Where the plaintiff proved his case as laid in his petition and did not negative his right to recover, the court erred in awarding a nonsuit.
R. L. Darn sued Paul M. Wiseman and R. L. Wiseman, Jr., to recover a certain sum by reason of the following facts alleged in the petition: "(3) He shows that during the period from February 1, 1952, through June 30, 1953, he was engaged in the business of transporting property for hire by motor vehicle from one point in the United States to another, and that during said period the defendants, who were then doing business under the trade name of Wiseman Baking Company, made payment to him for such transportation of property by motor vehicle, in the amount of $18,982.29, and that said amount was paid within the United States. (4) Section 3475 (a) of the United States Internal Revenue Code, U. S. C. A. Title 26, Section 3475 (a), imposes an excise tax equal to three (3) per centum of the amount paid within the United States for the transportation of property by motor vehicle from one point in the United States to another. (5) The United States Miscellaneous Excise Taxes regulation 143.13(a) (1) with reference to said tax, provides:-- '(1) The tax is payable by the person making the taxable transportation payment and is collectible by the person receiving such payment.' (6) He shows that the tax was never paid by the defendants and that the United States of America assessed the tax against him as he was the person required to collect the same; that on December 15, 1954, he paid the United States of America the sum of $772.79 representing the tax due for the payments paid to him by the defendants for the transportation of property during the period of February 1, 1952, to June 20, 1953. The $772.79 was composed of tax in the amount of $570.38, penalty $142.17 and interest $60.24. (7) He shows further that he has demanded reimbursement from the defendants for this amount and they have failed and refused to pay the same." At the conclusion of the evidence for the plaintiff, upon the motion of the defendants the court granted a nonsuit to which judgment the plaintiff excepts.
The plaintiff proved his case as laid except as to the penalty sued for, the right to the recovery of which was abandoned, and the court erred in granting a nonsuit. Gray v. Schlapp, 92 Ga. App. 261 (1)
(88 S. E. 2d 536).
The plaintiff did not disprove his right to recover by showing that he rendered fifty-eight individual statements at a set figure per mile for services from February, 1952, through June, 1953, without rendering a statement for the taxes sued for. The plaintiff testified that sometime during the latter part of 1954 an agent from the Internal Revenue Service of the United States was checking his records and inquired about the payment of the Federal excise tax on the transportation of property and that this was the first he knew that any tax was due on such transportation. The court erred in granting a nonsuit.
Judgment reversed. Quillian and Nichols, JJ., concur.