Opinion
35936.
DECIDED FEBRUARY 8, 1956. REHEARING DENIED FEBRUARY 23, 1956.
Damages. Before Judge Cobb. Walton Superior Court. August 16, 1955.
A. M. Kelley, D. M. Pollock, for plaintiff in error.
Orrin Roberts, Wm. P. Whelchel, contra.
1. "When a court passes upon a motion for a nonsuit it decides only one question, that is, do the allegation and the proof correspond? . . . The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff `proves his case as laid,' he is entitled to prevail as against a nonsuit." Gray v. Schlapp, 92 Ga. App. 261 ( 88 S.E.2d 536), and cases cited.
2. "When a case is brought to this court and the judgment of the trial court is reversed, all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and, on a second trial of the case, on the court below, unless additional pleadings and evidence prevail to change such adjudications." Albany Coca-Cola Bottling Co. v. Shiver, 67 Ga. App. 359 (1) ( 20 S.E.2d 181). See also Rackley v. Miller, 200 Ga. 717 ( 38 S.E.2d 404); Monroe Motor Express v. Jackson, 76 Ga. App. 280 ( 45 S.E.2d 445).
3. On the first appearance of this case before this court it was held that the evidence presented a case differing from that alleged. Nunnally v. Shockley, 91 Ga. App. 767, 769 ( 87 S.E.2d 115). On the second trial the evidence presented was substantially the same as that presented on the first trial, and although the plaintiff testified on the second trial that she "tripped in the lobby" the evidence shows that the defect complained of was in the store operated by Crossley rather than in the lobby. Therefore, the trial court did not err in sustaining the defendant's motion for a nonsuit.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
DECIDED FEBRUARY 8, 1956 — REHEARING DENIED FEBRUARY 23, 1956.
This is the second appearance of this case in this court. The pleadings are fully set forth in Nunnally v. Shockley, 91 Ga. App. 767 ( 87 S.E.2d 115), and need not be repeated here. On its first appearance before this court the judgment of the trial court overruling the defendant's general demurrer was affirmed, and the judgment of the trial court overruling the defendant's motion for new trial was reversed on the general grounds. Suffice it to say that the plaintiff was seeking to recover damages for injuries received as the result of a fall occasioned in a building owned by the defendants.