text:
    9039.
    LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. DUNN.
    1. ' The general rule of law, that it is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, does not apply to a case where the very work for which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards thus arising as the work proceeds must be regarded as being the ordinary dangers of the employment, and the servant necessarily assumes them. 3 Labatt’s Master and Servant (2d ed.), 3140, § 1177. Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable. 3 Labatt’s Master and Servant (2d ed.), 2466, § 924; Ludd v. Wilkins, 118 Ga. 525. (45 S. B. 429); Hagins v. Southern Bell Telephone &c. Go., 134 Ga. 641 (68 S. E. 428, 137 Am. St. R. 270, 20 Ann. Cas. 248) ; Southern Railway Go. v. Taylor, 137 Ga. 704 (73 S. E. 1055)'; Byrd v. Thompson, 146 Ga. 300 (91 S. B. 100) ; Holland v. Durham Goal do. Go., 131 Ga. 715 (63 S. E. 290); Robertson v. Merchants do. Trans. Go., 18 Ga. App. 568 (90 S. E. 104) ; Gulf &c. Ry. Co. v. Jackson, 65 Bed. 48 (12 C. C. A. 507).
    2. In a suit by a servant for personal injuries arising from the negligence of the master in failing to comply with the duties set forth in section 3130 of the Civil -Code of 1910, it must appear that the master knew or ought tp have known-of the incompetency of the other servants, or of the defects or danger in the machinery supplied; and it must also appear that the injured servant did not know and did not have equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. Civil Code (1910), § 3131.
    3. In a suit brought by an employee of a common carrier by railroad against the company, for personal injuries, he can not recover if his injuries were caused by his own carelessness amounting to a failure to exercise ordinary care; or if by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence. Civil ' Code (1910)', §§ 2781, 4426.
    4. Even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with such order, the servant be injured, he can not recover of the master. Southern Railicay Co. v. Taylor, supra; ' Hightower V. Southern Ry. Co., 146 Ga. 279 • (91 S.' E. 52, L. R. A. 1917C, 481) ; Southern Cotton Oil Co. V. Gladman, 1 Ga. App. 259 (6), 260 (58 S. E. 249); Attleton v. Bibh^Mfg. Col, 5 Ga. App. 777 (63 S. E. 918) ; Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158).
    5. in an action by a servant against a master for alleged failure of duty by the latter in not giving to the former warning of a danger incident to his employment, if the danger was-obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning to the servant. Crown Cotton Mills v. McNally, 123 Ga. 35 (3) (51 S. E. 13); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712- (68 S. E. 483).
    6. In a suit for personal injuries, under repeated rulings of this court and of the Supreme Court, while questions of negligence, including the question whether the plaintiff by the use of ordinary care could have avoided being injured, are for the jury to determine, yet where the finding of the jury on such issues is not supported by any evidence, such finding should be set aside and a new trial granted.
    Decided December 11, 1917.
    Certiorari; from Jones superior court — Judge Park. June 13, 1917.

      Gumming & Harper, Hardeman, J ones, Park & J oh.nston, Harry f!. Strozier, E. T. Dumas Jr., R. N. Hardeman, for plaintiff in error.

      L. D. McGregor, George Westmoreland, contra.
   Broyles, P. J.

‘ T. B. Dunn brought suit in the city court of Gray, Jones county, against the Louisville and Nashville Railroad Company and the Atlantic Coast Line Railroad Company, for personal injuries sustained by him. The first verdict in his favor was set aside on certiorari. On the second trial a verdict and judgment for the plaintiff were again rendered, and the defendants filed a petition for certiorari, which the judge of the superior court refused to sanction, and to that judgment the defendants excepted. The undisputed material facts in the case are as follows: Dunn was an employee of the defendant railroad companies, and was a member of a bridge-gang which was repairing a wagon-bridge over the railroad-track. He had had about five years experience on a bridge-gang. A new support, called a “bent,” to this bridge having been erected, the foreman directed the members of his gang to cnt down the old bent, which was. rotten. The' bent consisted 'of two upright posts and two leaning posts, the upright posts being on the outside, and the leaning posts on the inside and leaning towards each other. All four posts were mortised into 'a large timber on the ground, and were likewise mortised into. a cap timber at the top. The entire bent was on one side of the raibroad-track. All of the posts were about twenty-five feet long and about 8x8 inches in size. The leaning posts were called “batter-posts.” The forenian ordered the batter-posts- to be cut down; and Goldman, an'employee, got an ax and commenced to cut'downr one of the batter-posts. At about the same time, according to some of the testimony, the foreman told Dunn to cut' down the other battle-post. Dunn got an ax, passed by Goldman, who was cutting down one of the posts, went to the other batter-post, directly in range of the post which Goldman was cutting, and began to cut on his (Dunn’s) post. After he had cut two or three licks Goldman’s post fell over the way it was leaning, the top of it striking Dunn and causing his injuries. The batter-posts were not tied at the top to the bridge superstructure while they were being cut out.

1. It is clear from the evidence that Dunn was employed for the express purpose of assisting in the répair of an unsafe structure, which was obviously dangerous work. The particular work in which he and his fellow workman were engaged, at the time he was injured, was the cutting down of the rotten batter-posts. This was inherently and necessarily a dangerous occupation, and the undisputed evidence is that Dunn knew this as well as the master did, he himself testifying that “they were taking it [the bent] down because it was so badly decayed and rotten that it was not safe to stay there and support the bridge. . . I knew when they took that bent out it was because it was a rotten bent.” It must be held, therefore, that Dunn assumed the risk incident to such employment; and the rule of law that the master must furnish the servant a reasonably safe place in which to work is not here'applicable. See authorities cited in the 1st headnote.

2, 3. It is strongly contended, however, by the learned counsel for the defendant in error that the railroad companies were negligent in notifying to the bridge superstructure the batter-posts at the top, while they were being cut down, and that this negligence was the cause of the plaintiff’s injuries.. The evidence does .not clearly show that it was the defendants’ duty to have so tied the posts; but, conceding that the testimony was sufficient to authorize the jury to find that it was, the uncontradicted evidence, including the plaintiff’s own testimony, shows that, after this negligence had become apparent, the plaintiff, by the exercise of the slightest degree of -ordinary care, could have discovered and avoided the danger. It is obvious from the facts of the case that Dunn, by simply looking up to the top of the posts could have seen whether they were tied, but, as he himself testified, “I didn’t look to see whether these batter-posts were tied or not, and I went there underneath that batter-post and commenced to cut the other one down without looking to see whether Goldman’s post was tied or not.” It appears undisputed from the evidence that Dunn was an able-bodied, experienced man, engaged in a work which he knew was dangerous, and especially dangerous unless the rotten batter-posts were tied at the top. He also knew that the post which Goldman was cutting was leaning towards the other post which he was going to cut down, and that it was within striking distance of it, and that unless the Goldman post was tied at the top it must necessarily fall upon him if he was engaged in cutting down the other post. • He must also necessarily have known that such a small post would be cut down with a few strokes of the ax, — which actually happened.

It is undisputed that Goldman had commenced to cut down his post before Dunn started to cut on his, and that Dunn had knowledge of this fact, he testifying that “he [Goldman] was chopping on his when I took up the ax and started. . . When I was cutting my post and Mr. Goldman was cutting his, I kinder had my back to him.” It is apparent that the obviously safe way for the plaintiff to have done his work would have been to have waited a few seconds until Goldman had cut down his post, and then to have commenced cutting down the other one. It is shown by the undisputed evidence that it was the. custom to cut down only one batter-post at a time, and never to cut down two at the same time. On this point the plaintiff’s own testimony was: “I knew from my experience in cutting down bridges that the usual thing to do was to cut out one batter-post, then cut out the other batter-post. . . I don’t know that I ever knew in all my experience two men cutting on two batter-posts at the same time. . . ' If I had waited until Mr. Goldman quit cutting his post down, I don’t know as I would have gotten hurt.” The evidence of the foreman, which was undisputed, was that one post was always cut down before cutting was commenced on another post, he testifying: “We didn’t chop two posts instead of one, for the reason that we didn’t' want but one cut down at the same time, because we didn’t want' two to fall at the same time, because it was dangerous.” Thus the facts show that Dunn, who had had several years experience on a bridge-gang, knowing that Goldman was cutting down a post, which from its position was obliged to fall, within a few seconds, in the direction and within striking distance' of the other post, stepped-up to the second post, and with his back turned to Goldman, started cutting it down. It is clear that in so acting he was guilty of a want of ordinary care, and was not entitled to recover in this case. See authorities cited in the 2d and 3d headnotes.

4. It is insisted, however, by counsel for the defendant in error, that Dunn was justified in so acting, because he was ordered .to do so by his superior, the foreman of the bridge-gang. The evidence does not show that the foreman ordered Dunn to begin cutting down his post before Goldman finished cutting down the other one; but conceding, for the sake of the argument, that there was a sufficient legal inference from the evidence to authorize the jury, to find that he did, still, under another well-known principle of law applicable to the facts of this case, the plaintiff was not entitled to recover. Where an order of a master to a servant is negligent, and the servant knows of the peril of complying with it, or if he has equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known of it, then he can not recover for an injury received in consequence of complying with the order. See authorities cited in the 4th headnote.

5. Under the facts of the ease the defendants were not liable for failing to warn the plaintiff of the danger in cutting down the post, such danger being obvious and as easily known to the servant as to the master. See authorities cited in the 5th headnote.

There was no evidence to support the allegations in the petition that it was the custom and rule of the defendants on such an occasi.on to give due warning to all employees standing near by, in time for them to escape any injury from the falling of the posts, and that the plaintiff relied upon such warning.

•6. The 6th headnote requires no elaboration.

■The evidence, both for the plaintiff and for the defendants, clearly showed. that, even if the defendants were guilty of negligence in .failing to tie the batter-posts at the top, and in negligently ordering the plaintiff to cut down one of the batter-posts while the other batter-post was being felled, the plaintiff, by the exercise of ordinary care on his part, could have avoided the consequences to himself caused by the defendants’ negligence; and there was no evidence to authorize a contrary finding. It follows that the plaintiff was not entitled to recover in this case, and that the verdict in his favor was unauthorized. The court therefore erred in refusing to sanction the cetriorari sued out by -the defendants. This ruling being controlling in the ease, it is unnecessary to consider the other assignments of error in the petition forcertiorari..

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    8628.
    GODFREY v. COUNTY OF JEFFERSON.
    1. All claims against a county must be presented to tbe proper county authorities by written demand within 12 months after they accrue or become payable, or they will be barred under the provisions of section 411 of the Civil Code of 1910, “unless held by minors or other persons laboring under disabilities.”
    2. The bringing of a suit against a county may constitute the presentation in writing of a claim to the county officials within the meaning of the code section, where the petition is both filed and served within 12 months after the claim accrues.
    3. Where in an action for damage resulting from the flooding of lands, caused by a partial removal of earth from an embankment on the lands of the plaintiff, the petition was filed and served within 12 months after the injury caused by the flooding, but more than 12 months after the original trespass which ultimately caused the overflow, and nothing whatever was done, -from the time of the original trespass by the county, towards the maintenance of the nuisance thereby created, and no knowledge on the part of the defendant of its existence' is alleged, the action would be barred by the provisions of section 411 of the Civil Code, where no other notice of the intention to sue was given. ■
    Decided December 12, 1917.
    ' Action for damages; from Jefferson superior court — Judge Hardeman. November 15, 1916.
    Mrs. Annie J. Godfrey brought suit against the County of Jefferson, for damage alleged to have been occasioned as follows: During the year 1913 she was, and she has been ever since, the owner of certain lands touching, lying, and bordering upon a public road. At a point where the road encroached upon her lands it lies along and across a valley or depression in the earth, whence it extends in either direction up and over a hill. In order to prevent the drainage-water, which naturally flowed down and along said road, from overflowing her land's, her predecessor in title had constructed an embankment on and along her lands, the average height of which was two feet above the level of the ground. In 1913 the commissioners of roads and revenues, acting through their duly appointed agents, worked, repaired, and widened the public road along which her lands were situated, and in so doing they unlawfully and negligently confiscated and appropriated to the public use, without her knowledge or consent, at least one half of said embankment, cutting away a portion thereof, and partially filling up and obstructing certain drain-ditches which were thereby rendered insufficient to properly drain the road at said point, and have so remained ever since, in consequence of which a large quantity of water would accumulate at this particular point after every heavy rain. The embankment had been standing on her land for more than 15 years, and at all times prior to the acts complained of had been sufficient to prevent an overflow of water upon her lands. “During the month of May, 1915, said embankment, weakened by the acts of the county authorities as aforesaid, under the pressure of the water which had accumulated at said point because of the improper drainage facilities there provided as aforesaid, gave way and broke, and a large volume of water overflowed petitioner’s land, and during and after each rainfall since said break was made in said embankment the drainage-water has continued to overflow petitioner’s land.” It was further alleged, that, “since the said break was made in said embankment at the time and in the place and manner as aforesaid, drainage-water has continued to overflow and wash out an area of approximately seventy-five feet in width and three hundred yards in length across petitioner’s land. A portion of the land thus overflowed has been entirely washed away, thereby leaving ditches and gullies where there had been' fertile, well-drained farming land, and upon other portions of the said overflowed area sand has accumulated to the depth of several feet, covering up and destroying the crops of cotton and corn that were being cultivated in said area at the time the said break occurred. Besides the loss of said- crops which were growing within the said area as aforesaid, the land overflowed had thus been rendered utterly unlit for farming purposes, and is now an unseemly, hideous blotch upon the face of a once fair field.” .
    The defendant filed demurrers general and special; and to the judgment sustaining them the plaintiff excepted.

      J. ' R. Phillips, W. T. Revill, B. T. Rawlings, for plaintiff.

      M. C. BarwicJc, for defendant.
   Wade, C. J.

(After stating the foregoing facts.)

It is only necessary to consider that ground of the demurrer which attacks the petition as being barred by the provisions of section 411 of the Civil Code, which declares: “All claims against counties must be presented within 12 months after they accrue or become payable, or the same are- barred,” etc. The claim was not otherwise “presented” within twelve months; but it is contended by counsel for plaintiff that the code section was complied with, because her suit was filed and legally served-upon a majority of the county commissioners within 12 months after the cause of action arose. It is now well settled that when such a suit is filed and legally served upon the defendant within. 12 months after the cause of action accrues, this constitutes a sufficient presentation of the claim in writing to meet the requirements of this section (see Dement v. DeKalb County, 97 Ga. 733, 25 S. E. 382; Pearson v. Newton County, 119 Ga. 863,47 S. E. 180; Troup County v. Boddie, 14 Ga. App. 434, 81 S. E. 376); but, under the particular facts alleged in the petition, we can not agree that such a presentation of the claim was made in this case, since the real cause of action arose more than 12 months prior to the filing and service of the suit. The filing and service of the suit being the only demand for the settlement of the claim presented in writing to the county commissioners, the sole question for determination is when the plaintiff’s cause of action accrued. The record establishes the fact that the petition and process were properly served upon the defendant on the 22d day of April, 1916. However, the plaintiff alleges in her petition that during the year 1913 the county authorities, in order to widen a certain public road, confiscated and appropriated for that purpose at least one half of an embankment on her lands lying parallel to the road; and further, that during the month of May, 1915, the embankment, in consequence of the acts of the county authorities committed in 1913, yielded under pressure of the water which had accumulated at that point, and gave way, .and permitted a large volume of water to overflow plaintiff’s lands, to her damage. From this it is clear that if the cause of action arose in the year 1913, the service of the petition on the 22d day of April, 1916, was too late to suffice as a compliance with section 411, supra; but if the cause did not accrue until May, 1915, the claim was duly presented within the time prescribed by the statute, by the filing and service of the suit within 12 months thereafter, and the action would not be barred.

The Civil Code, § 4457, declares: “A nuisance is anything that ' worketh hurt, inconvenience, or damage to another; and the fact that the act done máy otherwise be lawful does not keep it from being a nuisance,” etc. Applying this section to the plaintiff’s petition, it is clear that the injuries complained of and the causes thereof are set forth in such a manner as to charge the existence of a nuisance. It is also obvious from the allegations.that the defendant committed a trespass upon the rights of the plaintiff when it appropriated the earth from the embankment, and also created a nuisance in the year 1913, which caused the water to accumulate on the plaintiff’s land. However, other than the creation of this nuisance during the-year• 1913, the petition fails to allege any' act which even tended to bring about the injuries sued for, except a natural cause which occurred in 1915, — a heavy rainfall. In the absence of any allegation to the effect that the defendant had notice of the existence of the nuisance and after such notice failed and refused to abate the same, it can not be said that the defendant was maintaining the nuisance. Of course, had the defendant maintained the nuisance, a cause of action would have existed therefor. Likewise, had the allegations in the petition disclosed that the nuisance originally created by the defendant was of a continuing character, of which the defendant had notice, ánd which could and should have been abated, an action might lie to recover damages for its maintenance. See, -in this connection, Bonner v. Welhorn, 7 Ga. 296, 327; Phinizy v. Augusta, 47 Ga. 260, 266; Gabbett v. Atlanta, 137 Ga. 180 (70 S. E. 372); Nalley v. Carroll County, 135 Ga. 835 (70 S. E. 788); Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422, 427 (77 S. E. 568). The petition, properly construed, clearly shows a trespass and the creation thereby of a private abatable nuisance by the county, but fails altogether to allege that anything was done towards the maintenance: thereof, since to maintain a nuisance ordinarily requires some affirmative act, or a refusal to act, after knowledge of the existence of the nuisance; and there were no allegations to this effect in the petition under review. See Southern Ry. Co. v. Cook, 106 Ga. 450, 456 (32 S. E. 585). The plaintiff could unquestionably have recovered damages for the appropriation by the defendant of her land, by complying with the terms of the Civil Code, § 411, in presenting her claim to the proper county authorities within 12 months after its accrual in 1913, and by bringing suit in time. However, under our construction of the petition, the action was not to recover damages arising during the month of May, 1915, from the maintenance of the nuisance previously created by the defendant, but was for certain damages growing out of the original trespass committed in the year 1913; and therefore the fact that the suit was filed and legally served upon the defendant on April 22d, 1916 (more than a year after the right of action accrued in 1913), could not suffice to meet the requirements of code section 411, supra.

It can not be reasonably contended that a county can be held responsible in damages for injuries resulting from the maintenance of a private, abatable nuisance, of the creation or existence of which it has no notice, and which therefore it has had no opportunity to abate.

The court properly sustained the general demurrer; and it is therefore unnecessary to pass upon the special demurrers.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Wade, O. J.

text:
    8657.
    Nashville, Chattanooga & St. Louis Railway v. Tatum.
   Wade, O. J.

1. The various exceptions to the charge of the court, on account of alleged inaccuracies in presenting the issues raised by the evidence, are without substantial merit; nor is a reversal required by any of the remaining grounds of the amendment to the motion for a new trial.

Decided December 12, 1917.

Action for damages; from Dade superior court — Judge'Fite. November 27, 1916.

Payne & Hale, for plaintiff in error. B. T. Brock, contra.

2. There was no demurrer, and this court can not.say as a matter of law that the alleged; damages were too remote to authorize a recovery, or that the evidence adduced at the trial did not reasonably support the deduction, under the ruling in Stoner v. Patten, 132 Ga. 178, 63 S. E. 897) ; that said damages resulted directly from the acts and conduct of the defendant; ''and the trial judge having approved the verdict, his judgment in overruling the motion for a new trial is

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    8668.
    ABERCROMBIE et al. v. GURLEY.
    J. Where one obtains sanction of a petition for certiorari within the time fixed by law, he may present the petition for filing to the clerk of the superior court at any time within three months from the date of the judgment complained of. When the petition is so filed more than 20 days before the next term of that court, the writ should be made returnable to that term; but the plaintiff in certiorari is not required to present his petition to the clerk for filing within less than three months from the date of the judgment complained of, merely because a term of superior court would otherwise intervene between the time when the petition is sanctioned and the term to which the writ is of necessity made returnable by the clerk, because filed too late for the term next succeeding the sanction.
    2. The bond and security and certificate as ter the payment of costs, which are a prerequisite to the issuance of a writ of certiorari in a' civil case, where no pauper’s affidavit is supplied in lieu thereof, may be executed or obtained at any time within three months from the date of the judgment complained of, and before the duly sanctioned1 petition for certiorari is presented to the clerk of the superior court in order that the writ of certiorari may issue thereon.
    3. Where it does not appear what objection was made to a bond, and it is not alleged, in a motion to dismiss a certiorari on that account, wherein the bond was deficient or failed to conform to the law, no question is raised for adjudication by this court.
    Decided December 12, 1917.
    Certiorari; from Douglas superior court — Judge Bartlett. December 20,:.1916. . •
    ■ James & Bedgood, J. S. Edwards, for plaintiffs in error.

      J. B. Hutcheson, Astor Merritt, contra.
   Wade, C. J.

A judgment was rendered on July 13, 1916, in a hearing commenced on the day'before, by the commissioners of roads and revenues of Douglas county, in a proceeding to establish a public road in that county; and on July 31, 1916, a petition for certiorari brought by H. W. Gurley, the party objecting to the establishment of said road and against whom judgment was rendered, was sanctioned by the judge of the superior court, and was thereafter filed in the superior court of said county on September 13, 1916, less than three months from the date of the rendition of the judgment complained of; bond and security having been given and a certificate as to the payment of costs having been obtained prior to the filing of the petition. When the case came on to be heard in the superior court at the September term, a motion to dismiss the certiorari was filed, and on the hearing thereof it was overruled. The defendant in- certiorari excepted to this ruling, and its propriety is the question presented to this court for decision. The motion to dismiss is given in full as follows:

“1. Because the case was tried on the 11th day of July, 1916, and petition for certiorari presented to Honorable A. L. Bartlett, judge of the superior court of Tallapoosa circuit, on the 31st day - of July, 1916, and on that day sanctioned by the court and returned to counsel for the plaintiff, and was kept by them in their possession and not filed in the clerk’s office of Douglas county until ■ the 13th day of September, 1916, and on that day the writ, of certiorari was issued by the clerk of the superior court of Douglas county under the direction of plaintiff’s counsel. Said clerk made the writ of certiorari returnable to the March term, 19171, by the ■ special request of the plaintiff. The petition for certiorari with the sanction of the court should have been filed in the clerk’s office áfleast twenty days before the September term, 1916, of the superior court of Douglas county, which was not done; and the certiorari should be dismissed for want of compliance with the strict provisions of the term of the law.

“3. Because said petition for certiorari with the sanction of the court should have been filed in the clerk’s office of the superior court of Douglas county at least twenty days before the September ■term, 1916, which court convened on the 18th day of September, 1916, and the petition for certiorari was only filed, as before stated, on the 13th day of September, 1916, five days 'before said term.of the superior court; and being by the direction of- plaintiff’s counsel returnable to the March term, 1917, the petition for certiorari and all the proceedings under it become void and should be dismissed. Cost was not paid within 30 days from judgment rendered.

■ “3. Because said petition and the sanction of the same should not have been filed in the clerk’s office of the superior court of ■Douglas county, and the certiorari issued twenty days before the September term, 1916, of said court, but the pláintiff in certiorari or his attorneys should have delivered the petition for certiorari and,the sanction of the same, and all the papers connected therewith, to the board of county commissioners of roads and revenues of Douglas county fifteen days before the 1st day of the September term of said court, 1916, which was not done. .Said petition has never been delivered to said commissioners so that it might be answered, which 'is through the neglect and by the express direction of the plaintiffs’ attorneys; and it should be dismissed for the reason that it has not been delivered to said board of commissioners, and made returnable to the September term of the superior court of Douglas county, fifteen days before the September term of said court, 1916, and should therefore be dismissed for failure to comply with the statute in such cases.

- “4. Because the petitioner for certiorari did not pay the cost and give the bond required by law until long after the sanction of the writ of certiorari; the certiorari being presented and signed by the judge of the superior court of the Tallapoosa circuit on July 21st, 1916, and the giving of the bond by the plaintiff in certiorari was on the 8th day of August, 1916, and the payment of the cost was on the 11th day of August, 1916, Wherefore, the same should be dismissed on this ground.

“5. The pretended bond given by H. W. Gurley, and his son, the security, is not the kind of bond contemplated by law in this kind of a case. It is not payable as it should be, and the condition in the bond not such as required by law, and the bond is therefore void, and no legal bond given as required by law; hence the petition for certiorari and all proceedings should be dismissed. ”

Section 5188 of the Civil Code is as follows: “All writs of certiorari shall be applied for within thirty days after the final determination of the case in which the error is alleged to have been-committed, and not after; and shall be made returnable to the next superior court after the issuing of the same, unless said superior court shall sit within twenty days after the issuing of said writ, in which case said writ shall be made returnable to the next succeeding court.” Under the precise language of this section of the code a writ of certiorari which has been applied for within thirty days after the final determination of the case should be made returnable to the next superior court “after the issuing of the same,” unless the next regular term of the superior court shall commence “within twenty days after the issuing of said writ” (italics ours), in which last-mentioned case the writ “shall be made returnable to the next succeeding [italics ours] court.” The section does not provide, as urged in the motion to dismiss, that a petition for certiorari which has been previously sanctioned by the judge of the superior court must be made returnable to the next term of the superior court after the sanction of the same, unless said court shall sit within twenty days of such sanction; but the requirement fixed by the statute is, when the clerk issues the writ based upon a petition for certiorari previously sanctioned by the judge of the superior court, that said writ shall be made returnable to the next term of the superior court after “the issuing of the same,” the words “issuing of the same” referring to the issuing of the writ, and not the sanction of the petition for certiorari. From the recitals in the motion to dismiss, it appears that the certiorari was sanctioned on July 21, 1916, but that the same was not presented by counsel for the plaintiff in certiorari to the clerk of the superior court for filing until September 13, 1916, five days before the regular term of said court convened; and it is insisted in the motion and in the brief of counsel for the plaintiff in error that the entire proceeding is void and should have been dismissed, because the said regular term of the superior court convened more than twenty days from the date of the sanction of the petition for certiorari, and the same was not made returnable thereto, but by direction of counsel for the plaintiff in certiorari the clerk made the same returnable to the next succeeding term of the superior court, which convened in March, 1917.

It is said in Carson v. Forsyth, 97 Ga. 258 (22 S. E. .955): “Under section 4057 of the code [Civil Code, 1910, § 5188], as amended by the act of 1889 (Acts of 1889, p. 84), in order to authorize the issuing of a writ of certiorari, it must be ‘applied for’ within thirty days from the date of the judgment complained of; and if this is done, and the sanction obtained, then, under Section 3930 of the code [Civil Code, 1910, § 4365], which was not amended by the- above-recited act, the petition may be filed at any time within three months from the date of the judgment sought to be reversed.” In Seagraves v. Powell Co., 143 Ga. 573 (85 S. E. 760), in a careful review of various sections of the code relating to certiorari, Mr. Justice Lumpkin quoted the decision in the Carson case, supra, and reaffirmed the correctness thereof. The rulings in the two cases just cited interpret the statute law touching certiorari as it now exists. The language Used in the Carson case, and approved in the Seagraves case, could hardly be made more plain; for it is there expressly declared that where the sanction is obtained in time, “the petition may be filed at any time within three months, of the date of the judgment sought to be reversed.” The petition in this ease was filed within three months of the date of the judgment sought to be reversed, hut, being filed within less than twenty days of the next ensuing term of the superior court, the clerk properly made the case returnable to the next succeeding term thereafter; and this he should have done regardless of whether he was requested so to do hy the counsel for the plaintiff in certiorari. His action in this, particular was in exact .accord with section 5188 of the code, and also with section 5189; for if he had made the case returnable to the September term, convening only five days from the date of the filing, it would have been impossible to issue the writ of certiorari and deliver it to the party to whom it was directed “at least 15 days previous” to the September term. The plaintiff in certiorari was within his legal rights in withholding the petition for certiorari (which had been duly sanctioned) from filing until Such time, “within three months from the date of the judgment sought to be reversed,” as suited his convenience or pleasure. It is not necessary for this court to attempt to justify the existence of a plain statutory provision; but it may be said, in passing, that one conceivable reason why the plaintiff in certiorari is allowed by law the privilege of filing his petition at any time within three months from the date of the judgment complained of, is in order that he may be able to arrange bond and security and raise the necessary costs, where a pauper’s affidavit is not employed. In Gregory v. Daniel, 93 Ga. 795 (20 S. E. 656), cited by counsel for the plain■tiff in error, it is held that “a certiorari is returnable to the term of the court first held after twenty- days from the time the writ is issued” (italics ours). Again, it was said in Bunn v. Henderson, 113 Ga. 609, 611 (39 S. E. 78), also cited by counsel for plaintiff in error, that the code “makes a writ of certiorari returnable to the next superior court after its issuance [italics ours], unless the court sits within twenty days thereafter. In the present case, more than twenty days elapsed between the time the writ was ap- • plied for and the sitting of the court.” It is hardly necessary to especially point out that both of these decisions hold that the writ of certiorari is returnable to the next superior court after its issuance, unless that court sits within twenty days from such issuance, and that the issuance of the writ of certiorari and the sanction of the petition for certiorari are quite different.

At the close of the second ground of the motion to dismiss, it is further suggested that “cost was not paid within thirty days-from the judgment rendered.” There is no provision of law requiring that the antecedent costs shall be paid before a petition for certiorari in a civil case is presented for sanction, or “within thirty days” from the date the judgment complained of was rendered. Section 5185 of the Civil Code provides that before the writ of. certiorari shall issue, except where a pauper’s affidavit is made, the party applying for the same, his agent or attorney, shall produce a certificate that all costs accruing on the trial before have been paid. If the petition for certiorari is sanctioned within time and the same is presented to the clerk for filing within three months from the date of the judgment complained of, it is enough if at' the time the petition is so presented for filing a certificate be produced showing the payment of the costs, even though such certificate be dated on the very day when the petition is so presented for filing.

What is said above practically disposes of the first three grounds of the motion to dismiss. The 4th ground merely reiterates the objection last discussed, as to the time of the payment of the costs, and raises the further objection that the bond was not executed until the 8th day of August, 1916, “long after the sanction of the writ of certiorari.”. The bond, however, was executed before the certiorari was presented to the clerk for filing and before the issuance of the writ of certiorari. The statute expressly provides that the bond shall be given before the writ of certiorari shall issue; and it has been time and again held that a writ of certiorari not sued out in forma pauperis is void if issued before bond is given (see Carpenter v. Southern Railway Co., 112 Ga. 152, 37 S. E. 186; Dykes v. Twiggs County; 115 Ga. 698, 42 S. E. 36; Simpkins v. Johnson, 3 Ga. App. 437 (2), S. E. 202); but if the petition in a civil case is accompanied by a sufficient bond at the time of filing, the express requirement of the statute will be complied with. As to the time when the costs of the antecedent trial must be paid and a bond given in order to obtain a writ of certiorari in a civil case, the following ruling in Fuller v. Arnold, 64 Ga. 599 (3) is sufficiently explicit: “Before a writ of certiorari can be legally issued.by the clerk of the superior court, there must be filed in his office, within three months from the decision, both the petition, sanctioned by the judge, and also a certificate of the magistrate that all costs have been paid and bond and security given, or a pauper affidavit in lieu thereof. Where the magistrate did not sign such a certificate within three months from the decision, the- certiorari should have been dismissed.” It must only appear that the proper officer signed the certificate as to the payment' of costs “within three months from the decision,” and that bond and security had been given or a pauper affidavit in lieu thereof. The 5th ground of the motion to dismiss the certiorari can not be considered, inasmuch as it complains that the bond given by the plaintiff in certiorari “is not the kind of bond contemplated by law in this kind of a case,” and “it is not payable as it should be, and the condition in the bond not such as required by law;” but the ground fails to indicate why the same “is not the kind of bond contemplated by law,” or how it should have been made payable, or what condition should have been placed therein.

The court did not err in overruling the motion to dismiss the petition for certiorari upon any of the grounds presented therein.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    8679.
    Kitchens v. Southern Development Company.
    Decided December 12, 1917.
    Complaint; from Worth superior court — Judge Cox. December 30, 1916.

      B. S. Foy, for plaintiff in error. J. R. Tipton, contra.
   Jenkins, J.

By act of the General Assembly of 1911 (Ga. L. 1911, p. 149, Park’s Ann. Code, § 6090 (a) ), it is provided: “Where the judge has finally passed on the merits of a motion for a new trial, and the parties have raised no question as to the sufficiency of the approval of . . the brief of evidence, . . or of the jurisdiction of the judge to entertain the motion at the time he did, if the parties acquiesced in his entertaining it at that time, no question as to these matters shall be enertained by the reviewing courts unless first raised and insisted on before the trial judge.” Thus, an exception taken to the grant of a new trial upon the ground that the motion as made and heard in the court below was without the approval of the brief of evidence in the case, where it does not appear that the respondent then objected to the brief of evidence for such reason, can not now be raised for the first time in this court. Springer v. Owen, 145 Ga. 730 (2) (89 S. E. 780).

Judgment affirmed.

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


author: BloodwortH, J.

text:
    8629.
    Schwall et al. v. Quitman Oil Company.

      Broyles, P. J., and Harwell, J., concur.

    Decided December 12, 1917.
   BloodwortH, J.

1. When read in the light of the entire charge and considered in connection with the evidence, there was no error harmful to the defendant in the excerpts from the charge of which complaint is made.'

2. Where remarks are made in the hearing of the jurors by the judge during the trial of the case, which counsel insists were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client, a motion should be made to have a mistrial declared, and upon the judge’s refusal to grant such a motion his ruling would be subject to review. Counsel, having failed to make such motion and having proceeded without objection with the trial, can not after verdict raise the question as to the prejudicial nature of the remarks complained of in the motion for a new trial. Rogers v. State, 18 Ga. App. 332 (90 S. E. 356); Perdue v. State, 135 Ga. 277 (69 S. E. 184); Stapleton v. State, 19 Ga. App. 36 (13) (90 S. E. 1029); Wilcox v. State, 19 Ga. App. 83 (4) (90 S. E. 1032).

3. There was evidence sufficient to. support the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.

Complaint; from Worth superior court — Judge Cox. December 9, 1916.

J. B. Williamson, J. II. Tipton, for plaintiffs in error.

Fulwood & Hargrett, contra.


author: Bloodworth, J.

text:
    8646.
    Hawkes Company v. Cowart Company.
    Decided December 12, 1917.
    Complaint; from Calhoun superior court — Judge Cox. December 6, 1916.

      Calhoun & Aslcew, for plaintiff. B. W. Fortson, for defendant.
   Bloodworth, J.

1. Under -repeated rulings of this court and of the Supreme Court of our State, “No ground of a motion for new trial which is not complete and understandable without resorting to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by this court.” Southern Railway Co. v. Williams, 19 Ga. App. 545 (91 S. E. 1001); Head v. State, 144 Ga. 383 (87 S. E. 273); Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668). In the instant ease each special ground of the motion for new trial refers, to a certain written contract, but this contract is not set out either literally or in substance in any of. Said grounds; and therefore they present no question for determination by this court.

2. “Grounds of the motion for a new trial which complain that the court erred in admitting certain evidence over the objections of the defendant’s counsel, but which fail to state what objection was made at the time it was offered, can not be considered by this court. Clarke v. State, 90 Ga. 448 (16 S. E. 96); Dutton v. State, 92 Ga. 14 (2), 15 (18 S. E. 545) ; Stevens v. State, 93 Ga. 307 (4) (20 S. E. 331); Huff v. State, 85 Ga. 336 (2), 340 (11 S. E. 619) ; Griffin v. State, 86 Ga. 257 (12 S. E. 409) ; Robertson v. State, 87 Ga. 209 (2), 214 (13 S. E. 696).” Cooner v. State, 16 Ga. App. 539 (85 S. E. 688).

3. There was evidence to authorize the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Harwell,, J., concur.


author: Broyles, P. J.

text:
    8979.
    Carroll et al. v. Inner Shoe Tire Company.
   Broyles, P. J.

1. A petition for certiorari, including the necessary affidavit or bond attached thereto, is not amendable; and aliunde proof is not admissible to correct material errors therein. Western & Atlantic Railroad Co. v. Jackson, 81 Ga. 478 (8 S. E. 209); Gildea v. Hill, 115 Ga. 136 (41 S. E. 492); Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 965); Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202); Haywood v. Kitchens, 15 Ga. App. 618 (83 S. E. 1102) ; Hackett v. Tate, 18 Ga. App. 453 (89 S. E. 535).

Decided December 12, 1917.

Certiorari; from Fulton superior court — Judge Bell. March 24, 1917.

E. G. Buchanan, for plaintiffs in error.

Anderson, Slate & D’Orr, contra.

2. In a certiorari proceeding in a civil cause, where no affidavit in forma pauperis is filed, the bond required, duly executed and approved, must be filed at the same time when the petition for certiorari is filed; and if not so filed, the writ must be dismissed on the hearing.’ Hamilton v. Phenix Insurance Co., 107 Ga. 728 (33 S. E. 705); Cole v. Thurman, 119 Ga. 55 (45 S. E. 718); State of Georgia v. Wynne, 4 Ga. App. 719 (62 S. E. 499); Smith v. McCranie, 14 Ga. App. 721 (82 S. E. 307); Sanford v. Wade, 17 Ga. App. 366 (86 S. E. 945). It is likewise clear that the execution and approval of the bond, to be valid, must he made subsequently to the rendition of the judgment which, in the petition for certiorari itself, is assigned as error. It is obvious that the certiorari proceedings can not be commenced before the rendition of the very judgment which is the foundation of such proceedings.

3. In the instant case (no affidavit in forma pauperis having been filed) the petition "for certiorari shows that the judgment which is assigned as error therein, and which is the basis of the certiorari proceeding, was rendered on the first day of December, 1916; while the copy of the bond attached to the petition shows on its face that it was executed and approved on the 17th day of November, 1915, — -more than twelve months prior to the rendition of said judgment. It is obvious that a bond so executed and approved is fatally defective; and since no part of the petition for certiorari, including the bond attached thereto, is amendable, the judge of the superior court did not err in dismissing the certiorari.'

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9003.
    Sellers et al. v. Hutto.
    Decided December 12, 1917.
   Broyles, P. J.

Under the facts of the case the judge of the superior court did not err in sustaining the certiorari and in'remanding the case for a new trial (this being the first grant of a new trial), with directions that the amendment to the original petition of the plaintiff in certiorari be allowed,-and that the demurrer to such petition be overruled.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Certiorari; from Appling superior court — Judge Highsmith. April 11, 1917.

Padgett & Watson, for plaintiffs in error.

W. W. Bennett, contra.


author: Harwell, J.

text:
    9025.
    Jenkins v. Hester.
    Decided December 12, 1917.
    Trover; from city court, of Dublin — Judge Elynt. June 4, 1917.

      8. W. Sturgis, for plaintiff in error. R. Earl Gamp, contra.
   Harwell, J.

1. There was sufficient evidence to show that the hogs for the possession of which this trover suit was brought were the property of the plaintiff, and were wrongfully in the possession of the defendant, and that their value was the amount of the verdict found.

2. There being evidence in the record to the effect that the hogs were the property of the wife, and without her knowledge or consent were surrendered to the defendant by her husband in extinguishment of a debt of the latter, the court did not err in charging the jury “that the wife would not be bound by any trade of her husband [made] without her knowledge.”

Judgment affirmed.

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


text:
    9101.
    CONKLIN v. THE STATE.
    1. Á mere general assignment that a portion of a charge to the jury is error presents nothing for the consideration of this court, except as.to-its abstract correctness. A correct statement of law embraced in a charge is not erroneous because the court failed in the same connection to give the jury additional instructions.
    2. The charge of the court on the weight to be given to, the defendant’s statement was sufficient, in. the absence of a request for further instructions.
    3. The charge of the court on the subject of alibi was not subject to the criticisms made thereon.
    4. The court did not err in overruling the motion for new trial.
    Decided December 12, 1917.
    Indictment for burglary; from Eulton superior court — Judge Hill. July 7, 1917.
    H. E. Conklin was convicted of the offense of burglary, and a new trial was denied. The evidence shows that on the afternoon of May 22d he entered the office of the Western Union Telegraph Company at 406-A Peachtree street in the city of Atlanta, supposedly for the purpose of using the telephone; he said that he could not get his number, and walked out. While in this office he could get a view of the typewriter, which was behind the counter. The same night a Mrs. Mott, in charge of this office, left the office with both the front and the rear doors locked, and the typewriter in its accustomed place. The following morning, on arriving at the office, she found that the typewriter was gone, and the rear door was unlocked. The typewriter was an Underwood machine, marked “406-A Peachtree Branch.” On the morning following the burglary, about 5:30 or 6:30 o’clock, one Jacobs, a dealer in second-hand typewriters and other articles, received a telephone message from this defendant to the effect that a typewriter was in a car at the rear of witness’s home on Washington street. Witness found the typewriter, an Underwood marked “406-A Peach-tree Branch,” in the car as he was directed, and took it to his brother’s store at 120 Decatur street. Believing the machine to have been stolen, Jacobs called up the detective department. An officer who arrived in response to the call telephoned to the Western Union office, and was informed that the office had been burglarized in the preceding night. Jacobs further testified that while at home at lunch on the same day, he received another telephone message from the defendant, asking how much he was going to give the defendant for the typewriter. They agreed on $7.50. Witness instructed defendant to meet him at 317 Capitol Avenue; defendant met him there, and together they were walking up the street when the defendant was arrested by'a detective. Witness stated that defendant had come' there for the $7.50 which was agreed upon as the price of this typewriter.. He further testified that at some time prior to this occasion defendant had sold him a lady’s watch and ring, and at the same time asked him if he could use a typewriter. The evidence further strongly indicates that the defendant was in possession of a skeleton key on the day after the burglary, at the time of his arrest, and/the key fitted the door entered on the night before. The defendant attempted to establish an alibi through the testimony of one Durham, who stated that the defendant had spent the night of May 22d at witness’s home; that witness and defendant retired about 11:30; that some time early the next morning he saw the defendant asleep on the cot prepared for him; and that the defendant left his home about six o’clock in the morning.

      J. A. Grouch, Arminius Wright, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Harwell, J.

1. The first ground of the amendment to the motion for new trial complains of a certain excerpt from the court’s charge to the jury on the burden of proof and on the presumption as to the innocence of the accused. There is no specific exception to this excerpt, the ground simply alleging that “the court erred in giving the following charge,” and that “the court should have charged aá follows:” then setting out a charge on the subject of presumption of innocence. The excerpt from the charge excepted to, and that suggested by the movant, are both in the abstract correct. A mere general assignment that a charge is error presents nothing for the consideration of this court, except as to its abstract correctness. S. A. L. Ry. v. Barrow, 18 Ga. App. 361 (3) (89 S. E. 383), and citations. Neither is such excerpt erroneous because the court, as movant contends, should have given some further charge in connection therewith. Hill v. State, 18 Ga. App. 359 (89 S. E. 351), and citations; Killian v. State, 19 Ga. App. 750 (2) (93 S. E. 337). A ground of a motion for a new trial should be complete in itself. If the excerpt from the charge of the court, generally excepted to, be wholly erroneous, then, as all error is presumably prejudicial, this court will further consider the matter by examining the record for the-purpose of ascertaining whether or not the party complaining has really been injured by the giving of such instruction. But when' the excerpt to which a general exception is taken is abstractly correct, then the investigation here must end. Anderson v. So. Ry. Co., 107 Ga. 501 (4), 511 (33 S. E. 644).

3. The judge in his charge instructed the jury that they might believe the statement of the defendant in preference to the sworn testimony in the case, if they saw proper to do so. If counsel desired further instruction on the defendant’s statement, they should have requested it; and the failure of the court to charge further on this subject was not reversible error. Pitts v. State, 114 Ga. 35 (3) (39 S. E. 873). The evidence authorized the verdict, and the judgment will not be disturbed.

Judgment affirmed.

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


text:
    8645.
    CENTRAL OF GEORGIA RAILWAY CO. v. RABUN.
    1. A demand to furnish cars, made by a shipper to a railway company and addressed to the agent of the company at a named point on its line, will, where nothing to the contrary appears, be held to mean that the cars were required at the point at which the demand upon the agent was made. t

      2. The remedy given by section 2635 of the Civil Code (1910), and the rules of the railroad commission made in pursuance thereof, is one in favor of shippers; and a person entering a demand for cars, without at that time disclosing his agency for another, can not recover the penalty thus imposed, where it appears that at the time of the shipment it was disclosed that the cars were intended solely for the use of another, and the bill of lading was issued in the name of the true owner and shipper of the goods.
    Decided December 13, 1917.
    Action, for penalty. Before Judge- Cox. Calhoun superior court. ■ December 6, 1916.
    This was a suit brought by Z. T. Rabun to recover a statutory penalty of $1 per day per car for an alleged failure of the defendant to furnish cars upon the plaintiff’s demand. The plaintiff relied upon three written orders, as follows: “Morgan, Ga. 9/3/1914. Agent, C. of G. Ey. Co., Williamsburg, Ga. Dear Sir: Please get for me and send them out on Friday, 4th inst., 2 any length flat cars to be loaded with lumber for 0. of Ga. Ey. 1 40-ft. flat car to be loaded with lumber for C. of Ga. Ey. The above cars are for Stubbs siding. I want you to please get for. me each day for the next six days four 40-ft. flats each day to be loaded with logs for shipment to Macon, Ga. Yours very truly, Z. T..Eabun.” “Morgan, Ga. 8/29/14. Agent, Cen. of Ga. Railway Co., Williamsburg, Georgia. Dear- Sir: Please get for me at once eight forty-ft. flat cars to be loaded with poplar logs for shipment to Macon, Ga. I want them in lots of four a day, and no more. Will be glad if .you can get four for Monday 1st, and four for Tuesday 2nd, prox. I also want.one car at once in which to load cottonseed for shipment to Macon, Ga. Yours truly, Z. T. Rabun.” The plaintiff introduced also an order dated Morgan, Ga., September 4, 1914, addressed to the agent of the Central of Georgia Railway Company, at Williamsburg, Ga., and signed by the plaintiff, as follows (after referring to previous orders) : “I want, in addition to the above, five more forty-foot flats on which to load logs for shipment to Macon, 6a.” At the conclusion of the plaintiff’s evidence the court overruled a motion for nonsuit, and thereafter directed a verdict for the plaintiff. The grounds of contention relied upon by the plaintiff in error are as follows: (1) In no one of the orders was there any statement in reference to the point at which the cars were to be delivered to the plaintiff. (2) That, since the plaintiff testified that the bills of lading for the logs which he expected to ship in the cars de-. mandad were issued to J. W. Griffith, and that Griffith owned the logs which were to be shipped for Griffith’s account and in his own name, the penalty, if any should he allowed, exists in favor of Griffith, the consignor, and who was the real shipper. (3) That since the only evidence as to the delivery to the defendant of the demands for cars was that of the plaintiff himself, and since he only testified that he delivered them to his engineer, Mr. Floyd, to he in turn delivered by him to the railroad agent at Williamsburg, and that he did not know whether or not these orders were in fact delivered, except from the fact of the subsequent though delayed compliance with the demands, there was no proof of the delivery:

      Pottle & Hofmayer, for plaintiff in error. Q. J. Taylor, contra.
   Jenkins, J.

(After stating the foregoing facts.)

1/ Section 2635 of the Civil Code (1910) provides as follows: "Whenever a shipper or consignor shall require of a railroad company the placing of a car or cars to be used in car-load shipments, then, in order for the consignor or shipper to avail himself of the forfeitures or penalties prescribed by the rules and regulations of said railroad commission, it must first appear that such shipper or consignor made written application for said ear or cars to said railroad: .Provided, that such railroad commission shall, by reasonable rules and regulations, provide the time within which said ear or cars shall be furnished after being ordered as aforesaid, and the penalty per day per car to be paid by said railroad company in the event such car or cars are not furnished as ordered: And provided further, that in order for any shipper or consignor to avail himself of the .penalties provided by the rules and regulations of said railroad commission, such shipper or consignor shall likewise be subject, under proper rules to be fixed by said commission, to the orders, rules, and regulations of said railroad commission.” The rule of the railroad commission, made in pursuance thereof, is as follows: “Railroad companies are required to furnish cars promptly upon request thereof. When a shipper files with a railroad company application for a car or cars, stating ■therein the character of freight to be shipped, and its destination, such railroad company shall furnish same within four days (Sundays and legal holidays excepted) from seven o’clock a. m., of the day following the receipt of the application. For a violation of this rule the railroad company at fault shall, within thirty days after demand in writing is made therefor, pay to the shipper so offended the sum of one dollar per day, or fraction of a day, after expiration of the time, during which such violation continues.” It will be observed that neither the code section nor the commission rule specifically requires that the shipper shall state in his demand the place for the delivery of the cars; but since it would be impossible for the railway company to comply with such a demand without such information, it must necessarily be presumed to be an essential part of the notice or demand, even though it be not specifically required by the rule. However, in the absence of anything appearing to the contrary, we think it should reasonably be presumed that the cars were expected and required to be placed at Williamsburg, since it was to the agent at this point that the notice was addressed, although in this particular case the defendant .jvould have been authorized to deliver the cars, not upon the company’s tracks at this station, but at the private siding of the plaintiff there located, since it appears that the previous deliveries to plaintiff had, been accustomed to be thus made.

2. Section 2740 of the Civil Code (1910) provides as follows: “The carrier can not dispute the title of the person delivering the goods to him, by setting up adverse title in himself, or a title in third persons which is not being enforced against him.” It was held in the case of Carter v. Southern Railway Co., 111 Ga. 38 (36 S. E. 308, 50 L. R. A. 354), that “A person who having in charge as agent the goods of another makes with a common carrier a contract to ship such goods, in which the agency is not disclosed, may maintain an action in his own name for a breach of such contract.” This is not a suit for loss or injury to freight, and is not, strictly speaking, an action for damages, since this court has held, in the case of Southern Railway Co. v. Inman, 11 Ga. App. 564 (75 S. E. 908), that the statute under which it is brought is more penal in its nature than otherwise, and in discussing this question has made use of the following language: "All of the things required of the carrier by the act were owing by it to the public generally; they were public duties, and for their breach the penalties named in the act were imposed. ' The sum recovered by the shipper may or may not be compensatory. He may have sustained no damage; he need not show that he has. ' He makes out his case by proving the default- and a compliance by him with the conditions precedent prescribed by the act.” However, the remedy provided under the code section together with the rule of the commission is by its express terms in favor of the shipper; and while it thus seems to be undoubtedly true that had the bill of lading been issued in the name of the plaintiff, without disclosing the fact of his agency, the railway company could not then have been held to deny that the plaintiff was the true shipper, by disputing the title of the person delivering the goods to it, yet where, by the terms of the shipping contract itself it was in fact disclosed that the plaintiff was merely the agent of the true shipper, and as such he had made the demand for the ear delivery, it would seem that the remedy granted to the shipper must be exercised by the one who occupied that relationship to defendant either actually or prospectively, notwithstanding the fact that he might have entered his demand for the cars through his agent, who did not at that time disclose his .true status. It is urged that the plaintiff would have been liable to the defendant for any demurrage charges that might have accrued, and therefore that the defendant should be liable under the same principle. But, under the law as embraced by section 3596 of the Civil Code (1910), the company might in such a case go directly against the principal, upon the agency being disclosed.

3. Under the ruling just made, It is needless to go into a discussion of the proof made as to the delivery of the notice to defendant. We might remark, however, that while we think the proof is indisputable that such notice was actually given, for the reason that the order, though delayed, was subsequently filled, still the essential question as to the time when such ■ notice was received does not appear to have been sufficiently shown to authorize a verdict in the full amount of the recovery.

Judgment reversed.

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


text:
    8693.
    Hammond et al. v. Scoggins.
    Decided December 13, 1917..
    Complaint; from Chattooga superior court — Judge Wright. February 16, 1917.

      Wesley Shropshire, Maddox & Boyal, for plaintiffs in error.

      John B. & 1$. S. Taylor, contra.
   Jenkins, J.

The assignments of error as to excerpts from the charge of the court are without substantial merit. The evidence authorized the verdict; and the newly discovered evidence, being merely cumulative and tending only to show admissions made in a casual conversation, will not require a new trial, especially where the statements thus proposed to be proved are directly denied by the counter-affidavit of the other party to the 'conversation, and where the integrity of the affiant is assailed. The court did not err in overruling the motion for a new trial. Civil Code (1910), §§ 6085, 6086; Erskine v. Duffy, 76 Ga. 602 (5); Grubb v. Kalb, 37 Ga. 459; Atlanta Consolidated St. Ry. Co. v. McIntire, 103 Ga. 568 (2) (29 S. E. 766); Holliday v. Athens, 10 Ga. App. 709 (7) (74 S. E. 67); Knight v. Northey, 21 Ga. App. 46 (5) (93 S. E. 535).

Judgment affirmed.

Wade, C. J., and Luhe, J., concur.


text:
    8728.
    COCHRAN v. WHITWORTH.
    1. At common law, in the absence of proof of fraud or collusion, the return of the proper officer as to service of process was • conclusive. Georgia By. &c. Co. v. Davis, 14 Ga. App. 790, 793 (82 S. E. 387).
    2. The remeay oy affidavit of illegality against an execution which has ■ been issued, or which is proceeding illegally, is purely statutory, and affords no remedy except such as the statute provides. State of Georgia v. Sallade, 111 Ga. 700, 702 (36 S. E. 922). Thus, a defendant in execution can not ordinarily, by this means, go behind the judgment upon which the execution is based (Civil Code of 1910, § 5311) ; but where the judgment is not merely voidable, but wholly void, as where the court was entirely and under all circumstances without jurisdiction, or where service on the defendant was never effected or waived, nor appearance made, affidavit of illegality is a proper mode of attacking an execution issued under the judgment so obtained (Planters, Barilo v. Berry, 91 Ga. 264, 18 S. E. 137; Hilson v. Kitchens, 107 Ga. 230, 33 S. E. 71, 73 Am. St. R. 119; Kuhnen V.- Burt, 108 Ga. 471, ' 34 S. E. 125); and where an affidavit of illegality is thus interposed a common-law fi. fa., on the ground that the defendant therein has not had his day in court, there is no provision of law making it a prerequisite thereto that the defendant shall also show a valid defense to the suit wherein the judgment wholly void was rendered. Civil . Code (1910), § 5311; Maunde v. Keating, 55 Ga. 396; Dozier v. Lamb, 59 Ga. 461 (2); Knight v. Jones, 63 Ga. 481.
    3. If at the hearing of the issue thus made the record shows a regular entry of service hy the proper officer, the entry, -if not traversed, will he conclusive upon that issue (Maunde v. Keating, supra; Lamb v. Dozier, 55 Ga. 677; O’Bryan v. Calhoun, 68 Ga. 215); and it is necessary that the traverse of such return shall be made at the first term after knowledge thereof is had (Knight v. Jones, supra; Wingfield v. Rhea, 77 Ga. ■ 84’ (3a)) ; and not only is the burden, upon the defendant in fi. fa. to show that it is thus made in time, but this fact should appear in the traverse itself. Knight v. Jones, supra; Evans V. Smith, 101 Ga. 86, 88 (28 S. E. 617); Rawlings v. Brown, 15 Ga. App. 162 (82 S. E. 803). The officer who made the return is a necessary party to the traverse (Southern Ry. Oo. v. Cook, 106 Ga. 450 ( 2), 32 S. E. 585; Green v. Grant, 108 Ga. 751, 32 S. E. 846) ; and where the entry is made, not by the sheriff himself, but by his deputy, then both ‘ of these officers are necessary parties to the traverse (Georgia Ry. & Power Co. v. Davis, and Rawlings V. Brotan, supra; Southern States Phosphate &e. Co. v. Clark, 19 Ga. App. 376, 91 S. E. 573) ; and if either of them he dead at the time the traverse is made, the legal representative of the deceased officer must be named and served in his stead.
    4. Upon the trial of such a traverse the return of service is to be taken as more than merely prima facie true; and in order to justify a finding against the return, the evidence should be the strongest of which the nature of the case will permit, and even then it will not be deemed sufficient unless it be, in the opinion of the jury, so explicit and convincing as to show clearly that the entry of service is false. Davant v. Carlton, 53 Ga. 491; Denham v. Jones, 96 Ga. 130 (23 S. E, 78) ; Phillips V. Wait, 106 Ga. 589 (2) (32 S. E. 842).
    Decided December 13, 1917.
    Affidavit of illegality of execution; from city court of Camilla— Judge Bush. August 11, 1915.

      Charles Watt Jr., Johnson & Warren, for plaintiff in error.

      Peacoclc & Gardner, contra.
   Jenkins, J.

The traverse offered in the court below to the return of the deputy sheriff was in form as follows: “And now comes G. A. Cochran, and, before the first term of the court after he received' knowledge of the entry of service of the deputy sheriff in said cause upon deponent, and on the first day after he received said knowledge, files this his amendment to the affidavit of illegality heretofore filed in said case, and also his traverse; and for grounds of traverse says, that said entry of service upon deponent, heretofore made by the deputy sheriff, is untrue; and shows that Will Griner, the deputy sheriff who made said entry, is dead, and that there is no administration on his estate; and prays the court to make the estate of the said Will Griner and the heirs of the said Will Griner, who are to deponent unknown, and C. D. Crow, sheriff of Mitchell county, parties to said illegality and traverse.” This, proffered amendment and traverse was disallowed by the trial judge, who directed a verdict against the defendant as to the issue of service, and entered up judgment allowing the levy to proceed. We are constrained to hold that this ruling was correct, for the reason that the legal representative of the deceased officer making the return of service was not made a party to the traverse. It is true that the traverse states that the deputy sheriff who professed to have made the service and who signed the entry thereof was then dead, and that there was no administration on his estate; and in this predicament the defendant, by his traverse, undertook to make the “estate” of the levying officer as well as his “heirs” parties to the proceeding. Both the Supreme Court and this court have repeatedly held that the officer making the return is a necessary party to the traverse. In the ease’ of Southern States Phosphate &c. Co. v. Clark, 19 Ga. App. 376 (91 S. E. 573), many of these cases are collected and their purport to this effect is concisely stated, the effect of many of these cases being to hold that not only must the officer actually making the return be made a party to the traverse, but that when the return was made by an officer other than the sheriff himself, the latter also must be joined. In none of these cases is there the slightest intimation that the officer actually making the return could be dispensed with. The reasoning set forth in the case of O’Bryan v. Calhoun, 68 Ga. 215, as to why the sheriff and his sureties have a valid interest in the question raised by the traverse as to service, applies with equal force to the deputy and the sureties on his'bond. While the sheriff ■and his sureties are liable on their bond for the acts of the deputy (Civil Code of 1910, § 4913; Crawford v. Howard, 9 Ga. 314; Howard v. Crawford, 15 Ga. 423), the deputy and his sureties are in turn liable on their bond either to the sheriff or to the litigants (Civil Code of 1910, § 4913; Berrie v. Taylor, 117 Ga. 56, 43 S. E. 411). While the finding upon the issue made by the traverse is conclusive upon the issue as to service, raised by the affidavit of illegality, still the traverse is a distinct and independent proceeding from the other; and in the trial of the issue made by the traverse the officer actually making the return (together with the sheriff himself, if made by a deputy), is a necessary party. Thus the well-recognized and mandatory requirement that the officer actually making the return shall be made a party to the traverse, and be legally served as such, is not met by naming his “estate” in his stead (see Knox v. Greenfield Estate, 7 Ga. App. 305, 66 S. E. 805). Nor would the attempt to make his heirs come in and defend the traverse suffice. Upon it being made to appear that one of’ the necessary parties to the traverse was dead, and that his estate was unrepresented, it would have been the duty of the trial judge, upon request or motion made, and without the necessity of resort being had to equitable remedies, to'ffiold up the determination of the issue made by the traverse until service on the necessary parties could be effected. It might be that the decedent in such a case did not leave an estate; and there is a line of decisions following the case of Lowery v. Powell, 109 Ga. 192 (34 S. E. 296), holding that administraton can not be had on an unrepresented estate for the purpose of maintaining a suit, where the decedent left no estate; but for the purpose of this proceeding, in which other parties have an interest, and where the deceased officer had given a bond- with security to cover his official acts, we do not think the rulings just indicated would in any event stand in the way of procuring and making the, party which'the law holds to be necessary. Eor the reasons here indicated, we think the action of the court below was in accordance with law.

Judgment affirmed.

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


text:
    8714.
    WEBB v. ARMOUR FERTILIZER WORKS.
    An affidavit of illegality, denying service, is of itself sufficient to raise that issue only when no return of service exists; since a return of service is conclusive upon that question, in the absence of a timely traverse. Such traverse must show that it is filed at the first term after notice of the return is had, and must make the officer making the return a party to the proceeding. If the return be made not by the sheriff,’ but by a deputy, then not only such deputy actually making the entry, but the sheriff also, must be joined. (See Cochran v. Whit-worth, ante, 406). If such traverse fails, as originally filed, to make proper parties, the defect may be cured by amendment at a subsequent term, and legal service may then be perfected. Stone v. Bichard

      son, 76 Ga. 97. Although the traverse is a distinct and independent proceeding from the affidavit of illegality, yet it is permissible to include the former with the latter (O’Bryan v. Calhoun, 68 Ga. 215; Dozier v. Lamb, 59 Ga. 461); but in order for a timely traverse, however made, to stand as such and furnish the basis of such an amendment as indicated, it must plainly and unequivocally deny the truth of the return as shown by the entry of service.
    Decided December 13, 1917.
    Affidavit of illegality of execution; from city court of Valdosta —Judge Cranford. March 7, 1917.

      J. J. Murray, for plaintiff in error.
    . Woodward & Smith, contra.
   Jenkins, J.

Included in the affidavit of illegality is what the defendant in fi. fa. very strongly contends amounts to a distinct and independent traverse of the return of service. This language is as follows: “Deponent further says on oath that if on the main suit from which said fi. fa. emanated that she has been served by any officer authorized to do so, she here and now, on this date, it being of the first knowledge that she has of said suit and said fi. fa., traverses a return of said officer, and names the .sheriff of this county party to said traverse, and serves him with written notice of this traverse.” At a subsequent term of court the defendant sought to amend this traverse by specifically denying the truth of the return of service as made, and making the sheriff, and his deputy who made the return, parties to the traverse, and praying for service upon them according to .law. This was by way of amendment, and did not purport to be made as an original traverse at the first term after knowledge was had of the return. The court refused to allow the amendment, and dismissed the affidavit of illegality.

The requirement of law is that the traverse shall be filed at the first term after knowledge is had of the return of service. It does not seem to have been contemplated that prior to such notice the defendant might file a provisional or conditional denial to a possibly existent return not alleged to exist in fact. We have been impressed with the argument presented by counsel for plaintiff m error. In none of the books have we seen a clearer or more con-. cise statement upon the law on this subject than is presented in one of his briefs; but in the application made by him we can not agree. It is stated in the argument that the original traverse was “a direct shot at any entry of service which might be disclosed by the record.” While we think a “direct shot” is precisely what the law contemplates, still, it would seem that we have here an extreme case of “indirect firing,” where the object of attack is not only unseen but is not even alleged to exist. It must be borne in mind that while the purpose of the affidavit of illegality may be to deny service, the issue formed on the traverse, which is a distinct and independent proceeding, is the truth or falsity of the specific statements actually contained in the return as made. But even if it were permissible to file a sort of blanket traverse denying the truth of the statements contained in any entry of service which, though as yet undiscovered, might be subsequently disclosed, we think that the denial would even then have to be explicit and unequivo^ cal. The statement of the traverse as contained in the record, that “if on the main suit from which said fi. fa. emanated that she has been served by any officer authorized to do so, she here and now . . traverses a return of said officer,” does not, in our opinion, meet this requirement. All that the traverse literally appears to say is that, if she was served, she traverses the return. Nor would it do to hold, as a general proposition, that a statement contained in a traverse, that it was made on the date when the first knowledge was had of the suit, would amount to a denial of the specific statements made by the entry of return. In point of fact, actual knowledge of a suit does not always and inevitably follow from legal service of process therein. The issue made by a traverse is not whether the defendant had knowledge of the suit, but whether or not the statement as actually contained in the return of service, is true. The subsequent specific denial not being offered as an original traverse, and its timeliness as such not being shown, but, on the contrary, being offered purely as an amendment to the original traverse, there was no error in rejecting it and in dismissing the affidavit of illegality.

Judgment affirmed.

TVade, O. J., and Luke, J., concu/r.


text:
    8800, 8801.
    ANTHONY v. DUDLEY SASH, DOOR AND LUMBER COMPANY and vice versa.

    1. “The allegations of a pleading are to be construed most strongly against the pleader, when attacked by demurrer. The demurrer admits only the facts, and not the legal conclusions drawn therefrom by the pleader.” Brown v. Massachusetts Mills, 7 Ga. App. 642 (67 S. E. 832). See also Lewis v. Amorous, 3 Ga. App. 50, 53 (59 S. E. 338).
    2. The demurrer to the petition contained general and special grounds; and the court passed an order sustaining various special grounds and likewise dismissing the petition, which had been amended in an effort to meet the demurrers. Under these circumstances there is no presumption that the ruling of the court was based on any one of the grounds of special demurrer or upon any particular ground of the general demurrer, and the judgment must be affirmed if the petition was properly dismissed for any reason set forth in the general demurrer. See Mc-Glaren v. Williams, 132 Ga. 352 (2) (64 S. E. 65) ; Gunn v. James, 120 Ga. 482 (48 S. E. 148) ; Huggins v. Southeastern Lime & Gement Go., 121 Ga. 311 (48 S. E. 933) ; Killough v. Simmons, 125 Ga. 101 (53 S. E. 819, 114 Am. St. R. 201).
    3. “Where a debt is secured by a deed to land, the creditor may transfer the whole or any part of the debt, and with it may convey the land itself. Such conveyance is not a breach of the bond for title to reconvey, since the subpurchaser takes the property subject to the right of the debtor to redeem on payment of the loan.” Gumming v. McDade, 118 Ga. 612 (2) (45 S. E. 479).
    Decided December 13, 1917.
    Action for breach of contract; from Muscogee superior court— Judge Howard. March 30, 1917.

      Ed. Wohlwender, Hatcher & Hatcher, for plaintiff.

      Slade & Swift, for defendant.
   Wade, C. J.

The case comes to this court on exceptions to the order of the trial judge in sustaining demurrers to the plaintiff’s petition and dismissing the action. The various headnotes above need no discussion; and it is only necessary to apply the well-settled ruling contained in the third headnote to the facts as alleged in the petition. The plaintiff sued to recover damages, for an alleged breach of a bond for title, setting up in his petition that the defendant had loaned this firm the sum of $600 to pay the balance of the purchase-price of certain lands previously bought by him from another, and by agreement had taken a deed vesting title to said property in the defendant, and thereupon executed a bond for title thereto in favor of the plaintiff and his partner in a sawmill business, conditioned to reconvey said property to the plaintiff and his partner, provided the firm should well and truly pay the note for the sum of $600 advanced and carry out the agreement in the bond for title (which was signed by all the parties) that they should cut and deliver the timber standing on the land therein described to the defendant (the obligor of the bond) at an agreed price, from the total.amount of which the sum advanced should be deducted. The petition alleged, that an undivided half interest in the larger portion of said lands was owned by another, and it was necessary to have a legal partition made between the tenants in common before they could cut and saw the timber thereon in accordance with the contract; that the plaintiff’s partner, having no capital invested in said land, had assigned in writing any and all interest he had in the contract with the defendant company; and that on a day named, prior to the bringing of the suit, the defendant had advised petitioner by letter that it had that day “sold to J. F. Brown all interest we may have in lands in Marion county, excepting lot No. 80, which we have deeded to you,” a copy of said letter being attached to and made a part of the petition. This is the only breach of the bond alleged, to wit, the sale to another of “all the interest” the defendants might have in certain lands in Marion county, which included the lands in question. Construing the allegations of the petition most strongly against the pleader, in the'absence of any affirmative statements to the contrary, it appears merely that the defendant sold to another person whatever interest it had in the lands, and only such interest as it in fact possessed; and presumably the evidence of indebtedness was át the same time transferred to the person who purchased its interest in the land, and such person received title thereto with full and entire knowledge (in the absence of any allegation to the contrary) of all the rights and equities of the plaintiff, and subject thereto. Under the ruling of the Supreme Court, quoted in the third headnote, it is clear that no breach of the bond is alleged in the petition, and hence no right of action is set forth by the allegations 'thereof; and consequently the trial court properly sustained the’demurrer to the petition as a whole and dismissed the case. It is nowhere alleged in the petition that the purchaser from the defendant, the sale to whom is set up as a breach of the bond, did not have full actual notice of the rights of the plaintiff, notwithstanding the fact that the contract to reconvey or the bond for title executed by the defendant was not of record, and therefore not constructive notice to such purchaser. Whatever may be the facts, we are compelled to take the petition as it is, and the allegations therein as made, neither adding to nor taking from them by amplification or surmise; and considering it in this light, as said above, there is nothing to negative the idea that the defendant company did only what it was authorized by law to do- — convey the property and transfer the evidence of indebtedness on the part of the plaintiff or his firm, making said conveyance subject to all the rights of the plaintiff and his partner under the contract which forms the basis of the suit.

No time is alleged in the original petition when the plaintiff’s partner assigned in writing to the plaintiff his interest in the contract with the defendant company. Fuller information was called for on this point by special demurrer, as-well as fuller information upon various other points. “The petition must caver a time when every material or traversable fact transpires.’ This ancient rule of pleading has been recognized by our Supreme Court in its earliest utterances (Bond v. Central Bank, 2 Ga. 92, 100), as well as in its later rulings. Warren v. Powell, 122 Ga. 4 (49 S. E. 730).” Mandeville Mills v. Dale, 2 Ga. App. 607 (3), 613 (58 S. E. 1060).

It is unnecessary, however, for the purposes of this case to review or consider the many special grounds of the demurrer, or any other ground urged by the defendant in support.of the ruling-sustaining (he general demurrer, since the one particular in which the petition was insufficient to set out a cause of action, because failing to allege a legal breach of the contract which formed the basis thereof, is enough to support that ruling. Without, therefore, needlessly extending the analysis of the petition in this case or considering the various special grounds of the demurrer, we hold, for the reason stated, that the judge of the superior court did not err in sustaining the general demurrer and dismissing the suit.

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

Jenkins and Luke, JJ., concur.


text:
    8870.
    Jarrell v. Seaboard Air-Line Railway.
   Wade, C. J.

1. When this case was formerly tried a verdict was returned in favor of the plaintiff; and by exception to the order of the court refusing a new trial it was carried to the Supreme Court for review, the general grounds of the motion only being insisted upon' at the hearing in that court. In reversing the judgment of the lower court the Supreme Court held: “Though there was evidence to show that the fire which resulted in the destruction of the plaintiff’s property, a mill and machinery, became apparent in less than an hour after the passing of the train, from the engine of which the plaintiff insists sparks were emitted which caused the fire, there is no testimony to show that the sparks were coming from the engine at the time it passed the property, or that it caused the fire, other than the following: that the wind was blowing in the direction of the property from the track, that there was an accumulation of grass and other combustible matter on the right of way between the house which was burned and the track, that there was no fire in or near the mill on that day or for several days prior to the fire, and that the fire began to burn on the side of the mill next to the track. This was not enough to authorize the jury to find that the engine of the defendant caused the fire by the emission of sparks, there being proof to show that the two engines which passed on the day of the fire and prior thereto were properly equipped with approved spark-arresters, which evidence was uncontradieted. G., J. & S. Railroad Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213).” Seaboard Air-Line Ry. v. Jarrell, 145 Ga. 688 (89 S. E. 718).

2. The ruling by the Supreme Court (just cired) is of course the law of this case; and if there were no material difference between the evidence appearing in the previous record and the evidence in the present record, a judgment affirming the grant of a nonsuit would necessarily result; but it is clear that the decision of the Supreme Court was distinctly, predicated upon the fact that there was uncontradieted evidence that the two engines which passed shortly before the fire was discovered were properly equipped with spark-arresters, wherefore the circumstantial evidence offered to show that the fire was caused by sparks emitted from an engine of the defendant company was not sufficient to “reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis.” Georgia Ry. & El. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076).

(a) At the trial under review no evidence was introduced in behalf of the defendant, as a nonsuit was awarded at the close of the testimony for the plaintiff; and not only was there no uncontradieted evidence “to show that the two engines which passed on the day of the fire and prior thereto were properly equipped with approved spark-arresters,” but there was no evidence whatever to this effect.

(b) The testimony from a witness, not adduced at the former trial, to the effect that she did not “notice” any sparks’ on the day when “the train” was passing by, did not necessarily establish the fact that the witness even saw the engine attached .to the train as it passed the mill which soon afterwards caught fire; nor was it sufficient to conclusively show that no sparks were in fact^ emitted by the engine at the time, especially in view of further testimony that the engine “exhausted” when passing the mill, and that when exhausting sparks were always emitted, and since the train passed in the daytime, when sparks would not as a matter of common knowledge be generally visible. This testimony merely presented additional circumstances for consideration by a jury in determining how the fire originated.

Decided December 13, 1917.

Action for damages; from Effingham superior court- — -Judge Sheppard. April 17, 1917.

W. B. Stubbs, O. N. Alford, for plaintiff.

Anderson, Gann, Gann & Walsh, for defendant.

3. In the absence of anytestimony at the trial under review that the engines of the defendant company were equipped with proper spark-arresters, the various circumstances in proof were sufficient to require a submission to the jury of the issue whether the fire which destroyed the plaintiff’s property was caused by the negligence of the defendant company. See, in this connection, Port Royal Railway Co. v. Griffin, 86 Ca. 172 (12 S. E. 303); Southern Railway Co. v. Herrington, 128 Ca. 438 (57 S. E. 694) ; Greene v. Central of Georgia Ry. Co., 130 Ga. 375 (60 S. E. 861).

Judgment reversed,.

Jenkins and Luke, JJ., concur.