. Fountain, for plaintiff in error.
DECIDED OCTOBER 23, 1964.
Friday May 22 21:26 EDT


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