Hix-Green Company v. Dowis

14 Citing cases

  1. Anderson v. State

    247 Ga. 397 (Ga. 1981)   Cited 69 times

    But such hearsay evidence is not admissible to prove the crime." Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949); Germany v. State, supra. At the time the State offered the testimony of the officer, the trial court instructed the jury that the officer's testimony was admissible solely for the purpose of explaining his conduct.

  2. Germany v. State

    221 S.E.2d 817 (Ga. 1976)   Cited 40 times
    In Germany, the court refers to the reasonable hypothesis as "a plausible explanation," id., and finds crucial the fact that defendant offered no other reasonable hypothesis but basically argued that the State did not carry its burden of proof.

    His testimony as to what he saw while conscious was complete and his belief that the money was taken from Mrs. Tarlyn's purse could only have come from hearsay or suspicion. As was correctly observed in Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949): "To illustrate, it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made. But such hearsay evidence is not admissible to prove the crime.

  3. Bettis v. State

    286 S.E.2d 759 (Ga. Ct. App. 1981)   Cited 2 times

    "To illustrate, it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made." Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949). This principle was recently approved in Germany v. State, 235 Ga. 836 (2) ( 221 S.E.2d 817) (1976).

  4. Davis Gas Co. v. Powell

    140 Ga. App. 841 (Ga. Ct. App. 1976)   Cited 5 times

    The trial court's grant of a summary judgment for the defendant was reversed on appeal. The following is an excerpt from this court's opinion: "The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant's automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) ( 186 S.E. 877); Hall v. Cassell, 79 Ga. App. 7 ( 52 S.E.2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) ( 53 S.E.2d 601); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618). This presumption is a rebuttable one, but `in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master's business or acting within the scope of his employment.' Abelman v. Ormond, 53 Ga. App. 753, 761 ( 187 S.E. 393). `Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment. The issue is generally one for the jury.' F. E. Fortenberry Sons, Inc. v. Malmberg, 97 Ga. App. 162, 166 ( 102 S.E.2d 667).

  5. Young Men's Christian Ass'n v. Bailey

    112 Ga. App. 684 (Ga. Ct. App. 1965)   Cited 50 times
    In Bailey v. YMCA (1965), 112 Ga. App. 684, 146 S.E.2d 324, a nine-year-old boy who could not swim drowned in defendant's swimming pool, and there, as here, no one saw the boy go under the water or knew exactly how he had entered the water.

    Moreover, it is not error to state the contentions of a party as disclosed by his pleadings, even if unsupported by the evidence. Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601); Barbre v. Scott, 75 Ga. App. 524 (7) ( 43 S.E.2d 760); Mayes v. Simons, 189 Ga. 845, 850 ( 8 S.E.2d 73); Sirmans v. Sirmans, 220 Ga. 712 (3), supra. Also it may have been found by the jury that the drowning resulted from nobody's negligence; that even though negligence existed, it was not the cause of the boy's death.

  6. Ayers v. Barney A. Smith Motors

    141 S.E.2d 753 (Ga. Ct. App. 1965)   Cited 13 times
    In Ayers v. Barney A. Smith Motors, 112 Ga.App. 581, 582 [145 S.E.2d 753 (1965) ], this court holds: "... ‘ Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment.

    The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant's automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) ( 186 S.E. 877); Hall v. Cassell, 79 Ga. App. 7 ( 52 S.E.2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) ( 53 S.E.2d 601); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618). This presumption is a rebuttable one, but "in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master's business or acting within the scope of his employment.

  7. Johnson v. State

    111 Ga. App. 298 (Ga. Ct. App. 1965)   Cited 39 times

    Coleman v. Allen, 79 Ga. 637 (1) ( 5 S.E. 204, 11 ASR 449). And, as was held in Smoot v. State, 160 Ga. 744, supra, the determination as to whether there is probable cause is not to be made by one who applies for issuance of the warrant; it must be made by the magistrate from a consideration of the facts submitted under oath. It must exist before the search is made, and can not be supplied by after-discovered facts. As to the standard of the evidence which the magistrate may act upon in the determination of probable cause and issuance of a search warrant, Judge Townsend gave some indication when he observed in Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) that "it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made. But such hearsay evidence is not admissible to prove the crime.

  8. Georgia Hydratane Gas, Inc. v. White

    140 S.E.2d 129 (Ga. Ct. App. 1964)   Cited 8 times

    [citations]. It was not a charge submitting issues to the jury but merely told the jury what minimum facts with respect to the defendant's negligence the plaintiff would have to prove in order to recover." See also SouthernR. Co. v. Bullock, 42 Ga. App. 495, 498 (3) ( 156 S.E. 456), and Hix-Green Co. v. Dowis, 79 Ga. App. 412, 416 (1) ( 53 S.E.2d 601), and cits. The charge here complained of stated a general proposition which could hardly ever be error in a case like this where more than one act of negligence has been charged against the defendant as the basis for the plaintiff's right to recover.

  9. F. E. Fortenberry Sons v. Malmberg

    97 Ga. App. 162 (Ga. Ct. App. 1958)   Cited 22 times
    In Fortenberry, the other evidence was that the employee was carrying lumber during working hours from his employer's lumber yard to the employee's home because the employer "desired to remove it from the lumber yard in order to be rid of it."

    Where an employee, who is employed for the special purpose of operating a truck for his master, is found driving the truck in the usual manner a presumption arises that he is acting within the scope of his authority. Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618); Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601); Jump v. Anderson, 58 Ga. App. 126 ( 197 S.E. 644). This is true because if the employee is not within the scope of his employment, this fact is usually peculiarly within the knowledge of the employer.

  10. Ellis v. Southern Railway Company

    101 S.E.2d 230 (Ga. Ct. App. 1957)   Cited 9 times

    See Henderson v. State, 210 Ga. 680, 683 ( 82 S.E.2d 638). The evidence was not admissible to show the substantive fact that the deceased was sitting on the tracks with his head in his hands. Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601). 2.