author: Bioodworth, J.

text:
    8108.
    FARMERS MUTUAL FIRE ASSOCIATION v. STEED.
    1. The motion to dismiss the bill of exceptions is without merit.
    2. The contract of insurance sued upon, having been breached in material particulars by the plaintiff, is void and unenforceable.
    3. The promise of an adjusting agent to pay the loss under an insurance contract breached by 'the insured is not binding on the insurance company, where the agent is without authority to waive the stipulations of the policy.
    Decided June 18, 1917.
    Action on insurance policy; from Murray superior court—Judge Fite. August 17, 1916.

      Maddox, McCamy & Shumate, for plaintiff in error.

      H. H. Anderson, W. E. Mann, contra.
   Bioodworth, J.

The trial judge unequivocally approved the brief of evidence in the following language: “The within brief of evidence approved, the same being correct.” The fact that the court added, that “Counsel for plaintiff [in] error objects, but it is ordered that copy of policy be incorporated in brief of evidence,” does not in any manner qualify its approval; and inasmuch as the material portions of the contract of insurance, including the “Mercantile Stock Form,” were set out in the approved brief of evidence, the last clause of the order approving the brief of evidence may be treated as surplusage. Besides, it does not appear that any point as to the approval of the brief of evidence was raised and insisted upon before the trial judge. Acts of 1911, p. 150 (3); Park’s Ann. Code, § 6090 (a); Collins v. State, 12 Ga. App. 635 (77 S. E. 1079); Odom v. Coley, 11 Ga. App. 490 (75 S. E. 822); Lewis v. Phillips-Boyd Pub. Co., 18 Ga. App. 181 (89 S. E. 177). The authorities cited by the movant are clearly distinguished by their facts from the case at bar. The brief of evidence being sufficiently approved, the motion to dismiss the writ of error is denied.

The insurance company pleaded that the contract was void by reason of the plaintiff’s failure to comply with the stipulations of the “iron-safe clause,” especially as to making an inventory and as to keeping a set of books.

Plaintiff in his amended petition alleged that the “mercantile form,” containing the “iron-safe clause,” was not attached to and did not form a part of the original contract. However, on cross-examination he admitted facts which, in connection with the other evidence, demanded a finding for the insurance company upon this point. The record shows that the plaintiff introduced policy No. 389 and “Mercantile Stock Form No. 389,” which had been detached from the policy, and which, as appears from the evidence, was attached to it when the policy was delivered to plaintiff. This form contains an “iron-safe clause” as follows: “The following covenant and warranty is hereby made a part of this policy: 1st. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such an inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail in thirty days of the issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the uhearned premium from such date, shall he returned. 2d. The assured will keep a set of hooks, which shall clearly and plainly present a complete record of the business transacted, including all purchases, sales, and shipments, both for cash and credit, from date of inventory as provided for in first section of this clause, and [during the?] continuance of this policy. 3d. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fire-proof safe at night and at all times when the building mentioned in this policy is not actually open for business, or, failing in this, the assured will keep such books and inventories in some place not exposed to fire which would destroy the aforesaid building. In the event of the failure to produce such set of books and inventories for the inspection of the company, this policy will become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.”

It appears undisputed in the evidence that the insured failed to comply with the terms of the policy, in not taking an inventory, and in not keeping a set of books by which his stock account or his cash sales could be determined, or his cash sales separated from his credit sales, and that such records as had been kept, except his ledger, were destroyed by the fire.

Beyond the conclusion of the plaintiff that his stock of goods was worth a certain amount named by him, there is no evidence from which the insurance company or the jury could have arrived at the value of the stock.

While forfeitures are not favored in this State, the facts of this case illustrate most strongly the wisdom of, and the necessity for, compliance with the stipulations in the “iron-safe clause,” for the protection of both parties. The plaintiff having breached the contract in the essential particulars named above, the policy is void and unenforceable. The case is squarely within the rulings of the Supreme Court in Everett-Ridley-Ragan Co. v. Traders Insurance Co., 121 Ga. 228 (48 S. E. 918, 104 Am. St. R. 99); Liverpool &c. Insurance Co. v. Ellington, 94 Ga. 785, 791 (21 S. E. 1006); Ætna Insurance Co. v. Johnson, 127 Ga. 491 (56 S. E. 643, 9 L. R. A. (N. S.) 667, 9 Ann. Cas. 471); Hester v. Scottish Union &c. Ins. Co., 115 Ga. 454 (41 S. E. 552); Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 634 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216); Buchman v. Insurance Co. of North America, 134 Ga. 506 (68 S. E. 71); Johnson v. Sun Fire Ins. Co., 3 Ga. App. 430, 433, 434 (60 S. E. 118); Finleyson v. Liverpool &c. Insurance Co., 16 Ga. App. 51 (84 S. E. 311).

The contention of the plaintiff that the agent of the insurance company in effect waived the terms of' the clause in the policy discussed above, after the forfeiture and after the loss, is without merit. “In Graham, v. Niagara Fire Insurance Co., 106 Ga. 840 [32 S. E. 579], it was questioned whether, by the most formal act of the governing body of the corporation, a waiver of the forfeiture completely divesting all contractual liability • would be binding on the company.” Lippman v. Ætna Insurance Co., 120 Ga. 252 (47 S. E. 593). The record in the instant case shows that J. E.' Hurt, the agent referred to, testified as follows: “I am secretary and treasurer of the Farmers Mutual Insurance Association. It is a mutual company. The finances are derived from the mutual owners of the company. The company has a board of directors. My authority as secretary and treasurer and my duties are governed entirely by the board of directors. I have no authority to pay a claim until the board of directors passes on it.” In the case of Underwriters’ Agency v. Sutherlin, 55 Ga. 267 (1), involving the right of an adjuster to waive a stipulation in the policy requiring suit to be brought in twelve months, it was held: “It is not in the power of local agents, or of adjusting agents of the company, without express authority from the managing officers, to waive such a stipulation after the loss or damage occurs.” In the policy sued on is this provision: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, 'agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed-hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

In connection with the “iron-safe clause” and the clause from the policy just quoted, attention is directed to the case of Finleyson v. Liverpool &c. Ins. Co., supra, as follows: “The ‘iron-safe clause’ in the policies was a warranty on the part of the insured that they would do something in the future, and was important as providing a check against fraud on .their part; and their complianee with this part of the- contract was a condition upon which, by the express terms of the contract, the validity of the policy depended. Scottish Union Ins. Co. v. Stubbs, 98 Ga. 761 (27 S. E. 180); Southern Fire Ins. Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216). The plaintiffs therefore were bound to take an inventory within thirty days after the transfer of the policies; else the contract of insurance, would be void from that date. It is conceded in the petition that no such inventory was taken. The question then is whether the agent of the defendant could and did, as contended by the plaintiffs, waive this provision of the policy. In the policy it is stipulated that no officer or agent ‘shall have power to waive any provisions or conditions of this policy, except such as by the terms of this poliej may be the subject of agreement indorsed hereon or added hereto.’ It is not alleged that the waiver was indorsed upon or attached to the policy. Neither does it appear from the petition or the policy that the ‘iron-safe clause’ was one of the provisions or conditions which were the subject of agreement. The failure of the insured to comply with the provisions of the ‘iron-safe clause’ placed it beyond the power of the agent to amend, reconstruct, or resurrect the policy. By the very wording of the policy, the policy was void, not merely voidable. Insurance Company of North America v. DeLoach, 3 Ga. App. 812 (61 S. E. 406). Agents are without authority to bind their principal by any waiver of the terms of the policy after a forfeiture has already taken place. Graham v. Niagara Insurance Company, 106 Ga. 840 (32 S. E. 579). And notice to an agent who solicits insurance, made subsequent to the issuance of a policy, of a violation of a condition of the policy is not notice to the insurer so as to constitute waiver of the insurer’s right to forfeit the policy thereunder. A forfeiture can not be waived without express authority from the governing officials of the insurance company. Lippman v. Ætna Ins. Co., 120 Ga. 247 (47 S. E. 593). It is not alleged that the agent was given this express authority by the governing officials; and, under the facts of the case as alleged, even if they had given him such authority, we do not think he could have waived the clause, because that would have amounted in substance to bringing to life something already dead; which, under the ruling in the DeLoach ease, supra, can not be done.”

The foregoing rulings being controlling, a discussion of the remaining assignments of error would be profitless.

Judgment reversed.

Broyles, P. J., and Jenlcins, J., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8122.
    FREEMAN, receiver, v. BANK OF LaFAYETTE et al.

    Where a judgment of a court of general jurisdiction, rendered in a ease in which the court had jurisdiction of the parties and of the subject-matter of the litigation, is in part an adjudication upon a' matter • which was not included in the pleadings, but which by consent was irregularly presented for determination in the case, that part of the judgment is not subject to collateral attack as being absolutely void, if by amendment of the pleading the irregularity could have been cured.
    Decided June 18, 1917.
    Money rule; from Walker superior court—Judge Wright. January 18, 1916.

      Rosser & Shaw, for plaintiff in error.

      Shattuch & Shattuch, Earl Jachson, contra.
   Jenkins, J.

This is a proceeding by the plaintiff as receiver, in which he claims a surplus fund in the hands of the sheriff, arising from the sale of certain real estate. In order to dispose fully of the issue made in the court below, it is only necessary for us to decide the one question as to whether or not a certain judgment of the superior court, rendered in favor of M. M. Hedges against S. A. Hunt Jr. and R. N. Dickerson, under which the property was sold, is void, in so far as by its terms it is a judgment against the former as principal and the latter as surety on the note which was the basis of the judgment- It appears that the note mentioned was signed by both Hunt and Dickerson, apparently as principals, and both of the makers executed a deed to the land as security for the debt. The petition in the suit on the note was against both Hunt and Dickerson without in any way indicating that Dickerson was surety. The following statement, however, is contained in the judgment rendered in the present proceeding: “It being made to appear before me that by consent of the plaintiff’s attorney in the case of M. M. Hedges v. S. A. Hunt Jr. and R. N. Dickerson, that R. N. Dickerson wás permitted to show that he was only security on the note of M. M. Hedges, the court now holds that the court had jurisdiction in said case to render the judgment.” It is not contended that in the suit in which the Hedges judgment was obtained a plea of suretyship was filed by Dickerson, or that any notice of his intention to make such proof was given by him to the principal. The judgment in that suit recites that the case .was in default. After the execution of the note and the deed to Hedges, Hunt conveyed to the plaintiff his interest in the land as security for a debt due by him to the plaintiff, while Dickerson in like manner conveyed his interest in the land .to the defendant. In the contest over the surplus arising from the sale of this land under the Hedges fi. fa., the-plaintiff now contends that the entire interest of Hunt and Dickerson in the land was subject in equal manner to the payment of the Hedges judgment, while the defendant insists that the rule which would obtain under the provision of the judgment by which Dickerson was adjudged liable as security only should apply.

It is insisted by the plaintiff that so far as the judgment is by its terms a judgment against Hunt as principal and Dickerson as surety, it is, under the pleadings in that case, absolutely void and subject to collateral attack in the present proceeding, under the provisions of the code, in which it is declared: “The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code (1910), § 5964. “A judgment that is void may be attacked in any court, and by anybody. In all other eases judgments can not be impeached collaterally, but must be set aside by the court rendering them.” Id. § 5968. It is urged by the plaintiff that in order for that portion of the Hedges judgment which relates to the suretyship of Dickerson to be valid, the latter must have given the notice required by the Civil Code (1910), § 3556, and must have pleaded and proved his suretyship in that proceeding. In support of this contention the decision in the case of Carlton v. White, 99 Ga. 384, 387 (27 S. E. 704), is cited, in which the court said: “If one sued as a principal claim to be a surety only, and the fact of suretyship does not appear on the face of the contract, this fact may be proved by parol as against the real-principal, and the true status of the alleged suretyship defined in the judgment, provided, before judgment, the surety shall give notice to the principal of his intention to make such proof. In order, however, for one to avail himself of the provisions of this statute, he must plead and prove his suretyship. The records of the court stand as a memorial of its judgments,-and it is therefore essential that when one seeks affirmative relief from a court, his pleadings should be so moulded as to authorize the rendition of a judgment in his favor. Courts are not authorized to grant relief where none is prayed, and therefore an omission to ask relief is equivalent to an admission that none is desired. Under the plea filed in the present case, the real relation^ of the apparent principal of the paper to the indorser was that of surety only, and as between these two, upon- proper pleadings, he would have been entitled to have had the verdict so moulded. The notice required by the statute is necessary to enable him to offer qDarol evidence of the fact upon which the relief allowed is granted, but without the pleadings to support it, the evidence would not be admissible, even though the notice had been given. It therefore follows that, in the absence of a prayer in the plea asking for independent affirmative relief, the court did not err in the rendition of its judgment, notwithstanding the fact that the alleged principal was a surety only; and it is clear, from' what we have heretofore said, that no error was committed in overruling the defendant’s motion for a new trial.”

It is urged that since, in the suit on the note of Hunt and Dickerson the latter failed to give the statutory notice referred to, and failed to enter his plea of suretyship, the court in that case was without jurisdiction to adjudicate that Dickerson’s liability was that of a surety only, and that in so far as the judgment rendered therein is an adjudication to that effect, it is absolutely void. In support of this contention, counsel, in their able and learned brief, cite: Mundy v. Vail, 34 N J. 418; Johnson v. McKinnon, 54 Fla. 221 (45 So. 23, 13 L. R. A. (N. S.) 874, 127 Am. St. R. 135); 23 Cyc. 816, 818, 820; Reynolds v. Stockton, 140 U. S. 254 (11 Sup. Ct. 773, 35 L. ed. 464); Janney v. Spedden, 38 Mo. 395; Lincoln National Bank v. Virgin, 36 Neb. 735 (55 N. W. 218, 38 Am. St. R. 747); Clapp v. McCabe, 155 N. Y. 525 (50 N. E. 274); Straight v. Harris, 14 Wis. 509; Sache v. Wallace, 101 Minn. 169 (112 N. W. 386, 11 L. R. A. (N. S.) 803, 118-Am. St. R. 612, 11 Ann. Cas. 348); Milner v. Mutual Benefit Bldg. Assn., 104 Ga. 101 (30 S. E. 648). Had the plaintiff in the Hedges ease not waived the form of the judgment now complained of by consenting thereto, it is apparent that under the ruling in the case of Carlton v. White, supra, he would not have been bound thereby," on exceptions taken on such ground. We do not think the ruling in Wolfe v. Kennedy, 93 Ga. 220 (3) (18 S. E. 433), is in conflict with this statement. In that case judgment was entered against the surety as such on a statutory bailtrover bond which did not so designate him, but it might still be reasonably said that the record itself would disclose such true relationship. In the Hedges suit the form of the judgment was not only' not objected to or appealed from, but the plaintiff specifically assented thereto; and therefore it certainly bound the plaintiff. Gainesville &c. R. Co. v. Galloway, 17 Ga. App. 702 (87 S. E. 1093). Is it, as to the part in question, void and subject to collateral attack by third persons'who may have an interest in asserting its invalidity? -

It is not contended that the court did not have jurisdiction, in the broad sense, of the parties and of the subject-matter of the litigation; the contention is only that it was without jurisdiction of that part of the matter embraced in its judgment as to which no pleadings were presented, and for that reason only. The waiver made by the plaintiff pertained to the matter of pleadings only, and to such matter only as the plaintiff himself might have set up by amendment. While parties can not 'by consent give jurisdiction to the court as to the subject-matter of the suit, when the court is wholly without jurisdiction (Civil Code (1910), § 5663; Dix v. Dix, 132 Ga. 630, 64 S. E. 790), still where the pleadings are such as authorize a legal judgment, the mere waiver by the plaintiff ’ of a particular pleading on the part of the defendant is not one involving the jurisdiction of the court, but relates rather to how the court should exercise the jurisdiction it undoubtedly has, both of the person and the subject-matter before it. Where a court of general jurisdiction renders'judgment in a proceeding within the sphere of its authority, every presumption in favor of its jurisdiction will be indulged, 'and it is not necessary that all facts essential thereto shall affirmatively appear. Dunagan v. Stadler, 101 Ga. 474, 479 (29 S. E. 440). See a collation of authorities upon this subject in 8 Enc. Dig. Ga. Rep. 218. While this is true, still where it affirmatively appears from recitals in the record that the court did not in fact have jurisdiction, a judgment in such a case will not be treated as valid. Head v. Bridges, 67 Ga. 233; Barclay v. Kimsey, 72 Ga. 725; Jones v. Smith, 120 Ga. 642 (48 S. E. 134); Franklin County v. Crow, 128 Ga. 458 (57 S. E. 784). But where the court is one of general jurisdiction and the person and the subject-matter are within the sphere of its general authority, the first thing which in any ease it is called upon to decide is the question of its own jurisdiction, and such a decision must be implied when it takes control and renders judgment, whether it so appears upon the record or not. Mayer v. Hover, 81 Ga. 308 (7 S. E. 562); Milner v. Neal, 114 Ga. 118, 121 (39 S. E. 890): When such a question is brought to the attention of the court and a decision is made in favor of its jurisdiction, it does not matter that the decision may be erroneous so far as the validity of the judgment is concerned. Ga. R. R. & Banking Co. v. Pendleton, 87 Ga. 751 (13 S. E. 822); Everett v. Westmoreland, 92 Ga. 670, 673 (19 S. E. 37); Crow v. American Mortgage Co., 92 Ga. 815 (19 S. E. 31); Manning v. Weyman, 99 Ga. 59 (26 S. E. 58); Griffin v. Smyly, 105 Ga. 475 (30 S. E. 416); Bush v. Bank of Thomasville, 111 Ga. 664, 666 (36 S. E. 990). If the judgment was merely irregular and not void, it is well settled under the law of the code, and by numerous decisions of our courts, that it can not be collaterally attacked for such cause. Counsel for the plaintiff recognize this distinction, but insist that as to the adjudication complained of, the judgment was not simply irregularly granted, but, for the reason stated, was absolutely void.

It has been said that one of the tests to be applied in determining whether a judgment is void, and therefore a nullity, is whether, if the party attacking it had been a party thereto, a motion in arrest could have been sustained for defects appearing in the face of the pleádings, which could not have been aided by amendment or cured by verdict. Chapman v. Taliaferro, 1 Ga. App. 235, 238 (58 S. E. 128). When, by consent of the plaintiff, Dickerson “was permitted to show that he was only surety,” it was entirely within the rights of the plaintiff to amend his petition in order to make it conform to the true status of the facts in the case. It was held in the case of Stanford v. Bradford, 45 Ga. 97, that “In an issue formed on a motion to distribute money between judgments one plaintiff in fi. fa. can not attack the judgment of another plaintiff in fi. fa., on the ground of irregularities previous, to the judgment; the defects, to be subject to his objection, must be such as are not amendable.” We therefore think that, the court having assumed jurisdiction of the subject-matter, upon a presentation thereof which, though irregularly made, could have been made in the pleadings, hy amendment, the judgment is not void, and consequently is not subject to collateral attack.

Judgment affirmed.

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


text:
    8136.
    MANGET-BRANNON COMPANY v. WHITE CROWN FRUIT JAR COMPANY.
    While the presumptions are in favor of the validity of verdicts, and they are to have a reasonable intendment, so as not to be avoided save from necessity, and while in any case the test of certainty is whether the verdict can be made certain by what it contains or by the record, still the judgment entered thereon must follow the true meaning and ’ intent of the finding; and where the judgment fails to do this, and it is not possible to frame a judgment in accordance both with the true intent of the verdict and with the issues made by the pleadings, the verdict must be set aside and a new trial ordered.
    Decided June 18, 1917.
    Reheabing Denied August 31, 1917.
    Complaint; from Troup superior court—Judge Freeman. January 31, 1916.
    The White Crown Fruit Jar Company brought suit against the Manget-Brannon Company for the purchase price of certain articles alleged to have been sold and delivered to the defendant under a contract, a copy of which was attached to the petition. The defendant answered, denying liability, pleading false representations, fraud, and failure of consideration, and asked a rescission of the contract, and pleaded tender, setting up that immediately after it discovered the alleged fraud in the procurement of the contract, it made continuing tender to the plaintiff of the sum of $224.50, as representing the contract price of that part of the purchased articles which had already been disposed of, and like tender of the articles remaining on hand and undisposed of, to wit: 112 gross of caps, and 3 gross of gaskets. The jury returned a verdict as follows: “We, the jury, find for the plaintiff $284.50, and that the defendant company ship back to plaintiff ninety gross White Crown Jar caps complete, prepaying freight on same, and in default thereof to pay contract price for same, and that plaintiff pay cost of suit.” After the jury had dispersed, but during the term of court at which the verdict was rendered, the plaintiff filed a motion to be allowed to'enter up judgment thereon for $532, this sum representing the amount of money found against the defendant by the verdict, together with the contract price of the 90 gross of caps as shown by the contract sued on. The court granted this motion, and judgment was entered accordingly; and the defendant excepted.
    The plaintiff contended that since the jury found for it a money verdict .for an amount exceeding that of the tender pleaded by the defendant, that part of the verdict which provides that the plaintiff shall pay the costs of suit is surplusage and should have been stricken, as the law determines the party against whom costs shall be taxed, and it is not within the province of the jury, in such a case, to assess costs^ against the prevailing party. It was further contended that the verdict-as rendered, under the issues made by the pleadings, amounted to a finding that the defendant was liable for the contract price of the goods set out in the order of purchase sued on, and that the only possible legal verdict that could have been rendered .under the issues submitted was either one in behalf of the plaintiff, for the contract price of the goods sold, or one in favor of the defendant, based on a rescission of the contract and the tender pleaded. The plaintiff contended that the legal meaning of the verdict, as related to the issues made by the pleadings, is that the plaintiff shall recover $284.50 and the further s.um cff $247.50, the latter amount being the contract price of 90 gross of White Crown Jar caps, which latter sum the defendant might discharge by shipping back to the plaintiff, freight prepaid, the articles named; and that so much of the verdict as finds that the. plaintiff shall recover $284.50, and that the defendant is liable for the contract price of the 90 gross of caps, is legal, as being in accordance with the issues made by the pleadings, but that so much of the verdict as provides that the defendant can discharge its liability for the contract price of the 90 gross of caps by returning them is surplusage, since the jury found against the tender set up by tbe defendant. On the other hand, it was contended by the defendant that the jury by their verdict meant to sustain that part of the tender in which the defendant proposed to deliver back the articles remaining unsold, and that, whether the verdict was legal or illegal under the issues made, this was the only construction that could be given to it, and that if the verdict did not cover the issues made by the pleadings, the court was powerless, after the •jury had dispersed, to do anything other than set it aside; that what the court did amounted in effect to amending the verdict, and the court had no authority to amend it.

      W. C. Wright, W. G. Post, for plaintiff in error, cited:

      McCrary v. Gano, 115 Ga. 295 (41 S. E. 580); Smith v. Pilcher, 130 Ga. 350 (60 S. E. 1000).

      Hall & Jones, contra:
    The construction of verdicts is a matter for the court. Thompson v. Turner, 69 Ga. 219. A verdict is certain which can be made certain by what it contains and by the record. Giles v. Spinks, 64 Ga. 205 (3); Jackson v. Jackson, 47 Ga. 99 (1); Harvey v. Head, 68 Ga. 247 (1); Steed v. Cruise, 70 Ga. 168 (9 a); Central of Ga. Ry. Co. v. Mote, 131 Ga. 166 (2) (62 S. E. 164); Telfair County v. Clements, 1 Ga. App. 437 (2) (57 S. E. 1059); Smith v. Hightower, 3 Ga. App. 197-199 (4) (59 S. E. 593); Tifton Ry. Co. v. Butler, 4 Ga. App. 191 (2 a, b) (60 S. E. 1087); Geer v. Thompson, 4 Ga. App. 756 (3) (62 S. E. 500); Harper v. Vickers, 7 Ga. App. 373-4 (66 S. E. 990); Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (73 S. E. 522); Davis v. Preston, 12 Ga. App. 65 (2) (76 S. E. 766). Yerdiets should receive a reasonable construction, and are not to be avoided unless from necessity. Civil Code (1910), § 5927. The test of sufficiency of a verdict is whether it is so certain that the court can give a legal judgment upon it. Seifert v. Holt, 82 Ga. 757 (2) (9 S. E. 843); Atlantic & Birmingham Ry. Co. v. Brown, 129 Ga. 622 (4) (59 S. E. 278); Cothran v. Donaldson, 49 Ga. 458 (2); Williams v. Brown, 57 Ga. 304 (4); Mayor of Macon v. Harris, 75 Ga. 761 (10); Hardin v. Johnston, 58 Ga. 522 (1); 29 Am. & Eng. Enc. Law, 1025. Where a jury attempts to award costs, that part of the verdict will be rejected as surplusage and will not affect the other part. Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (6) (58 S. E. 244) ; Hudson v. Hawkins, 79 Ga. 274 (4) (4 S. E. 682); North & South Street R. Co. v.

      Crayton, 86 Ga. 499 (12 S. E. 877); Southern Express Co. v. Maddox, 3 Ga. App. 223 (2) (59 S. E. 821); 22 Enc. Pl. & Pr. 862 et seq.; 38 Cyc. 1877, 1878, 1884-5, 1890, 1896. The jury found against the tender as .pleaded by the defendant! A tender of less than is due is no tender. Hiller v. Howell, 74 Ga,. 174; Smith v. Pilcher, 130 Ga. 355 (60 S. E. 1000).
   Jenkins, J.

(After making the foregoing statement.) If the jury had simply found for the defendant under the pleadings, the effect of the verdict would have been a rescission of the contract, and under it a judgment would have been entered accordingly, with recovery for the plaintiff in the amount of the tender and of the articles so offered to be returned. The gist of the tender as pleaded was the offer to return the unused portion of the articles received, together with the equivalent in value of such as had been disposed of prior to the ascertainment of the alleged fraud. It appears that they manifestly undertook to find in favor of the rescission asked and for the tender pleaded, except that it appears to have found that the amount of money tendered did not represent the contract price of all the articles disposed of, and that consequently a corresponding portion of the articles embraced in the tender were not subject thereto. But while the verdict appears to have been in favor of the rescission, and attempted to enforce the tender as in substance made, still the finding can not be said even in substance to have covered the issues made by the pleadings. There are fatal deficiencies and discrepancies between it and the pleadings, and this- court is of the opinion that the verdict rendered should therefore be set aside, in order that a finding either for the plaintiff or for the defendant, upon the issues made, may be had. Civil Code (1910), § 5924.

While it is true, as contended by the defendant in error, that the presumptions are in favor of the validity of verdicts, which must be given a reasonable intendment and sustained whenever it is possible to do so, applying for such purpose the maxim which holds that to be certain which can be made certain, still in doing so expression must be given to the true meaning and intent of the finding. Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (5) (58 S. E. 244). In our opinion the judgment entered in this case is not in accordance with the true intent of the verdict; and since it likewise fails to conform to the substance of the defense pleaded, it should be set aside, and a new trial ordered.

Judgment reversed.

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


author: Bloodworth, J.

text:
    8139.
    GARRETT, sheriff, et al. v. COWETA FERTILIZER COMPANY.
    1. It is within the sound legal discretion of the trial judge to allow a traverse to the answer to a money rule to be filed at the second term, and his discretion will not be controlled unless manifestly abused.
    2. If error of the judge in charging the jury was of such a character that it could be, and was, corrected in the final order disposing of the motion for a new trial, it could not injure the plaintiff in error.
    Decided June 18, 1917.
    Money rule; from Carroll superior court—Judge Freeman. June 31, 1916.

      O. E. Boop, B. D. Jackson, Griffith & Matthews, for plaintiffs in error. 8. Holderness, Boykin & Bobinson, Hall & Jones, contra.
   Bloodworth, J.

The Coweta Fertilizer Company obtained a judgment in Carroll superior court against the Farmers TTnion Warehouse Company, H. N. Stipe, and a number of other individuals, for $3,500 principal, with interest and costs, and interest thereafter at eight per cent, per annum. Execution was issued thereon and was levied on land of H. N. Stipe, one of the defendants,. and claim was filed for this land by one of the sons of H. N. Stipe. There is evidence to show that while this claim was pending, H. N. Stipe went to Sidney Holderness, one of the attorneys for the plaintiff, and agreed to pay the plaintiff the amount of the judgment, and then proposed to employ him and Buford Boykin, another attorney, to' collect the judgment out of his codefendants, there being more than forty of them. There is also evidence that he agreed to pay Holderness and Boykin each ten per cent, for collections made on the said judgment. This agreement was denied by Stipe at the trial. Levies were made on property belonging to each of a number of the defendants, and the amount due the Coweta Fertilizer Company was reduced by collection to an amount not less than $718.81. A rule against the sheriff was answered in part as follows: “Eespondent holds in his hands a statement in writing from counsel for plaintiff which shows that there has been collected on said fi. fa. and turned over to them $4,132, which sum respondent says is more than the amount of principal, interest, and costs due on said fi. fa. Besides said sum of $4,122 admitted by plaintiff in writing, your respondent shows they received the further sum of $133 from J. M. Garrett on December 1, 1911, for which sum defendants are entitled to credit on said fi. fa., which sum, together with the $4,122 above set out, makes a sum total of $4,255 which defendant has received on said fi. fa. In answer to paragraphs 5 and 6, respondent says that, although the above sums were paid, and received by plaintiff or its counsel, plaintiff insists that there was still due the sum of $718.81. The defendants insist that said fi. fa. was paid in full. ’Bespondent took from the defendant H. N. Stipe on July 22, 1913, the sum of $718.81 on deposit to hold him harmless against plaintiff’s claim, and settled said fi. fa. in full. This sum Stipe claims as his money, and asks that respondent return the same to him, as said fi. fa. is fully paid off, not including said sum, which respondent insists is true.”

This answer was traversed by the plaintiff, and certain of the defendants in fi. fa. filed an intervention in which they alleged that the fi. fa. had been fully paid off and settled in the manner set out in the sheriff’s answer, and prayed that the court decree that said fi. fa. had been settled in full as against the plaintiff, and that they have judgment against the plaintiff for the amount overpaid on said fi. fa., in proportion to the payments each of the defendants had made thereon, and that said fi. fa. be transferred and assigned to them in proportion to the payments they had made thereon, in order that they might hold said fi. fa. against the other defendants therein named, for contribution. The main point of difference between the plaintiff in fi. fa. and the defendants was as to the 20 per cent, commission charged by attorneys Holdemess and Boykin on a contract.made with H. N. Stipe for collections made from his eodefendants.

Upon the hearing of the case a verdict was rendered for the plaintiff for $718.81 principal and $210.84 interest. A motion for a new trial was made, and upon the hearing thereof an order was passed which is hereinafter set out.

The rule nisi served upon the sheriff required him to answer on April 17, 1914, which was during the April term of court. The- sheriff filed his answer as required by the rule. No traverse to the answer was made at that term. At the October term, 1914, the answer of the sheriff still not having been traversed, he moved to be discharged from the rule.. This was refused, but the court, overruling the objection of the' sheriff that it was too late for the answer to be traversed, allowed a traverse to be filed, and these rulings of the court are assigned as error in a bill of exceptions .pendente lite. To the certificate to the said bill of exceptions the judge added the following: “I further certify that the case was not called in its regular order, but the attention of the court was called to it by counsel for the respondent in the rule and the motion made to discharge the respondent. Whereupon the court had S. Holderness, Esq., counsel for movant, who had charge of the case, to be called into court when he filed the traverse. Said Holderness had leave of absence from the October 'term, 1911, of the court, for providential cause. The rule required the sheriff to answer during the April term, 1914, on a specified day during said term, and the traverse was filed at the next term,—during the October term, 1914.”

In view of the above statement, and the previous rulings of this court, there was no error in this ruling of the trial judge. No laches of plaintiff is shown. “It is expressly ruled by this court in Brantley Co. v. Southerland, 1 Ca. App. 804 (57 S. E. 960), that a traverse of the answer of the sheriff in response to a rule for alleged breach of duty can be filed, in the absence of laches, at any time before the case is called for trial. The facts in this ease exonerate the plaintiff from any laches in filing his traverse to the sheriff’s answer to the rule.” Melton v. Hicks, 7 Ga. App. 462 (67 S. E. 116). See Hendricks v. Kelly, ante, 103 (92 S. E. 395).

When considered in connection with the entire charge and the following order of the court, which was complied with, there are no errors harmful to the plaintiffs in error in the excerpts from the charge of which complaint is made. The order is as follows: “Complaint is made in the amended motion for a new trial that the court intimated .and expressed an opinion as to the amount the jury should find under certain-circumstances. A careful inspection of the record will disclose that the total amount collected from the several defendants, as insisted by the sheriff and the plaintiffs, is the same. Both have errors in addition of the items. The items in the sheriff’s answer, correctly added, amount to $4,130. He retained, as shown by his entry of September 5, and December 3, 1912, $8 costs, leaving $4,122. The items, as insisted by plaintiff, correctly added, show $3,989. Add to this collection from J. M. Garrett, and the amount is $4,122. The amount due upon the fi. fa. after allowing the credits as claimed by plaintiff was more than $750 at the date of the last payment. The sums receipted for by the sheriff and entered on the fi. fa. by him, and paid over by him to Boykin, less $8 costs, plaintiff insists were collected as a, result of the employment of Holderness & Boy-kin by Mr. Stipe. The entire collections on the fi. fa., plaintiff claims, were disposed of as follows:

Collected from all sources..........................$4,122.00
Paid costs and advertising,.................$ 179.76
Paid fees Holderness and Boykin............ 823.20
Paid plaintiff as appears by entry in fi. fa...... 3,119.04
Total .........................................$4,122.00
“It would seem, therefore, that if plaintiff could recover anything it would not be less than $718.81.
“The main controversy arose over the appropriation of $823.20 by Holderness & Boykin as fees, claiming to represent Mr. Stipe. Hnder the charge of the court the jury were authorized to find that,if Mr. Stipe employed these attorneys and that they, representing him, in collecting from his codefendants, received their fees, and, after paying costs, applied the remainder to the fi. fa., that as to Mr. Stipe the fi. fa. would stand open and the plaintiff could .proceed as to the balance against Stipe. It would seem that even though public policy might be violated by Stipe employing Mr. Holderness, one of the plaintiff’s counsel, if Holderness in fact represented Stipe, that plaintiff would be required to give credit to Stipe only for such sum as Stipe’s attorneys should pay, and that Stipe would be in no position to urge the contrary.
“As to the question of interest. If the sheriff in good faith, under the circumstances disclosed by the evidence, refused to advertise Stipe’s land for sale, plaintiff and defendant being in dispute as to whether or not the fi. fa. was paid off, or if he occupied the position of a stakeholder, then it would seem that he was entitled to have this question submitted to a jury. Inasmuch as the court failed to submit this question to a jury, the sheriff should have a new trial, unless the interest found by the jury be written off by the plaintiff. Also, the defendants who made payments on the fi. fa. are entitled to have their payments entered so that they can control the fi. fa. against those who paid nothing. It is therefore ordered: That if plaintiff will write off on the ■ verdict- the interest found against the sheriff, and will further file a paper to be attached to the execution and made a part thereof, showing the amount paid by each and when, and file with the clerk of Carroll superior court within ten days from this date, June 21, 1916, and write off said interest within said time and file the same with said clerk within said time, then the motion for a new trial shall be overruled. Upon failure to comply as above provided, then a new trial shall be granted.”
The record shows that the plaintiff complied with the order of the court as follows: “The Coweta Fertilizer Company, through and by its attorneys, hereby agrees and does write off the interest found by the said jury, to wit: $210.84, thereby leaving the verdict to read $718.81 and making the judgment read accordingly, to wit: for $718.81. Plaintiff also files herewith a list, which is attached hereto and marked ‘ Exhibit A/ of all the parties who paid on said execution, the amount paid, and when paid, and. plaintiff also files said list in the clerk’s office, to be attached to said execution.”

There was ample evidence that there was at least $718.81 due on the execution of the Coweta Fertilizer Company at the time the petition for the rule against the sheriff was presented.

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


author: Bioodwoeth, J.

text:
    8236.
    Ellis, sheriff, v. Spell.
   Bioodwoeth, J.

Where there is a motion for a new trial and no error of law has been committed, and only questions of fact are involved, “the presiding judge may exercise a sound discretion in granting or refusing a new trial.” Civil Code (1910), § 6087. But this court has no such discretion. Where no error of law has been committed, the court can not interfere unless the trial judge has abused the discretion given him by the law. Where the jury has passed upon a question of fact, and this only is involved, it is the fixed policy of this court not to interfere with the verdict if there is any evidence to support it. Wilson v. Barnard, 10 Ga. App. 99 (8) (72 S. E. 943); Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132). It is well settled also that “the first grant of a new trial will not be disturbed unless it appears ‘that the judge abused his discretion in granting it, and that the law and facts required the verdict notwithstanding the judgment of the presiding judge.’ Civil Code, § 6204.” Stalnaker v. Beach, 18 Ga. App. 172 (88 S. E. 99) ; Southern Fertilizer &c. Co. v. Peacock, 19 Ga. App. 592 (91 S. E. 928)., This principle in reference to the first grant of a new trial is applicable when the grant is conditional and the condition is not complied with. Harris v. Central R. Co., 103 Ga. 495 (30 S. E. 425); Wood v. Southern Express Co., 95 Ga. 451 (22 S. E. 535).

Decided June 18, 1917.

Money rule; from Jeff Davis superior court—Judge Highsmith. March 35, 1916.

8. D. Dell, for plaintiff in error.

Bennett & Swain, contra.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Buoodworth, J.

text:
    8316.
    Laurens Cotton Company et al. v. American Trust and Banking Company.
   Buoodworth, J.

1. Where the only issue presented for determination in the court below was altogether one of law, and the exception to the judgment of the trial judge, upon an agreed statement of facts submitted, was merely that the judgment was error, this court will not dismiss the bill of exceptions because of failure of the plaintiff in error to further specify the grounds of his exception. Savannah Trust Co. v. Bank, 16 Ga. App. 718 (86 S. E. 49); Patterson v. Beck, 133 Ga. 701 (1), 707 (66 S. E. 911).

2. “Where notice is given, in accordance with the act of 1900 (Civil Code, 1910, § 4252), of an intention to bring suit upon a promissory note which provides for the payment of attorney^ fees, and where suit is not filed until the,last return day of the term of court specified in the notice, tender of the principal and interest upon the note on that day, but after the suit has been filed, will not relieve the debtor from the obligation to pay attorney’s fees.” Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (1), 716, 717 (70 S. E. 151); Harris v. Powers, 129 Ga. 74 (58 S. E. 1038, 12 Ann. Gas. 475). See also In re Weiland, 197 Fed. 117.

3. Being convinced that the decision in 8 Ga. App. 714, quoted above, should not be modified or overruled, we refuse the request of the plaintiff in error that it be “reviewed and reversed,” or that the question presented be certified to the Supreme Court, in order that the ruling in the ease of Harris v. Powers, supra, may be reviewed.

Decided June 18, 1917.

Complaint; from city court of Dublin—Judge Flynt. December 11, 1916.

Hal B. Wimberly, for plaintiffs in error.

Chappell & Burch, contra.

4. In the instant case the court did not err in the judgment rendered.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Wade, C. Jr

text:
    7974.

      Jones v. Traynham.
    Decided June 27, 1917.
    Rehearing denied Judy 19, 1917.
    Certiorari; from Fulton superior court—Judge Bell. October 11, 1916.

      Carl F. Hutcheson, J. Mallory Hunt, for plaintiff in error.

      Charles T. & L, C. Hoplcins, contra.
   Wade, C. Jr

1. This was an action to foreclose a statutory Hen on real estate for a sum alleged to be due for building material sold to a contractor, to be used in the improvement of the property (Civil Code of 1910, §3352, subsection 2). It is undisputed that the owner of the real estate improved was in exclusive possession of the property, where she resided with her son, and had full knowledge that her son was having a garage erected thereon, and that she entered no objection to the making of this substantial improvement, which inured to her benefit. While “the title of the true owner of land can not be subjected to a Hen for material, unless he expressly or impliedly consents to the contract under which the improvements are made” (Beppard v. Morrison, 120 Ga. 28, 47 S. E. 554), the.jury in this case were authorized, from the recitals in the answer of the trial judge (as revised by agreement of counsel) and from the evidence as a whole, to infer that the defendant’s son acted as her agent, and that contractual relations existed between her and the builder, by virtue of which the materials sold by tlie plaintiff to the builder were furnished.

2. It appeal's, from the answer of the judge of the municipal court to the petition for certiorari, that “there was no issue made upon the trial of the case that N. T. Jones [the son of the defendant who had the garage erected] was not the agent of Mrs. Ella D. Jones” [the defendant]. There being no issue as to this, either by the pleadings or by any definite evidence denying the authority of the defendant’s son to bind her by the contract executed, and there being no request to charge on the subject of agency or on the existence or non-existence of contractual relations between the parties to the suit, as a basis for the foreclosure of the lien, there is no substantial merit in the various exceptions to the charge of the court, or in the other assignments of error. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Luke, JJ., concur.


author: Wade, C. J.

text:
    8028.
    KIMBALL COMPANY v. ROGERS.
    ]. A distress warrant may be issued by any justice of the peace in the county in which the defendant resides or has property. Unless one or the other jurisdictional fact is set up, originally or by amendment, in the affidavit upon which the warrant is based, the warrant is void.
    2. Where an affidavit upon which a distress warrant is issued by a justice of the peace alleges that the defendant resides in the county, and by amendment this allegation is stricken from the affidavit and in lieu thereof the ■ jurisdictional allegation substituted that the defendant owns property in the county, the amendment, in so far as it seeks to add or substitute a distinct jurisdictional allegation for that originally made and upon which the warrant was originally based, should be verified in accordance with the requirements of section 5390 of the Civil Code of 1910, relating to the original affidavit.
    3. The only jurisdictional fact alleged in the original affidavit being stricken by amendment, and there being no oath to the amendment which attempted to substitute therefor a distinct and diSerent jurisdictional allegation, the court erred in overruling the demurrer interposed on this ground; and the further proceedings were nugatory.
    Decided June 27, 1917.
    Distress warrant; from city court of Statesboro—Judge Proctor. November 4, 1916.

      Francis B. Iluntcr, J. J. F. Anderson, for plaintiff in error.

      Fred T. Lanier, contra.
   Wade, C. J.

“Any person who may have rent due may, by himself, his agent, or attorney, make application to any justice of the peace within the county where his debtor may reside, or where his property may be found, and obtain from such justice a distress warrant for the sum claimed to be due, on' the oath of the principal, his agent, or attorney, in writing,” etc. Civil Code of 1910, § 5390. An allegation either that the debtor resides in the county where the application for a distress warrant is made or that he has property therein is essential to show jurisdiction. “A justice of the peace having issued a distress warrant for rent in the year 1886 [before the enactment of the statute as to the amendment of such affidavits], and neither the warrant nor the affidavit on which it was based disclosing that the tenant resided within the county or had property therein, the warrant was void for failure to show any jurisdictional fact on which the power of the justice to issue it depended.- Code [1882], § 4082.” (Code of 1895, § 4818; Code of 1910, § 5390.) Cohen v. Candler, 88 Ga. 207 (14 S. E. 193).

Under the act of 1887, appearing in the Civil Code of 1910 as section 5706, “all affidavits that are the foundation of legal proceedings” are “amendable to the same extent as ordinary declarations,” even to the extent of adding vital and necessary averments. Reese v. Walker, 89 Ga. 72 (14 S. E. 888). But while an essential jurisdictional fact may be added by amendment, such an amendment must be duly verified, to supply a sufficient basis for the warrant resting thereon. No reason appears why essential allegations of fact in the original affidavit may not be stricken therefrom by an unverified amendment by the plaintiff which is allowed by the court; hut no essential or jurisdictional fact can he added to such original affidavit, over the objection of the defendant, except by complying with the requirements fixed by law for the verification under oath of the averments upon which a distress warrant is authorized to issue. In the case of Bryant v. Mercier, 82 Ga. 409 (9 S. E. 166), the affidavit for a distress warrant to enforce a landlord’s general lien was made on October 29, 1887, after the adoption, on October 5, 1887, of the act of 1887, supra, and the Supreme Court held that the court properly granted leave to amend the original affidavit upon which the warrant was issued, by alleging, as a basis for the warrant, that on the date of the original affidavit and warrant the defendant there named had property in the county in which the warrant was sued out. An inspection of the original record in that case discloses that the amendment referred to in the opinion was made under oath. The original affidavit in the case under consideration set out that “W. W. Kimball Company, of said county and State [the affidavit being made in Georgia, Bulloch county], is indebted to said E. A. Bogers,” etc. The amendment allowed by the court struck out the word “of” after the name “W. W. Kimball Company” and inserted in lieu of the word “of” the following words: “who owns property in.” The jurisdiction of the justice of the peace to issue the distress warrant was originally based on the allegation in the affidavit as made that the W. W. Kimball Company was a resident of the county of Bulloch. The amendment striking the word “of,” before the words “said county and State,” removed from the affidavit the sole allegation which gave the justice of the peace jurisdiction to issue the warrant; and when the words, “who owns property in,” were by amendment inserted before “said county and State,” in lieu of the original allegation, and the ground was thus changed on which the jurisdiction of the officer to issue the warrant depended, the amendment should itself have been verified, at least so far as this allegation was concerned, in accordance with the requirements of section. 5390, supra, as to the original affidavit. Without either jurisdictional fact being alleged,—that the defendant resided in the county of Bulloch, or had property therein,—the warrant was absolutely void (Cohen v. Candler, supra); and where the only fact alleged in the affidavit to give jurisdiction, to wit, the residence of the defendant in the county where the warrant issued, was stricken by -amendment on motion for the plaintiff, the entire proceeding was thereby rendered void, in the absence of an amendment under oath asserting such other facts as would themselves show such jurisdiction. The law requires an affidavit as a basis for the enforcement of the harsh remedy furnished by a distress warrant; and every essential averment in the required basis for this summary proceeding must be supported by an oath, whether such essential averment be originally made or added by an amendment.

The bill of exceptions refers to a special demurrer interposed by the defendant company to the “distress warrant, the affidavit upon which it was based, the amendment to said affidavit,” etc., and further specifies, as material, various parts of the record “which are hereto referred to and made a part of this bill of exceptions,” including “all special demurrers, with all entries thereon, and exceptions pendente lite and certificate of same, all marked exhibit D.” “Exhibit D,” which is attached to the bill of exceptions, and precedes the judge’s certificate thereto (which certificate recites that the' bill of exceptions “is true and correct, and specifies and has attached thereto all evidence and parts of the record material to a clear understanding of the errors Complained of”), is itself entitled, “Demurrer to distress warrant as amended.” This demurrer includes, among other things, an objection to the .amendment of the original affidavit (which appears to have been the only amendment offered in the case), because it was not sworn to as required by law. This distinctly brought into question the propriety of allowing this amendment in the absence of any verification thereof. An additional transcript which seeks to contradict in effect the truth of the bill of exceptions, and which was forwarded by the clerk pf the trial court to this court separately and independently, can neither be filed in connection with the record in this case nor be considered in determining the issues presented by the record actually approved by the trial judge.

Since the court erred in allowing the amendment setting up an independent jurisdictional fact, without which (after the allegations as to the residence of the defendant in the county where the warrant issued had been stricken) the proceeding was void, what followed need not be considered, as it was altogether nugatory.

Judgment reversed.

George and Luke, JJ., concur.


author: George, J.

text:
    8059.
    Georgia Railroad v. Jolles et al.

    Decided June 27, 1917.
    Action for damages; from Wilkes superior court—Judge Walker. August 14, 1916.

      Gumming & Hull, W. A. Slaton, for plaintiff in error.

      Colley & Colley, contra.
   George, J.

1. The evidence authorized the verdict, and there is no merit in the general grounds of the motion for a new trial.

2. The amendment to the motion for a new trial complains of error in the court’s charge. Some of the excerpts quoted from the charge, and specially assigned as error, are not entirely accurate; but, the whole charge considered, the ease was fairly tried. None of the alleged errors require a reversal of the judgment.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
    8082.
    TALLULAH FALLS RAILWAY CO. v. STRIBLING.
    1. There is no merit in the general grounds of the motion for a new trial, as the evidence sufficiently supports the verdict.
    2. The court did not err in admitting in evidence the records of the defendant company, showing that the particular locomotive alleged to have caused the destruction of the plaintiff’s property at the time stated in the petition was the same engine that set out similar fires in the same locality on subsequent occasions, extending over a number of months, and in allowing testimony as to such subsequent fires-.
    (a) The evidence was admissible to rebut testimony that the locomotive in question was equipped with a sound standard spark-arrester, sufficient to preclude the possibility that it originated the fire for which damages were sought.
    (b) It being shown that a continuous series of subsequent fires were communicated or caused by the engine that produced the fire complained of, evidence as to such fires was not too remote because of the absence of proof that the condition of the locomotive or its machinery and attachments had remained the same in all particulars throughout the entire period. The relevancy of the more remote- fires may have been slight, but the testimony was admissible in the absence of anything to even suggest that the condition of the machinery had altered since the date of ,the fire complained of, especially' in view of the testimony for the defendant that a standard spark-arrester was then attached to the locomotive, and of the direct testimony of another witness that on that particular occasion the engine, though alleged to have been thus equipped, was seen to emit sparks and did actually set out fire near the plaintiff’s property. This testimony, taken together, tended to indicate that at least the condition of the spark-arrester remained unchanged throughout the entire period, since the engine emitted sparks during the whole time.
    o. There is nothing in the record to indicate that the verdict was influenced by bias or prejudice; and since there was testimony to support the verdict, it can not be considered to be excessive.

      4. In the absence of any timely written request? there is no merit in the grounds of the motion for a new trial complaining that the court failed to give in charge rules for estimating the plaintiff’s damages, and failed to present to the jury a particular -contention of the defendant.
    Decided June 27, 1917.
    Eeheabing denied July 19, 1917.
    Action for damages; from Habersham superior court—Judge J. B. Jones. September 14, 1916.

      I. H. Sutton, Sam Kimzey, Blanton Fortso,n, for plaintiff in error. J. 0. Edwards & Sons, contra.
   Wade, C. J.

“To authorize a plaintiff to recover damages from a railroad company for the destruction of property by fire caused by the running of its locomotive, it must appear that such damage was occasioned by' the fault or negligence of the company or its agents. If, without more, it should be shown that the fire was occasioned by operation of the locomotive, negligence on the part of the company would be presumed.” Gainesville &c. Railroad Co. v. Edmondson, 101 Ga. 747 (39 S. E. 313).

The circumstances in proof in this case were sufficient to support the inference that the fire which destroyed the apple orchard of the plaintiff was caused by the running of its locomotive attached to the particular train distinguished as number 13 in the petition, and thus created a presumption of negligence on the part of the defendant.

It is true that where “the evidence only raises a suspicion . that fire was communicated to the property destroyed by the passing engine, and the uncontradicted' testimony was that the engine was in good order and equipped with a proper spark-arrester in good condition” (Gainesville &c. Railroad Co. v. Edmondson, supra), no legal recovery can be had in the absence of any evidence “that in the handling of the engine sparks were emitted or fire thrown therefrom at the time, before, or after the conflagration for which damages are sought;” but in this case there was direct testimony from one witness that the particular locomotive alleged to have communicated the fire to the plaintiff’s property did in fact emit sparks and actually set fire to “grass and broom-sedge and stuff” on the railroad right of way on this same occasion and immediately after the engine had passed the point where the plaintiff’s property caught fire and within a short distance therefrom,— “possibly a couple of hundred yards.”

The engineer testified as follows: “When I passed along there [on February 17, 1913, the date of the fire] I saw a pile of ties on fire on the right-hand side going north from Mrs. Stribling’s place.” On cross-examination he testified: “I didn’t set out any fire that I know of. -I just happened to see the smoke from the ties that day.- I know my engine didn’t set out that fire, because it was there when I went along. I don’t think the wind was blowing very much. I can’t say positively about that.” It-is insisted’by counsel for the plaintiff in error that this testimony amounted to direct and positive proof that the locomotive did not in fact set out the fire from which the plaintiff suffered, and that the circumstantial evidence supporting the inference that the fire was caused by sparks from this particular engine must yield to this uncontradicted and positive testimony of the engineer to the contrary. This contention is not well founded. In the first place, the engineer did not positively deny (except by the assertion that his engine was equipped with a standard spark-arrester and did not emit sparks on that day, which assertion was disputed by a witness for the plaintiff) that his engine had or may have set out the fire. To the contrary, he said that he “did not set out any fire that he knew of;” and though he added, “I know my engine didn’t set out that fire,” this was a mere conclusion or opinion, for he declared, as his reason for so stating, that “it was there when he went along.” Other evidence abundantly shows that there was a fire in some ties along or near the railroad-track not far from the point where the fire began which caused the damage, and this fire may have been the fire the engineer testified he saw when he passed. At all events, there was other testimony from which the jury could infer that the fire burning the old railroad ties was not in fact the fire which caused the damage. Again, it seems hardly necessary to suggest that the engineer’s testimony that he did not set out the fire complained of, because he saw fire at or near this point when he went along, did not amount to testimony that the fire causing the damage to the plaintiff did not immediately follow the passage of his locomotive, independently of the fire seen by the engineer near this place. The engineer did not testify that the fire which damaged the plaintiff was burning at the time he passed, but only that he saw a fire burning near this point. Of course, it could not be expected that he would have seen the-fire caused by the sparks emitted from his engine in passing, unless he had stopped his train' and waited until a blaze thus kindled had spread sufficiently to be visible to him from the cab of his engine. Certainly his testimony that there was a fire at or near this point does not conclusively show that his engine did not produce or cause another fire at or near the same point which broke out after he had gone, and consequently without his knowledge; and hence this testimony at best amounted merely to a conclusion of the engineer, and, in view of the clear testimony of another witness that his engine did on that particular day and near that particular point emit sparks and set out another fire, could not be considered such a positive denial that his locomotive originated the fire sued for as would necessarily overcome the inference deducible from the circumstances in proof that his locomotive did in fact cause this fire.

There was direct testimony that 335 apple trees were destroyed at .the time by the fire, and that 140 had since died from its effects, and that these trees were nine years old and were worth $10 each at the time they were burned, and testimony that they were “worth anywhere from five to ten dollars each. . . They are worth close up to $10 each.” This testimony amply warranted the verdict for $1,924.

There is therefore.no merit in the general grounds of the motion •for a new trial.

In the 4th ground of the motion for a new trial error is assigned because the court required the defendant to produce and admit in evidence its records showing the number of the engine which pulled its train number 12, covering a period from January 1, 1913, to July 21, 1914; and in the 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th grounds of the motion error is assigned upon the admission in evidence, over the objection of the defendant, of certain testimony that the engine which pulled train number 12 on February 17, 1913, did on February 24, March 3, June 17, June 18, and November 21, 1913, and on January 14, April 6, April 27, and May 24, 1914, emit sparks which originated fires in the immediate locality and in close proximity to the point where the fire originated which destroyed the property of the plaintiff on February 17, 1913. This evidence was objected to as irrelevant and immaterial' because it was not affirmatively shown that the condition of the engine was the same on the various other dates testified about as it was on February 17, 1913.

There is no merit in the ground of the motion complaining of the admission of the record of the defendant company, which was admissible for the purpose of establishing that the engine (number 73) which some circumstances tended to show caused the destructive fire of February 17, 1913, was the identical engine which had caused the various other fires occurring in close succession thereafter, and was directly in rebuttal of the testimony of the engineer and master mechanic of the defendant company that the said engine 73, which pulled train number 12 on February 17, 1913, was equipped with a standard spark-arrester which was in good condition on that date, and which would prevent the emission of sparks large enough to do damage by setting fire to adjacent objects. The evidence was material to establish the identity of the engine which originated the various other fires with that of the engine which caused the fire complained of, and therefore was properly admitted. See, in this connection, Akins v. Georgia Railroad & Banking Co., 111 Ga. 815 (35 S. E. 671), where it was held by the Supreme Court that “There was, on the trial of an action against a railroad company for damages alleged to have been caused by setting fire to the plaintiff’s woods, no error in rejecting evidence warranting an inference that, shortly before or shortly after the day upon which a particular fire occurred, a locomotive of the company had thrown out sparks from which straw had become ignited, there being no evidence in any-manner tending to show that this locomotive was run on the day in question.” The converse would of course be true where there was evidence that the particular locomotive which had caused the other fires was the same locomotive which originated the fire and caused the damage sued for. See Southern Pine Co. v. Smith, 113 Ga. 629, 633 (38 S. E. 960); Atlantic Coast Line R. Co. v. McElmurray, 14 Ga. App. 196, 300 (80 S. E. 680).

Evidence as to the other fires set by the same locomotive when drawing train number 13 on various dates after the day of the injury for which the plaintiff sued and extending from that date to May 34, 1914, more than a year thereafter, where the particular engine which set out the fire is designated by proof, was admissible in this case, though the relevancy of the more remote fires testified aboqt may have been only slight, notwithstanding there was no specific testimony that the engine was in the same condition of repair from February 17, 1913, to May 34, 1914. “Seasonable latitude must of course be allowed. The purpose of such proofs would be defeated if they were confined to the exact or precise time of the occurrence. 144 Pa. St. 461 [22 Atl. 851, 16 L. R. A. 299, 27 Am. St. R. 653], It has been held competent to show that coals of fire had previously been dropped or been found on the track at or near the place where the injury occurred. 10 R. I. 22; 11 Kan. 47. Where the plaintiff seeks to confine the setting of the fire to a single engine, proof that the same engine set other fires is admissible. 87 Mo. 117 [56 Am. R. 446]; 16 Kan. 252; 12 Ind. App. 691 [40 N. E. 26]; 150 Ill. 37 [37 N. E. 660], That evidence of other fires set out by the same engine is admissible as tending to show negligence, and that former fires by the same engine are admissible as evidence tending to prove its continued condition or construction, see 79 Mich. 163 [44 N. W. 436]; 60 Mo. 227; 76 Va. 443; 58 Wis. 335 [17 N. W. 133]; 60 Iowa, 215 [14 N. W. 244]; 68 Iowa, 502 [27 N. W. 478]; 4 Md. 242 [59 Am. D. 72] ; 27 Fla. 1 [9 So. 666, 17 L. R. A. 33] ; 3 Elliott on Railroads, §§ 1243, 1244.” Brown v. Benson, 101 Ga. 753, 758 (29 S. E. 215). The plaintiff relied upon proof of numerous fires set by this particular engine to show that it was not equipped with a proper and sufficient spark-arrester; and there was no testimony in behalf of the defendant company to indicate or even suggest that the equipment of the engine with a sparkarrester, or the character or condition of the spark-arrester, was different in any particular on the day when the fire occurred from such equipment, character, or condition on each of the several successive dates when the same locomotive set fire to objects along or near the railroad right of way in the immediate vicinity where the injury to the plaintiff had previously occurred. There was in fact no other practical way for the plaintiff to rebut the testimony that the engine was properly equipped with a sound and sufficient spark-arrester than to show that this particular engine continuously, for a period of time immediately preceding or following the injury complained of, caused other fires in the same locality; and if the locomotive, at the time of this particular fire, was equipped with a different or better spark-arrester than on the other occasions when it was shown to have caused similar fires, this could have been established as matter of defense by the defendant company, which alone had the exact and definite knowledge at its command as to any variation in the condition of the engine at the different periods. Had proof of only one remote fire been offered, further preliminary proof that the condition of the locomotive was the same on that occasion as on the occasion when the injury sued for resulted may have been necessary, to make the testimony admissible, but here numerous fires were shown during a period of little more than twelve months, caused by the same loeopaotive, which locomotive the witnesses for the defendant testified was equipped with a perfect spark-arrester on the day when the plaintiff’s property was destroyed; and .we can not say that evidence even as to the more remote of these fires was wholly irrelevant and immaterial, in the absence (as suggested above) of anything to indicate any change in the condition of the locomotive or its attached machinery or parts, throughout the entire period, and in view of the evidence for the plaintiff that on the very day of the fire sued for, this particular locomotive, thus .equipped (according to some testimony), was seen to emit sparks from which a fire originated near the plaintiff’s property and just after passing her property. This evidence tended to show that even when equipped with a spark-arrester declared by the engineer and mechanic of the defendant company to be perfect' and sufficient to completely prevent the, passage of sparks, sparks were in fact emitted from the locomotive, which actually produced a fire at the time and near the place where the plaintiffs property was destroyed; and hence the condition of the locomotive was also in effect shown to be the same at that time, as to causing fires, as it was on the subsequent occasions, when it likewise produced fires.

The 14th ground of the motion for a new trial complains that “the verdict was excessive and unsupported by the evidence, for the. reason that the preponderance of the evidence showed that the damages suffered by the plaintiff, if any, were negligible.” There was, as already stated, evidence to support the verdict returned, or even to support a verdict for a larger amount; and there is nothing in the record to suggest that the jury were influenced by bias or prejudice; and it was for them to determine with whom the “preponderance” of evidence rested. The exception itself suggested no other reason why the verdict should be considered ex-' cessive than the assertion that the preponderance of evidence showed that the damages were merely negligible.

In the absence of any timely written request for fuller and more specific instructions, there is no merit in the loth and 16th grounds of the motion for a new trial, complaining that the “court failed to give in charge the rules of estimating the plaintiff’s darn-ages,” and failed to present to the jury a contention of the defendant that the apple trees alleged to have been destroyed were practically worthless at the time of and before the fire. In the light of the testimony, and considering the nature and character of the issues presented by both the pleadings and the evidence for determination by the jury, the court was not required to give any particular instruction as to the measure of damages, or to present a contention of the defendant not raised by the pleadings and merely suggested by some of the evidence in its behalf.

In this case, if the jury reached the conclusion that the defendant was responsible for the destruction of the plaintiff’s property, it was only necessary for them to determine further the value of the property destroyed, and no other measure of damages could have been suggested by the court, even upon request. The defendant’s contention not specifically presented to the jury by the court was not definitely supported by any testimony going to show or even suggest how many of the trees alleged to have been destroyed by fire may have been defective before the fire occurred.

The court did not err in overruling the motion for a new trial.

Judgment afvrmed.

George and Luke, JJ., concur.


text:
    8085.
    FLOWERY BRANCH GIN AND OIL CO. v. SHORE.
    There was sufficient evidence to authorize the verdict; and the special grounds of the motion for a new trial are not in proper form for consideration.
    Decided June 27, 1917.
    Action on contract; from Hall superior court—Judge J. B. Jones. November 4, 1916.

      C. N. Davie, Edgar B. Dunlap, for plaintiff in error. .

      Sam Kimzey, W. A. Charters, contra.
   Wade, C. J.

1. The 4th ground of the motion for a new trial, which complains of the admission of certain documentary evidence, can not be considered, since the evidence is not set forth in the ground, either literally or in substance, or attached thereto as an exhibit. Franklin v. Fields, 13 Ga. App. 463 (79 S. E. 366); Gaskins v. State, 17 Ga. App. 807 (88 S. E. 592).

2. In the 5th ground of the motion for a new trial complaint is made that the court erred in admitting certain evidence over objection of movant. This ground of the motion can not be considered, for two reasons: First, because it would require a reference to the entire brief of evidence to ascertain whether the evidence was admissible or inadmissible. “A ground of a’ motion for a new trial should not require reference to the brief of evidence to render it intelligible.” Braxley v. State, 17 Ga. App. 196 (4) (86 S. E. 425); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Head v. State, 144 Ga. 383 (87 S. E. 273); Sims v. Sims, 131 Ga. 262 (62 S. E. 192). Secondly, it does not affirmatively appear what specific objection, if any, was made at the time when this evidence was offered and admitted. See Cooner v. State, 16 Ga. App. 539, and cases there cited.

3. The 6th ground of the motion for a new trial complains of a certain excerpt from the charge of the court, the objection being that the charge was error "in view of the fact that it did not correctly elucidate the contention of counsel as to whether or not the contract was illegal.” It is obvious that this exception is fatally defective, in that it fails to specify the error. What the contention of counsel was is not stated. The contention may or may not have been proper; and even if proper, in the absence of a timely written request, it was not necessarily incumbent upon the court to “elucidate the contention of counsel.”

4. There being some evidence to sustain the verdict, which has the approval of the trial court, we have no power to interfere with it.

Judgment affirmed.

George and Lulce, JJ., concur.