173 S.E.2d 733
44515, 44516.Court of Appeals of Georgia.
DECIDED MARCH 4, 1970.
PANNELL, Judge.
The judgment of this court, on appeal from the sustaining of a motion for “summary judgment” by the defendants as to the defense raising the question of venue, which affirmed the trial judge in holding there was no issue of fact relating to the question of whether H. W. Durham Company, Inc., was a contract carrier for hire and that the evidence adduced demanded a finding that it was not, and sustaining the defense of lack of venue predicated solely upon the fact that H. W. Durham Company, Inc., was not a motor carrier for hire, having been reversed by the Supreme
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Court, the judgment of affirmance of this court is hereby vacated, and in accordance with the mandate of the Supreme Court that an issue of fact exists as to whether H. W. Durham Company, Inc., was engaged in “controlling, operating or managing any motor propelled vehicle used in the business of transporting . . . property for hire over any public highway in this State. . .” the judgment of the trial court sustaining the defense of lack of venue on the ground there was no issue of material fact involved in hereby reversed with direction that the issue be determined in accordance with the provisions of Section 12 (d) of the Civil Practice Act (Code Ann. § 81A-112).
Judgment reversed with direction. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Deen, Quillian, and Whitman, JJ., concur. Evans, J., not participating.
DECIDED MARCH 4, 1970.
Action for damages. Long Superior Court. Before Judge Caswell.
Richard D. Phillips, for appellant.
Pierce, Ranitz, Lee, Berry Mahoney, John F. M. Ranitz, Jr., Howard A. McGlasson, Jr., for appellees.