author: Jenkins, J.

text:
    8105.
    THE COSMOPOLITAN LIFE INSURANCE CO. v. SHEATS.
    1. Ordinarily a subscriber to the capital stock of a corporation may, as against the corporation, avoid the contract of subscription where it was induced by fraudulent representations of its duly authorized agents. But where a suit on such a subscription is instituted by creditors of the corporation, whose claims arose after the subscription, or where it is maintained in behalf of such creditors either by the corporation itself by one acting in the capacity of receiver therefor, the subscriber can not, after the insolvency of the corporation, defend on the ground of fraud in the procurement of the subscription, but is liable, for the'benefit of such creditors, for so much of his unpaid stock subscription as, in connection with the amounts due by the other corporators, might be necessary to liquidate such corporate indebtedness, against which his plea of fraud could not avail. Howard v. Glenn, 85 Ga. 238 (6) (11 S. E. 610, 21 Am. St. R. 156) ; Gress v. Knight, 135 Ga. 60 (68 S. E. 834, 31 L. R. A. (N. S.) 900) ; Turner v. Grangers’ Life &o. Insurance Co., 65 Ga. 649 (38 Am. R. 801); Wilkes v. Knight, 142 Ga. 458 (83 S. E. 89); Empire Life Ins. Co. v. Brown, 145 Ga. 818 (89 S. E. 1085); ¡Southern Tobacco Co. v. Armstrong, 11 Ga. App. 501 (75 S. E. 828). Where, under proper authority, such a suit is maintained by one acting in the capacity of a receiver, it is not an essential prerequisite to a recovery that the amount due by such a subscriber should be ascertained and determined, since the court of equity, having all parties at interest before it, would ascertain and adjust the rights and equities of such subscribers in the distribution through the receiver of any surplus which might arise. Graves v. Denny, 15 Ga. App. 718 (84 S. E. 187).
    2. Where a receiver of an insolvent corporation, acting under proper authority, sells the assets of the corporation, included in which are unpaid stock subscriptions, the purchaser will take them with all the rights had by the receiver, in the absence of any provision to the-contrary in the terms of the sale. Bailey v. Anderson, 142 Ga. 11 (82 S. E. 290); Harrington v. Connor, 51 Neb. 214 (70 N. W. 911). The fact that the corporate indebtedness may have been actually discharged by the receiver from funds derived from such a sale would not affect the rights of the transferee.
    3. Where the order of court authorizing the sale by the receiver of the assets of an insolvent corporation provides that “the said purchasers, shall hold the same free from all claims and equities attaching thereto, and all liens and equities thereof are transferred to the purchaser of said stock, except that in the transfer of notes and other obligations given for subscriptions of stock the purchaser shall take the same subject to the rights of the makers thereof to make such defenses as may be legally established; provided that the maker of such note or obligation had given notice of the same to the insurance commissioner prior to the first day of March, 1913,” this provision must be taken to mean that the purchaser will take the notes subject to the rights of the makers thereof to make such defenses as might be legally established against the receiver, in whose hands the notes were held at the time the order was passed.
    4. In a suit on such a note, brought by a transferee under such a sale, ' where it is shown that the receiver was unable to pay in full such corporate debts unless the note sued on and other notes similarly situated were collected or sold, the transferee is entitled to recover the amount of the obligation sued on; and if, by reason of the sale of the corporate assets, a surplus has arisen in the hands of the receiver, the maker of the note would be entitled to the pro rata portion thereof to which he is equitably entitled. It was therefore error, under the agreed statement of facts in this case, for the court to render judgment in favor of the defendant.
    Decided July 23, 1917.
    Adhered to on rehearing, September 18, 1917.
    Complaint; from Bartow superior court—Judge Fite. July 1, 1916.
    This was a suit on a promissory note, brought by The Cosmopolitan Life Insurance Company as holder against S. I. Sheats. The defendant admitted the execution of the note, pleaded a special defense by way of avoidance, and assumed the burden of proof. Thereafter an agreed statement of, facts was entered into, and the ease submitted to the trial judge for decision; a judgment was entered for the defendant, and the plaintiff brought this writ of error. The agreed facts are in substance as follows: The note ■ in question was given in subscription for the stock of a former and different insurance company of the same name as the present plaintiff, except that the word “The” was omitted as the first word of the corporate name. The subscription to the stock was made and the note given in January, 1912; the note was made due and payable on December 20, 1912. It was procured by certain agents of the old company by means of certain materially false and fraudulent misrepresentations, fully set out in the defendant’s answer. After the procurement of the note the old company continued writing policies of insurance, accumulating a large amount of indebtedness to its policyholders and others, during which time no action was taken by the defendant looking to the cancelling of his stock subscription, but the subscription remained apparently of full force and effect, and was carried as a part of the assets of the old company on which it obtained credit. This condition of affairs' continued until September 24, 1912, when a suit was instituted by Sudderth and others in Fulton superior court, praying the appointment of a receiver, under which the court took jurisdiction and assumed control of the assets of the old company. On November 9, 1912, the insurance commissioner filed a petition in Fulton superior court, praying that the assets of the company be turned over to him pursuant to the act of August 17, 1912 (Ga.. L.-1912, p. 119). On December 18, 1912, an order was passed in the Sudderth suit, providing that the assets held by the court under that proceeding should be turned over to the insurance commissioner under his suit. All of the foregoing proceedings were had before the defendant had made any effort to rescind his stock subscription, but while it remained apparently in full force and effect, and no such effort was made by the defendant until after the assets of the old company had passed into the hands of the insur•anee commissioner under his suit for liquidation, as previously stated.
    On December 27 and 28, 1912, the insurance commissioner and the defendant entered into an agreement by correspondence, whereby the commissioner obligated himself not to-dispose of the collateral security to the said note, pending the determination of the defendant’s liability thereon, without first giving him at least thirty days prior notice thereof. In the course of this correspondence the défendant- denied the legality of the obligation irow sued on and set forth the grounds of his defense. On February 3, 1913, in the suit of the insurance commissioner, an order decreeing the liquidation of the old company was entered, reciting, among other things, that its insolvency was admitted. In the liquidation by the insurance commissioner of the assets of the old company, they became, by regular and authorized sale,' the property of the present plaintiff, and among the assets so bought was the note on which the present suit is based. The order for this sale refers to the sale of the notes given for the stock of the old companjq and provides: “The said purchasers shall hold the same free from all claims and equities attaching thereto, and all liens and equities thereof are transferred to the purchaser of said stock, except that in the transfer of notes and other obligations given for subscriptions of stock the purchaser shall take the same subject to the rights of the makers thereof to make such defenses as may be legally established; provided that the maker of such note or obligation had given notice of the same to the insurance commissioner prior to the first day of March, 1913.” In pursuance of this order the defendant, through its attorneys, set out in writing the full grounds of his defense and delivered the same to Hon. W. A. Wright, insurance commissioner, on February 35, 1913; and subsequently, in response to a circular letter from the insurance commissioner, dated February 38, 1913, in which his liability on the said note was apparently assumed, he again addressed the insurance commissioner, denying indebtedness on the note, and again stated the grounds of his contention; after which, on March 13, 1913, the defendant notified the officials of the present plaintiff corporation of his rescission of the subscription contract, and set out to them the grounds of his defense. It is not contended by the plaintiff that he occupies the position of a bona fide purchaser without notice.
    . It was further agreed, in the statement of facts, that the old company had accumulated a large amount of indebtedness before it went into the hands of the insurance commissioner, and that the insurance commissioner could not, in the liquidation of its affairs, have paid in full the debts of the company, unless the note in question, and other notes similarly situated, were either collected or disposed of. It is stated in the said agreement that the misrepresentations made to the present defendant were similar in all respects to the misrepresentations made to all purchasers of stock in the old company, except those who were themselves the promoters of the general scheme to defraud the public; the other purchasers of stock to whom the same misrepresentations were made being the other persons similarly situated, whose notes it was necessary to collect or sell in order to pay in full the debts of the old company in its liquidation. The statement of facts did not many wise disclose the status or amounts of such other stock subscriptions. It does not show what the assets of the old company consisted of, which it is stated brought the sum of $354,000, and which it might be reasonably inferred from the statement were sold in bulk. The agreement does show that “After said purchase the plaintiff issued a prospectus, in which it recited the purchase by competitive bid and the amount paid for said assets, and which added the following statement: Hn the judgment of the committee it has a profit of more than $100,000.00 in this bid/” It was agreed that in the event the plaintiff should recover, the note should be credited with the sum of $1,157.35, as of March 11, 1913, and reference is made in the brief of defendant’s counsel to the fact that after the payment of the debts of the company, its stockholders became entitled to a dividend of twenty-three per cent.; bnt while counsel for the plaintiff state that such is the fact, they show that no such statement is embodied in the agreement submitted, other than the reference made to the credit referred to as proper in the event of a recovery.

      Little, Powell, Smith & Goldstein, for plaintiff.

      Neel & Neel, Smith, Hammond & Smith, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) It is not thought necessary to elaborate any of the rulings announced in the headnotes except the last. In this suit, based upon a note given for a subscriber’s stock subscription, the original burden of proof was upon the plaintiff to show the execution and delivery of the note, and its assignment into the plaintiff’s hands. This was admitted. Thereupon it devolved upon the defendant, in order to ' establish the defense on which he relied, to show that the subscription for which the note was given was induced by fraudulent misrepresentation of the agents of the corporation. This also was admitted; the effect of which would ordinarily be to avoid the contract of subscription. In order, however, to obviate such a result, the plaintiff proceeds further to plead, and to show by the agreed statement of facts, that the corporation had, subsequently to the execution and delivery of the note, incurred a large amount of indebtedness, that it was insolvent, and that after the assets of the' company had come into the hands of the insurance commissioner, acting as receiver, they were, for the purpose of liquidation, and under order of court, sold to the plaintiff; and finally it was agreed “that the insurance commissioner could not, in the liquidation of its affairs, have paid in full the debts of the company unless the note in question, and other notes similarly situated, were either collected or disposed of; that the misrepresentations made to the present defendant were similar in all respects to the misrepresentations made to all purchasers of stock in the old company, except .those who were themselves the promoters of the general scheme to defraud the public.” The question, therefore, is whether, after the defendant had set up and proved'a good prima facie defense, the plaintiff rebutted it and carried the burden which then devolved upon it of proving that the subscription sued on must necessarily have been required by the receiver, by means of collection or sale, in order to discharge the corporate indebtedness, by merely showing Pthat the insurance commissioner could not in the liquidation of its affairs have paid in full the debts of the company, unless the note in question and other notes similarly situated were either collected or disposed of.”

The proof thus submitted by the agreement would seem very clearly to indicate that liability to some extent existed on the part of the subscriber, against which his plea of fraud would not avail; but whether the full burden resting on the plaintiff was thus successfully carried, or whether it was further incumbent on it to show to what extent the collection or sale of the note sued on had been necessary, when taken in connection with the amounts due by the other corporators, in order to pay off the corporate indebtedness, and whether or not the defendant’s liability would be limited to the proof thus made, are questions which to the writer are not without difficulty. Had the corporate assets not been disposed of by sale, but liquidated while in the hands of the receiver, it would seem that such official would certainly have been enabled, under proper authority, to marshal all the assets of the corporation, and in so doing to collect in full the stock subscriptions as constituting a part thereof, since the receiver, when so acting under authority of the court of equity, would have all parties at interest before the court, and would be required to adjust and protect the equities of all, and no injustice would result from such a subscriber being required to pay into court, for equitable distribution, whatever amount his subscription called for. Graves v. Denny, supra; Wilkinson v. Bertock, 111 Ga. 187 (2), 190 (36 S. E. 623). The present suit, however, is not maintained by the receiver, but was brought by the purchaser of the corporate assets, which sought to recover only for itself and solely for its own benefit. Could it have been shown that the subscription notes had been bought in for their full face value, there would be no difficulty in seeing that the ascertainment and payment of the proper dividend going to such subscribers from the receiver would fully adjust their rights and equities. But it is not to be expected that a purchaser at such a sale would actually pay face value for such assets; and in this case the record in fact discloses that the assets, including the note sued on, were bought in at such a discount as caused the purchaser through its committee to estimate at one*time that it would realize an actual profit of $100,000 on the transaction. Suppose that in a given case it could be shown that under such a sale the subscription notes actually brought only a very small per cent, of their face value, should a maker be liable to the purchaser in the full amount of his obligation, for the reason that he might then be entitled to share equitably in any surplus which might arise in the hands of the receiver ? It does not seem that any rule should obtain which, in a legal sense at least, could permit the liability of such a subscriber to be increased by reason of such a sale. Herein to our minds lies the difficulty of the question involved,—that is, whether under such a sale the subscriber is liable to the purchaser in the amount of his note, with the right to share equitably in the actual surplus arising in the hands of the receiver, or whether he is liable only in the amount which the holder may be able to show was, when taken in connection with the amounts due by other corporators, necessary in order to pay off such indebtedness,.

We have reached the conclusion that the first of these propositions is the correct one. It is not contended by either party to the litigation that the receiver did not have the right, when so empowered by the court of equity, to dispose of the corporate assets by sale. This being true, can it really be said that in a legal sense the defendant’s liability was increased thereby, even though it should appear that the purchaser under the sale expects to derive a profit therein ? When the court, having.before it the corporation, the shareholders, and the creditors (Howard v. Glenn, supra), passed the order for the liquidation of the corporate assets by sale, and subsequently, having the same parties before it, with a like duty to consider and protect the rights and interests of all, adjudged the sale to have been fair and equitable to all concerned, by solemnly confirming it, our opinion is that the procedure was equivalent, in a legal sense, to a collection in full of these claims by the receiver, in so far as he would have been enabled to accomplish the collection. Had the latter course been pursued the defendant would have been responsible for the amount of his note, with the right to share equitably in any surplus arising; and since, in a legal sense, the same liquidation of assets has been accomplished by means of a sale, the subscriber must look only to the receiver for the adjustment of his equities. It is therefore our opinion that under the agreed statement of facts, the judgment of the court below in favor of the defendant must be reversed.

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8512.
    Cox v. Seely.
    Decided June 29, 1917.
    Rehearing denied September 13, 1917.
    Petition for certiorari; from Berrien superior court—Judge Thomas. January 15, 1917.
    From the petition for certiorari it appears, that on November 15, 1916, an affidavit for the foreclosure of a lien for labor as a washerwoman was made by Martealy Seely before a justice of the peace. The affidavit states, that the affiant is a laborer, and, as such, was employed by Henry Co. to labor for him in the capacity of a washerwoman at the rate of $1 per month, for washing his clothes for a toral of 30 months; that she did the ’washing according to contract and completed the said contract, and on said work there is due her and unpaid the sum of $30; and that she made personal demand on her said employer for the amount’ due, and the same was refused; and she prays that execution issue for this sum with interest. The defendant filed a counter-affidavit, in which it is alleged: (1) The defendant is not indebted to the plaintiff. (3) He denies that any demand for payment of said note was made on him as required by law. (3) More than 13 months had elapsed since a part of said debt became due. (4) All of the defendant’s clothing and property of every kind held by the plaintiff was surrendered to the defendant many months before the suing out of said lien. The case was tried in the justice’s court on December 33, 1916, and the only evidence introduced is stated in the petition for certiorari as follows: “Plaintiff swore that the account was just, true, due, and unpaid, but that she had done no washing for defendant for more than two months past, and was not in possession of any of his clothing or goods of any kind or description, and was not at the time the laborer’s lien was sued out.” The court rendered judgment for the plaintiff, and the defendant presented to the judge of the superior court his petition for certiorari, alleging that the judgment was error, for the following reasons: (a) It is in violation of the Civil Code of 1910, §§ 3336, 3337 (as to liens in favor of laundrymen). (b) The evidence shows that the plaintiff parted with the possession of all goods of the defendant months before the suing out of the lien. (c) It does not appear, from the pleadings or the evidence, when the plaintiff began washing or when she ended washing. (d) It affirmatively appears that the plaintiff did not foreclose her lien within 12 months after the work was done, (e) The plaintiff has no lien such as she sought to foreclose, but only the lien prescribed by sections 3336 and 3337 of the Civil Code of 1910, and therefore the proceeding is illegal and void. The petition for certiorari was denied, and the petitioner excepted. Cited in the motion for rehearing; Civil Code (1910), §§ 3334-5-6-7-8-9; Jones v. Black-welder, 16 Ga. App. 346; Saterfield v. Moore, 110 Ga. 516; Hawkins v. Chambliss, 116 Ga. 814; Bolin v. Cooke, 125 Ga. 442; Howell v. Atkinson, 3 Ga. App. 62; Bryan v. Madison Supply Co., 135 Ga. 171; Hudson v. Sutton, 10 Ga. App. 844; Shealey v. Livingston, 8 Ga. App. 642 (3).
   Luke, J.

The judge of the superior court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Wade, O. J., and George, J., concur.

Hendricks, Mills & Hendricks, for plaintiff in error.

Ira S. Clary, contra.


author: Wade, C. J.

text:
    8109.
    SOUTHERN RAILWAY CO. v. BLACKWELL.
    1. The suit was brought under the Federal employer’s liability act, but not on account of any violation of the Federal statute for the protection of employees; and hence the doctrine of assumption of risk was available as a complete defense; and no presumption of negligence existed against the defendant.
    2. The plaintiff was a section-hand in the employ of the defendant and was injured while carrying on the work he was engaged to perform, and the uncontradicted evidence showed no want of ordinary care on the part of the defendant for his safety. The verdict was not warranted by the evidence.
    Decided July 26, 1917.
    Action for damages; from Whitfield superior court—Judge Eite. September 1, 1916.

      Maddox, McCamy & Shumate, George Q. Glenn, for plaintiffs in error. W. E. Mann, W. C. Martin, contra.
   Wade, C. J.

Gyp Blackwell instituted an action against the Southern Bailway Company for personal injuries. The action was brought under the Federal “employer’s liability act” of April 22, 1908 (e. 149, 35 Stat. 65, IT. S. Comp. St. 1916, §§ 8657-8665). The allegations of the petition were substantially as follows: That on September 21, 1914, while the plaintiff was in the employment of the defendant as a section-hand, and at work on the “Dalton section,” the foreman who had charge of the work, and whose orders he was bound to obey, directed him to obtain from the section tool-house in Dalton, Georgia, a certain “slag buggy” belonging to the defendant, and to proceed down the defendant’s railroad-track with it; that the “slag buggy” is a two-wheel contrivance, which runs on one of the rails of the railroad-track, and is pushed by any one propelling it; that it was to be carried south, and the plaintiff was pushing it in that direction as ordered ^ by his foreman, and his face was towards that direction and he was in a bent or stooping position, performing his work and duties as directed by the foreman, and had advanced about one mile south of Dalton, when a passenger-train of the defendant ran down upon him, and, as he was attempting to get out of the way of .the train, it struck the “slag buggy” which he was pushing, and knocked it with great violence against him, breaking his leg and causing other injuries described. It was further alleged, that it was the custom of the section-hands to go out at 6:30 o’clock a. m., and this fact was known to defendant, its servants, agents, and employees; that the defendant was negligent in running the train at the high and rapid rate of sixty miles per hour “at the point and along the place where employees were expected at this time in the morning, and where in the exercise of ordinary care they could have seen petitioner,” and in not keeping a lookout at this point, as ordinary care and diligence required, and in failing to see him, as the engineer and fireman of the train would have done had they exercised ordinary care; and in not having the train under such control as to avoid injuring him, and in failing to warn him of the approach of the train, by blowing the whistle or ringing the bell; that if the engineer and other servants of the defendant had exercised ordinary care and diligence, they could have seen that the plaintiff was in a stooped and bent position, with his back towards them, and that the only way of escape from this perilous position was by warning from the employees in charge of the train. The plaintiff further alleged, by amendment, that the defendant was negligent in that its section foreman failed to place some one in charge of him to help with the “slag buggy,” and in failing to notify “the operator” and have him provide means to warn the plaintiff of the approach of the train, and provide for his protection. The verdict was in favor of the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted. Counsel for the plaintiff in error’, in their brief, say: “The sole insistence that will be made in this brief is upon the general grounds of the motion for a new trial, we believing that, under the undisputed testimony in the case, plaintiff was injured by one of the risks assumed by him in undertaking defendant’s employment; that no negligence is shown whatever upon the part of the defendant’s agents; and that there can be no legal recovery by plaintiff.”

The action being brought under the Federal employer’s liability act, the provisions of that act are controlling, and the case must be adjudicated in accordance therewith. It is well settled that under the provisions of this act the plaintiff assumed whatever risks were normally incident to his employment. “In a suit brought under the Federal 'employer’s liability act,’ except generally as to violations of Federal statutes for the protection of employees, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages. Roberts, Injuries to Interstate Employees, § 103; Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. “1915C, 1, Ann. Cas. 1915B, 475).” Charleston &c. Ry. Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275). One of the risks assumed by the plaintiff in this case (who was employed as a track-hand), upon entering the service of the railway company, was the danger ordinarily incident to the usual and proper operation of its trains over the track upon which he was at work. This proposition is the fundamental principle underlying the decision of the Supreme Court in the ease of L. & N. Railroad Co. v. Kemp, 140 Ga. 657 (79 S. E. 558). In that ease'the injured employee was foreman of a force of section-hands in charge of a section of the defendant’s railroad. His duties required him to inspect and maintain the tracks and roadway upon pis section. While on a tour of inspection of the tracks he was confronted with an emergency produced by the sudden appearance of a freight-train, operated in the usual method, which rounded a curve, and in an effort to remove from the track the hand-car on which he was riding, and avoid the impending danger to himself and his hand-car, he was injured. It was expressly ruled in that case that under this state of facts the plaintiff could not recover.

' To justify a recovery for injury caused by a-train striking a section-hand while engaged in repairing a track, it must be shown that the proximate cause of his injury was the railway company’s neglect of some duty due to him in respect to his protection from injury by passing trains. Upon this subject, it was said in the case of Norfolk &c. Ry. Co. v. Gesswine, 144 Fed. 56 (75 C. C. A. 214): “This man was one of a number of men who were employed as section-men on the railroad. They were engaged in repairing the track, taking out rails, putting in new ones, taking out cross-ties and putting in new ones, and hewing them into proper form and shape, and were working on the railroad-track, while the trains were being operated in the usual way—manifestly, a place of danger. A railroad does not suspend the operation of its trains until the track can be put in order, and the proposition to these section-men was, ‘We will run the trains and operate the road as heretofore, as we ordinarily do, and between trains you must do this work and look out for yourselves to avoid being injured by the trains/ and the section-men accepted the employment upon those terms, and, if an accident occurs and they are hurt while the trains are being managed and operated in the usual and ordinary way, they can have no just ground of complaint against the railroad, it is not the fault1 of the railway company.” See also Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. 835, 36 L. ed. 758) ; Morris v. Boston & Maine Rd., 184 Mass. 368 (68 N. E. 680). In the case of Woods v. St. Louis &c. R. Co., 187 S. W. 11, the Supreme Court of Missouri said: “It is not the duty of a railroad company to notify section-men that any certain trains are expected to pass over the road, but it is their duty to1 be on the lookout and keep out of the way.” And in the case of Ellis v. Louisville &c. Railway Co., 155 Ky. 745 (160 S. W. 512), it was held: “When a flagman is sent out to watch for trains and warn them of danger, the railroad company and its trainmen have a right to presume that he will not only watch for trains, but also for his own safety, and his failure to do this is his own negligence, and he can not recover of the company for an injury which he received by reason of his neglect, unless his presence and peril were discovered by those in charge of the train in time to avoid striking him, by the exercise of ordinary cate.”

Applying the above-stated principle of law to the facts adduced at the trial in this case, we are constrained to set the verdict in favor of the plaintiff aside. The plaintiff himself testified: “Number 8 was scheduled here at 6:30 in ihe morning at the time I was hurt. I had been seeing No. 8 pass every morning since I had been working in this section. It was a passenger-train. I was told that No. 8 was scheduled to pass Dalton at 6:30 in the morning. We- always got down to our work before No. 8 passed here. On the morning that I was hurt I knew that No. 8 had not passed. I knew that while on my way down to my work that No. 8 was coming along sometime or another. . . I knew when I left here that if No. 8 had not run I couldn’t walk down to my work before it was due along on its schedule. I knew it would pass me between here and where I would stop work.” He further testified that all he was “paying attention to was getting out of the way, and I 'won’t say whether he [the engineer] blew or not. I couldn’t tell you whether this train slacked speed or not. I did not pay much attention to the train.” J. D. Anderson, a witness sworn in behalf of the plaintiff, testified: “I went down to the place where the plaintiff was injured on the Southern road this morning. From the place that was pointed out to me as the place where the plaintiff was hurt, if the engineer had seen the boy as quick as he rounded the curve he could have seen the boy something like one hundred yards, the distance of nine rails, and they told me they were 33 feet long. There is a boulder that projects out from that hill going around that curve on the west, but I couldn’t tell you how far that boulder is from the track. . -. Tou can see further around the curve from the outside rail than you can from the inside rail. As the engineer was sitting on the inside of the curve next to the boulder, Gyp could have seen the other side of the engine a little sooner than the engineer could have seen him. Had the boy been looking, I think he could have seen the engine a little bit sooner than the engineer could have seen him. From where Gyp showed me where he was hurt it was nine rails and one half from where the engineer came around the boulder.” C. A. Rivers, sworn in behalf of the defendant, testified: that he was a foreman for the Southern Railway Company on the section south of Dalton; that he remembered the morning Gyp Blackwell was hurt; that he had a “slag car” that he wanted brought down to. where he was going to work, a mile and a half south of Dalton, and that he “left Gyp to bring it down and told him to keep a lookout for No. 8, which was a passenger-train;” that he “told Gyp to bring the car down to where we were dressing slag;” and also told him (Gyp) that “he had 19 minutes on No. 8 when he left Dalton.” On cross-examination this witness said, that he “knew the curves were in the track down there,” and that the train was coming around those curves; that he “instructed Gyp to watch out for the train and keep out of the way;” that he of course knew that “the train would be running schedule speed along there, which was about 30 or 35 miles per hour;” that he “did not notify the operator to put the engineer on notice that the car would be down in there somewhere,—that wasn’t my duty and I didn’t do it.” R. L. Haire, sworn for the defendant, testified that he had been operating an engine on the Southern Railway continuously for 26 years, and that he “was running the engine that hit the buggy, that buggy that morning;” that he knew the place where the buggy was struck, and at that “place there is a very stiff curve, it is about as stiff a curve as we have on the road;” that there is a “rock boulder on the right-hand side going south, and on the left-hand side is a little fill, and this is a stiff curve, and that mountain comes down to where you can’t see around there;” that he was sitting on the right-hand side of the engine, and “that is the side this boulder is on, going south along there. This boulder is higher than I am on the engine, and obstructs my view, and I can’t see until I pass around it;” that he thought “this boy could have seen the front end of the engine quicker than I could have seen him on the track, because of coming around the curve. The engine is 55 feet long and I was 30 feet behind the front end of the engine, and he could have seen the front end a second or two before I could have seen him;” that when he struck this slag car he thought he was running about 40 miles an hour, which was just about the usual rate of speed—about schedule time; that when he went around that curve he was looking ahead and saw this boy as soon as he passed around the rock boulder; that he could not have seen the boy any sooner than he did; that just as soon as he passed around this rock boulder on the curve there, he saw the boy pushing this “slag buggy” ahead, and that he shut the engine off and grabbed the whistle and pulled it open and grabbed the brake valve with the other hand, and “the boy, just as soon as he heard the whistle, just tumbled off, just like that, with the buggy. . . There was no doubt in the world about my having blown the whistle, I remember that as distinctly as I do I am sitting here now. As a railroad man with my experience, I say there was nothing more that I could have done that I did not do—I did everything that was possible.”

There was no presumption of negligence against the defendant in this case, and it will be observed that under the testimony of the plaintiff himself, as well as of the witnesses sworn in his behalf, and from the uncontradicted evidence in behalf of the defendant, the defendant’s employees in charge of the locomotive and cars which injured the plaintiff used all ordinary care and diligence to avoid the injury. The plaintiff not only knew that this particular train which caused his injuries was due to pass that place about the time it did pass, but Avas expressly warned by his foreman that “he had 19 minutes on No. 8 when he left Dalton, . . to watch out for the train and keep out of the way.” The undisputed evidence shows that there was absolutely no way the engineer in charge of the defendant’s train could, in the exercise of the degree of care required by law, have known of the presence of the plaintiff on the track. There was a sharp curve in the track, just before the train reached the place where the injury occurred, which prevented the trainmen from seeing the plaintiff in time to avoid the accident. When the engine came around the curve it was running at the usual rate of speed, which was about 40 miles per hour, but, due to its close proximity to the boy, it was impossible to stop it in time to prevent striking him. However, the whistle was blown and the brakes were applied. In fact, when the emergency arose, the employees of the defendant did everything in. their power to avoid injuring the plaintiff.

The contention that the foreman was negligent in failing to go to the station, near which the accident occurred, and notify the agent in charge of the station, so that on arrival of the train at the station he in turn might notify the engineer of the train that the plaintiff was somewhere down the track, and to look out for him, is without any substantial merit. Granting, for the sake of the argument only, that it was the duty°of the foreman to see that the engineer in charge of the train was notified of the plaintiff’s presence on the track, such notice would not have availed him anything, since the uncontradicted evidence shows that the train was properly and carefully operated, and that the employees in charge of it wree not guilty of any negligence whatever.

In Cincinnati etc. Ry. Co. v. Jones, 171 Ky. 11 (186 S. W. 807), it was held: “Ordinarily trainmen do not owe any duty to keep a lookout, to give signals of approach, or to reduce speed of •trains in anticipation that employees engaged in repairing the tracks may be found upon the tracks, as they may assume that the track repairers will be on the lookout and get out of the way, and as to such employees owe the duty of exercising ordinary care to prevent injuring them only when they are discovered in situations of danger.” Had the foreman actually notified the engineer in charge of the train that the plaintiff was at work on the track only a short distance ahead of the tiain, the engineer would still have had a perfect right to assume that the plaintiff would be on the lookout to protect himself, and consequently would not have been guilty of any negligence whatever in acting upon this assumption and operating his train accordingly.

The injuries received by the plaintiff were the result of negligence on his own part, and were in no way brought about by negligence upon the part of'others; and the railway company, as appears from the evidence adduced at the trial, being free from all negligence, is likewise free from liability.

Judgment reversed.

George and Lulce, JJ., concur.


author: George, J.

text:
    8114.
    LOUISVILLE & NASHVILLE RAILROAD COMPANY v. WATTS.
    1. There was sufficient certainty in the allegations of the plaintiff’s petition as to the time of the destruction of his property by fire originating in sparks from the defendant’s locdmotives, and as to the engines by which the fire was set out,

      • 2. The charge of the court contained a statement of the plaintiff’s contentions, but no statement of the defendant’s contentions, and no reference to the contention (relied on as one of the main defenses) that the defendant’s engines did not set out the fire, beyond a mere general reference to the pleadings as containing the contentions of the parties. This omission, in view of the charge given, was error requiring a new ■trial.
    Decided July 26, 1917.
    Action, for damages; from Gordon superior court—Judge Fite. September 5, 1916.

      Tye, Peeples & Tye, D. W. Blair, O. N- Starr, J. G. B. Brtvin Jr., for plaintiff in error.

      N. A. Morris, J. G. Roberts, G. D. Anderson, J. M. Lang, contra.
   George, J.

Plaintiff wás the owner of four bales of cotton, stored in a warehouse near the right of way of the railroad company. The warehouse was burned and the cotton destroyed. The 7th paragraph of the petition alleged that the warehouse, together with plaintiff’s cotton, was totally destroyed by fire on the L6th day of November, 1915, “between four and ten o’clock p. m.” The 8th paragraph alleged that the fire originated from, and was caused by, live sparks, cinders, and coals, emitted from the locomotive engines of the defendant company, and the four succeeding paragraphs each described a particular engine, and alleged that the fire was communicated to the warehouse by each of the engines described. By special demurrer the defendant attacked the 7th paragraph of the petition because it failed to charge specifically the time when the alleged burning occurred, the 8th paragraph of the petition because it failed to allege what particular engines of the defendant caused the fire, and merely asserted a conclusion, the 9th, 10th, llthj and 12th paragraphs of the' petition because the engines referred to in each of said paragraphs of the petition were not distinctly and definitely identified and described. There were other grounds of special demurrer. The defendant did not demur to the petition upon the ground that it was contradictory, in that it alleged in one count the destruction of plaintiff’s cotton by sparks emitted from four separate engines of the defendant at one and the same time. Seasonable certainty is all that can be required, even by special demurrer. The plaintiff is not required to set out his whole cause of action in a single paragraph of his petition, and a general statement in a particular paragraph is not objectionable, if particularized in subsequent paragraphs of the petition. Each of the engines referred to in paragraphs 9, 10, 11, and 12 of the petition was described with sufficient certainty to withstand a special demurrer. None of the remaining grounds of the demurrer were meritorious.

One of the main contentions of the defendant company was that its engines did not set out the fire. The court, in charging the jury, stated the contentions of the plaintiff, but nowhere in the charge called attention to this defense, insisted upon by the defendant, beyond a mere general reference to the plea and answer filed by it. The failure to submit this substantial defense, upon which the burden of the case rested/ will require a reversal, especially-since the charge of the court, considered as a whole, authorized a verdict for the plaintiff upon prima facie proof of the burning by the defendant unless the defendant showed that it exercised all ordinary and reasonable care and diligence in the equipment and management of .its engines.

Judgment reversed.

Wade, C. J., and Luke, J., concur.


text:
    8123.
    WOODRUFF v. DOSS.
    1. While the code provides that in an action to recover damages on account of an alleged malicious prosecution, “want of probable cause shall be a question for the jury, under the direction of the court” (Civil Code of 1910, § 4440), yet where the material facts are not in dispute, the existence or non-existence of probable cause for the prosecution is a question of law for determination by the court.
    2. In this ease, while the.good faith of the person against whom the defendant instituted the prosecution alleged to be malicious may be reasonably inferred from facts and circumstances in proof, it is clear, according to the undisputed facts in the case, that there was probable cause for the prosecution; and therefore the verdict in favor of the plaintiff was contrary to law.
    Decided July 26, 1917.
    Action for malicious prosecution; from Eloyd superior court — Judge Wright. January 13, 1916.

      Dean & Dean, L. H. Covington, for plaintiff in error.

      Bubanks & Mebane, Barry Wright, contra.
   Wade, C. J.

This was an action to recover damages for an alleged malicious prosecution instituted by Woodruff against Doss, the plaintiff in the lower court. In the petition the plaintiff alleged, that on May 16, 1914, Woodruff swore out a criminal warrant against .him in the United States court, charging him with perjury and false swearing; that he was arrested under the warrant and detained by a deputy marshal of the United States, and finally carried before a United States commissioner, who admitted him to bond and set the case for trial on May 17, 1914, but after-wards, upon the motion of Woodruff, continued the hearing on the warrant until May 83, 1914; that Woodruff went before the United States grand jury, which was in session on the 17th, 18th, and 19th of May, 1914, and endeavored to procure an indictment against him for the offense set forth in the warrant, but the grand jury failed and refused to indict him and made a return of no bill; that on May 23, 1914. at the time set for a hearing before the commissioner, Woodruff, notwithstanding he made oath to the warrant and was subpoenaed as a witness in the case, failed and refused to appear and abandoned the prosecution, and thereupon the case was dismissed and came to an end and the petitioner was discharged. The petition further alleged that Woodruff instituted the said criminal proceeding for the deliberate purpose of injuring and damaging the petitioner, and in an effort to induce him to abandon a civil proceeding against a certain corporation known as the Interstate Chemical Company, and that the warrant was sworn out and the prosecution carried on maliciously, without probable cause; that because of the swearing out of the warrant and because of the currency of the report that it had been sworn out by Woodruff, and bcause of articles in a newspaper informing the public that the petitioner had been arrested and charged with perjury and false swearing, he suffered great mortification and mental agony; that the charge preferred against him by Woodruff was calculated to and did bring- him into disrepute with his neighbors and friends, and the conduct of Woodruff in instituting and carrying on the prosecution tended to injure and did injure his name and fame, to his damage, etc.; and that the intention and sole purpose of Woodruff in swearing out the warrant was to injure, damage, and humiliate him.

To the petition were attached various exhibits showing the proceedings before the United States commissioner and before the United States grand jury. Likewise a copy of the warrant sworn out by Woodruff was attached, which was as follows: “United States of America, Northern District of Georgia. Office of the United States commissioner at Eome, Georgia. Before me, John C. Priritup, a commissioner duly appointed by the District Court of the United States of America, for the Northern District of Georgia, to administer oaths, to take acknowledgments of bail, and also to take'depositions of witnesses in civil causes pending in the courts of the United States, pursuant to the provisions of the act of Congress in that behalf, personally came W. W. Woodruff, who, being duly sworn, deposes and says, that F. C. Doss did on May 14th, 1914, make an affidavit to a petition in bankruptcy against the Interstate Chemical Company, which petition was filed in the District Court of the United States for the Northern District of Georgia, Northwestern Division, which affidavit is in the following words and figures, to wit: ‘State of Georgia, County of Floyd. F. C. Doss and-petitioning creditors mentioned and described in the foregoing petition do hereby severally make solemn oath that the statements of fact contained in the foregoing petition are true, according to the best of my knowledge, information, and belief. [Signed] F. C. Doss. Subscribed and sworn to before me this Í4th day of May, 1914, as to F. C. Doss. [Signed] Graham Wright, N. P., Floyd Co., Ga/ Affiant says, that, on information, he verily believes said oath is false, in that said Chemical Company did not at the time of making said affidavit to said petition owe said Doss the sum of $3,630.87 as commissions due him as agent for said company for it, as in said petition alleged. Affiant makes this affidavit at the instance and request of the Interstate Chemical Company, for the arrest, commitment, and detention of said F. C. Doss, to await.action of the grand jury in said district court; that affiant is president of said Chemical Company and acting in its behalf in this regard. [Signed] W. W. Woodruff.—Sworn to and subscribed before me, this 16th day of May, 1914. [Signed] J. C. Printup, U. S. Comm'r."

The defendant, demurred generally to the petition, on the ground that no cause of action was set out, and also specially demurred to the allegations therein touching the appearance of Woodruff before the United States grand jury, and the further statement as to the news articles appearing in the public prints in reference to the charge of perjury and false swearing, made by Woodruff against the ■ plaintiff. The defendant' amended his demurrer by adding thereto, as a specific ground, that the facts alleged in the petition failed to show that the prosecution was maliciously carried on, and in fact showed that it was not carried on to such an extent as to constitute a foundation for an action for malicious prosecution. A special demurrer objecting to an entry on one of the exhibits as a mere conclusion was also interposed, and was sustained by the court, while the remaining grounds of the demurrer and the amendment thereto were overruled. In the view we take of this ease it is unnecessary to discuss or pass upon any of the various questions raised by the special demurrers or by the special grounds of the motion for a new trial. It appears clear to us, however, under the ruling in Page v. Citizens Banking Co., 111 Ga. 73 (4) (36 S. E. 418, 51 L. R. A. 463, 78 Am. St. R. 144), that the court did not err in overruling the general demurrer. It was there held: “It is ‘carrying on’ a prosecution to cause a warrant to be issued, having the defendant therein arrested and his goods seized, having him brought before a committing magistrate, procuring continuances of the preliminary.hearing, and requiring him to give bond for his appearance before the committing magistrate, notwithstanding the prosecution was finally abandoned in the committing court.” Therefore, without considering the remaining demurrers, we come to a consideration of the evidence.

It was shown, without any conflict in the testimony, that Doss had been selling stock for the Interstate Chemical Company under the following contract: “This agreement, made and entered into this 15th day of January, 1913, by and between the Interstate Chemical Co., of Georgia, Eome, Ga., known hereafter as party of the first part, and F. C. Doss, of Eome, Ga., known hereafter as party of the second part, witnesseth: That said party, in consideration of mutual covenants and agreements herein contained, hereby contract and agree as follows, to wit: First: Said first party hereby appoints said second' party its agent and salesman for the purpose of soliciting and procuring applications for treasury stock in the Interstate Chemical Co., of Georgia, and securing such other business in connection therewith as first party may expressly require in the following territory: in Georgia. Second: First party agrees to pay second party a commission of twenty-five per cent, on all applications for treasury stock in the Interstate Chemical Co. that are accepted by first party; said commissions. to be due and payable as settlement in cash is made and turned over to first party, or, if notes are given in payment of stock, commissions are due and payable when said notes are paid in cash. Third: First party agrees to advance, or loan, second party, from week to week, an amount not to exceed seventy-five per cent, of the amount of second party’s commission on notes turned in and accepted by first party. . . [Other parts of the contract are immaterial.] In witness whereof the parties have subscribed their names and affixed their seals to duplicate copies thereof, the date and year first above written. [Signed] Interstate Chemical Co., per P. D. Christian, Mgr. F. C. Doss.”

Under his construction of this contract Doss concluded that the Interstate Chemical Company was indebted to him in the sum of $3,630.87, hy reason of the fact that it had transferred or hypothecated in some way notes taken by him for stock in said corporation, under this contract. He testified: “They went ahead and transferred those notes, some of- which were not yet due, and that was the basis of my allegation that they owed me the amount stated there. , I figured up that this $3,630.87 is due me. It took all of my notes that I had taken, whether paid to the Chemical Company or not, to make that amount of commissions due me. There was a controversy between Mr. Christian and me as to 'how much the company owed me. He contended that the company did not owe me commissions on my notes unless the makers had paid them. They refused to pay me any more. They did not deny to me that they did not owe me this amount.- They refused to pay it to me. I demanded it. They have not paid it yet. Before I made this affidavit in the bankruptcy court I had gotten 75 per cent, of the 25 per cent. I was entitled to.” The Interstate Chemical Company contended that it would not be indebted to Doss on the notes in question until payment of the notes “in cash,” as provided by the terms of the written contract between them, by the makers of the notes or by some one for them. The corporation insisted, in ' various discussions of the matter between Doss and some of the officers of the company, that the hypothecation of the notes by the company did not amount to a payment thereof “in cash;” and this contention appears to be obviously correct, since/ in the absence of anything to the contrary, it must be assumed that the company indorsed the notes with recourse, at the time it discounted or hypothecated them, and therefore that it was still responsible thereon to the transferee in the event the original makers failed to pay in cash. The testimony further discloses that Woodruff had heard that Doss was claiming some indebtedness against the company before Doss made oath to the petition in bankruptcy and after the petition was filed, and that he, having no personal knowledge of the matter, as he had only been president of the company for three or four months, went over the books carefully with the assistance of the other officials who had the books in charge, and discussed the matter with the officer who had been negotiating with Doss, and likewise carefully considered the contract, with the result that he .reached the conclusion that the company was not indebted in any amount whatever to Doss at the time the latter made oath to the petition in bankruptcy, and thereupon he himself made oath to the warrant charging Doss with a false statement in claiming indebtedness of $3,630.87.

It may be easily inferred that Doss, in making oath to the petition in bankruptcy, acted in good faith, honestly believing that because the- company had hypothecated notes obtained by him for stock, on which he was entitled to commissions, it owed- him such commissions immediately upon the transfer or discount of the notes and without awaiting the payment thereof in cash by the makers. Hence, it may readily be understood why the- grand jury of the United States court found no -bill on the charge preferred against him, as they doubtless concluded that there was no wrongful intent on his part in claiming under oath that the corporation owed him the sum he contended for, and that he did not knowingly make a false statement. On the other hand, it is clear that the statement made was in fact incorrect, and, in the broad sense of the word, was therefore a “false” statement, as alleged by Woodruff; for plainly, under all the testimony in the case, the corporation, at the time Doss made the oath to the petition in bankruptcy, was not indebted to him in the amount set forth in the petition. This being true, and considering the fact that Woodruff did not recklessly or carelessly act, but apparently made every effort to ascertain, before swearing out the warrant, whether or not the indebtedness claimed by Doss in fact existed, it is evident that there was no want of probable cause for the prosecution instituted by Woodruff. Woodruff not only conferred with the proper officials connected with the company, but examined the contract under which the dispute arose between the parties, and consulted his attorneys with reference to the matter, before acting; and, under the admissions of Doss, in the extract from his- evidence, quoted above, the amount alleged by him to be due by the Interstate Chemical Company was not in fact due at the time he made oath to this allegation, and hence there was probable cause for Woodruff to believe that Doss deliberately made oath to a ‘false statement, with full knowledge of its falsity. If there were any conflict in the testimony on these material issues, then, of course, under the provisions of section 4440 of the Civil Code (1910), the jury would determine whether there was a want of probable cause; and if there was evidence from which they could so determine, this court would be powerless to intervene.

Without extending the discussion or seeking further to amplify the ruling made, it is enough to say that the finding of the jury, that there was no probable cause for the prosecution instituted by Woodruff against Doss, was contrary to law, inasmuch as it is wholly unsupported by the evidence in the ease. The judge of the superior court therefore erred in overruling the motion for a new trial.

Judgment reversed.

George and Luke, JJ., concur.


text:
    8144.
    CENTRAL GEORGIA POWER CO. v. WALKER.
    The plaintiff was a trespasser upon the premises of the defendant. The duty to a trespasser does not arise out of any relationship between the parties; there is no rightful relationship. It .arises only with knowledge of the perilous position of the trespasser. The duty is, therefore, not to anticipate, but to refrain from wanton or wilful injury to -the trespasser after knowledge of his peril. The failure to exercise ordinary care and diligence is in many instances the equivalent of wantonness and wilfulness, but, manifestly, only after the perilous position of the trespasser is known. Under the undisputed evidence, the plaintiff was not entitled to recover, and the court erred in overruling the defendant’s motion for a new trial.
    Decided July 26, 1917.
    Action, for damages; from Spalding superior court—Judge Searcy. May 20, 1916.

      Harris, Hams & Witman, Hatcher & Smith, W. H. Connor, for plaintiff in error. J. W. Wise, W. H. Beck, B. J. Reagan, contra.
   George, J.

The plaintiff sued for personal injuries, and recovered a verdict for $15,000, which was set aside by the Supreme Court. Central Georgia Power Co. v. Walker, 144 Ga. 124 (86 S. E. 321). The material and controlling facts in the present record fully appear in the opinion of the Supreme Court, and it is unnecessary to repeat them here. The second trial of the case resulted in a verdict for the plaintiff, in the sum of $10,000, and the case is again up for review. The evidence in the present record is, in all substantial and material respects, the same as that introduced upon the former trial, passed "on by the Supreme Court and quoted in its opinion. The Supreme Court in this case and on the same facts ruled that the plaintiff was a volunteer, or trespasser, upon that part of the premises of the defendant company where he received his injuries. In the opinion (144 Ga. 129) it is said: “From this statement of his [the plaintiff’s] own evidence it is manifest that he went into the upper story of this substation for purposes in no way connected with the business which brought him upon the premises; and if he went into this upper story on the invitation or by permission of the company’s agent, that invitation or permission was clearly without the scope of the agent’s duties; and going there under these circumstances, the plaintiff had not an invitation of the defendant corporation, but was a volunteer or intruder who had laid aside, for the time being, the business which he claims to have had in hand when he went upon the premises, and was indulging the gratification of his curiosity;” from which it necessarily follows that he was a trespasser. Being a trespasser, the defendant was under no duty as to him, except (as has been often said by the Supreme Court) not to injure him ■ wantonly and wilfully after knowledge of his peril. In the present record it is undisputed that the plaintiff, in going into the high-tension gallery, was perfectly safe as long as he remained in the passageway. This high-tension gallery was in the upper story of the defendant’s substation. The plaintiff was in absolutely no peril, until he left the passageway in the high-tension gallery and 'went in between the oil-tank switches,.and commenced to wander about among the wires and electrical apparatus of the defendant. Even at this stage he was in no position of peril, and the danger' did not arise until he raised his hand above his head and placed his hand in close proximity to the insulator cap on one of the oil tanks of the defendant. Miller, the only representative or agent at or in charge of the substation, was still below, on the first floor of the building. He did not know that the plaintiff had stepped outside of the passageway in the high-tension gallery above. He certainly did not know that the plaintiff had brought any part of his person in close and dangerous proximity to the insulator cap.

The second trial of the ease was had on the pleadings as they stood when the case was considered, by the Supreme Court. The pleadings alleged, that the plaintiff was an invitee or’licensee. Without amendment, he sought to recover upon the theory that, although he was a mere trespasser on the defendant’s premises, his injury was wantonly and wilfully inflicted. His case is based upon the necessary and essential assumption that the agent Miller, who was declared by the Supreme Court to be wanting in any authority to invite or permit the plaintiff to enter the high-tension gallery, should have warned the plaintiff of the danger of going up into the high-tension gallery. The trial court submitted the case to the. jury upon this necessary assumption. If there was no duty upon Miller or the defendant to warn the plaintiff not to go into the high-tension gallery, the plaintiff has absolutely nothing upon which to stand. The plain’answer to this assumption is that, between the defendant and the plaintiff, considering the latter as a trespasser, there was no relation which per se gave rise to any duty. The duty to a trespasser does not flow from the relation; none exists, except a wrongful relation. It can arise only with the peril to the trespasser. Until the peril arises, and until the defendant knows of the peril to the trespasser, there can be no duty to warn the trespasser. To assume such a duty is to assume the prior duty to think for the plaintiff, and to anticipate that he may put himself in a position of peril. Citation of authority is unnecessary, but we call attention to the following cases: Charleston & W. C. R. Co. v. Johnson, 1 Ca. App. 441, 443 (57 S. E. 1064); Mandeville Mills v. Dale, 3 Ga. App. 607 (58 S. E. 1060) ; Underwood v. Western & Atlantic R. Co., 105 Ga. 48 (31 S. E. 123); N., C. & St. L. Ry. v. Priest, 117 Ga. 767 (45 S. E. 35); Southern Ry. Co. v. Chatman, 134 Ga. 1026 (3) (53 S. E. 693, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675). The decision of the Supreme Court in this case is necessarily decisive of tbe case. Tbe court properly did not in- its decision assume that the plaintiff would be unable on a seer ond trial to show facts and circumstances from which it might be inferred that he was, as he alleged himself to be, a licensee or invitee upon the defendant’s premises. The frightfulness of the injury to the plaintiff has caused us to halt and hesitate, but the logic of the facts, and the well-established principles of law applicable thereto, compel this conclusion. The judgment of the trial court might be reversed and the case sent back for a new trial upon one or more of the many assignments of error contained in the motion,'but this would be futile. Upon two trials the facts have been fully developed, and if in the first trial the plaintiff was a trespasser, he remains a trespasser, under the undisputed facts of the present record. The court therefore erred in overruling the motion for a new trial.

Judgment reversed.

Wade, G. J., and Lulce, J., concur.


text:
    8146.
    Southern Railway Co. v. Jarrett.
    Decided July 26, 1917.
    Action for damages; from Henry superior court—Judge Searcy. July 24, 1916.

      Hams, Harris & Witman, Smith & Turner, for plaintiff in error.

      H. J. Reagan, contra.
   George, J.

1. The excerpts from the charge of the court, contained in grounds 1, '2, 3, and 4 of the amendment to the motion for a new trial, are not accurate statements of law, but, when considered in connection with the context, were not misleading upon any controlling question, and will not require a reversal of the judgment of the trial equrt.

2. If liability for the death of a minor child is shown, the father, who is entitled to the services of his minor child, may recover for the loss of such services, upon proof that the child was possessed of ability and capacity to render valuable services; and it is not necessary to show that the child actually rendered such services. The undisputed evidence in the present record is to the effect that the child (a girl seven years old) did in fact render valuable services to the" father; and in no view of the question was there error in the charge complained of in ground 5 of the motion for a new-trial.

3. The evidence was sufficient to sustain the verdict, which was approved by the trial judge.

Judgment affirmed.

Wade, C. J., and LuTce, J., concur.


author: Per Curiam.

text:
    8165.
    Seaboard Air-Line Railway v. Knight.
    Decided July 26, 1917.
    Action for damages; from Muscogee superior court—Judge Gilbert. June 20, 1916.

      Henry B. GoetcMus, William deL. Worsley, for plaintiff in error.

      L. L. Meadors, Love & Fort, contra.
   Per Curiam.

1. This case is controlled in principle by the decision in the ■ ease of Seaboard Air-Line Ry. v. Hollis, ante, 555 (93 S. E. 264).

2. There are no errors assigned which require a reversal of the judgment of the court below in this case, and the verdict, which has the approval of the trial judge, was not without evidence to support it. The court did not err in overruling the motion for a new trial.

Judgment'affirmed.

Wade, O. J., and George and Luhe, JJ., concur.


author: "Wade, C. J.

text:
    8169.
    MOYE v. REDDICK.
    1. A- cause of action was set forth by the allegations ¡M to the injury inflicted by the defendant’s automobile. There is_noi such merit- in the grounds of the special demurrer to the petition as to require a reversal on account of-the- overruling cdLfch.e_demurrer___
    2. The instructions to the jury as to the presumption against a party failing to produce evidence in his power or within li.is_reach (Civil Code of 1910, § 5749) were authorized by the facts.
    3. Where it appeared that the plaintiff was struck by the defendant’s automobile on the street of a city, just after th£_aniomobile had passed the intersection of that street with another street, and near, though not on, the crossing, and there was evidence thai-the_a»tejnobile was moving at a high rate of-speed, and on approaching the intersection of the streets was beings operated at a speed greater than six miles an hour, it was not error -for- the court to -give in-nharge to-tha jury the provision of the act of 19Í0 regulating the speed of auionKdiilea—and providing that on approaching a “crossing of intersecting highways” the person operating the machine» “shall have it under-.control and operate it at a speed not greater than six'miles per hour.” The jury were further instructed to the effect that nim-eomplianee with the requirements of the statute “could not be counted against” the defendant unless it contributed to the injury in question.
    4. The evidence authorized the verdict.
    Decided July 26, 1917.
    Action for damages; from Randolph superior court—Judge Worrill. September 1, 1916.
    The action was by Mary Reddick, a minor, by her next friend, against Mrs. A. C. Moye. The petition, as amended, alleges, that the defendant has damaged the plaintiff in the sum of $5,000, by reason of the following facts: On November 2, 1912, plaintiff was on the streets of the City of Cuthbert, Georgia, where she had the right to be, and was run over by an automobile owned by the defendant, who was riding in it and controlling it at the time. The automobile was operated by Sam Humphreys, chauffeur for the defendant, under her direction and control, and he was driving the car at a speed more than fifteen miles an hour, in a rapid and reckless manner and without slowing the speed. There was a county fair in Cuthbert at the time, and large crowds had assembled on the streets, and it was difficult for foot-passengers to escape from automobiles; all of which the defendant could and did see and know. Pine street is a narrow street, and its sidewalks are not clearly marked and defined, and at the time the defendant’s automobile struck plaintiff a buggy with a horse hitched to it was on the sidewalk on the north side of the street; the approach of the automobile had frightened the horse to some extent, or it was attempting to move, or was moving, for some reason; plaintiff was on the south side of the buggy, the automobile was coming from the east, and there was not sufficient space between the buggy and the street, where the automobile was, for plaintiff to stand. She could not run east, on account of the automobile coming rapidly from that direction, nor west, for the same reason, and her only method for escape was to attempt to run to the southern sidewalk. There were several persons about the buggy, forcing her further into the street. Being an immature child, she was fearful of the horse and of the automobile. Defendant could see her size and her danger, and could have stopped the automobile, but did not do so, or her chauffeur could have done so, but did not do so. The City of Cuthbert has erected on Pine street, nearly in front of the court-house and within a few feet of where plaintiff was struck by the automobile, a sign which defendant saw, or could have seen, and which said: “Fire limits. Automobile speed ten miles an .hour.” The driver of the automobile was careless, reckless, and totally disregarded the rights of pedestrians, and ran the ear along the street without properly checking its speed and without properly sounding the alarm. Defendant was negligent in that her driver, at the time the injury to plaintiff, was operating the automobile in violation of law, in that it was approaching a crossing of intersecting highways, to wit, Pine street, on which plaintiff was injured at a point about 35 yards west of said crossing, and a street immediately west of the court-house in Cuthbert, at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the highway, and in such manner as to endanger the life or limb of persons on the highway, and at a greater rate of speed than six miles an hour, all in violation of the law of this State. Plaintiff was only seven years of age, and was unable to escape from the automobile when she discovered that it was about to run her down. After striking her it ran some eighteen or twenty feet before it stopped. It knocked her down, broke her left leg, and inflicted other injuries described. The driver was criminally negligent and ran over her without making any effort to protect her. It is alleged that the defendant’s conduct was wanton and exhibited a total disregard of the rights of the public and of the plaintiff, and was such as to entitle plaintiff to punitive damages.
    The trial of the case resulted in a verdict against the defendant. • The bill of exceptions assigns error on the overruling of a general and special demurrer to the petition, and on the refusal to grant a new trial. The grounds of the motion for a new trial, besides the general grounds, that the verdict was contrary to the evidence, etc., were, that the court erred in giving in charge to the jury the provisions of the code and of the act of 1910, supra, and in charging them that “it is negligence, as a matter of law, to approach with an automobile a crossing of intersecting streets at a greater rate of speed than six miles an hour.”

      Yeomans & Wilkinson, B. L. Moye, J. W. Harris, for plaintiff in error, cited:

      O’Dowd v. Newnham, 13 Ga. App. 220; Davis v. Central R. Co., 75 Ga. 645; Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 370 (4, 6); Macon & B. Ry. Co. v. Parker, 127 Ga. 471; Southern Ry. Co. v. Pope, 129 Ga. 842 (2); Atlantic Coast Line R. Co. v. Adams, 7 Ga. App. 146 (1); Ga. R. Co. v. Clary, 103 Ga. 640; Central Ry. Co. v. Neidlinger, 110 Ga. 329; Willingham v. Macon &c. Ry. Co., 113 Ga. 377.

      M. C. Edwards, Pottle & Hofmayer, contra, cited Act of 1910, supra (Park’s Ann. Code, § 828 (e)).
   "Wade, C. J.

The court did not err in overruling the general demurrer to the plaintiff’s petition; and there is not such merit . in the grounds of the special demurrer as to require a reversal, in the interest of justice, because of any harm to the defendant on account of the alleged defects pointed out thereby.

There is no merit in the ground of the motion for a new-trial that the court erred in charging section 5749 of the Civil Code of 1910, relating to the presumption arising where one who has evidence in his power and within his reach, to repel a charge or claim against him, fails to produce it. The defendant herself witnessed the happening, but did not testify at the trial, nor did her chauffeur, who admittedly was in charge of the car under her direction, and who was present at the trial, and must have been in a position to know better than any other person exactly what was done by him to prevent the occurrence, and to know the rate of speed at which the car was moving, and the proximate cause of the injury to the plaintiff.

The provision in the act of 1910 (Acts of 1910, p. 90, Park’s Ann. Code, § 828 e), that any person operating an automobile on any of the -highways of this State shall, “upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways [italics ours] . and railroad crossings,” so operate the same as that he may “have it under control and operate it at a speed- not greater than six miles per hour,” is applicable to the public streets of a municipality. “The ‘highways of this State as described in this act’ include all public roads, streets, alleys, etc,; and . . the provisions of section 5, limiting the speed of an automobile at a ‘crossing of intersecting highways,’ would apply to the crossing of intersecting streets, as a street is, by the terms of the act, included as one of the ‘highways’ of this State.” Ware v. Lamar, 16 Ga. App. 560, 566 (85 S. E. 824), s. c. 18 Ga. App. 673 (90 S. E. 364).

The court did not err in giving in charge to the jury the provision of the act of 1910 referred to above, as there was some evidence that the defendant’s automobile, when approaching the intersection of another street with the street on which it was being operated, was moving at a high rate of speed, greater than 6 miles per hour, and it appeared, from the testimony, that the automobile struck the plaintiff in the street not far beyond the intersection of these streets; and it was a question for the jury to determine whether the injury resulted from the negligence of the defendant in approaching the crossing at a rate of speed prohibited by law, notwithstanding the place at which the plaintiff was injured was not exactly at the crossing. The plaintiff was not a trespasser, and the various decisions of the Supreme Court and of this court relating to injuries inflicted upon persons trespassing upon a railroad-track not at but near a crossing are not strictly applicable.

Besides, the court instructed the jury as follows: “Although you may believe, from the evidence in this case, that Mrs. A. C. Moye' crossed the intersecting streets at the time and place mentioned in plaintiff’s petition, though you may believe from the evidence she was traveling at a rate of speed higher than six miles per hour, yet unless the injury complained of, if any, resulted from the fact that she was going at a greater rate of speed than six miles per hour, or unless you believe that her failure to check the speed of the car down to a rate of six miles per hour, unless such failure to check the speed, if the car was going at a higher rate of speed than six miles per hour, in some way contributed to the injury, tjien that failure could not be counted against her. If the car in which she was. traveling was going at a higher rate of speed than six miles per hour at the time of crossing the street, if that caused the injury or in any way contributed- to the injury, then she would be responsible.”

4. There is no merit in the general grounds of the motion for a new trial, and the court did not err in overruling the motion.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8194.
    FLETCHER, adm’r, v. SOUTHERN LOAN CO.
    1. The option contract which was the basis of the suit was not so vague, uncertain, or indefinite that the property therein referred to could not be identified#with the aid of extrinsic testimony. The petition set forth a cause of action, and the court did not err in overruling the general demurrer.
    2. There was no error in admitting in evidence the option contract without proof of its execution, since, irrespective of all else, it appears that proof of its execution and delivery was later submitted without objection.
    3. The alleged newly discovered evidence was clearly cumulative and impeaching in character, and therefore it can not be said that the court abused its discretion in refusing a new trial on this account.
    4-6. In the light of the entire charge of the court, the various assignments of error as to the charge are without substantial merit. The court did not err in overruling the motion for a new trial.
    Decided July 26, 1917.
    Action on contract; from Irwin superior court—Judge George. October 20, 1915.

      H. E. Oxford, Quincey & Rice, for plaintiff.

      O. W. Fulwood, L. P. Sheen, J. W. Haygood, Eldridge Cutts, contra.
   Wade, C. J.

“The description of land in a contract of sale is sufficiently definite where the premises are so described • as to indicate the grantor’s intention to sell a particular lot of land. Where the contract indicates that a particular tract is intended to be conveyed, its practical identification can be proved by extrinsic evidence.” King v. Brice, 145 Ga. 65 (88 S. E. 960). The description in the option which was the basis of this suit was as follows: “My land of sixty-seven hundred acres, except graveyard of two acres. Said land being in the county of Irwin, State of Georgia, known as lots Nos. 52, 53, 85, 86, 87, 88, 100, 99, 98, 97, 96, 132, 133, 134, 135, 143, aggregating 6,700 acres, and lying seven miles of Ocilla of county seat.” “The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.” Crawford v. Verner, 122 Ga. 814, 816 (50 S. E. 958). “The maxim, however, has no application to vague descriptions, which do not indicate the grantor’s purpose and intention to convey a particular tract or lot of land. A description in a will of ‘all my land’ is good, for the reason that its location may be definitely ascertained by aliunde proof as to the location of the testator’s land. Harriss v. Howard, 126 Ga. 325 (55 S. E. 59). An executory contract for the sale of land described the property as ‘my half interest in the property corner of Second and Cherry streets, Macon, Ga.,’ and it whs held that the description indicated the vendor’s intention to sell his half interest in the land lot on the corner of Second and Cherry streets, Macon, Georgia, and that parol evidence was admissible to show that the vendor was interested in only one tract on the corner of the named streets' in Macon, Georgia, and certainty in the contract would be supplied. Pearson v. Horne, 139 Ga. 453 (77 S. E. 387).” King v. Brice, supra.

In Tumlin v. Perry, 108 Ga. 520 (34 S. E. 171), it was said: “When, a party has gone into possession of certain lands under bond for title, the fact that such bond does not sufficiently describe the land to locate it definitely and exactly does not render such bond inadmissible in evidence as color of title. When there is any ambiguity in the bond in its description of the premises conveyed, parol evidence is admissible to explain such ambiguity. The bond in this case, construed in connection with the parol evidence, was sufficient as color of title to support a prescriptive title to the premises in dispute.” In that decision the descriptive part of the bond is set out as follows: “Good and' sufficient warranty title in fee simple (except in the minerals and privileges of working for minerals) to the following lands, to wit, all the lands which James Knox and now lying on the road from the town of Canton, in said county, to Orange, about six miles and one quarter east of Canton, it being Tin the third district and 2d section of said county, all in one body, containing several lots, also, adjoining to said tract of land, a place known as the Erwin-I-Ienderson place, one lot and part of another, and others,” etc. The court held that: “The description is certainly neither clear nor definite, but the uncertainty is not so great that the description can not be made certain by extrinsic evidence.” In Harriss v. Howard, supra, it was said: “It can hardly be contended that a devise by a testator of ‘all of my lands’ is not sufficient to carry title to his devisees to lands shown to answer that description. But it is suggested that though the devise was sufficient to convey title, it was insufficient to operate as color of title. We recognize, of course, the difference between a will and a deed, and the great liberality allowed in making wills and passing title by them. But if we look at this case as if the description were in a deed, it would seem somewhat peculiar if a description were sufficient for the conveyance of good title, but insufficient to constitute even a semblance of color of title,—sufficient to convey, but not sufficient to purport to convey.” In Crawford v. Verner, supra, the court said: “And where it can be gathered from the words employed in a deed that the intention of the grantor was to convey the whole of the tract owned by him, even a vague description of the same will suffice, if by competent parol evidence its precise location is capable of as-eertainment and its identity can thus be established; but if the description is so indefinite that no particular tract of land is pointed out by the instrument itself, the description must be held so defective as to prevent the instrument from operating as a conveyance of title.”

It can not be said that the description in this ease was so indefinite “that no particular tract of land is pointed out by the instrument itself;” for the number of acres in the tract is named, the county and State in which it is situated, and the distance from Ocilla, the county seat; and by way of further identification the land is described as being “my land of sixty-seven hundred acres, except graveyard of two acres,” and the numbers of the lots which in whole or in part are included in the tract of sixty-seven hundred acres are given. It could 'hardly be within the bounds of possibility that Fletcher, who gave the option, could own more than one tract of land in.the county of Irwin, State of Georgia, seven miles from Ocilla, with a graveyard thereon, which comprised lots and parts of lots numbers 52, 53, 85, 86, etc. It is therefore apparent that the land described in the option could easily be identified by the aid of extrinsic evidence. See, in this connection, the opinion in King v. Brice, supra. We hold, therefore, that the description of the land contained in the option was not so vague and indefinite as to render the contract unenforceable.

Nothing that is said 'in the case of Mims v. Gillis, 19 Ga. App. 53 (90 S. E. 1035), is in conflict with what is here ruled. In that case the suit was based on an option and some of the property therein referred to was described merely as “all of my entire property according to my tax returns of 1909 and 1910, also the Central Hotel. This is meant to cover 'all of my real and personal property both of every description in the city of Sylvester, whether improved or unimproved.” The property appearing on the tax books as-that of the maker of the option included not only the “Central Hotel,” but three “two-story buildings with stores of the value of nine thousand ($9,000.00) dollars; two vacant lots with brick thereon, etc., of the value of four thousand ($4,000.00) dollars; two-story boarding house on Kelley street of the value of thirty-five hundred ($3,500.00) dollars; thirteen residence buildings in the city of Sylvester owned by Mrs. E. Gillis at the time of giving her taxes in the year of 1909 of the value of thirteen thousand five hundred ($13,500.00) dollars; also two thousand ($2,-000.00) dollars worth of furniture, and two thousand ($2,000.00) in notes and accounts, making an aggregate sum of forty-nine thousand ($49,000.00) dollars.”

In this action the Southern Loan Company sued the administrator of E. G. Eletcher, deceased,'for damages, alleging that the plaintiff had paid the decedent, for the option referred to, the sum of '$1,000, to be in part payment for the property if the trade should be consummated in accordance with the terms recited in the contract; that at the time of making the contract he “was in the actual possession of and claimed as owner a tract of 6,700 acres of land, lying approximately seven miles from Ocilla in Irwin county, Georgia, consisting in some instances of the entire land lots, and in other instances of such portions of such land lots, being known as Nos. 52, 53, 85, 86, 87, 88, 100, 99, 98, 97, 96, 132, 133, 134, 135, and 143 in- the sixth district of said Irwin county, and said tract consisting of all lands in the lot numbers named which were owned by and in possession of said E. G. Eletcher at the date of the execution of said contract, and said lands were notoriously known as the lands of said E. G. Eletcher, and claimed by him, and to which he held title except to the extent of the conveyance of timber as hereinafter alleged;” that “the lands referred to and intended to be embraced in the option, a copy of which is hereto attached, were the lands described in the la'st preceding paragraph, and were so known and understood by both parties to the said option contract;” that at the time the plaintiff purchased the option aforesaid there was an outstanding timber lease, made by E. G. Eletcher long prior to the date of the option, of which the plaintiff had no notice or knowledge, whereby Eletcher had leased, transferred, sold, and conveyed for a valuable consideration, and for a period extending beyond the time within which the option must be exercised, “all of the timber suitable for sawmill and turpentine purposes in and upon all of the lands described in and included in the said option and contract, copy of which is hereto attached, and also had conveyed in said lease many other rights, privileges, easements, and incumbrances upon said property, such as the right to contract, maintain, and operate tram-roads in, on, and over said lands, and across the cleared land, to build sawmills and operate same; which said lease was before, at, and subsequent to the execution of said option contract, a valid, material, and subsisting incumbrance upon all of the property described and included in petitioner’s said option and contract here sued upon.” It was further alleged that Fletcher made no reference to the existence of this contract at the time the plaintiff purchased the option from him, and said contract was not exhibited at the time the option was executed; that the plaintiff was ready, able, and willing to exercise the right of purchase under the option, and to purchase and pay for the property at the price and in accordance with the terms of purchase therein set forth, before the first day of January, 1912 (when the option expired), and while the option contract was in full force and effect; that no tender of the purchase price had been made to the defendant, for the reason that Fletcher had conveyed away the timber upon the property suitable for sawmill and turpentine purposes, and placed upon the property the incumbrance above mentioned, which would not expire for a number of years to come, and had thus, before his death, placed it beyond his power and beyond the power of his administrator to comply with the terms of the -option contract and sell or make perfect and complete title to the plaintiff in accordance with the option contract. The plaintiff claimed damages, alleging that the property during the period when the contract was in full force and effect was worth $30,000 in excess of the price fixed in the contract, and that it was still worth that much in excess of said sum; and further, that $1,500 had been expended as the result of the breach by the deceased of the option contract, in that the plaintiff had employed counsel to examine the titles, at an expense of $1,000, and had likewise expended $500 for having a survey thereof made. The defendant demurred generally and “because the description of the land sought to be conveyed by the option is too vágue, uncertain, and indefinite to be binding” upon the administrator or his intestate. The judge overruled the demurrer. The trial resulted in a verdict in favor of the plaintiff for $1,395.

It follows from what has been said above that the court did not err in overruling the demurrer.

The 4th ground of the motion for a new trial complains of the admission in evidence of the option contract referred to above, for the reason that the execution of the contract had not been proved. The court appends the'following note to this ground of the motion: “If, under the pleadings, proof of the execution of the option was necessary, later, without objection, direct proof of-its execution and delivery was made.” It is unnecessary, in view, of this note by the presiding judge, to say more than that at all . events, under the circumstances, there is no merit in this ground.

The alleged newly discovered evidence was to the effect that one John Tucker, a citizen and resident of Irwin county, properly vouched for by witnesses as to his standing in the community, had heard a discussion between Frank Scarboro, of the plaintiff company, and the deceased Fletcher, who executed the option contract, in which Scarboro had not only admitted his knowledge as to the existence of the timber lease covering the same property, but had urged Fletcher to sign the option upon which the suit was based, and stated that the timber' lease would not interfere with the sale of the lands, as he had examined that lease and ascertained how long the timber covered thereby would be worked, and thus found that both the turpentine and sawmill timber would be used in ample time for Scarboro to dispose of the land as he expected to do. It appears from the brief of evidence that Scarboro was interrogated fully in regard to his knowledge of the timber lease at the time the plaintiff obtained the option from Fletcher, and he distinctly denied any knowledge as to its existence, and said, “I think it was sixty or ninety days after the option was taken that I discovered that there was an incumbrance on the property in the way of timber or turpentine lease, probably a little longer than that.” So it is evident that the alleged newly discovered evidence would have amounted merely to impeaching testimony, and in addition it was merely cumulative of other testimony from witnesses for the defendant, to the effect that Scarboro had full knowledge of the existence of the timber lease, and of the time when it would expire, and had himself actually gone over the lands and had seen negroes engaged in hacking the trees, chipping, and dipping turpentine out of the boxes. And furthermore, a witness said that he thought Scarboro had seen the lease on record, and he knew that "Mr. Scarboro and Ebb Fletcher [the deceased] • talked of that lease in my presence over there at Ebb’s house before the option was taken.” The alleged newly discovered evidence would have been merely the evidence of another witness to the same facts alréady testified to in substance in behalf of the defendant; and tbe judge did not abuse his discretion in refusing the grant of a new trial upon this ground.

Even if erroneous, the charge of the court complained of in the 10th ground of the motion for a new trial was not harmful to the defendant, since the verdict indicates clearly that the jury found no prospective profits, but allowed the plaintiff actual damages only, amounting to less than the sum expended for the option, with interest and the expenses incurred thereunder.

Viewed in the light of the entire charge of the court, there is no merit in grounds 11, 12, and 13 of the motion for a new trial, in which excerpts from the charge are complained of, as the jury was expressly instructed that the actual physical condition of the land or the timber at the time of the option would in no event amount to a breach of the contract, since the parties were presumed to have contracted with reference thereto.

The remaining grounds of the motion for a new trial are without substantial merit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.