text:
    193.
    SOUTHERN RAILWAY COMPANY v. JOHNSON.
    1. Delivery of freight to a common, carrier, where an action is brought to recover for loss of articles alleged to have been delivered, is a question of fact for the determination of the jury.
    2. Where the evidence authorizes a finding that certain goods were delivered to tire agent of a railroad company, who received them and was made acquainted with their destination, a . contract of carriage may be implied, although no bill of lading or receipt for the goods be issued and delivered to the shipper.
    3. While, in the absence of a contract, a person who has no property, general or special, in goods, can not sue in his own name, in tort, for the destruction of such goods by a carrier, nevertheless the contract need not be in writing, but may be implied from delivery and acceptance ■of the goods for shipment, and the consignor- may sue for the loss or non-delivery, though he be but a bailee. “He has such a special property in the goods as to give him a right of action.” Great Western R. Co. v. McComas, 33 111. 185. The shipper, if not the owner, holds the recovery in trust for the true owner. v
    4. “The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects.” Hooper v. Railway Co., 27,Wis. 81, 9 Am. Rep. 439.
    Action for damages, from Appling superior court — Judge Par-leer. December 21, 1906.
    Submitted February 27,
    Decided May 24, 1907.

      DeLacy & Bishop, H. A. King, for plaintiff in error.

      J. H. Thomas, contra.
   Russell, J.

Mrs. Johnson, the plaintiff: in the court below, agreed with Krauskoff Brothers & Co., of Savannah, Ga., to take a certain shipment of hats to her store; they insisting that she keep or buy all the hats in the shipment, but allowing her the privilege of returning to them such of the goods as she did not want. She’ took the goods on these conditions to her place of business and Icept them for some time, but finally decided to ship back to them the larger portion of the goods, packed them in boxes, and had them marked “K. B. & Co., Savannah, Ga.,” and delivered them to a drayman to take to the depot. The drayman swears that he delivered the goods to the agents of Krauskoff Brothers & Co. at the depot, and that he delivered them as he was accustomed to deliver such goods. The evidence of the plaintiff showed that she delivered the goods to the agents of Krauskoff Brothers & Co., and that these agents accepted them for shipment, but failed to furnish her with a bill of lading, receipt, or other evidence of delivery. Krauskoff Brothers & Co. not having received any of the goods, or any bill of lading or receipt of shipment, naturally insisted on payment for the entire shipment, and Mrs. Johnson, having failed in her effort to return a portion of the goods, paid for them. She-then sued the railroad company in a justice’s court for the value-of the goods delivered to the company. This suit was appealed, to the superior court, and a verdict was rendered for the .plaintiff.., • The original defendant in error, Mrs. Johnson, having died pending the writ of error, J. C. Johnson, her administrator; was made-a party defendant in error.

Learned counsel for plaintiff, in error insists that this action is', a suit in tort, and that for that reason the plaintiff was not entitled to recover, because it appears that she had no title to the goods that were lost. While particularity of pleading is not required in justice’s courts, we think it very clear that the suit is one on a contract of carriage arising from the transaction between the plaintiff as bailee- and agent for Krauskoff Brothers & Co., and. the defendant as common carrier. In the summons it is alleged’, that “all the articles named in said bill of particulars . . were turned over to said company by petitioner to be transported,” etc. p “’said railway company being a common carrier for hire,” etc., and “said railway company having failed to deliver the goods’ as agreed, between them and the shipper, the said Mrs. J. C. Johnson, at their destination, Savannah, Ga., as aforesaid.” We think that this alleges a contract, and asks recovery only for the breach of such contract; and it is only upon the theory that a contract was proved that the verdict can be sustained, for the plaintiff failed, to show that she had title’ to the goods in question, and, of course,, no one but the owner can recover damages in tort.

The plaintiff in error claims that there was no contract; and the evidence certainly discloses that there was no written contract, to carry the goods in question. It is insisted that the goods were-never received; that the evidence fails to show proper identification of the goods sued for, or their delivery to the company. The plaintiff in error further contends that the defendant in error had no right to her recovery in the court below, because she. had no title to the goods sued for. As to whether or not-there was delivery, and identification of the goods, and proof’ of their delivery to,..the carrier, these are questions of fact; and. the evidence .admitted, so far as this portion of the case is concerned, authorized the finding of the jury. Mrs. Johnson testified that she packed the hats in two boxes and saw her husband. mark them “K. B. & Co., Savannah, Ga.” She herself delivered these boxes to the drayman. The drayman swore that he delivered these boxes to the agents of the company, and called their attention to their presence in the depot; and to show that they were the same two boxes, the plaintiff’s husband testified that he saw them at the depot after the drayman had carried them there, and called the attention of the company’s agent to the marking or lettering he had placed on them. If the jury believed plaintiff’s witnesses, there could be no doubt as to the identification of the goods sued for, and of their delivery to the company. While we agree with counsel for plaintiff in error that the testimony fails to show that Mrs. Johnson was the owner of the goods (although' she did pay for them after their loss), still, if we are right in our construction of the nature of this suit, it becomes immaterial that Mrs. Johnson was not the owner; for if by delivery of the goods to the carrier for shipment to the place marked upon the boxes, to wit, Savannah, Ga., and their acceptance by the railroad company for that purpose, a contract to carry arose by natural implication, and the ownership of no person other than Mrs. Johnson is disclosed, and it is not sought to enforce the rights of any other person, Mrs. Johnson, although not the true owner, can maintain the action, and could hold the recovery in trust for the true owner. Construing the decision in Carter v. Southern Railway Company, 111 Ga. 38, 36 S. E. 308, 50 L. R. A. 354, with the Lockhart case, 73 Ga. 472, 54 Am. Rep. 883, it may be stated that a bailee may sue for the breach of a contract of carriage made with him. It is distinctly decided in Carter v. Southern Railway Company that a person who has in charge, as agent, the goods of another, and who makes with a common carrier a contract to ship the .goods, in which the agency is not disclosed, may maintain an action in his own name for a breach of the contract. Such a plaintiff being the consignor of the goods shipped, the contract is made with him, and he is primarily iiable for the charges for carriage. The carrier, having treated him as the owner of the goods, can not dispute his title, unless the title of the true owner is sought to be enforced against the carrier. It is equally well settled that where a plaintiff has no interest in the property and no contract with the carrier, he has no cause of action. Lockhart v. Railroad, 73 Ga. 472, 54 Am. Rep. 883. We are of the opinion that under the evi■dence Mrs. J ohnson was such a bailee of the goods in question that, if she had made a contract with reference to their transportation, she could have maintained an action for the breach of the contract.

The real question in this case, then, is: Was a contract of carriage entered into between Mrs. Johnson and the carrier? No bill of lading, freight receipt, or other written evidence of a contract was put in evidence; and we must therefore determine from the’-circumstances appearing in evidence whether the defendant company made a contract to transport the goods in question. The evidence of the plaintiff discloses nothing on -this subject. She delivered the goods to a drayman, and she never received a bill of lading, and had no knowledge of what the drayman did with the ■goods after she turned them over to him. Her husband testified that the goods were delivered to the company’s agent, for he saw the boxes containing them at the depot, and called the attention •of the company’s agent, Lee Patterson, to the marking on the box, “E. B. & Co., Savannah, Ga.” The drayman testified that he ■delivered two boxes, marked “E. B. & Co.,” to the depot agent at Baxley. . He did not get a bill of lading that time, because he was in a hurry. It appears, therefore, that there was evidence to authorize the jury to find that the two boxes of hats were delivered by the, plaintiff to the company for shipment, and accepted by them. They were plainly marked “E. B. & Co., Savannah, ■Ga.,” and the testimony is undisputed that the goods for whose 'loss the suit is brought were contained in boxes marked “K. B. & 'Co., Savannah, Ga.” According to testimon3r which the jury was authorized’ to believe, there was nothing lacking to show an implied contract, and the terms of the contract. The point of destination -was plainly marked on both boxes, and when the railroad company received the goods without objection, under the evidence that it was quite usual not to make out bills of lading immediately, the company tacitly agreed to deliver them, either at destination ■or to a connecting carrier, to be transported to destination. The ■course of dealing evidenced a contract. The jury could well imply a contract from the acceptance of the goods for shipment, and that it was onfy through oversight that a receipt or bill of lading was not issued. So we do not think that the contention of plaintiff in error that this is an action in tort is sustained. In any event a common carrier can not dispute the title of the per.son delivering the goods for shipment, by setting np adverse title in himself or in a third person, which is not being enforced against him. Wallace v. Matthews, 39 Ga. 617, 99 Am. Dec. 473. Payment to the administrator of Mrs. Johnson will be full protection against payment to any one else. Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    199.
    FIELDS v. THE STATE.
    1. In the charge of assault with intent to rape, the credit to be attached to the testimony of the injured female is a matter wholly for the jury. •If such witness is credible to the jury, corroboration of her testimony is unnecessary.
    •2. It is not error, in a ease of assault with intent to rape, to refuse to charge that the accused should not be convicted upon the testimony of the woman alone, unless she made some outcry or told of the injury promptly, or her clothing was torn or disarranged, or her person showed signs of violence, or there were other circumstances which tend to corroborate her story. The particular circumstances which may tend to corroborate a witness, and the number of such circumstances necessary to produce that result, are wholly matters for the jury; and the jury may believe the witness without corroboration.
    3. On the trial of an indictment for assault with intent to rape, where the evidence is such that the jury may be authorized to find that the assault was committed by the .accused with the intention of gaining the woman’s consent to have sexual intercourse with him, without any intent to overpower lief will and commit the crime of rape, it is error to refuse to give in charge the law of assault; or assault and battery, as the indictment may authorize.
    4. In charging upon the prisoner’s statement, a trial judge can employ no better language than that embodied in the Renal Code, § 1010. Omission to instruct the jury that they may believe the defendant’s statement in preference to the sworn testimony is reversible error.
    Indictment for assault with intent to rape, from Muscogee superior court — Judge Little. January 21, 1907.
    Argued February 18,
    Decided May 24, 1907.

      Carson & McCutchen, for plaintiff in error.

      S. P. Gilbert, solicitor-general, contra.
   Russell, J.

The defendant was convicted of assault with intent to rape. His motion for a new trial was overruled, and he assigns error on the judgment refusing a new trial. The plaintiff in error relies upon three assignments of error, all predicated ■upon the charge of the court. He insists that the court erred in refusing a written request to* charge the jury as follows: (a) “I charge you, gentlemen of the-, jury, that in a ease where rape, or assault with intent to commit, rape, is the charge against the defendant, that he shall not be convicted upon the testimony of the woman alone, unless there are some concurrent circumstances which tend to corroborate her evidence. In this respect the offense of rape seems to be an exceptional one, and the accused should not be convicted' upon the testimony of the woman alone, however positive it may be, unless she-made some outcry, or told of the injury promptly, or her clothing; was torn or disarranged, or her person showed signs of violence,, or there were other circumstances which tend to corroborate her-story.” (b) “In rape eases the testimony of the party alleged, to have been raped should always be scrutinized with care.” In\ our opinion the court properly refused to instruct the jury as requested. The request seems to be almost a literal quotation of some of the language used in the opinion of the majority of the-court in the case of Davis v. State, 120 Ga. 435, 48 S. E. 180; and, while it is a statement of the considerations which controlled the judgment of the majority of the Supreme Court, “there are-many things said by this court, both in headnotes and opinions,, that are sound law, but which nevertheless would be improper instructions to a jury.” Savannah Ry. Co. v. Evans, 115 Ga. 318, 41 S. E. 631, 90 Am. St. Rep. 116 (2). This must naturally be-true, for the reviewing court can analyze and discuss the evidence-in .a case with a freedom absolutely forbidden trial judges by Civil Code, §4334; nor does it follow that the charge requested,, even if it should be proper in a case of rape, was appropriate to a, case like this, of assault with intent to rape.

The decision of the majority of the court in Davis v. State does, not accord with our individual views, and seems to us to be an invasion of the constitutional prerogatives of the jury. We shall, be bound by it, in view of the legal requirement to that effect, as. applicable to eases of rape; but we shall not extend the principle: therein embodied to cases of assault with intent to rape. The dicta of Judge Hale, upon which the decision in the Davis case rests, refer only to cases of rape, and the reasoning is based upon the-necessity for protection of the defendant from that speedy and uncontrollable indignation aroused by as heinous a charge as that of rape. This is recognized in the Davis case. Eape, unless the ae-.cused be recommended to mercy, is a capital felony, and the dicta of Lord Hale seem to recognize the ghastly fact that there caneóme no remedy to the defendant after he has paid, with his life, the penalty for perjury on the part of the prosecutrix. On the-other hand, the penalty for assault with intent to rape can not most exceed 20 years imprisonment in the penitentiary, and by any chance, the truth should develop that the accused was the,innocent victim of a feigned charge and false accusation, some-reparation, however late, could be afforded the defendant unjustly-accused. We would be bound b}r the decision of the Supreme Court,... if this court had jurisdiction to correct errors on convictions rape; but we do not apprehend that the decision in Davis v. State was intended to apply to cases of assault with intent to rape, butrather that the ruling in that case, as drawn from the language of the decision, was based upon the exigencies arising from the gravity of the charge and the enormity of the penalty. We are the more pressed with this view by the fact that at the time Lord Hale-wrote, assault with intent to rape was a mere-misdemeanor, as, indeed, it was in our own State until 1817; and from 1817 to 1833 it was only punished by imprisonment from one to five years. The-amount of corroboration, if any, required to support the testimony of a witness in a case of assault with intent to rape is a question, not for the court, but for the jury; and for the judge to instruct the jury that the accused should not be convicted, no matter how positive the testimony of the woman may be, unless she made some. outcry or told of the injury promptly, or .unless her clothing torn or disarranged, would be for the judge, and not the jury, to-measure the credibility of such witness.

In our opinion the testimony of the prosecutrix in a prosecution for the offense of assault with intent to rape needs no corrobora- ■ lion. Her testimony alone is sufficient to authorize conviction, if it is credible to the jury. The Penal Code, §991, declares that the testimony of a single witness is generally sufficient to establish a fact. The only exceptions to this rule enumerated in our Penal Code “are made in specified cases, such as to convict of treason or perjury, and in any case of felony where the only witness is. an accomplice; in these cases (except in treason) corroborating circumstances may dispense with another witness.”'' It is clear, therefore, as the crime charged in this case is neither treason nor perjury, the only way the offense could be brought within the exception provided in section 991, supra, is by holding that the female assaulted is an accomplice; and the mere state"ment of that proposition is sufficient to expose its fallacy, for, 'to •say that the female assaulted considered, consented, and willingly participated, as an accomplice must do in'the commission of the -■offense, is to destroy the charge and acquit the accused. Assault with intent to rape is an assault made with intent to have carnal knowledge, not only forcibly, but against her will; and if the female is to be deemed an accomplice, and therefore required to 'be corroborated, she must produce an 'eye-witness. From the nature of the case this is generally impossible. The protection of female, virtue is far too priceless to be thus jeopardized.

The learned trial judge was right in refusing the request, not -only for the foregoing reasons, but especially upon the ground that the request, as a whole, was not a correct statement of the law applicable to the case. “If a request to charge be not all proper, the court need not give any part of it in charge.” City of Atlanta v. Buchanan, 76 Ga. 585. And, furthermore, the request “was argumentative. Regardless of these two latter defects, and even if the request had been properly framed, the court did not err in refusing to instruct the jury as requested. In the earliest decision of our Supreme Court upon this subject (Camp v. State, 3 Ga. 421) the court laid down the rule as to the testimony of the injured female in eases of assault with intent to rape, and it is controlling until expressly reviewed and overruled. The learned trial judge presented the principle therein affirmed (¿nd which we now follow) with unequalled clearness and impartiality. In the Camp case, above referred to, Judge Nisbet, delivering the opinion, after quoting from Blackstone and his reference to Lord Hale, says: “The degree of evidence which in this case ought to satisfy the jury of the defendant’s guilt depends upon the circumstances of each case, and can not be reduced to specific rule. 3 Chitty, Criminal Law, 572.” . The trial judge left the credibility of the little girl in this case to the jury, and we do.not see, under the ruling in the Camp case, how he could have done otherwise. When Lord Hale wrote: . “If the witness be of good fame, if she presently discovered the offense,” etc., “these and the like concurring circumstances give greater probability to her evidence”— it was' simply an illustration of the practical effect of the rule he had' previously stated, and which, in different language, was-charged by the judge in this case. It was no more applicable to-be given in a charge to a jury than his oft-quoted reminiscent reasoning: “Rape is an accusation easy to be made, hard to be-proved, and harder to be defended by the party accused, though, never so innocent.” But antecedent to the illustration and the reasoning is the rule: “The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony.” The request', to charge embodied words of caution to be applied in measuring the admissibility of the evidence, which is a function of the court. It sought to apply them to the weight of the testimony, the determination of which is a question for the jury.

It is alleged that the court erred in failing to charge upon subject of assault and assault and battery. ' It is well settled where a charge of graver character includes minor offenses, if evidence will justify or require a verdict finding the defendant-guilty thereof, it is-the duty of the judge to instruct the jury to the principles of law applicable to the lesser offense, and that", the defendant may be convicted thereof if in the opinion of jury he be guilty of such desser grade of the same generic offense. This general rule is to be qualified to the extent that the lesser; offense' must either necessarily be included in the greater by a charge in the indictment, or, if it may or may not be, then averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential. to describe the lesser offense. The whole subject is discussed Watson v. State, 116 Ga. 607, 43 S. E. 33, and the cases of Wilson v. State, 53 Ga. 305, Hopper v. State, 54 Ga. 389, Bard v. State, 55 Ga. 319, Trowbridge v. State, 74 Ga. 431, Malone v. State, 77 Ga. 767, Jenkins v. State, 93 Ga. 470, 17 S. E. 693, and Bell v. State, 103 Ga. 401, 30 S. E. 294, 68 Am. St. Rep. 103, are there cited as authority. The jury should in all cases, be instructed that the defendant may be convicted of the lesser offense, where the evidence submitted, under any view thereof, will authorize.conviction of the lesser grade. Sutton v. State, 123 Ga. 125, 51 S. E. 316. Otherwise, though the jury may have doubts as to whether the defendant may be guilty of the graver or of th.e lesser charge, if satisfied that the defendant is guilty of one or the other, they will be misled into the opinion that conviction can only be had in the particular case for the greater offense, and thereby injustice will result to the defendant. Inasmuch as the indictment in this case not only alleged an assault, but the evidence might have authorized an inference that the defendant intended to cajole or persuade the female into consent to yield to his desires, and thus to effect intercourse without force, the jury should have been instructed that if they ‘found, from the evidence, that it was not the intention of the defendant to have carnal knowledge of the female forcibly and against her will, but that the intention of the defendant was to arouse the passions of the female or otherwise induce her consent, and that, if the circumstances were such as to lead them to believe that the defendant would have desisted short of force and violence, then the defendant might be convicted of the offense of an assault. We can not tell what was the opinion of the jury upon this subject; but the omission of a charge upon the subject of assault excluded from them the consideration of defendant’s intention as a whole, and forced them to the conclusion that the assault made by defendant was made with no other intention than to rape. The evidence seems to us to strongly Sustain this 'conclusion, and no doubt thd learned trial judge entertained the same view; but in view of the publicity of the place where the* assault was alleged to have been made, and the fact that it was at the home of the female, where the defendant was not an intruder, but a frequent visitor, the jury might have taken an entirely different view, if they had been'told that they could consider another aspect of the question' and' might find the defendant guilty of assault, instead of being instructed, as they were, -that they should find him guilty of assault with intent to rape, or acquit him.

We think, too, that the court erred in the instructions given 'the jury with reference to the defendant’s statement. The 'jury •should have been instructed, especially in this case, that they had the right to believe the statement of the prisoner in preference to the sworn testimony, if they chose so to do. In this particular •case the omission was harmful, for the reason that the statement •of the defendant and the evidence of the little girl (totally antagonistic to each other) were the only evidence in regard to the •commission of the crime. The statement of the defendant was in material conflict with the evidence offered against his plea, and ■for that reason it was the duty of the court, without request, to instruct the jury fully upon that subject. The court did give a very full charge with reference to the defendant’s statement, but ■omitted to tell the jury, what they should always be informed, that ■they had the right to prefer the statement, if they chose, to the sworn testimony. It is possible (considering the very able •charge of the learned trial judge upon this subject as a whole) 'that the jury may have understood that they had the right to believe the statement if they saw proper; but in our opinion this does not dispense with the necessity of their being unequivocally so instructed. Decisions of our Supreme Court upon the •defendant’s statement are almost without number; but, after all, ■.the proper course is pointed out in the case of Ozburn v. State, 87 Ga. 185, 13 S. E. 247, in the following language: “In this •connection we will state that it would be a much wiser and safer ■practice for our brethren of the circuit bench, in charging concerning statements made by defendants, to confine themselves to the language of the statute upon this subject, and not to indulge in ■extended comments upon the effect to be given such statements. This course on their part will relieve them and this court of much •embarrassment and difficulty arising from a contrary practice.”

Judgment reversed.


author: Hill, C. J.

text:
    220.
    ELBERT COUNTY v. SWIFT.
    1. The damages recoverable under the provisions of the constitution of •of 1877 are for substantial injury to private property, real damage affecting the market value, and not speculative or imaginary damage affecting only the natural beauties of the property.
    2. Claims against counties must be presented by written demand to the proper county authorities within 12 months after such claims accrue 'or become payable, or the same are barred, unless held by minors or ■•persons laboring under disabilities. Where it appeared from the evidence that the above requirement had not been complied with, a verdict against the county was unauthorized.

      Action for damages, from city court of Elberton — Judge Proffitt. January 25, 1907.
    Submitted March 26,
    Decided May 24, 1907.

      C. P. Harris, for plaintiff in error. Z. B. Rogers, contra.
   Hill, C. J.

T. M. Swift, for the use of J. Y. Swift, brought suit against Elbert county for damages to land. The trial court; overruled a 'demurrer, and the case was submitted to a jury, which returned a verdict in favor of the plaintiff for $175. A motion for a new trial was made and denied. The defendant excepts to the judgment overruling the demurrer and to the refusal to grant-a new trial. This court will not consider the question made by • the demurrer, but will decide the case on the merits, as shown by the facts.

The plaintiff was the owner of a certain tract-of land located' on the' public road from Elberton to Petersburg. This tract of land had no improvements upon it, but by reason of many natural advantages, which are fully described in the petition and by the evidence, it was “unsurpassed in beauty and grandeur” as a site-for &c residence. Besides these natural advantages, it was located directly on the public road, which gave it additional value; and it-was the intention of J. Y. Swift, who held the benefipial interest-in the propertjq to erect on the same a family residence. The road which ran between Elberton and Petersburg and directly alongside-this property had been the public highway for a long time, and it-was by this road that ingress and egress was had to and from the-property. The evidence is-silent as to the value of the property in question, except that it was “chiefly valuable for a building-site.” In the spring of 1905 the commissioners of roads and revenues of Elbert county cut out, graded, and opened a new road. The new road leaves the old one some distance above the property-in question, and comes back into it some distance below. Between this property and the new road there is an embankment of trees- and bushes which completely hides the property from the road,, “and is a gruesome and unseemly sight in front thereof.” Although the old road was not closed up, it was practically abandoned by the traveling public, who preferred the new and better road. The old road, however, still remained as' a highway, and as a means of ingress and egress, into and from the property.- The-damage resulting to the property in question by the opening of the new road was alleged substantially as follows: The property could not be seen from the new road, and therefore its beauty as a building site Avas destroyed. The property was left off the traveled highwaj', because the .old road is practically abandoned, and has not been worked by the county since the building of the new road. There was no way of getting to the neAV road from the property, or from the new road to the property, except through the intervening woods, or going for some distance on the old road. Instead of a valuable and beautiful residence site on a public road, which- afforded easy access to it, it has become property without special advantages for residence purposes, located on an abandoned, unused, and unworked road. There is no eAudence as to the market value of the property before the neAV road Avas opened, or since, and no evidence as to value at all, except the single statement, by the owner and his witnesses, that the property has been damaged at least $500 by the opening of the new road and the practical abandonment of the old road. All the witnesses for the plaintiff concurred in the opinion that the property in question Avas chiefly valuable as a building site because of its natural advantages and of its location alongside the old road, and that it had been damaged by the'new road and the abandonment of the old road, for such use, from $500 to $1,000. This is a substantial statement of the material eA'idence for the plaintiff. Without reference to the evidence for the defendant, does this evidence for the plaintiff make a case for the recovery of damages?

Under the constitution of 1877, if private property is damaged by the construction of roads or any improvement made for the use of the public, its owner can recover whatever damage he has actually sustained. Campbell v. Metropolitan Street R. Co., 82 Ga. 320, 9 S. E. 1078. Under this provision of our constitution a recovery may be had in all cases where private property has sustained a substantial injury from the making and use of an improvement that is public in its character, whether the damage is direct, as when caused by trespass or physical invasion of the property, or consequential, as in the diminution of its market value. City of Atlanta v. Green, 67 Ga. 390; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638. Unquestionably, also the owners of land adjacent to public roads have a private right to have free access to their land and buildings thereon from the roads. 82 Ga. 320, 9 S. E. 1078, supra; Street. Ry. v. Cumminsville, 14 Ohio St. 523. Applying these general principles to the facts as sliown in behalf of the plaintiff, is this case one for damages? Certainly there is not .shown any physical injury to his property, or any trespass thereon by the acts of the county commissioners in constructing the new road. Do the facts show any consequential damage, diminishing the market value, of the property? Has his private property sustained any substantial injury from the making of the new road? It can not be said that there is any diminution of its market value, for the very simple reason that it is not shown by the evidence to have had any market value either before or since the opening of the new road.

It is contended that its value as a building site has been damaged $500 at least, because it is no longer adjacent to a public road, from which it can be seen, and to which there is easy access. The • estimate of this damage is purely speculative, for there is no evidence whatever as to its value as a building site before the new road was made. Abstractly considered, the property still retains all of its natural advantages as- a building site. We think damages might, be recoverable for any diminution of the value of the property in connection with the .use or uses to which it had been put, or to which it was peculiarly adapted; but we think it entirely too remote and speculative to give damages for a supposed injury 'to the mere ethical value of property for a certain use. Legal redress is given' for substantial, ■ and not imaginary injury to property— for damage to market value, and not injury to .landscape beauty. In this case the opening of the new road did not affect the physical advantages of the property. It is true “the embankment of trees and bushes” between the road and the property was left, “a gruesome and unwholesome” obstruction intervening between the road and the property; but this obstruction was not placed there by the ruthless hand of the county. It was the unappreciative act of nature. We know of no law that required this unsightly “embankment of trees and bushes” to-be removed by the county authorities, so that the natural beauties of the property could be seen and admired from the public road.

On the question as to interfering with or preventing access to the property from the public road, the evidence shows that the old road is still open, and if the. owner of the property desires to use the same for residential purposes, and to afford the traveling public the benefit of its beauty as they pass on by, or to afford him convenient ingress and egress to and from the public road, he has only to call upon the county authorities, under the act of 1903 (Acts 1903, p. 41), to work this road and keep it in proper condition. It ■is somewhat remarkable that, notwithstanding the fact that this property was so unsurpassed in its beauty for residence purposes, it 'had never been improved by the present owner, although he had been in possession thereof for many years. The unsurpassed advantages of this favored spot for an “ideal country home”" seem to lave been overlooked or neglected by those who so greatly appreciated its beauties until the opening of the new road. This public improvement was the flashlight that brought into view and value the hidden beauties of the place. We do not know of any law that requires a county to pay damages to a private citizen •whose eyes have only been opened to the beauties of his private property by an improvement of public utility. »

All claims against counties must be presented within 12 months after they accrue. Pol. Code, § 362. The allegation of the petition is that “in the spring of 1905” the county cut out, graded, and built the ©ew road which damaged the property, and that the petitioner “made a written demand on the defendánt for' the sum of $500 damages,” which had been refused. No time is stated when such written demand was made. The evidence on ■the subject is that the attorney for the plaintiff handed to the clerk •of the board of commissioners a written claim for damages,. in the amount óf $500, and that the board received it and declined to pay it. It is not stated when such written claim for damages was made. The suit for damages was not filed until July 24, 1906. It nowhere appears, therefore, either by allegation or by •evidence, that any demand was made on the county within 12 months from the spring of 1905, when the claim for damages was .alleged to have accrued. Treating the filing of the suit as a written demand, it does not show that such demand was made within the 12' months, for it was filed July 24, 1906.

Let the judgment of the court, refusing to grant a new trial, be Reversed.


text:
    222.
    Burr v. Atlanta Paper Company.
    Complaint, from city court of Atlanta — Judge Beid. January 28, 1907.
    Argued March 26,

    Decided May 24, 1907.

      W. R. Hammond, for plaintiff.

      Slaton & Phillips, for defendant.
   Russell, J.

1. In case of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration, growing out of defects discovered after acceptance, even though such defects would have become apparent upon an examination before delivery. Cook v. Finch, 117 Ga. 541, 44 S. E. 95. And partial payments, with knowledge of the defective condition, will not estop the-buyer from pleading partial failure of consideration. Moultrie Repair Co. v. Hill, 120 Ga. 731, 48 S. E. 143.

2. The defendant having pleaded and relied upon an express warranty and partial failure of consideration, evidence tending to show that the article sold was defective in certain particulars covered by the express warranty was properly admitted; and the jury having sustained the defendant’s plea, their verdict will not be disturbed.

3. The fact that “the vendee accepted deliver of inferior box board, and, with knowledge of its inferiority, caused it to be made into boxes,”' and that for that reason “the vendor would not be answerable in damages for loss accruing from making the box board into boxes,” has-no application in a case where recoupment is not pleaded nor damages asked. While, as a general rule, a vendee can not complain, after acceptance of an article with knowledge of its defective condition, that it is inferior to the quality contracted for, vet where the seller, upon complaint made by the buyer, expressly authorized the vendee to use the article (box board), admitting that it was not up to warranty, and leaving the entire matter in the hands of the vendee, and, after knowledge that the vendee' claimed that the goods were of an inferior, quality, accepted a payment on the goods sold, 'such a state of facts presents an exception to the general rule.

4. Complaint can not be made that evidence is too vague, uncertain, and indefinite to authorize a verdict, when such evidence corresponds in nature, statement, and definiteness with the pleadings, unless attention has been called thereto by demurrer to the pleadings or objection at the ti'ial to the evidence. A case is sustained when the proof fits the plea. Judgment affirmed.


text:
    233, 234.
    VINSON v. WILLINGHAM COTTON MILLS, and vice versa.

    1. It is not incumbent upon persons or corporations using machinery in the prosecution of their business to procure the best and safest machinery which can be made. It is sufficient if the machinery* is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. “No manufacturing business or business establishment is bound at its peril to make use only of the best implements and the best machinery and the safest methods.” Cooley, J., in Michigan Cent. R. Co. v. Smithson, 45 Mich. 219, 7 N. W. 793; 1 Am. & Eng. R. Cas. 104. (
    2. An employee 18 years of age, w'ho has had 7 months’ experience and 2 months’ special instructions in her particular line of work, and in connection with the special kind of machinery used in such work, is not an inexperienced child of tender years, so as to impose upon her employer any exceptional .degree of care.

      3. In a suit by a servant against his master for personal injuries, the burden is upon the servant to show negligence, causing the injuries, by the master; and a servant, while working with dangerous machinery, is bound to exercise due diligence to avoid any casualty to himself, and if he fails to exercise such care he can not recover, though the master himself may have been at fault. ,
    4. Negligence, to be the basis of a recovery, must be the proximate cause of the injury; and if the injury would have occurred, regardless of the negligent act, there can be no recovery.
    .5. The evidence introduced by the plaintiff, and all reasonable deductions therefrom, failed to establish the allegations of negligence against the master, but, on the contrary, showed that the servant’s injury was caused by her own neglect to exercise ordinary and due care in connection with her work.
    ■6. Under the foregoing wHl-settled principles of law, the judgment granting a nonsuit was right.
    Action for damages, from city court of Macon — Judge Hodges. .January 7, 1907.
    Argued March 27,
    Decided May 24, 1907.

      Glawson & Fowler, Joseph H. Hall, J. E. Hall, for plaintiff.

      Hardeman & Jones, John P. Ross, for defendant.
   Hill, C. J.

The plaintiff in error, a. minor 18 years of age, by next friend, sued her employer, the defendant in error, for injuries .sustained while engaged at the work she was employed to do. .Her petition alleged that she was operating a loom, and, while so employed, was struck in the eye with a shuttle, which was thrown out ■of its place. Her employer was alleged to have been negligent in the following particulars; (1) In failing to provide a shuttle guard, an appliance in general .use in cotton mills of similar character; (2) in failing to instruct and warn its employee of the great' danger attending her work as a loom operator because of the absence of a shuttle guard on the loom, the employee, by reason of immaturity and inexperience, not knowing and having no opportunity to*know of this danger. These two allegations of.negligence,, although somewhat elaborated by the allegations and the evidence1 in support thereof, present substantially the charges of negligence made against the employer. We will consider these two grounds in. their order. -

The machinery was not alleged to have been defective or out of repair, and there was no latent defect; but, because of the defendant’s failing to provide a shuttle guard, it was charged that the machinery was not equal in kind to that in general use, and was not reasonably safe for all persons to operate it with ordinary-care and diligence. A shuttle guard is a steel rod fixed to the-“reed cap,” directly over the shuttle as it passes from side to side-of the loom. This guard extends directly over the path of the* shuttle, and is a device in general use in all cotton mills. It prevents the shuttle from flying up while the loom is in operation. It does not prevent it from flying out. The flying shuttle strikes fireguard, and is thus deflected from its course, and is prevented, from flying up, and made to fly out on the side by the guard. The loom in use by the • defendant was of the Crumpton & Knowles manufacture, and they make the best and', most modern tj'pes of looms. These looms were used for the manufacture of hose and belting duck, and no shuttle guards are-ever used on these looms in the manufacture of duch material; but, -in the place of a shuttle guard, there is used what is called a “reed cap,” projecting above the race board of the shuttle, and occupying, with reference to the shuttle, the place of the shuttle guard. In other words, a reed cap on the Crumpton & Knowles looms for the manufacture of hose and belting duck, such as were used in the defendant’s mills, performs the same function as the shuttle guard.' The evidence on this allegation of negligence, as introduced by the plaintiff, therefore, established the fact that the-machine in question was manufactured by machinists of the best skill and character, was of the best and most modern type, and had the usual appliance attached to such looms for the protection of operators from flying shuttles. It is' the general rule of law that the master is not required to provide an absolutely safe machine, but only one equal in kind to that in general use. Civil Code, § 2611; Ala. Mid. Ry. Co. v. Guilford, 119 Ga. 523, 46 S. E. 655; Davis v. Augusta Factory, 92 Ga. 712, 18 S. E. 974. As illustrating the danger or safety in operating this character of looms, the plaintiff testified that during the six or seven months in which she had been occupied operating one of the looms, only one shuttle had flown out, from over 100 looms in operation, and that this one was from a loom which was out of fix. We therefore conclude that the testimony failed to support the allegation of negligence as to the dangerous character and condition of the machinery used by the master.

But, if not having a shuttle guard was a dangerous defect, it was perfectly patent to the operator. It is insisted that she was a minor of tender years, and inexperienced in the use of such machinery, and that her employer was guilty of negligence in failing to instruct and warn her of the danger attending her work as a loom operator because of the absence- of shuttle guards on the looms. The evidence for the plaintiff showed that she was 18 years of age, and she was not shown to have been deficient in intelligence. She had been running a loom for 6 or 7 months, and had 5 months’ experience in running the loom by which she was injured and 2 months’ special instruction by her employer before she was permitted to run the loom. It is therefore fair to-presume that she knew how to operate a loom. She knew that shut-lies did sometimes fly out of the looms; for one flew out of the loom once before. She knew that it was the duty of the-operator to watch the shuttle, so that, if the thread broke or got tangled, she could stop the loom and'fix it; and she knew that, if the broken threads got tangled or “wadded up,” it would cause the shuttle to fly out. The evidence showed that the shuttles do not fly out in front, where the operator should stand when operating the machine, but that they do fly out either to the right or left. The plaintiff’s testimony on the foregoing points shows that she was not inexperienced. It shows that she knew how to operate a loom.. She stated that she had been in the habit of operating two looms, but that on the day she was injured she was only operating one; that while her loom was in operation she took her seat upon the.stool on the side of the loom, with her back to it, and was reading a newspaper or book. She knew that her duties required her to constants watch the shuttle to prevent an accident if the threads broke or got tangled. Her own expert witness testified that such conduct on her part was unsafe. “It was unsafe for the weaver to sit in front of the loom, with her head on a level with the shuttle, and be engaged in reading at the time, and not watching the shuttle for the purpose of filling the shuttle and repairing the breaks. It is the duty of the operator to watch the work, to repair such breaks as soon as they occur. It is unsafe for the operator to run a loom, pajdng no attention to the loom, and leave breaks in' a warp thread unrepaired, and then sit down with her head on a level with the shuttle course or lathe of the loom.” It might, therefore, be conceded that the master was negligent in not providing a shuttle guard; yet, as shuttle guards do not prevent shuttles from flying out at the sides, but only out at the front, the plaintiff’s own negligence was the proximate cause of her injury. It can not, under her own testimony and that of her expert witness, be reasonably contended that she was in the exercise of due care; but her own carelessness was the cause of her injury. This evidence overwhelmingly shows that the safe way to operate a loom was to stand up in front and constantly watch, and that the unsafe way was to sit down at the end of the loom and become absorbed in reading. It can hardfy be doubted that, if the plaintiff had been watching to prevent the result of broken threads, she would not have been hurt. Having, with her experience and knowledge, voluntarily selected the unsafe way to perform her work, she can not recover. Civil Code, § 2612; Brush Electric Co. v. Wells, 103 Ga. 515, 30 S. E. 533; McDaniel v. Acme Brewing Co., 113 Ga. 80, 38 S. E. 404; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368, 54 S. E. 110.

In addition to what has been stated, it may be said that the proof is clear that the absence of a shuttle guard in no wise contributed to the injury of the plaintiff. If there had been a shuttle guard, it would have prevented the shuttle from flying out towards the front and have deflected it to the side. In other words, with a guard the shuttle would have taken the same course that it did take, and it is not unreasonable to suppose that.the reed cap, which on this t3qpe of machine occupies the same place that the •shuttle guard does to other machines, did prevent the 'shuttle from flying out to the front, and did deflect it to the side. It seems, therefore, inevitable that the shuttle guard in this case would not ■only not have prevented the injury to the plaintiff, but, in connection with her own careless conduct, would- actually have caused the injury. “It needs no citation of authority to sustain the proposition that negligence, to be the basis of a recovery, must be connected with the injury which is the subject of the suit.” Moseley v. Schofield, 123 Ga. 199, 51 S. E. 310. It must have been the proximate cause of the injury to the servant, or the master is .not liable therefor. Richmond R. Co. v. Dickey, 90 Ga. 491, 16 S. E. 212; Hamby v. Union Paper Mills Co., 110 Ga. 1, 35 S. E. 297.

We therefore conclude that under no view of the proof submitted by the plaintiff in support of the allegations of negligence, and all fair and reasonable deductions therefrom, under well-established principles of law would a verdict for the plaintiff have 'been supported; and the court did not commit an error in granting ihe motion to nonsuit.

Judgment affirmed on the main bill of exceptions; cross-bill of .exceptions dismissed.


text:
    239.
    TURNER v. WARE.
    1. Where a party has been induced to enter into a contract by a willful fraud on the part of the other party, calculated to deceive and which does deceive, the defrauded party may set up the fraud in his defense to an action on the contract.
    "2. In a suit on a promissory note against the maker thereof, the defense was that the maker had been induced to sign the same by a misrepresentation of a material fact, made wilfully to deceive him by the holder thereof. Held, that it was error to exclude the testimony in proof of this defense and to direct a verdict for the plaintiff.
    Appeal, from Bibb superior court — Judge Felton. February 14, 1907.
    Submitted March 27,
    Decided May 24, 1907.

      R. D. Feagin, for plaintiff in error. L. D. Moore, contra.
   Hill, C. J.

Ware sued Turner in a justice’s court on a note for $65 for rent of a store on First street, in tbe city of Macon. Turner pleaded that he was induced to sign the note by fraudulent misrepresentations made to him by Ware, and pleaded set-off and recoupment against Ware of $85. The facts of the transaction between Ware and .Turner were substantially as follows: In March, 1906, -Turner was renting a store on Second street, in Macon, and was paying $60 per month, and his rent-notes were outstanding until October 1, 1906. Ware was renting-a store on First street, under a lease to October 1, 1907. Turner-did not know what rent Ware was paying. Ware wanted to exchange stores with Turner, and they agreed to make an exchanger of stores, and, as both parties had rent notes outstanding, it was-agreed that, in order to avoid the trouble of making new notes,, each would continue to pay his outstanding notes for the rent of' the store each had been occupying, and they would adjust between themselves the difference in the rent; and each took the other’sword as»to what rent he was paying. Turner told Ware that he-was paying $60 per month for his store, which was the truth.. Ware told Turner that he was paying $65 per month for his store,, which Turner relied upon as being the truth; but in fact Ware-was only paying $50 per month for his store, and his notes for-this amount were outstanding. Under these representations, which each accepted as true, and which each acted upon, the exchange of' stores was made. Under this contract Turner gave his notes to-Ware for $65 for the monthly rent which Ware said his store had. been costing him; and it was agreed that Turner should pay these-notes each month by taking up his own notes for $60 for the rent-monthly of the store he had occupied on Second street, and pay Ware the $5 difference in the rent of the two stores; in money. Turner, relying upon the truthfulness of Ware’s statement and having no cause for suspecting any deception or fraud,, paid and took up his $60 notes each month for six months after-the exchange of stores was made. • This payment covered the rent: of the store which Ware had moved into, and which had been occupied by Turner from April 1, 1906, to October 1, 1906, and, in addition, Turner paid to Ware the $5 per month for five months,, thereby taking up, in pursuance of the agreement, five of his $65¡ notes which he had given to Ware. Turner having thus paid his six' $60 notes, and in addition the $5 difference in the rent of the; stores to Ware, he was only due, at the time the suit was-brought; on the $65, the sum of $5, assuming that there had been no misrepresentation or fraud, and that Ware’s contention, as claimed,, was correct. Ware’s suit was for the full amount of $65 and interest, and Turner claimed that he- had paid as rent, when Ware sued, $85 more than the aggregate rent of the First street store according to what Ware was actually paying therefor when the exchange of stores was made; this $85 being composed of the $5 difference in the rent of the two stores for the five months for which Turner had paid to Ware, and the $10 per month, which Turner had paid as the difference in rent, relying upon the statement of Ware that his monthly rent was $65, instead of $50. The evidence-for the defense clearly established the truth of Turner’s contention; it being shown that Ware as a matter of fact was only paying $50 per month for his store, and not $65 as was represented. The court, however, ruled out all the testimony for the defense, and directed the jury to return a verdict for the plaintiff Ware on the-note of $65 for the full amount, with interest. The defendant made a motion for a new trial, based on the usual statutory grounds- and the judgment of the court excluding the testimony in support-of his defense and in directing a verdict for the plaintiff.

We think, under the evidence submitted by the defendant, the-court erred in excluding this testimony and in directing a verdict, for the plaintiff, and erred in not granting a new trial. The Civil Code, §4026, defines legal fraud as “misrepresentation of a material fact, made willfully to deceive, . . . and acted on by the-opposite party.” The evidence submitted by the defendant shows, that Ware did make a misrepresentation to Turner as to the amount of rent paid monthly for his store. It can not be assumed otherwise than that this misrepresentation was made willfully to deceive. Of coursé, Ware knew what amount of rent he was paying-for his store, and such misrepresentation was acted on by Turner1 under the belief that it was the truth. This leaves for consideration only the question as to whether such misrepresentation was of “a material fact.” Under the contract made between the parties,, the exact amount of rent each was paying for his store was a material fact, as determining the amount each was thereafter to pay on the exchange of stores. It was understood that the man whose-rent was the less of the two was to pay to the other the difference. If, therefore, Ware had not made the misrepresentation to Turner,, to wit, that his store cost him $65 rent per month, but had told him the truth, to wit, that his store was only $50 rent per month, instead of Turner paying Ware $5 per month as the difference in rent, Ware under the terms of the agreement would have paid Turner $10 per month as the difference in rent. This misrepresentation, therefore, took out of Turner’s pocket $5 per month that he paid to Ware as the difference in the rent as represented by Ware, and kept out of Turner’s pocket $10 per month which Ware should have paid him as the difference in the actual rent of the 'two stores. If these facts were true, and the evidence submitted by the defendant gave him the right to have that fdct determined by a jury, then the plaintiff was not only guilty of legal, but actual, fraud. If either party to a transaction conceals some fact which is material, which is within his own knowledge, and which it is -his duty to disclose, he is guilty of actual fraud. Civil Code, §§ 4025, 4026, 4027; In re Tappan, 22 Pac. 257, 5 L. R. A. 428, 13 Am. St. Rep. 174. In Epps v. Waring, 93 Ga. 765, 20 S. E. 645, Mr. Justice Lumpkin says: “It is a universally recognized doctrine, supported by all respectable text-writers, and upheld in every well-considered case, bearing upon this subject, that where a party has been induced to enter into a contract by willful fraud on the part of the other party, calculated to deceive apd which does deceive, the defrauded party may set up the fraud in has defense to an action upon the contract.’’ Under these decisions, the defense set up in fhis case was good, and the evidence subanitted by the defendant entitled him to a verdict, unless such evidence was controverted; and we -think that our learned brother of the trial court erred in excluding the testimony of the defendant, and in -directing a verdict for the plaintiff, and in refusing to grant the defendant a new trial. Judgment reversed.


author: Powell, J.

text:
    255.
    Carroll v. Hutchinson.
   Powell, J.

1. A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken on demurrer.

2. One who, in the absence of fraud, knowingly gives his promissory notes for a sum of money for the purchase-price of land for which he accepts from the payee of the notes a bond for title, conditioned upon the pay- : ment of that sum, can not defeat the collection, of the notes by showing an antecedent executory agreement on tlie payee’s part to give him tlie land, or a part of the purchase-price, or to sell it to him at a price different from that stated in the written contract.

Complaint, from pity court of Tbomasville — Judge Hansell. February 8, 1907.

Submitted March 29

Decided May 24, 1907.

21. Baum, W. C. Snodgrass, E. P. S. Denmark, for plaintiff.

3. Tlie evidence demanded a verdict for the plaintiff.

Judgment reversed.


text:
    284.
    MORRIS et al., administrators, v. DUNCAN.
    No error appears.
    Trespass, from city court of Atlanta' — Judge Eeid. October 27,,-1906.
    Argued April 10,
    Decided May 24, 1907.
    W. H. Terrell, plaintiffs in error. Ben. J. Conyers, contra.
   Powell, J.

The principal points made by the plaintiff in error- and decided adversely are these: By reason of a default, the law-implied, as against the defendant (now plaintiff in error), a conclusive admission of all the facts alleged in the petition, and he was allowed to contest before the jury only the amount of the damages. The plaintiff testified that the value' of the goods taken by the defendant was so much, and described the damage done to the goods. The defendant having died and his personal representative being a party, the point was made that the plaintiff was not a competent witness to prove these facts. The suit being for the malicious abuse of legal process, the judge charged the jury that compensatory damages for the plaintiff’s wounded feelings (but not punitive damages, the defendant being dead) might be allowed. The point is made that the plaintiff did not testify that her feelings had been wounded; also that under the circumstances damages for wounded feelings were not recoverable. The suit was originally against several defendants, all of whom, the petition alleged, resided in Fulton county. Subsequently all the defendants, except the administrators of Morris, were stricken from the suit. Several terms after this had occurred (the case in the meantime having gone to the Supreme Court and having been remanded to the court below for new trial) the defendants, on the last trial of the ' .case, attempted to prove that neither Morris nor his administrators had ever lived in Fulton county, but had ever been residents of DeKalb county. The trial court refused to permit this to be proved. There was no plea to the jurisdiction. The court charged the jury that they might in their discretion add interest to the .amount of actual damage they should find in plaintiff’s favor; the point is made that interest during the pendency of the suit should have been excluded, as the delay in getting the ease to final trial .had been occasioned by the plaintiff’s laches.

The defendants through their able and untiring counsel have . made a gallant fight, especially so in light of .the handicap of the •default encountered at the beginning of the case (see the reports ■of the same case, sub nom. Mullins v. Matthews, 122 Ga. 286, 50 S. E. 101, and Morris v. Duncan, 126 Ga. 467, 54 S. E. 1045); but the end has come at last; for after a close and careful examination of the record, we find no error, and therefore affirm the judgment recovered by the plaintiff. Judgment affirmed.


text:
    299.
    Downey v. Fogarty.
    Complaint, from city court of Richmond county — -Judge Eve. December 15, 1906.
    Submitted April 30,
    Decided May 24, 1907.

      Samuel H. Myers, Wallace B. Pierce, for plaintiff in error.

      D. G. Fogarty, contra.
   Hill, C. J.

In this case no error of law is complained of, and the verdict was fully authorized by the evidence. Judgment affirmed.


text:
    302.
    Bater v. Bater.
   Hill, C. J.

This case was brought to this court by writ of error, and, when called in its order, there was no appearance for the plaintiff in error. -The defendant in error moved the court to open the record, and asked for an affirmance of the judgment, and damages for delay, under the Civil Code, §5594. In compliance with this motion, the record was opened and the case considered. There is no merit whatever in the exceptions of the plaintiff in error, and this fact,-taken in connection with his failure to appear and prosecute, shows that he must, have brought the case here for delay only. It is ordered that the judgment be affirmed, and that ten per cent, on the amount of the judgment in the court below be awarded against the plaintiff in error in favor of the defendant in error, as damages for bringing the case here for delay only. Craton v. Hackney, 91 Ga. 192, 17 S. E. 124; Avera v. Vason, 42 Ga. 234.

'Motion for damages for bringing up case for delay.

.Submitted May 1,

Decided May 24, 1907.

Robert L. Colding, Tomlinson Fort, for movant.

Judgment affirmed, with damages.


text:
    305.
    DUNLAP HARDWARE CO. v. THARP.
    1. The proper officer to record on the execution docket of a county court entries on executions issued from that court is the judge of the court. The sheriff has no authority to make such record. Therefore, where the sheriff recorded on the execution docket of the county court from which the execution issued an entry made by him as sheriff on the execution, there was no such compliance with the law as would prevent the dormancy of the judgment upon which the execution was based.

      2. When the record on the execution docket of an entry on an execution is made by the proper officer, he should date such record as of the date when made.
    .'3. The entry as it appears on the execution should .be recorded on the docket, and a substantial compliance with this requirement is necessary.
    Appeal, from Houston, superior court — Judge Eelton. October 4, 1906. .
    Argued May 1,
    Decided May 24, 1907.

      Hardeman & Jones, for plaintiff.

      C. E. Brunson, William Brunson, for defendant.
   Hill, C. J.

The Dunlap Hardware Company (plaintiff in error) obtained a judgment against Tbarp (the defendant in error) .in the county court of Houston eountjr, on October 21, 1895. Execution was issued, and duly entered upon the execution docket, ■October 30, 1895. Nulla bona was entered upon the execution •on March 11, 1901. The execution docket of the county court, •opposite the entry of the execution, showed the following entfy: “Beturn nulla bona made by sheriff on this fi. fa. March 11, 1901.” Levy of this execution was made by the sheriff on property of the •defendant January 2, 1906, and the defendant thereupon filed an affidavit of illegality, on the ground that the judgment was dormant at the date of the levy. The issue thus presented was submitted to the decision of the judge without the intervention of a-jury. The execution was introduced in evidence, with entries, above noted. The entry of nulla bona on said execution appeared as follows: “Georgia, Houston County. Due search made, and no property of the defendant found upon which to levy the within execution. This .the 11th day of March, 1901. [Signed] M. L. Cooper, Sheriff.” Opposite the entry upon the execution docket. Avas the following entry: “Return milla bona made by sheriff on. this fi. fa. March 11, 1901.” M. L. Cooper, the sheriff, testified that he made the entry of nulla bona on the fi. fa., and also the= entry on the execution docket. He did not remember when it AAras made, but he did not make any entry and date it back. This was the only evidence; and the court sustained the illegality and. dismissed the levy.

The only question presented in the case is whether the entry made by the sheriff on the execution docket of the county court Avas sufficient to prevent the dormanc}^ of the judgment. “An entry made by a proper officer upon an execution issued from a judgment, unless recorded upon the execution docket of the court from which the execution issued, will not, even as between the parties to-the judgment, arrest the running of the dormancy statute.” Nowell v. Haire, 116 Ga. 386; 41 S. E. 719. See also Civil Code, §§ 3761, 3762; Smith v. Bearden, 117 Ga. 822, 45 S. E. 59; Palmer v. Inman, 126 Ga. 519, 55 S. E. 229; Benton v. Fish, 1 Ga. App. 656, 57 S. E. 1079. It is contended in this case that the record on the execution docket, relied upon to keep the execution in life, Avas not sufficient for that purpose, under the laAAr, because made by the sheriff, who Avas not the proper officer to make it, and it does not appear that he Avas in any way authorized to make it; because it was not dated; and because it was not a true transcript of the entry on the execution. The proper officer to make-entries on executions on the execution docket of the county court is the judge of that court. Civil Code, §4185. The sheriff has; no authority to make such record on the docket. No presumption, arises as to the regularity of the sheriff’s act in making such record, because he has no authority upon the subject whatever. Regularity in the performance even of. a ministerial act will not be presumed, unless the ministerial officer was authorized by law to perform the • act. In other words, the question of regularity in the performance of an act can- not arise where no duty is imposed by law, or authority given by law to do the act. Civil Code, § 3763, requires that the clerk, or proper officer, making the entry on the execution docket, shall date such record- when it is made. In this case the entry on the execution docket is as follows“Return nulla bona made by sheriff on this fi. fa. March 11, 1901.” This date clearly applies to the entry made by the sheriff on the execution, and not to the date when the entry was recorded by him on the execution docket. We do not think this sufficient. The date when the record is made on the execution docket should be clear and unequivocal, for the time of the record upon the execution docket is the all-important fact from which to determine the question of dormancy; the language of the statute being: “No judgment shall be enforced after seven years from its rendition, when no execution has been issued upon it and the same placed upon the execution docket, or when execution has been issued and seven years have expired from the time of the record, upon the execution docket of the court from which the same issued, of the last entry upon the execution made by an officer authorized to execute and return the same.” Civil Code, §3761.

To save the judgment from becoming dormant the statute requires that the entry on the execution must be -recorded on the execution docket' of the court from which the same issued. A substantial compliance with this requirement is essential. What was placed on the execution docket by the sheriff in this case was, not the entry which was on the execution, but a mere statement, according to the sheriff, of what the entry was. The reason for this requirement is that the execution docket must show a proper entry of the sheriff on the execution. The entry on the docket of the words, “Return nulla bona made by the sheriff on this fi. fa. March 11, 1901,” is.shown by reference to the entry on the fi. fa. not to be a correct-transcript. It is true, as contended by the learned counsel for plaintiff in error, that the Supreme Court in many cases has given to the dormancy statutes an equitable construction; but such construction has been limited to those cases where the acts ©f the plaintiff in execution to enforce his execution, by reason,of them public character, served to keep the judgment alive. It has never been held by the Supreme Court that entries on the execution can be effective for this purpose when not recorded in the manner prescribed by the statute. In the case of Columbus Fertilizer Co.v. Hanks, 119 Ga. 955; 47 S. E. 224, the Supreme Court holds that, if the act of 1885 (Civil Code, §§ 3761, 3762) means anything, “it is that entries on an execution can not serve to keep-the judgment in life unless the entries are properly recorded.” We think it very clear that the judgment of the trial court, for the reasons stated, should be • Affirmed.


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    307.
    DURDEN et al. v. SOUTHERN RAILWAY COMPANY.
    1. In the absence of charter limitations, contractual obligations, rule of the railroad commission, or statutory enactment to the contrary, a railway company may exercise its discretion in removing a side-track or spur at which it has been accustomed to receive and deliver freights, as a common carrier.
    2. As a common carrier a railway company owes to the public the duty of giving reasonable notice of the intention to abandon such a sidetrack, if the result of such ■ removal is to leave no facilities for the-receipt or delivery of such goods as it has been accustomed to receive- and deliver there. From a breach of this duty a cause of action will arise in favor of one who, in response to the implicit invitation of the-carrier to bring goods to that place for shipment, has so located his. goods, intended for shipment, that, by the removal of the track and the discontinuance of shipping facilities without notice, he has been specially damaged.
    3. What is reasonable notice in such cases is a question of fact for the-jury; and, in determining it, the exigencies, both of the public, so far as its members are likely to be interested as shippers, and of the carrier, in the light of its private rights and public obligations, should be considered.
    4. The damage recoverable by a particular prospective shipper, who, liav: ing arranged his property for shipment, is disappointed by the unexpected removal of the facilities, is so much of his loss sustained by reason of such removal as he would not have sustained if reasonable-notice of the intention to remove had been given by the carrier.
    Action for damages, from city court of Macon-Judge Hodges. September 20, 1906.
    Argued May 2,
    Decided May 24, 1907.

      Joseph H. Hall, Warren Roberts, for plaintiffs.

      N. E. & W. A. Harris, for defendant.
   Powell, J.

The error assigned in this case is the sustaining of a demurrer to the plaintiffs’ petition. According to the allegations of the petition, the defendant is a foreign corporation, operating a line of railway in this State. The plaintiff, about two years prior to the bringing of the suit, bought a tract of land lying immediately on the line of the railroad. This land lies between the Ocmulgee river and the railroad, was bought for the wood and timber on it, and has little value for any other purpose. At the time the plaintiff purchased this land, there was located adjacent thereto, on the defendant’s line of railway, a side or spur track, at which the defendant was receiving and had been for 15 years accustomed to receive and deliver cars of freight as a common carrier. For about two years defendant had been accustomed to receive from the plaintiff for transportation cars of wood at this side* track. In'February, 1906, without any previous notice being given, defendant removed this side track, and left plaintiff no means of delivering his wood for transportation. At the time the side track was taken up, plaintiff actually had on the railway right of way, awaiting cars, a quantity of wood. He also had 45 additional cords of wood cut. and ready for transportation.. All of said wood had been sold to customers in the city of Macon.. There is no other available means ■ of transportation, and a total loss .of the value of the wood has been occasioned to the plaintiff by the removal of transportation facilities. Further, there are 500. cords of uncut wood on said land, for which plaintiff had a ready market, which will be totally lost by reason of the destruction of plaintiff’s transportation facilities. By amendment to the petition, it is alleged that the side track was not a private side track, but was established and maintained for the benefit of the public, in the reception and delivery of freights by the carrier; also, that a portion of the cut wood previously referred to had been delivered actually in’o the custody of the carrier for shipment before the removal of the side track. The defendant demurred generally and specially. The effect of the demurrer is to assert that the defendant had the right to move the side track at its pleasure or discretion; that no contract to maintain the same is set forth; that no right of the plaintiff has been violated; that the defendant has failed in no duty due the plaintiff; also, that the damages alleged are too remote and speculative. The trial court sustained the demurrers, and the plaintiff brings error.

The point involved in this case is somewhat novel; for, while there are several reported cases apparently cognate, each of them, so far as our research has disclosed, contains some feature-which distinguishes it from the case at bar by reason of the peculiar facts or of the statute law of the jurisdiction where rendered. There are cases involving the right of railway companies to abandon stations once established, but special reference is usually had, in the determination of them, to the terms of charters, local statutes, or orders of railroad commissions. Some cases have involved breaches of contracts to maintain side tracks for the benefit of particular shippers. In this case no charter is involved, for the defendant is a foreign corporation, and no-duty by charter is asserted, no special contract is alleged, no violation of State statute law is claimed. There is no rule or orde-r of the railroad commission upon the subject. Looking to the common law, we find that, in the absence of charter requirements, statutory regulation, or special contract to the contrary, there is no inhibition against a carrier using its discretion in abandoning the stations at which it has been accustomed to receive freight. The safety of public travel frequently demands the abolition of side-tracks or spurs, and the discretion of the railway company in removing them will rarely be interfered with by the court. Jones v. Newport News & M. V. Co., 65 Fed. 736, 13 C. C. A. 95; Mercantile Trust Co. v. Columbus R. Co. (C. C.) 90 Fed. 148; Oman v. Bedford Co., 134 Fed. 64, 67 C. C. A. 190. The United States Supreme Court, in Northern Pacific R. Co. v. Washington Territory, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. ed. 1092, held that a station at a county seat might be abolished; but this decision was by a divided court, and we really think that the dissenting opinion presents the sounder view.

However, from a recognition of a railway company’s rights to remove the side track and to’discontinue the receipt and delivery of freight at the place where it was located, it does not necessarily follow that the manner in which this right is exercised may not create a cause of action in favor of one who has been damaged thereby. We do not think that a common carrier can, without liability, hold out to the public either an actual or implied representation that it will receive goods for shipment at a certain place, and then, without reasonable notice, withdraw its facilities for complying with its implicit invitation, to the injury of one who, upon faith of the carrier’s representation, has, with the view of accepting the carrier’s offer to receive goods at the place named, caused his goods to be placed in such position that the withdrawal of the facilities for shipment specially damages him. When the carrier erects a public station or side track, at which it receives and delivers goods for transportation, it in a sense makes to the public an open promise to receive goods there, a representation that it is ready and willing to perform there the duty to the public, of receiving goods for transportation. Individual members of the public have a right to act upon this open promise, this public representation, until due notice is given that the same is to be withdrawn. ' This is in line with the reasoning of the court of Queen’s Bench in Denton v. Great Northern Ry. Co., 34 Eng. L. & Eq. Rep. 154. In that case the court says that such a course of dealing with the public amounts to a contract broken and a deceit perpetrated. Says Crompton, J.: “It is very much like the ease of an advertisement offering a reward; . . but I prefer resting judgment on the duty and the obligation of the defendants as common carriers. It is not necessary for me to say . . whether the defendants are liable as for the breach of a particular contract made with the plaintiff; at the same time they are liable.” Carriers have the right to change the schedules of their passenger trains, but, if the schedule be changed, or if a regular train be discontinued, without reasonable notice, a prospective passenger, who has arranged his affairs in contemplation of a maintenance of the schedule, may recover the damages actually sustained by him as a result thereof. Savannah R. Co. v. Bonaud, 58 Ga. 180. The duty of common carriers to anticipate that members of the public will arrange their affairs with reference to located shipping points, and will be specially damaged by a discontinuance of facilities at such points, without notice, is analogous to their duty to anticipate and to provide cars for handling the ordinary and varying volume of traffic likely to be offered for transportation along its lines. See the cases cited in footnote to the ease of Houston Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225. The illustration given by Lord Campbell, C. J., in the ease of Denton v. Great Northern Ry. Co., supra, is also in point: “Now, suppose a ship advertised as tying in St. Katherine- docks, and bound for Calcutta, and that she would carry goods at a certain rate, if sent within a certain time; and suppose that, retying on these representations, goods are sent, and the answer then is that the adventurers have changed their arrangements, that they got better freights, and that, instead of going to Calcutta, the ship is going to Jamaica. I think, under such circumstances, an action could be maintained by a party prejudiced against the parties making such representations to the public.”

As to what is reasonable notice is a question of fact, a jury question. In determining what is reasonable, the exigencies, both of the public, so far as its members are likely to be interested as shippers, and of the carrier, in the light of its private rights and public obligations, should be considered.

Such damage as would have accrued to the plaintiff by the removal of the side track if the reasonable notice had been given . is damnum absque injuria. In this case no damage can be allowed to the plaintiff because his standing timber is rendered less valuable. The failure to give the reasonable notice has not affected that. It is doubtless true that the plaintiff paid an enhanced price for it because he expected the shipping facilities to remain; but as to this his loss is similar, in legal contemplation, to what it would be if he had bought a mercantile business near a factory, at an increased price, because of the anticipated trade of the employees, and the factory had suspended operations. But as to the wood cut in the bona fide anticipation of shipment at this side track he may recover actual damages, if the allegations of the petition be sustained by proof. The measure of this damage is not necessarily the market value of the wood. In assessing this actual damage the jury may consider the expense incurred in getting the wood ready for shipment; and, if the allegation that there is no other feasible way of removing this wood be sustained, the actual deteri•oration, or even total loss of the wood, if the proof goes to that extent, based on its market value, may be recovered. The damage recoverable is so .much of the loss sustained by reason of the removal of the side track as the plaintiff would not have sustained .'if.reasonable.notice of the intention to remove had been given. The trial court having sustained the demurrers, both general and special, the judgment is reversed, with direction that further proceedings be had in accordance with this opinion. The trial court may require the petition to be amended to correspond with the views herein expressed. •

Judgment reversed, with direction.


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    313.
    Ham v. Brown Brothers.
    Complaint, from city court of Elberton — Judge Proffitt. December 12, 1906.
    Submitted May 2,
    Decided May 24, 1907.

      Samuel L. Olive, for plaintiff in error.
   Powell, J.

1. Primarily tlie declarations of an alleged agent are not admissible to prove the agency. If the agency be otherwise prima facie proved, such declarations then become admissible in corroboration. Jones v. Harrell, 110 Ga. 380, 35 S. E. 690, and cit.

2. If, after the agency is prima facie established, the alleged agent be introduced as a witness and deny the agency, evidence of such declarations is admissible not only to cori'oborate the testimony tending to establish the agency, but also, if the proper foundation be laid, to impeach him as a witness. Jones v. Harrell, supra.

3. Where it is soxxght to show that the defendant’s husband was her agent in transactions with the plaintiff, evidence of transactions with other persons, in which he, with her subsequent ratification, acted as her agent, is not admissible to establish the agency in the transactions with the plaintiff. Conyers v. Ford, 111 Ga. 754, 36 S. E. 947.

4. Admissions made by the defendant to other pei'sons that her husband was her general agent nxay be proved against her.

5. Apaxl from eri'ors of the character indicated in the third headnote, the trial seems to have been fair and fx-ee from substantial eri’or.

Judgment reversed.


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    280.
    Gresham et al. v. Hewatt.
    Certiorari, from Gwinnett superior court — Judge Brand. September 4, 1906.
    Submitted May 6,
    Decided May 24, 1907.
   This case is controlled by the decision of the Supreme Court in Jones v. Peterson, 117 Ga. 58, 43 S. E. 417, and the cases therein cited.

Judgment affirmed,.

Gresham, having been arrested on a bastardy warrant, made the following contract: “The State vs. Joseph Gresham. Warrant for Bastardy. Miss L. D. Hewatt, Pros. It is agreed by the parties to the above-stated matter that William Hewatt, father of Miss L. D. Hewatt, take said child born of the said Miss L. D. Hewatt, and care for and maintain said child and support same; that said Joseph Gresham agrees, for and in consideration of the support of said child and the dismissing of said warrant against him, to pay to said William Hewatt the sum of three dollars per month, to be paid as follows: [The payments to be made are set out.] This shall be in full liberality [of the liability] on the part of said Joseph Gresham for the support, maintenance, or education of said child or its mother, and, if he complies with the payments when they become due, shall be a bar to any further prosecution as to said matter. But, should said Joseph Gresham fail to pay any of said payments when'-they become due, then said prosecution is at liberty to have another warrant issued for said Joseph Gresham for said charges; then the same is to be a bar and release of any further liberality [liability?] of said Joseph Gresham to said William Hewatt qu this contract, or any liberality [liability] of his securities on same for any further sum, or any part of same. Should said child die at any time, then said payments on same shall cease, except what is then due on same] or the proportion of the amount due on same, except the $18 due December 25, 1901, which is to be paid in any event. This contract is to be non-negotiable and non-transferable. The said Monro Gresham and Sam Ewing and [ ?] bind ourselves to said William Hewatt for the amounts of each of the payments of $3 per month for said ten years, and agree to see the same paid when due. And each of us hereby waive all exemptions of the homestead against the payment of any part of said sums which will become due on this contract. It is understood and agreed that there shall be no further prosecution of said Joseph Gresham for said offense, or any other offense arising out of same, provided said Joseph Gresham comyplies with his part of this contract. Witness our hands and seals -this the 20th day of September, 1901. J. J. Gresham [L. S.] J. M. Gresham [L. S.] S. J. Ewing [L. S.] Executed in the presence of E. T. Nix.” The sureties having been sued on default of payment of certain of the installments, and a judgment having been rendered against them, they sought to avoid it on the following grounds: that the contract is illegal, because the consideration is the suppression of a criminal prosecution; that the contract is also illegal for the reason that, under the Penal Code, §§ 1248-1250, the only mode of requiring a putative father to support and maintain a bastard child is that set forth therein; that the contract is merely an optional one on the part of the defendants; that under the contract a suit thereon and a criminal prosecution might be maintained at the same time. One of the sureties also set up that he signed the contract under duress, to prevent his son, the putative father of the bastard, from going to jail; that the son was under arrest, and incarceration was immediately threatened.

O. A. Nix, for plaintiffs in error.

F. F. Juhan, M. D. Irwin, contra.


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    317.
    CABLE COMPANY v. HANCOCK.
    1. If a traveling salesman, who has no authority to close a sale, takes from a prospective purchaser a written contract agreeing to buy an article on named terms and conditions, but by stipulations in the writing the contract is subject to the approval of the agent’s principal, the writing amounts to a mere offer, and is unilateral, until the approval contemplated has been duly made.
    2. In such a ease, if the contract relates to “goods, wares, or merchandise to the amount of $50 or more,” and is therefore within the purview of the statute of frauds, the approval contemplated must be in writing before the contract becomes mutual.
    3. In such a ease the offer may be withdrawn at any time before the con-trait has become mutual.
    Complaint, from city court of Athens — Judge Cobb. June 29, 1906.
    Argued May 6,
    Decided May 24, 1907.
    The plaintiff’s traveling salesman induced the defendant to buy a piano, but the salesman did not have the authority to make a binding contract of sale. He took, however, a written instrument, signed by the defendant, reciting that the plaintiff had agreed to sell him a described piano for a given sum, to be paid at named dates in the future; the condition being annexed that the title should remain in the seller until paid for. It was expressly recited, however, that the contract was subject to the approval of the plaintiff The piano was already in the defendant’s custody, having been previously left with him on trial. The salesman carried the contract at once to the plaintiff’s office, and turned it over to the manager in charge, who stated that it was satisfactory; that the company would accept it. The contract was then delivered to the bookkeeper, who entered it on the books. Afterwards, on the same day, the defendant by telephone told the plaintiff’s manager, at its office, that he had decided to cancel the order. The manager replied that he had already placed the contract on the books, and that he could not accept a cancellation. No written approval or acceptance of the contract was shown. The defendant tendered back.the piano, refusing to recognize the contract. The plaintiff sued on the contract. The piano was worth more than $50. The trial judge directed a verdict for the defendant, and the plaintiff excepted.

      Thomas F. Green, John J. Strickland, for plaintiff.

      Erwin & Erwin, for defendant.
   Powell, J.

(After stating the foregoing facts.) The usual and implicit power of a traveling salesman is merely to take orders, offers to buy, and not to make completed contracts of sale. Such was the fact in this case. Even in the absence of a condition in the written instrument itself requiring approval or acceptance by the principal, the law would have implied such a condition in the transaction. The writing (although in form, save only for the clause requiring approval, a binding contract) needed something to make it complete, viz., the acceptance of its terms by the opposite party; for, until the opposite party agreed to sell on the terms in the writing mentioned, the promisor’s agreement to buy _ and to pay was without consideration. Until the owners of the piano made a valid promise to sell, the consideration contemplated for the promise to buy and to pay was unilateral, and amounted only to a mere offer. This principle is now so well established by a large volume of authority as not to require specific citations.

The price of the piano was more than $50, and therefore the transaction was within the purview of the statute of frauds, and no oral approval or acceptance of the contract by the seller would render it binding on him. Until the seller became bound to the contract by a' writing, or by some act which would take the transaction out of the statute of frauds, the buyer could not have field him to its terms; and it therefore was lacking in the essential element of mutuality. Sivell v. Hogan, 119 Ga. 171, 46 S. E. 67. Delivery of the piano under the contract, and acceptance thereof by the buyer, would have been sufficient to make the contract complete. The buyer’s custody of the piano under the circumstances stated, however, did not have this effect. Compare Loyd v. Wight, 20 Ga. 574, 65 Am. Dec. 636 s. c. 25 Ga. 215; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366.

'Until the contract became' mutual, the buyer had the right to withdraw -his assent. Therefore he had the right to withdraw it at any time before the seller entered his written approval. He exercised this right, and the verdict directed in his favor was therefore demanded. See Sivell v. Hogan, 119 Ga. 173, 46 S. E. 67; Atlanta Buggy Co. v. Hess Spring Co., 124 Ga. 338, 52 S. E. 613, 4 L. R. A. (N. S.) 431.

Judgment affirmed.