Dorfman v. Lederman

Quillian, Presiding Judge. The plaintiff brought an action seeking to recover expenses incurred during a vacation trip for which she contends the defendant agreed to reimburse her. A jury trial resulted in a verdict *474 for the defendant. The plaintiff appeals to this court urging error on’ the overruling of her motion for new trial and on the trial judge’s permitting the defendant to withdraw certain admissions resulting from the defendant’s failure to answer plaintiffs request for admissions. Held: Argued April 10, 1980 Decided April 29, 1980. Robert E. Shields, Virginia S. Taylor, for appellant. J. Alexander Rue, for appellee. 1. The trial judge in permitting the defendant to withdraw her admissions conducted a hearing in which he applied the statutory provisions of Code Ann. § 81A-136 (b) (Ga. L. 1966, pp. 609, 648; as amended through Ga. L. 1972, pp. 510, 528) and the principles pertinent thereto as outlined in Cielock v. Munn, 244 Ga. 810 (262 SE2d 114). As we pointed out in Moore Ventures Limited Partnership v. Stack, 153 Ga. App. 215 (264 SE2d 725) wherein we followed Cielock, the party opposing the motion has the burden of establishing that withdrawal of the admissions will prejudice him in maintaining his action on the merits and that depriving such party of a judgment by default "is not the kind of prejudice envisioned by the Act.” Accord, A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827, 833 (209 SE2d 272). The trial judge did not err in permitting the withdrawal of the admissions. 2. Both sides gave conflicting versions of what transpired. The plaintiff and her daughter both testified that the defendant expressly agreed that she would pay her share of the expenses incurred on the vacation trip. The defendant denied any agreement and asserted that plaintiffs daughter assured her that she (the daughter) would "cover the expenses.” The jury found for the defendant and the verdict is not incapable of being sustained. Judgment affirmed. Shulman and Carley, JJ., concur.