text:
    467.
    FARMERS AND TRADERS BANK v. EUBANKS.
    1. While a wife can not legally make a contract of suretyship or assume the debt of her husband, J’et where she has given a negotiable note payable' to her husband’s order and intended to be used as security for or in payment of his debt, and it has been transferred to a bona fide purchaser for value before maturity' and without notice, it is valid and binds her.
    2. In a conflict between the rights of a married woman and the rights of a bona fide holder of a negotiable instrument, the one whose voluntary acts furnish the opportunity for deception and fraud should suffer any consequent loss.
    3. The law which is made for the protection of married women will not permit or tolerate in its beneficiaries an abuse of its beneficent purpose..
    4. Tlie fact that a negotiable note of the wife is made payable to the husband does not of itself import invalidity because apparently made without the approval of the superior court of the wife’s domicile. Where such note does not involve a sale of the separate estate of the wife to the husband, it is valid without such approval.
    5. Where a married woman gives her individual negotiable note, the presumption of law is that she gave it on her own contract and for value; and when sued thereon, the burden is on her to show that the note falls, within some of the restrictions on her right to contract, and that the. holder of the note had notice of its invalidity when he took it.
    6. The evidence in this ease was in conflict on the vital and controlling question of notice, and the direction of a verdict for the defendant was error.
    Complaint, from city court of Atlanta- — Judge Reid. April 1, 1907.
    Submitted October 14,
    Decided November 14, 1907.

      Candlers, Thomson & Hirsch, for plaintiff.

      E. V. Carter, for defendant.
   Hill, C. J.

The Farmers and Traders Bank sued Mary J. Eubanks on a promissory note made by her to her husband, which • he had indorsed and transferred to the bank before maturity as collateral security for a loan made to him by said bank. The defendant filed an answer in which she. averred, that the note was without consideration, and that the bank received the note with knowledge that the same was executed by her as a contract of suretyship or in assumption of a debt which her husband owed said bank; and that for these reasons the note was void as to. her and not binding on her separate estate.- On the conclusion of the evidence, the court directed a verdict for the defendant; and the bank assigns error. The evidence in the record is brief, consisting of the note, the testimony of the husband of the defendant, and that of the cashier of the plaintiff. According to the testimony of the husband, he wanted to borrow some money from the bank, and, thinking that he could not get it on his own note, he got his wife to make the note sued on. This note he gave to the bank as collateral security for a loan made by the bank to him on his individual note for the same amount as the collateral note of his wife. At the time of the transaction, he told the cashier of the bank that his wife did not in fact owe the note to him which she had made at his request, and had received therefor no consideration whatever. ITe also testified, that his wife did not receive any qoart of the money loaned to him by the bank on his note, with her note as collateral; that he owed the bank some money and wanted to get more, and, in order to get it, tendered his wife’s note to the bank. The wife knew at the time she made the note to her husband.that his purpose was to use it with the bank to borrow money, and she voluntarily signed it. ITis wife did not owe him anything for mules and fertilizers used on her farm at the time she made the note, and the note was not given to him in payment therefor. The cashier testified, that the note was indorsed by Eubanks to the bank before maturity; that he brought the note to the bank and said he wanted.to get $500 on his note, and put this note up as collateral. “I said, ‘Mr. Eubanks, this is your wife’s note, and, under the law of Georgia, she could not loan you money; it is entirely worthless unless it is for a bona fide transaction.’ ITe replied that it was for a bona fide transaction, and that she owed him this money . . for mules that he had purchased for her, or paid for, for her, that she was using •on her farm.” None of the money loaned to Eubanks on his note, with this note as collateral, was paid.to his wife, but it was all placed, to his credit. The cashier knew at the time he loaned the money to Eubanks that the. maker of the note taken as collateral was his wife.

Does this evidence with all reasonable deductions and inferences therefrom demand the verdict directed for the defendant? In this State there are three restrictions upon the rights of a married woman as to her separate property: (1) She can not bind her separate estate by any contract of suretyship. (2) She can not- assume the debts of her,husband, and her estate is'not liable for them. Civil Code, §2488. This last restriction is embodied in the constitution, of the State. Civil Code, §5790. (3) No contract of sale of a wife as to her separate estate, with her husband or her trustee, shall be valid, unless the same is allowed by order of the superior court of the county of her domicile. Civil Code, §2490. With these exceptions, the wife is a feme sole and can do as she pleases with her own. These restrictions were designed to protect the wife against the “kicks and kisses” of her husband, her conjugal leanings, the importunities of her husband’s creditors, and the pliant nature of feminine character. This law, however, has been construed by the Supreme Court from the beginning in tender regard to the rights and equities of innocent persons. The words “absolutely void,” as characterizing the prohibited contracts of married women, have been declared to mean “voidable” at the election of the wife (Jones v. Harrell, 110 Ga. 373; Perkins v. Rowland, 69 Ga. 664), and not “voidable” when they come in conflict with the rights and equities of bona fide holders and purchasers for value. Perkins v. Rowland, 69 Ga. 661; Howard v. Simpkins, 70 Ga. 322; Venable v. Lippold, 102 Ga. 208; Sutton v. Aiken, 62 Ga. 742. The bank claims to be a bona fide holder for value. It claims to have taken the note as collateral without any notice, actual or constructive, that it was invalid. On the contrary, its cashier, with whom alone the transaction'was had, was informed by the husband that the note was made to him in consideration of mules “purchased for her, or paid for, for her, that she was using on her farm,” and that the transaction between him and his wife was in every respect bona fide.

The question, under this evidence, is, can a married woman set up this defense to a holder of negotiable security who takes it bona fide for value without notice of invalidity, and before due? In the cases above cited, as well as in many others, the Supreme Court has ruled that while a wife can not make a contract of suretyship or legally assume a debt of her husband, yet when she has given a negotiable note for his debt, and it has been transferred to a bona fide holder for value before due and without notice, it is valid and binds'her. In other words, the wife’s rights must be construed with reference to the rights of the bona fide holder. In protecting her the law does not permit her, either by herself or by her husband, to perpetrate a fraud on the innocent, ■ and will not tolerate in its beneficiaries an abuse of its beneficent purpose. In the language of Mr. Justice Bleckley, in Sutton v. AiJcen, supra, “looking to the collateral doctrines of the law that ought to be considered in connection with restrictive legislation. Avhich we are now’ construing, the great doctrine of protection to innocent purchasers presents itself. Bona fide purchasers for value and without notice are generally recognized as occupying a very-high stand in courts, both of law and equity. . . Were a married woman incapable in law of conveying her property at all,, all the world would be bound to take notice of her disability. ' But such is not her incapacity; on the contrary, her general power over her own is as ample as if she were a man. She can buy and sell with perfect freedom, from or to the whole world, except her husband or her trustee, so that she does it for her own benefit.

. If, trusting to the document she has signed, sealed and delivered, any person should be honestly misled-by it, why should she not abide the consequences? . . Our conclusion is, that a conveyance amenable -to section 1783 of- the Code (now Civil Code, §2488) is ‘ absolutely void’ as between the maker and all persons affected with notice, but that a subsequent bona fide purchaser, for value, and without notice, is protected.” This language was used in reference to a deed executed by the wife to her separate property, but it is equally applicable to a negotiable note executed by her. Indeed we think that the exigencies of commercial transactions require that innocent purchasers of negotiable instruments before due should have the strongest protection; and Avhere no-infirmity appears on their face, every presumption should be invoked in favor of the validity of such instruments and the title-of the holder.

The code of Georgia in asserting the principle of law so firmly imbedded in jurisprudence, that a bona fide purchaser of a negotiable instrument for a consideration, before maturity, is protected, limits the defenses that can be set up by the maker, acceptor, or indorser, as against the rights of such holder, to only the three of non est factum, gambling or immoral and illegal consideration, and fraud in its procurement. Civil Code, §3694. Neither of these is set up in this case. It is admitted that the plaintiff bank obtained the note for a consideration, before maturity! Unless the note carries upon its face sufficient indicia of fraud or illegality to put the bank on notice, the law presumes that it is a bona fide purchaser. Civil Code, §3696. “The holder of a note as collateral security for a debt stands upon the same footing as the purchaser.” Civil Code, §3697. Was knowledge of the fact that the wife executed the note sufficient notice in law to the bank? By the common law’a married woman could not make a note, and in some of the States she is prohibited from making promissory notes payable to her husband. “In this State the right of 'a married, woman to make a contract is the general rule, her disability is the exception; and therefore, where the paper purports to contain a contract which a married woman would have a right to make, an innocent purchaser would be protected against any plea setting up the disability of the maker on account of the contract being within some of the exceptions provided by law. And this would be true, even though the holder knew at the time he acquired the note that the maker was a married woman.” Hager v. National German-American Bank, 105 Ga. 122.

Does the fact that the note of the wife was payable to the husband import notice of any invalidity or infirmity? The only law in this State which restricts a wife from making a contract for her own benefit with her husband is contained in section 2490 of the Civil Code: “No contract of sale of a wife as to her separate estate with her husband or her trustee shall be valid, unless the same is allowed by order of the superior court of the county of her domicile.” The right to contract generally for her own benefit is conferred upon a married woman by the act of 1866. She has the same rights as a man, except as to contracts of suretyship and contracts which assume the payment of the husband’s debt. Code section 2490 restricts the general right of a married woman to make contracts, and should not be extended by construction beyond the clear and manifest purpose of the statute. The express terms of the section apply only to contracts of sale by the wife to her husband of her separate estate, but the purpose of the act is to protect the wife in every transaction between her husband and herself which involves a transfer of her separate estate to him. If there is danger to the interest of the wife in conveying her separate-estate to her husband, the same danger exists to the wife in buying property from the husband and transferring in payment her separate estate. Every transaction, therefore, between husband and wife which amounts to a sale and which involves a transfer of hex separate estate falls within the spirit of the law as expressed in section 2490, and requires, as a condition of validity, the approval of the superior court of the wife’s domicile. It is true that the Supreme Court has in many cases treated as valid a sale by the husband to the wife when there was no order of the superior court allowing the sale, but in none of the cases was the question directly made. In Webb v. Harris, 124 Ga. 733, Nr. Justice Cobb uses the following language: “If land of the husband be conveyed to the wife for a consideration, the consideration, whatever it be, money, property, or chose in action, is the separate estate of the wife. Hence it follows that in every case of sale between husband and wife, there must, in order to render the transaction valid and complete as between them, be an order of the superior court approving the transaction, at least so far as the wife’s property involved is concerned.” ‘While this language in the particular case was the dictum of the learned jurist, we think it so correctly interprets the statute that we adopt it as persuasive and convincing authority. There are, however, some money transactions between husband and wife which do not involve a sale or transfer of her separate estate; as, for illustration, when the husband loans to the wife his money and takes her note to repay the loan with legal interest, or when the husband buys for the wife property, using his own money, and takes from the wife her note to repay him the money so expended in her behalf. These transactions do not involve a transfer of her separate estate to him, and are valid without any order or approval by the superior court.

In the present case the cashier of the plaintiff testified that the husband told him, when he tendered his wife’s note to the bank as collateral security, that the consideration of said note to his wife was “mules that he had purchased for her, and paid for, for her, that she was using on her farm.” If this statement was the truth, the note was valid in the hands of the husband, and was binding on the wife, without any order or approval by the court. There being transactions, therefore, between husband and wife where her note payable to him would be entirely valid without the approval of the court, a'negotiable note by the wife to the husband would not import any invalidity, and one who took such note for a valuable consideration would not be bound to inquire first if the transaction of which the note was a part was approved by the court. The presumption would be in favor of the note, and its validity would depend upon the facts of the particular transaction. In our opinion, a negotiable note executed by the wife o£ the husband as payee is presumptively valid, and whoever takes it before maturity, for value and without notice of invalidity or equities, is protected in his title, except as to those defenses allowed by section 3694 of the Civil Code. In the present case the wife executed her note payable to the order of her husband, and delivered it to him. The note then became his property, and he pledged it to the bank to secure a present loan made to him. The note on its face contained no indicia of fraud, illegality, or defect. There was nothing to put the bank on inquiry. If, however, the husband at the time he negotiated the note informed the cashier that the note was in fact without any consideration, and was made by his,wife simply for the purpose of being used by him as collateral security for a loan from the bank to him, then the note was a contract of suretyship by the wife, and the eventual assumption by her of his debt, and the bank, having notice of these facts, was not a bona fide holder and would not be protected. If, on the contrary, no statement was made to the bank by the husband at all as to the consideration of the note at the time he pledged it for the loan, or if he stated that the note was valid and was in consideration of property which he had bought for his wife and which she then had in her possession, the bank would be a bona fide holder and entitled to be protected as such. The evidence was in conflict as to these facts, and the case should have been submitted to the jury. Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    532.
    DUNN v. WESTERN UNION TELEGRAPH COMPANY et al.

    1. Wlien tlie trial court has dismissed an action upon both special and general demurrers, and this court finds that the special demurrer has been properly sustained, but that the petition sets out a cause of action, the judgment will be affirmed, with such direction as the discretion of this court may see fit to impose in the interests of justice.

      2. Every public-service company owes to sucli members of the general public as have occasion to transact with it the business it is accustomed to perform the duty of affording them safe and decent access to the office or other place where such transactions are to be had. It must see that those members of th% public who come to the usual and appointed place to deal with it are accorded respectful treatment. A breach of this duty, whereby injury results to a person lawfully and properly attempting to deal with it, is actionable.

      (a) A telegraph company is a public-service corporation.
    (i>) If a person enters a telegraph office with the intention of delivering a message for transmission, and, without provocation, the agent in charge of the office orders him out, and insults and humiliates him by abusive language, a cause of action against the telegraph company arises in favor of such person.
    3. While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those eases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.
    Action for damages, from city court of Floyd comity — Judge Hamilton. May 27, 1907.
    Argued October 22,

    Decided November 14, 1907.

      M. B. Eubanks, W. B. Mebane, for plaintiff.

      McHenry & Porter, George A. H. Harris & Son, Shumate & Maddox, George H. Fearons, for defendants.
   Powell, J.

Dunn brought his action against the Western Union Telegraph Company and the Southern Railway Company by a petition, which, omitting formal parts, is substantially as follows: Defendants are, the one a telegraph company, the other a railway company, doing business in Floyd county; and, by their acts done in said county, have injured the plaintiff in the sum of $1,000; for that “on August 13, 1906, petitioner and one Walter Jeffries went to the office of the said Western Union Telegraph Company at said Lindale, which said office is in the depot of the said Southern Railway Company, at said Lindale, said office of the said Western Union Telegraph Company being the usual place for the reception and sending of telegraphic messages at said Lin-dale, for the purpose of delivering and having sent a message for two minor and orphan children by the names of Yeager; said message being for the uncle of said children and announcing the death of said children’s mother and requesting that their uncle come .and bury their dead mother. -After arriving at said depot of the ■said Southern Railway Company and office of said Western Union Telegraph Company, petitioner informed the agent in charge of said office and depot--of his desire to send a message to Yeager, the aforesaid uncle of said Yeager children, for the said Yeager -children, announcing the death of -their mother. Petitioner had a right to be in said depot and at said office, and it was the duty of defendants to allow petitioner to remain in said depot and at said telegraph office, to transact his said business, and until he had transacted his business. While in said depot and at said office;, •and before petitioner had transacted his business or before petitioner had had time to transact said business, the agent in charge ■of said office and depot wilfully, wantonly, malignantly, maliciously, and illegally evicted petitioner from the office of the said Western Union Telegraph Company and the depot of the said Southern Railway Company. In evicting the petitioner as . aforesaid by the agent aforesaid, said agent was brutal, inhuman and insulting, in that said agent told petitioner, when he tried to get -said agent to send said message, to 'Go to hell with your God damn messaged Petitioner then told said agent that his message was ■one of necessity, and begged-said agent to receive and send same, whereupon said agent said "God damn you, get out from here. Reave, God damn you, git.” Whereupon petitioner, fearing bodily harm, immediately left said depot and office, and said agent did not receive said message. The conduct of the said agent was wanton, willful, malicious, and illegal, and, being done by said agent so wilfully and wantonly, entitles petitioner to punitive damages for which he sues.

By amendment the petition further alleges, that "the telegraph office of the Western Union Telegraph Company at said Lindale was located in the depot and office of the Southern Eailway Company, and the agent in charge of said depot was also the agent of said telegraph company, and the acts hereinafter complained of were committed at the time and place where said agent was the agent of both defendants. The said Yeager children had no father, their mother had just been killed by lightning, and it was .at the request of these children that plaintiff went to said office ip send the telegram as herein set out.”

By -separate demurrers the defendants raised the following points: "That there is a misjoinder of defendants, the business of the defendant Western Union Telegraph Company being altogether different from and independent of the business of the Southern Kailway Company. That the allegations of the fifth paragraph are vague and indefinite, in that it is not alleged whether-it was the purpose of the petitioner, or of Walter Jeffries, to deliver and have sent said message; nor is there any allegation that said petitioner and said Jeffries or either of them were connected with, had any interest in, or were requested to send any. such message, nor by what authority said petitioner or said Jeffries represented or pretended to represent said minor children. That there is no allegation that any telegram was ever written out on any blank of defendant or any other paper writing, and tendered to said agent for transmission; nor is there any allegation that the regular charges of such transmission were ever offered or tendered said agent. That there is no allegation at what hour of the day of August 13, 190C, petitioner went into the office of the defendant for the purpose alleged. That no cause of action is set forth. That petitioner seeks damages for injury to his feelings,, and indignities offered to the plaintiff hv defendants’ agent, and nowhere alleges any loss of time, personal injury, or pecuniary loss of any kind. That no action for injury to feelings, insult or personal indignities can be maintained, unless there is alleged in connection with such acts and conduct some pecuniary loss, as loss of time, personal injury, or other ground of actual injury for which a recovery can be had. That there can be no punitive damages recovered in the case, for the reason that no actual injury is shown, as loss of time, loss of money, personal injury, or some other injury for which pecuniary compensation can be had. That the only recovery sought in this case is for alleged injury to the plaintiff’s feelings, and any recovery therefor must in its. nature be punitive, and such damages can not be recovered when not accompanied by some pecuniary loss, as loss of time, increased expenses, personal injury, or some other circumstances or fact which would entitle plaintiff to compensation under the law. That the petition shows that two parties are sued in this case for separate and distinct causes of action, and that said parties can not be sued jointly in the said case. In the one the cause of action alleged against the Western Union Telegraph Company is for a failure to send a message through its agent at Lindale; the cause of action against the Southern Railway Company is for misconduct of its agent in ejecting from its depot at Lindale the plaintiff, who had gone into said depot for the purpose of sending a message by the Western Union Telegraph Company. That the petition shows on its face that the defendant was not at the railroad office for the purpose of transacting any business with the Southern Railway Company, and that whatever the man in charge did was done as the agent of the Western Union Telegraph Company, and that in what he did he in no way represented the railroad company, and that the railroad company is not responsible for any act of the man at its depot in connection with the matter complained of in the petition.”

Both demurrers were sustained, and the plaintiff brings error. In this court the plaintiff in error concedes that the Southern Railway Company was not a proper party to the suit.

For the conceded misjoinder, the judgment of the lower court will be affirmed; but since this is not a matter going to the merits of the transaction, and since the general demurrer of the telegraph company was also sustained, it will be necessary for us to look further into the case, that such direction may be given as will be proper under the circumstances. Civil Code, §5498, par. 2. See also Jarrell v. American Pipe Bending Machine Co., 2 Ga. App. 765 (59 S. E. 186).

The grave question remaining in the case is whether the petition sets forth a cause of action against the telegraph companj1-. The gist of the action is not the failure or refusal of the telegraph company to transmit a message tendered to it, but the alleged disrespectful, humiliating, and insulting treatment by its agent, of a member of the general public, lawfully in its office on business with the company. The contention is that the entire damage alleged is such as affects only the feelings of the plaintiff, and that damages for mental suffering can not be recovered unless there is a concomitant injury to person or purse. The further contention is made that no breach of duty to the plaintiff is shown. We will dispose of these contentions in inverse order.

A telegraph company is á private corporation performing a public duty; and whether it is a common carrier, a bailee, or a person engaged in business sui generis, is immaterial. It is a public-service company, one,engaged in a business of such nature as to clearly distinguish it from those purely private persons and corporations who may conduct their own' business in their own way. All such corporations, on account of the interest which the public has in the manner in which their business is conducted, as well as on account of the special franchises enjoyed by them, must observe certain rules of dealing with the public. These rules, and the corresponding duties which are implied from the nature of the calling, are not always declared by specific statute, but are frequently enforced by the courts as a part of the general law or of the common-law. “Upon each person, in every position he occupies, peculiar duties are imposed, each demanding its discharge with an emphasis accentuated or modified by the attendant circumstances.” Kay, Negligence of Imposed Duties, Personal, §1, “One of the great requirements which the government demands of every institution impressed with a public interest — and one which is thrown over every citizen as á great and protective shield —is the duty to act impartially with all. They are under obligations to extend their facilities to all persons, on equal terms, who are willing to comply with their reasonable regulations, and to make such compensation as is exacted from others in like circumstances.” Jones, Telegraph and Telephone Companies, §236. From this principle, universally recognized, springs the corollary that all such persons, natural and artificial, shall afford to such members of the public as have occasion to transact with them business of the nature they are holding themselves out as being accustomed to do, safe and decent access to the places opened up for the transaction of the business in question. This safety does not mean mere physical safety; nor this decency mere absence of obscenity, but by the employment of the expression “safe and decent access” it is intended to connote also the notion of freedom from abuse, humiliation, insult, and other unbecoming and disrespectful treatment. A member of the public is not to be- deterred from transacting or offering to transact the business which the law compels a telegraph company to accept impartially from every person, by reason of the fact that he can not enter the public office without being subjected to insult or personal affront. A violation of this duty has occurred whenever a person entering the telegraph office for the purpose of sending a message has been met with disrespectful or insulting treatment at the hands of the company’s agents. It is immaterial that the person thus injured had no personal interest in the message, that he was the mere agent of another; for there is no such requirement as that persons desiring to transact business with public-utility corporations shall do so in person. The fact that the right of respectful treatment,| while attempting to do business with a public-service company, follows as the natural sequence from the right, to be served impartially and at all reasonable times, seems to render the citation of authority as to the existence of this right of respectful treatment unnecessary. We do, however, call attention to the Georgia cases of Gasway v. Atlanta & West Point R. Co., 58 Ga. 216, 221; Georgia R. Co. v. Richmond, 98 Ga. 495, 502. It will be noted that while these were actions against carriers, in neither case did the liability depend upon the fact that the plaintiff was a passenger. In Gasway’s case he was attempting to check baggage as agent for his wife; in Richmond’s case he had called at the passenger station to see about certain trunks; and the court, in deciding the casej took pains to call attention to the fact that the relation of carrier and passenger did not exist at that time. We might multiply citation of precedents, but these are sufficient.

The telegraph company therefore violated its duty towards the plaintiff, in that it did not afford him safe and decent access to its office; the plaintiff suffered the injury of humiliation and wounded feelings. Is it a case of damnum absque injuria because no injury to purse or person also ensued? That damages for mental suffering are compensatory in character can hardly be open to question. “Wounding a man’s feelings is as much actual damage as breaking his limbs. The difference is that one is internal and the other external; the one mental, the other physical.” Head v. Ga. Pac. R. Co., 79 Ga. 358, 360; Smith v. Overby, 30 Ga. 241, 248. Such damages may in the very nature of things be just as proximately and naturally the consequence of the defendant’s wrong as any other damage; so that there is no legitimate objection to their allowance for any lack of this element. Of course there may be cases where mental suffering is not a proximate and natural result of an injury, but this is true as to any other form of damage. Nor can it be justly said that an allowance for mental suffering is any more speculative or conjectural than damages for physical pain and suffering. Those cases which preclude recovery of damages for mental suffering, when no other injury is shown, can not fairly rest on any of these grounds; but must be based upon the theory presented by Allen, J., in the case of Spade v. Lynn, etc., R. 168 Mass. 285, that the rule is purely arbitrary, though actually existent in certain classes of eases. See also Homans v. Boston Elevated Ry. Co., 180 Mass. 456, wherein the court, through Holmes, J., says that the rule, being arbitrary, is not to be extended. This arbitrary rule is generally applied only to those cases where the injury is the result of mere neglect. The leading case of Chapman v. Western Union Tel. Co., 88 Ga. 763, as well as the cases which have followed it, puts this State in line with those that hold that in actions on account of wrongs merely negligent, mental suffering unaccompanied by other injury can not be the basis of a recovery. Those courts, however, who assert this doctrine even most strenuously, do not extend its application to those intentional injuries of which insult, humiliation, and mental suffering are the natural consequences. As Allen, J., in the Spade case, supra, says: “It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown or is reasonably to be inferred.” By this distinction, there can be seen between the case of Chapman v. Telegraph Company, supra, and that of Cole v. Railway Company, 102 Ga. 474, a clear, logical discrimination. The holding in the Cole case is undoubtedly the law, and is unequivocally supported by authority. There a railway conductor intentionally and wantonly insulted a passenger, not by using slanderous language to him, as the court intimates in the opinion (for the language was not per se slanderous, and there were no allegations stating it to be so for any special reason), but by using to him-insulting and humiliating language. The whole injury was to the plaintiff’s feelings. The court says that case is distinguishable from the' Chapman case; and it is; not because the plaintiff in the Cole case was slandered, but because that was an action upon a malicious and intentional tort, the other upon a merely negligent though wrongful omission. See Watson on Damages, § 399; Burdick, Law of Torts, 101; Wilkinson v. Downtown [1897], 2 Q. B. 57 (wherein a recovery was upheld in favor of a wife for mental shock on account of defendant’s falsely and maliciously telling- her that her husband had been seriously wounded); Rice v. Rice, 104 Mich. 371 (where a recovery by a wife for mental suffering occasioned by the alienation of her husband’s affections was held proper, though no financial loss in the matter of support was shown). See also Barber v. Reese, 60 Miss. 906; Conklin v. Thompson, 29 Barb. (N. Y.) 218.

As against the telegraph company the petition sets out a cause of action. We do not think the special demurrer is well founded so far as it calls for the hour at which the alleged wrong oc-* curred. Therefore the judgment is affirmed, with direction that the dismissal may be avoided and the case reinstated provided the plaintiff, within twenty days from the time the remittitur of this court is filed in the office of the clerk of the trial court, shall file an amendment striking the Southern Bailway Company as party defendant. Judgment affirmed, with direction.


text:
    533.
    Jeffries v. Western Union Telegraph Company.
   Powell, J.

This case is controlled by the ease of Dunn v. Western Union Telegraph Company, this clay decided.

Judgment .affirmed, with direction.


author: George, J.

text:
    8174.
    BANK OF LUMPKIN v. BANK OF STEWART COUNTY.
    1. An agreement between two creditors of an insolvent estate to bid upon, and, if necessary, to buy and to own in equal proportion the property of the estate when offered for sale by the administrators, for the purpose of causing the property to bring its fair market value, will not estop one of the creditors from claiming a prior lien upon certain property of the estate expressly excluded from the terms of the agreement; and this is true although the creditor asserting the lien failed to advise the other creditor of the existence of his lien, and although the creditor claiming the lien knew that the other creditors understood that all creditors of the estate were to share ratably in the distribution of the assets of the estate, and failed to make known the existence of the lien on the specific property excepted from the terms.of the agreement.
    2. Estoppels are not favored, and mere silence will not work an estoppel unless the circumstances are such as not only to afford an opportunity to speak, but also to create an apparent or actual duty to speak. It is not the office of estoppel to work a positive gain to another. ' Its exclusive office is to protect him from injury which, but for the doctrine, he must necessarily suffer. Hence, he who invokes an estoppel must have changed his position, to his injury, upon the strength of the facts upon which the claim of estoppel is based.
    3. The doctrine of estoppel by silence, or standing by, was not applicable to the facts of this case. Under the facts in the record, none of the instructions of the court were erroneous for any reason assigned, and the court did not err in overruling the motion for new trial.
    Decided May 3, 1917.
    Rehearing denied June 15, 1917.
    Appeal; from Stewart superior court-—Judge Littlejohn. October SO, 1915.
    The administrators of the estate of John T. Patterson fded a petition in the court of ordinary of Stewart county, in which they alleged: that the assets of the estate had been reduced to cash; that the total assets amounted to $16,010.84; that the total disbursements theretofore made amounted to $12,522.33; that the unpaid creditors of the estate were as follows: Bank of Stewart County, $3,811.66; Bank of Lumpkin, $2,120.51; Farmers’ State Bank, $273.91; W. J. Sykes & Co., $14.50; B. M. Bose & Company, $10.75; that the total amounts yet due said named creditors were $6,231.33; that the administrators had only enough to pay about 56 cents on the dollar of the claims still outstanding against said estate; that they were notified that the Bank of Stewart County claimed a prior lien upon 23 shares of stock in the Bank of Stewart County, which stock had been sold by the administrators for $1,725, and the proceeds of which were then held by the administrators. The administrators desired direction from the court of ordinary, and asked that the creditors named be required to show cause why’ they should not make a disbursement of the funds on hand.
    The Bank of Stewart County intervened and, among other things, alleged: that John T. Patterson, at the time of his death, was indebted to it in the sum stated in the petition filed by the administrators; that at the time of his death he was the owner of 23 shares of the capital stock of the Bank of Stewart County,’ which stock was sold by the administrators of said estate, the intervenor becoming the purchaser thereof at the price of $75 per share, and that the intervenor claimed a lien on said stock by virtue of a bylaw lien enacted by the board of directors of said bank; that the indebtedness of John T. Patterson arose after the creation of such lien, and was agreed to and acquiesced in by the said Patterson, who was, at the time of the creation of said by-law lien, a member of the board of directors of said bank; that the lien of the bank under its by-laws, attached to the 23 shares owned by Patterson at the time of his death, and that its lien now attached to the proceeds of the sale of said stock in the hands of the administrators. The intervenor prayed that the administrators be directed to pay over to it the proceeds of the sale of said stock.
    The Bank of Lumpkin, in response to the petition of said administrators, averred that the Bank of -Stewart County was not entitled to any lien on the bank stock described in. its intervention, nor to any priority of payment from the funds of said estate-including the funds derived from the sale of the bank stock, for the reason that said lien had been waived by said Bank of Stewart County, and said bank was estopped from now claiming any lien or priority against said stock or the proceeds thereof in the hands of the administrators;'that said waiver and estoppel arose by reason of the following facts: that John T. Patterson was indebted to the Bank of Stewart County and to the Bank of Lumpkin in the amounts stated in the petition filed by the administrators; that the indebtedness to each of said banks consisted of an overdraft in the account of said Patterson with each of said banks; that said banks were the largest creditors of thé estate of said Patterson, and constituted practically all of the unpaid creditors of said estate; that prior to the sale of the property belonging to the estate of Patterson, the Bank of Stewart County and the Bank of Lumpkin, by their agents and officers, entered into an agreement to make the property, at the sale by the administrators, bring its fair market value; that the banks agreed to bid on the property when exposed to sale by the administrators for the purpose aforesaid, and further agreed1 that if any of the property of the estate should be knocked off to either the Bank of Stewart County or the Bank of Lumpkin, the said banks would each .appropriate money with which to pay the purchase-price of said property; that Patterson’s stock in the Bank of Stewart County was expressly excepted from this agreement; that the Bank of Stewart County expressly agreed to buy this stock at $75 per share, the same being the value thereof; that, excepting the said bank stock belonging to the estate, which was to be purchased by the Bank of Stewart County, the amounts due by the estate to each of said banks was approximately equal, and said banks were to bid upon the property belonging to the estate for the purpose aforesaid, and were each to pay one half of the purchase price of any property actually bid off by the banks or either of them; that it was agreed between the agents of the banks that the assets of said estate were to be distributed by the administrators to the banks and other creditors of the estate in proportion to their respective claims against the 'estate; that the Bank of Stewart County did not disclose to the Bank of Lumpkin that it had or claimed a lien against the bank stock belonging to the estate of said Patterson, until after the sale by the administrators; that said Bank of Stewart County carefully and designedly concealed its claim, of lien, against said stock, and permitted the agreement to be made as aforesaid; that said Bank of Stewart County knew and was advised of the understanding and construction placed upon the agreement by the Bank of Lumpkin, and that it did not dissent or object to such understanding and construction until after the sale of the property by the administrators. Wherefore the Bank of Lumpkin, expressly admitting that a lien originally existed in favor of the Bank of Stewart County against Patterson’s stock in the latter bank, claimed that the Bank of Stewart County had waived its lien, and had, by reason of the facts aforesaid, estopped itself from-now claiming a lien against the proceeds arising from the sale of said stock.
    On the trial of the issue before the court of ordinary the lien claimed by the Bank of Stewart County against the proceeds arising from the sale of said bank stock was recognized, and the cause was appealed to the superior court. Upon the trial of the cause in the superior court it appeared that John T. Patterson, at the time of his death, was the owner of 17 shares of the capital stock of the Bank of Stewart County,’ and that at the time of his death he was indebted to that bank by overdraft in the sum of $3,811.66. The Bank of Stewart County, through its board of directors, passed a resolution providing and creating a by-law lien on any of its capital stock for any indebtedness due the bank by any of its shareholders, which indebtedness would be a lien upon the shares in said bank owned by any debtor shareholder. This by-law was adopted prior to the creation of the indebtedness, of Patterson to the bank, and he was a director and shareholder in that bank at the time of the creation of the by-law lien referred to. At the time of his death he was indebted to the Bank of Lumpkin by overdraft in the sum of $3,120.51. The administrators of his estate obtained an order to sell all the property belonging to the estate, including the 17 shares of the capital stock of the Bank of Stewart County. On the day preceding the day of the sale of the property of the estate the Bank of Stewart County and the Bank of Lump-kin, by certain agents and- officers, met in convention for the purpose of agreeing upon plans to make the property bring its fair value at the sale, and it was agreed that in order to do this the banks would have to bid upon the property, and would probably have to become the purchasers of some or of all of the property. It was then agreed that the banks would bid upon the property, and that if any of the property should be knocked off to the banks, the banks would own in common the property thus knocked off to them. It was suggested that since the Bank of Stewart County had the larger claim against the estate, the purchase price of any property bid in by the banks should be paid in proportion to the claims of the two banks. The Bank of Stewart County did not consent to this, but did agree to buy on its own account the 17 shares of bank stock owned by Patterson in the Bank-of Stewart County, and further agreed to pay $75 per share for this stock,--v-its fair value. The agreement, as finally perfected, was as follows: The Bank of Stewart County should buy the bank stock at $75 per share, and the two banks should then bid upon and, if necessary, buy the other property belonging to the estate. If .any of this property should be purchased by the banks, each bank was to pay one half of the purchase price thereof. The Bank of Stewart County admitted this to be the agreement, but denied the contention made by the Bank of Lumpkin that the funds of the estate in the hands of the administrators, to be derived from the sale of the property belonging to the estate, should be prorated upon the respective claims of the banks, and the claims of other creditors of the estate. It was shown that there was some discussion concerning the final settlement of the estate and the application of the funds to the unpaid claims against the estate. It was admitted by the Bank of Stewart County that in the negotiations leading up to the agreement no mention of its lien was made. It did not disclose its claim of lien, and did not notify the Bank of Lumpkin that it expected to insist upon its lien so far as' the proceeds of the sale of the bank stock were concerned. The- evidence further disclosed that the Bank of Stewart County did pay the price of $75 per share for the said 17 shares of Patterson’s stock in the Bank of Stewart County; that two parcels of real estate were bid in by the two banks, but neither of the banks in fact paid any money to the administrators. Why the administrators did not collect the money from the banks does not clearly appear. The jury in the superior court found in favor of the lien claimed by the Bank of Stewart County, and the Bank of Lumpkin excepts to the overruling of its motion for new trial.

      R. S. Wimberly and T. T. James, for plaintiff in error.

      G. Y. Harrell, contra.
   George, J.

(After stating the foregoing facts.) The foregoing statement discloses substantially the nature of this controversy and the material facts developed upon the trial. It was admitted by the Bank of Lumpkin, the plaintiff in error, that -the Bank of Stewart County had a lien on the bank stock owned by Patterson at the time of his death, which stock was subsequently sold by his administrators. The by-law of the Bank of Stewart County creating such lien was offered in evidence. This lien was valid and binding against the bank stock, and against the proceeds thereof in the hands of the administrators. See Owens v. Atlanta, Trust & Banking Co., 122 Ga. 521 (50 S. E. 379).

The question made by the facts in this case is whether there was an actual contract between the parties to this cause by which the lien of the Bank of Stewart County against the bank stock was waived, or whether its conduct estopped it from asserting its • lien. It is insisted by the plaintiff in error that the Bank of Stewart County waived its lien against the stock. This was entirely a question of fact. The evidence was in some respects in conflict, but the verdict of the jury settled that issue. The excerpts quoted from the charge of the court, and assigned here as erroneous, did not affect the jury’s verdict.' The evidence offered by the plaintiff in error and excluded by the court could not have produced a different verdict. While several exceptions áre made to the charge of the court, all of these exceptions are to the same effect, and complain that the court in the charge withdrew from the jury any consideration of the theory of estoppel pleaded by the plaintiff in error. We have examined the charge of the court in-this case with some care. The view taken by the trial court was that the doctrine of estoppel did not apply in this case, and we think this view was correct. We call attention to the material facts: The banks agreed to attend the administrators’ sale and. bid on the property belonging to the estate of Patterson; this agreement was for the sole purpose of making the property of the estate bring its fair value. The agreement to submit a joint bid upon the property, or to jointly buy the property, expressly excepted the bank stock. The Bank of Stewart County alone was to bid upon this stock, and the amount of the bid to be submitted was expressly fixed by agreement. The two banks were to become joint owners and equally interested in any property bought at the sale, except the bank stock. It was never contemplated that they would become so interested in the bank stock. The Bank of Stewart County was under no obligation to make known to the Bank of Lumpkin any claim of lien held by it on the bank stock. Not only was the Bank of Stewart County to buy the bank stock upon its own account, but the bid to be made by the Bank of Stewart County was fixed, and no possible harm could result to the Bank of Lumpkin by its failure to disclose its lien against this stock. The Bank of Stewart County did not claim a lien against any of the real estate bought by the banks jointly. The doctrine of estoppel by silence proceeds iqron the ground that he who is silent as to his alleged rights when he ought in good faith to speak shall not be heard to speak when he ought to be silent. Both banks were equally interested in seeing that the property of Patterson’s estate brought its fair market value. They were especially so equally interested after the Bank of Stewart County had agreed to buy the bank stock, thereby reducing its overdraft to an amount practically equal to the overdraft of the Bank of Lumpkin. It concealed no lien against any property on which the banks jointly agreed to bid. It was not silent in any respect concerning the real subject-matter of the agreement. The status of the respective banks was in no wise affected either by the making of the agreement or in the execution of the agreement in the manner in which it was executed. It is insisted that if the banks agreed to bid upon the property of the estate in order to raise a fund in which they should each proportionately share, the Bank of Stewart County is es-topped from asserting a lien on a part of this property or the proceeds of the sale thereof. It will be observed that in so far ns the banks became joint bidders, or in so far as it was possible for them to become joint owners of any of the property belonging to the estate, the banks will share proportionately in the distribution of the assets. In order for estoppel to arise in this case, the agreement must have contemplated, and the facts must have shown, that the banks agreed to buy jointly and own in equal shares not only the lands belonging to the estate of Patterson, but the 17 shares of bank stock as well. The agreement actually made between the parties was that the two banks would become joint bidders and, if necessary, would pay for and own in equal shares the remainder of the property -belonging to the estate of Patterson, on condition that the Bank of Stewart Comity would buy the 17 shares of stock at a fixed value. The two banks, by the agreement, were never to become interested in the purchase of the bank stock. A person is held to a representation made or position assumed, where otherwise inequitable consequences would result to another who, having the right to -do so under all the circumstances of the case, has in good faith relied thereon. “The doctrine of estoppel in pais is predicated upon a change of jiosition. to the hurt of one of the parties acting on the representations or conduct of the other.” Lynch v. Poole, 138 Ga. 303, 305 (75 S. E. 158). Compare Palmer v. McNatt, 97 Ga. 435, 437 (25 S. E. 406). According to Lord Coke, an estoppel is where a man is concluded by his own act or acceptance to say the truth. It is not the office of estoppel to work a positive gain to another. Its exclusive function is to protect him from injury which, but for the doctrine, he must necessarily suffer. It is the final element in the doctrine of estoppel that- the party who invokes the estoppel must have changed his position, to his injury, upon the strength of the facts upon which the estoppel is predicated. Mere silence will not work an estoppel. The “standing by” must be under such circumstances as not only to afford an opportunity to speak, but also to create a real or apparent duty to speak. So-called constructive fraud is the basis of an estoppel by silence. We fully agree with the view of the able and careful trial judge that the doctrine of estoppel was entirely inapplicable under the facts of .this case. In this view of the case it is unnecessary to deal with the further assignments of error made in the record. The judge did not err in overruling the motion for, a new trial.

Judgment affirmed.

Wade, G. J., and Bloodworth, J., concur.


author: Luke, J.

text:
    7815.
    SAVANNAH LIGHTING COMPANY v. HARRISON.
    The petition set forth a cause of action, and the court did not err in overruling the demurrer.
    Decided April 4, 1917.
    Rehearing denied June 15, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. August 16, 1916.

      Adams & Adams, for plaintiff in error.

      Oliver & Oliver, contra.
   Luke, J.

The plaintiff’s petition makes substantially the following case: The Savannah Lighting Company owns, operates, maintains, and controls, in the City of Savannah, an electric lighting and power system, and, in various places in the city and in the county of Chatham, owns, maintains, and controls electric wires, carrying high voltage of electricity, strung upon poles. One of such lines is situated west of the city of Savannah, running in an easterly and westerly direction, and parallel with the Augusta road, about three hundred yards to the rear of the home in which the petitioner lives. Standing almost directly in the rear of his home is a pole belonging to the defendant, which, with a series of other poles, carries electric wires and cables as aforesaid. The said line of poles carries four current-carrying wires, two on each side of the pole, at the.end of the cross-arms, and another wire or cable directly over the top of said line of poles, and from this top wire another wire or cable extended down the pole, and had been attached to it by means of porcelain knobs, and entered a lead pipe, about four feet above the ground. For a period of several months the said ground wire,—that is, the wire extending from the topmost wire down the side of the pole to the lead pipe,—had been broken off at the top of the lead pipe, and was loose from some of the porcelain knobs. It had also been broken and detached from the topmost wire, and was extending up the said pole, leaning first to one side and then to the other, in the direction of the two current-carrying wires on each side of the pole. A slight wind was sufficient to sway "the wire at its top end to the wires on either the north or the south side of the pole. The ground wire had been detached as aforesaid from the lead pipe for a period of several months, and had been blown by the wind and whipped against the pole to such an extent that the insulation had been worn and broken, leaving the copper wire without insulation in several places. Petitioner is a boy thirteen years of age, entirely ignorant of electricity or its effects, and knowing nothing of the danger connected with such line of wire. On the afternoon of March 4, 1916, he had been playing with a companion in the field back of his .father’s house, and, following his boyish impulses, he started southward, and in passing the said pole he caught the broken wire extending toward the ground, and received a severe electric shock, which ■ knocked him unconscious for a considerable period of time. As a result .of the dangerous dangling wire his hand was severely burned and injured, with the result that the index finger and the thumb on his left hand had to be amputated, and his hand was badly burned. The pole upon which was the defective wire causing the injury stood upon land in a field cultivated by his father, to which he had right of free access. The petition alleges, that his injuries are due entirely to the fault of the defendant company, its servants, and employees, for the following reasons, to wit: “(1) In permitting a dangerous instrumentality to exist near petitioner’s home, when, in the exercise of ordinary care, the said company should have known that petitioner, or other passers-by, or persons working in the field, might receive injuries therefrom. (2) In permitting the said ground wire to become broken from the lead pipe, and sway in the wind, and beat against the telegraph pole for such length of time as to break the insulation thereof, to petitioner’s injury and damage. (3) In permitting the said ground wire to become detached from the topmost wire on said pole, and to remain in such condition that it could come in contact with other current-carrying wires thereon. (4) In permitting said dangerous condition to exist for a period of several months prior to petitioner’s injury. (5) In not exercising the proper degree of care to guard and protect persons passing by said pole, or otherwise rightfully upon said premises, from injury thereby. (6) In failing to maintain such a highly dangerous and deadly instrumentality in a reasonably safe and proper manner.” The defendant demurred generally to the petition, the court overruled the demurrer, and the defendant excepted to that judgment.

This case is easily distinguished from the following cases: In Southern Bell Tel. Co. v. Howell, 124 Ga. 1050 (53 S. E. 577, 4 Ann. Cas. 707), a wire charged with electricity was permitted to sag so that a pedestrian came in contact with it while on the street. In Eining v. Ga. Railway & Electric Co., 133 Ga. 458 (66 S. E. 237), a wire was broken and lying on the street, charged with electricity, and a pedestrian came in contact with it. In Atlanta Consolidated Street Ry. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 S. E. 798), a heavily charged wire fell across another wire, on which the deceased was working and had a right to work. In Mayor &c. of Madison v. Thomas, 130 Ga. 153 (60 S. E. 461), the city had notice that a wire on the street was charged with electrieity, and the injured person was a pedestrian and lifted up the wire to pass under it and was injured. In Southern Bell Tel. Co. v. Davis, 12 Ga. App. 28 (76 S. E. 786), a wire, heavily charged with electricity, was left across a sidewalk, and the injured person came in contact with it while walking along the street, and, in efforts to extricate himself from the wire, his hand touched it and he was burned. In Atlanta Telephone &c. Co. v. Cheshire, 12 Ga. App. 652 (78 S. E. 53), a heavily eharged,wire was permitted to touch and charge with electricity a mail-box, and the injury was received when the owner of the box placed her hands on it for the purpose of opening it. In Southern Bell Tel. Co. v. Ellis, 16 Ga. App. 864 (87 S. E. 766), the telephone company left lying in the yard of the injured person a wire charged with electricity, and at night he came in contact with the wire. The present case does fall' within the ruling announced in Wallace v. Matthewson, 143 Ga. 236 (84 S. E. 450), and especially within the rulings in Mills v. Central of Ga. Ry. Co., 140 Ga. 181 (78 S. E. 816, Ann. Cas. 1914C, 1098), and Sedlmeyr v. Fitzgerald, 140 Ga. 614 (79 S. E. 469).

It seems to be settled that children are only required to exercise such care for their own safety as may reasonably be expected in view of their age and condition. Whether such care has been exercised is usually a question for the jury to determine. The jury usually havé the opportunity of seeing the minor and hearing him testify, and unless the child is so young that the court ihay say that he is incapable of contributory negligence, the jury have the right to determine that he is of such age and is possesesd of such intelligence that he may be guilty of contributory negligence or lacking in care to such an extent as to defeat his right to recover. The jury have the right to say for themselves whether the negligence, if any, of the defendant is the proximate cause of the injury to the plaintiff, or whether the voluntary act of the plaintiff is such that no recovery for the injuries should be had. Eor the purposes of the demurrer, the allegations of the petition must be taken by the court as true. This being the law, this court can not as a matter of law hold that the petition in this case shows that the injury alleged to háve been sustained by the plaintiff was not the result of negligence upon the part of the defendant; nor can we, as matter of law, say that the petition shows that the plaintiff, by his voluntary act in taking hold of the wire, in view of his age, was lacking in that care which the law imposes.

Judgment affirmed.

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


text:
    8321.
    Harrison v. The State.
   George, J.

1. When this case was called for trial counsel for the accused approached the bench and stated to the judge privately that the accused was not ready for trial, that he had not had his witnesses subpoenaed, and had been told by the prosecutor that his case would not be called for trial; to which the judge replied: “I can’t help that;” whereupon counsel for the accused stated in open court: “Defendant is not ready for trial; he has some material witnesses who are not present;” but admitted that the witnesses had not been subpoenaed. Counsel for the accused did not at the time offer to show that he had in fact been misled by the prosecutor or by counsel employed to assist in the prosecution, and did not disclose the identity of the absent witnesses, or the facts to which they would testify. Held, that the court did not abuse its discretion in refusing to continue the case.

2. During the trial a witness for the State attempted to detail apparently irrelevant and immaterial circumstances, and was interrupted by the court with the statement: “You need not go into that.” Later during the trial a witness for the State was asked if he was a witness at the last term of the court, and if he was then sworn; to which the witness replied in the affirmative. When the witness had been examined at some length concerning this matter, the court interrupted the examination with this statement: “Maybe we will save time if I mention that I made some inquiry with reference to paying witnesses’ fees. I suppose this was one of the witnesses. . . I don’t know whether this was one or not.” Held, that these interruptions by the court are not subject to the criticisms made, and will not require a new trial.

3. A witness for the State was allowed to give in evidence the contents of a letter from the defendant, alleged to have been received by the witness while in the State of Florida. Concerning the letter the witness testified as follows: “I don’t know where the letter is. If I was ever to find it, it might be at my father’s house. That is where I got it at. I was in Florida when I got the letter. . . I was at my father’s house in Florida when I received the letter. . . . That was in September he wrote the letter; and I came out here, I think, the first of December.” Held: Under the facts testified to by the witness, the court did not err in allowing the.witness to state the contents of the letter. Sunday v. Thomas, 26 Ga. 537 (3).

4. The charge of the court upon the defense of alibi was not for any reason assigned erroneous. Bass v. State, 1 Ga. App. 728 (4), 729 (57 S. E. 1054) ; Shaw v. State, 102 Ga. 660 (3), 665 (29 S. E. 477).

Decided April 24, 1917.

Rehearing denied Mat 11, 1917.

Indictment for burglary; from Wayne superior court—Judge Highsmith. November 9, 1916.

Gibbs & Turner, Wilson & Bennett, W. W. Bennett, for plaintiff in error.

A. V. Sellers, solicitor-general, J. R. Thomas, contra.

5. The evidence warranted the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

ON MOTION ROE REHEARING.

It is insisted that, if the facts brought to the attention of the court, and set out in the first division of the decision, did not require a postponement or continuance of the trial of the case against the accused, nevertheless the court should have granted the accused a new trial upon his contention that he had been fraudu- . lently misled by assurances given by the prosecutor and by counsel employed by the prosecutor to assist in the prosecution, to the effect that the case against the accused would not be called for trial, and would not be tried. If the defendant had neglected to subpoena his witnesses, upon statements made by the prosecutor and by counsel employed by the prosecutor, this fact should have- been shown to the court at the time the case was called, and the names of the witnesses should have been made known to the court, together with the material facts to which they would testify if present. The contention of the accused, to the effect that he was forced to trial without material witnesses, and that his failure to subpoena these witnesses was due to fraud practiced upon him by the prosecutor and to statements made by counsel specially employed by the prosecutor, urged as a ground in the motion for a new trial, does not authorize this court to reverse the judgment denying a new trial, in view of the counter-showing offered by the State. All the facts recited in this ground of the motion for a new trial were known to the accused at the time of his trial, and it does not appear that there was any sufficient reason for his failure to inform the court of such facts at the time. On account of his failure so to do, and in view of the showing made by the State upon the hearing of the motion, this court is not authorized to say that the trial judge erred in overruling the motion for a new trial.

Rehearing denied.


author: Jenkins, J.

text:
    7901.
    GUNN v. WILSON COMPANY.
    Decided April 25, 1917.
    Reheaeirg denied June 7, 1917.
    Complaint; from city court of Bainbridge—Judge Spooner, September 26, 1916.

      A. E. Thornton, Hartsfield & Conger, for plaintiff in error.
    Jlí. E. O’Neal, T. 8. Hawes, contra.
   Jenkins, J.

1. Where a married woman signs a promissory note as principal, there is a presumption of law that the instrument expresses the true intent of the contract. See Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).

2. The burden imposed upon the defendant in this case does not appear to have been in any wise met by the evidence introduced for the purpose of sustaining her plea of suretyship, nor was there any evidence to support her plea of payment. Eor these reasons the judge did not err in directing a verdict for the plaintiff.

3. Under the rules of the common law, a married woman could not bind herself by the execution of a promissory-note. Howard v. Simpkins, 70 Ga. 322; Hager v. National German American Bank, 105 Ga. 116 (31 S. E. 141) ; 21 Cyc. 1316 (b). Where the force and effect of such an instrument are dependent upon the law of another State, and no law of that State is pleaded, it will be presumed that the common law is of force with reference to the defenses set up by the defendant. Bailey v. Devine, 123 Ga. 655 (51 S. E. 603, 107 Am. St. R. 153) ; Ellington v. Harris, 127 Ga. 85 (56 S. E. 314, 119 Am. St. R. 320) ; Lay v. Nashville &c. Ry., 131 Ga. 345 (62 S. E. 189). But even if the note in question should have been considered as a Elorida contract, the defendant will not now for the first time be heard to claim its illegality on the ground that at common law the maker was unable to execute it and that it was therefore void, where the record entirely fails to disclose that such defense had been in any way raised, either by plea, demurrer, or other method) so as to invoke a ruling of the lower court on such point. This is true even though .the plaintiff himself may have sought to invoke in his behalf other rules of the common law. Martin v. Moore, 63 Ga. 531 (4) ; Bailey v. Devine, supra; 8 C. J. 932, § 1217 (10); 21 Cyc. 1565 (b, c, d) ; Johnson v. Latimer, 71 Ga. 470 (3); Tift v. Wight & Weslosky Co., 113 Ga. 681 (2) (39 S. E. 503).

Judgment affirmed.

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

ON MOTION 3TOR REHEARING.

The decision of the court in this case was originally expressed in the foregoing headnotes. In view of the motion for rehearing, some elaboration of the principles therein stated is deemed appropriate. While it will be observed, from certain of the citations given in the headnotes, that in some jurisdictions the rule obtains that, in order for a defendant to avoid the legal effect of signing such an obligation as is here sued upon, on the ground of want of capacity to incur the liability charged, such defense must be specially pleaded, this court did not so hold in the instant case, but expressly limits its ruling to the effect that such defense must appear from the record to have been raised in the trial court, either by plea, demurrer, or other method, so as to have invoked a ruling thereon by the court below. This was a suit on five promissory notes, the first three in the sum of $100 each, the fourth for $385.86, the last for $38.75. The first four were signed solely by Eliza Gunn, and the last by Eliza Gunn and her husband, William Gunn. Defendant pleaded payment as to each of the three $100 notes, and set up as a defense, to the other two that the debts represented thereby were not her own obligation, but that of her husband. In support of the defenses pleaded the defendant was the sole witness; and in our opinion her evidence failed to sustain her pleas. A judgment was directed for plaintiff by the trial judge. We quote from the bill of exceptions, as follows: “When all of the evidence, both for the plaintiff and for the defendant, was in and b&th sides had announced closed, the plaintiff moved the court to direct a verdict for the plaintiff, on the ground that since said notes sued upon were executed in the State of Florida and the payee of said notes resided in the State of Florida, said notes were payable in the State of Florida, the residence of the payee; that the laws of the State of Florida should be applied and enforced in a suit for the collection of said notes, and that since the common law is presumed to prevail and be of force in the State of Florida, unless the same is proven to have been changed or abrogated by statute, and that no statutes of the State of Florida were introduced or proven changing the common law, and that at common law all the wife’s property became the husband’s and was therefore subject to the payment of the husband’s debts, therefore the defense set up and shown by the defendant (being a married woman) would be no bar or defense to plaintiff’s action; which said, motion upon said ground was. by the court sustained, and a verdict was directed by the court against the defendant, and in favor of the plaintiff, for the full amount sued for, principal and interest; to which said ruling and judgment of the court, in directing said verdict and causing judgment to be entered, the defendant then and there excepted, now excepts, and assigns the same as error, on the ground that the same was contrary to law.”

From the exceptions quoted in full it will be observed that the bill of exceptions itself does not raise the point that the note was void at common law for lack of capacity on the part of the maker to charge herself therewith; but even if this point had there been directly raised, it would not suffice unless the record further showed that such contention was made and passed upon in 'the trial court. Tindall v. Nisbet, 114 Ga. 224 (39 S. E. 849). Ordinarily appellate courts are without jurisdiction to consider questions not raised in and passed upon by the trial court, though argued in the briefs of counsel. For numerous authorities on this line see 5 Encyclopedic Digest of Georgia Reports, 168 (F 1). As to what questions were there raised and decided the record alone must speak. Carter v. Buchanan, 2 Ga. 337; Hood v. Griffin, 113 Ga. 190 (38 S. E. 409); Taylor v. Sandersville, 118 Ga. 63 (5) (44 S. E. 845). And while it now appears in the motion for rehearing made by counsel for the plaintiff in error that a nonsuit was in fact asked on the ground that the note sued on was void under the rules of the common law, for lack of capacity on the part of the maker so to contract, we are unable to consider this statement as a part of the record in the case.

It is true, as pointed out in this motion, that it has been often held by the Supreme Court and by this court that “An exception based upon the refusal of the court to award a nonsuit will not be considered, where, subsequently thereto, the case is submitted to the jury, and, a verdict being.rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.” Atlantic. Coast Line B. Co. v. Blalock, 8 Ga. App. 44 (2) (68 S. E. 743); Henderson v. Maysville Guano Co., 15 Ga. App. 69 (82 S. E. 588); Central of Ga. Ry. Co. v. Brinson, 18 Ga. App. 114 (5) (88 S. E. 1003); Taylor v. Johnson, 18 Ga. App. 162 (7) (89 S. E. 77). -The reason for this rule is stated in Henderson v. Maysville Guano Co., supra: “‘Where a motion for new trial is based upon this ground, the court will review the sufficiency of the evidence as a whole, in the light of the verdict, and will not merely consider the sufficiency of the plaintiff’s case to withstand the nonsuit at the particular stage at which the motion for nonsuit was made.’ It is never necessary to except to the refusal of a nonsuit where the trial has resulted in a verdict on the ground that it is without evidence to support it; for the latter exception raises the whole question more adequately than the exception to the overruling of the motion for a nonsuit would present it. Even if the.motion for a nonsuit should have been'sustained at the time it was made, and was therefore erroneously overruled, nevertheless, if the subsequent testimony cured the deficiency in the plaintiff’s proof, the judgment would not be reversed merely because the court refusel to grant the nonsuit. On the other hand, if the deficiency in the plaintiff’s case was not cured by the subsequent testimony, a verdict in favor of the plaintiff, would be without evidence to support it, and upon that ground would be set aside.” Still, however, where such an exception is one purely of law, as., in this case, it would seem, under the authority of Denmead v. Glass, 30 Ga. 637, and Johnson v. Latimer, 71 Ga. 470, not only that the defendant could avail herself of the defense of the illegality of the contract by a motion to nonsuit, but that this court should consider an assignment of error made on such ground; the rule in such a ease being that the exception should be considered whenever it appears that such defense was made and passed upon by any legal method in the trial. Tift v. Wight & Weslosky Co., 113 Ga. 681, 687 (39 S. E. 503). See also Bentley v. Johns, 19 Ga. App. 657 (91 S. E. 999).

But it is urged in the motion for a rehearing that inasmuch as the record shows that the plaintiff in the court below itself attacked the defendant’s plea by invoking another and different rule of the common law in its own behalf, and that the trial judge, in directing a verdict in the plaintiff’s favor, based his judgment on such contention, it can not be said that the defendant did not make the defense now contended for by her, or that the same was not passed upon by the trial judge. It has often been held that if the action taken by the trial judge is without error, his reason therefor is immaterial. Sanders v. Williams, 73 Ga. 119 (2a); Lavier v. Central Railroad, 71 Ga. 222 (1); Crittenden v. Southern Home &c. Asso., 111 Ga. 266 (5) (36 S. E. 643). If, therefore, the defendant failed to sustain the only defenses actually pleaded or raised by her, the judgment directing a verdict in the plaintiff’s favor was not erroneous, even though another and different reason therefor was assigned. While the exception which we have quoted in full does state that the court directed a verdict on the ground contended for by the plaintiff,—that since at common law the wife’s estate, upon her marriage, became the property of the husband, the statutory defense of suretyship had no application under the Gommon law,—still the exception does not show that the defendant raised the defense that the note of a married woman is absolutely void. It does not show that she in any way claimed for herself the benefit of any defense whatsoever under the common law. The principle thus invoked by the plaintiff alone was aimed at the defense pleaded by the defendant, and in support of which evidence was offered. If the defendant would rely upon the utterly separate and distinct ground now contended for, not only should it have been raised and a decision invoked thereon, but the record must itself show that such was the case.

In support of their contention counsel for the movant cite Bailey v. Devine, supra, Lay v. N., C. & St. L. Ry., supra, and Bush v. Southern Ry. Co., 19 Ga. App. 521 (91 S. E. 898). In the case of Bailey v. Devine, supra, it was held: “A note executed and made payable in another State by a citizen of Georgia is governed, as to its validity, force, and effect, by the lex loci; and, in the absence of proof as to the law of that State, the common law is presumed to be of force.” The decision made in the present ease was specifically based upon the assumption that the note sued on should have been considered as a Florida contract, although, under our view of the case, it was not a necessary matter for actual determination. While the notes sued on appear to have been executed by a resident of this State within the State of Florida, they are silent as to the place of payment, nor do they or the evidence disclose the domicile of the payee. However, the statement quoted from in the bill of exceptions has been taken by us to carry an admission on the part of plaintiff in the court below, showing the Florida domicile of the payee; and the assumption that the contract in question was a Florida contract is based on the general rule of law that parties are presumed to contract with reference to the laws of the place where the contract is made, unless performance thereof is intended to be had elsewhere. The rule contended for in the brief of counsel in the ease of Goodrich v. Williams, 50 Ga. 425—“If no place is named for the payment, bound by domicile of the .creditor,”—• can not, however, always obtain. Hollis v. Covenant Bldg. & Loan Asso., 104 Ga. 318 (31 S. E. 215). There may be many factors which could in given cases properly enter into a determination of the question of a contract’s place of performance. • However, as already stated, our opinion being specifically based upon the assumption that the note sued on is a Florida contract, it is needless therefore to devote further consideration to that question. Under such an assumption, we are of the opinion that it is not necessarily incumbent upon this court to make a direct ruling thereon. Kollock v . Webb, 113 Ga. 762, 768 (39 S. E. 339); Akers v. Jefferson County Savings Bank, 120 Ga. 1066 (2) (48 S. E. 2).

In order to clearly set forth the basis of our ruling, we will quote from a portion of the motion now under consideration. In discussing the case of Bailey v. Devine, supra, counsel submit that “this was a case growing out of a suit upon a promissory note given by a citizen of this State to a citizen of the State of Colorado, and payable in Colorado. The defense set up in that case, so far as the record discloses, never mentioned the fact that since the notes were executed in a foreign State and no laws of that State were shown, the common-law rule should prevail, but the defense set out was that of duress, and the Supreme Court in that case based their ruling upon the fact that, the note being executed in Colorado and payable there, its validity, force, and effect were to be determined by the laws of that State.” The ruling in the instant case was clearly not based upon the theory that the plea did not set up the fact that the note was a Florida contract and that the common law should therefore prevail, nor even upon the theory that the trial judge did not pass upon the question as to whether or not the note was a Florida contract. The expressed basis of the ruling, so far as the record disclosed, was that no defense relating to the illegality and invalidity of the contract, under the common law, was in any wise set up or claimed hy defendant. In the case just cited the defense of duress was not only relied on, hut pleaded, and the court held that the defense so raised must be measured under and in accordance with the rules of the common law. In the instant case the defense that the note was illegal, and therefore void, under the common law, not appearing to have been raised, the mere fact that an entirely different rule of that law was invoked by the plaintiff in order .to attack the defendant’s plea of suretyship should not be held to have set up for defendant this entirely separate and distinct ground of defense.

Keferring to Lay v. N., C. & St. L. Ry., supra, counsel for the movant say: “That suit was for personal injuries received in the State of Alabama and the suit was brought in this State. The defense in that case made no plea that the common-law rule should prevail, but pleaded the general issues, and-the court held that since the injury complained of Was received in the State of Alabama, and no law of Alabama was shown, the law of Alabama would be presumed to be the common law, and that therefore the common law should be invoked in the enforcement of plaintiff’s rights.” In that case, however, just as in the other jus.t discussed, the plaintiff’s right of action and the defendant’s grounds of defense were asserted and passed upon under the rules of the common law. Such also was the case in Rush v. Southern Ry. Co., supra. If the note sued on was a Florida contract, and under the pleadings its validity was to be governed by the rules of the common law, then, in order for the defendant to have claiméd the benefit of its invalidity under that law, the defendant herself must have, by some legal method, such as plea, demurrer, objection to testimony, or motion for nonsuit, invoked the benefit of such defense in the court below, and the record should show that such contention was there made and passed upon.

Attention is called to the fact that in the headnotes there was no reference to exceptions taken as to the admission in evidence of certain deeds to land, made by the defendant to the plaintiff, and also to the admission of a writ of ejectment involving the same land. In a suit on notes, where it appears that the defense of suretyship on the part of a married woman is not sustained by her testimony, even the immateriality of such evidence would not seem to constitute such error as would authorize a reversal. However, in a defense of this character one of the principal questions for determination is the person to whom the money loaned or advanced actually passed; and therefore the question of title to the land, for the extinguishment of a lien against which a portion of the money was loaned, and for the operation of which the remainder was advanced, would certainly appear to have been a material question, upon which the testimony admitted was relevant. We therefore do not think such documentary evidence was improperly admitted.

It is the opinion of this court that the motion for rehearing ghould be refused.