author: Bloodwoeth, J.

text:
    8805.
    THACHER v. CAROLINA PORTLAND CEMENT CO.
    Where a corporation brought an action for the amount of an alleged indebtedness, and prayed that the judgment therein be declared a special lien upon certain land, alleged to have been conveyed by the defendant to P. G. Hanahan, vice-president and general manager of the plaintiff corporation, as security for the debt, and, from the evidence at the trial, it appeared that the conveyance referred to was an ordinary warranty deed to P. G. Hanahan individually, although it was testified that there was an agreement between him and the defendant that the deed should be security for the defendant’s indebtedness to the corporation, it was error for the court to charge the jury that if they should find that the deed was “made to Hanahan, vice-president and general manager, for the use and benefit of the plaintiff, to secure that indebtedness,” they “would further find that the plaintiff have a special lien upon the tract of land set out in the petition,” to secure the indebtedness. Under the pleadings and the evidence, a judgment establishing such a lien was unauthorized.
    Such of the special grounds of exception not dealt with above as are relied on in the brief of counsel for the plaintiff in error are not in proper form for consideration. There was sufficient evidence to support the verdict as to the defendant’s indebtedness. The error pointed out above can be cured by striking from the judgment that part which relates to a special lien on the land described; and the judgment overruling the defendant’s motion for a new trial is affirmed on condition that the judgment against him be molded in accordance with the opinion of this court.-
    Decided January 21, 1918.
    Complaint; from DeKalb superior court — Judge Smith. April 20, 1917.

      Green, Tilson & McKinney, for plaintiff in error.

      Edgar A. Neely, contra.
   Bloodwoeth, J.

The Carolina Portland Cement Company brought suit against W. A. Thacher for $842.50. By-amendment the principal sued for was reduced to $806.66, and it was alleged: “That your petitioner shows that on the 26th day of February, 1914, to better secure the payment of said indebtedness, the defendant executed to P. G. Hanahan, who is the vice-president and general manager of your petitioner, a warranty deed covering” certain land, a description of which followed. The defendant filed a plea denying indebtedness and alleging: “Answering paragraph 2 of the amendment to plaintiff’s petition, this defendant denies the allegations therein contained, as stated. He admits that he executed the deed therein referred to, but denies that it was to secure the payment of the account attached to plaintiff’s amended petition. Defendant says that the account attached to said amended petition is not, and never was, the debt of this defendant, but that it was the debt of one E. 0. Miles; that defendant was building a house for the said E. 0. Miles, and was paid by said Miles a commission of ten per cent, on the cost of said house; that all the materials and items set out in the bill of particulars attached to plaintiff’s amended petition were purchased for the said E. 0. Miles, and were never purchased by this defendant; defendant did owe plaintiff for materials purchased by this defendant, and used by him in the construction of other buildings; that defendant took from the said E. 0. Miles three notes for the balance due him for his commision in the construction of said house; that defendant indorsed two of said notes to plaintiff for the indebtedness then owing by this defendant to plaintiff; that said notes were not paid by the said Miles, and that P. G. Hanahan, the vice-president and general manager of plaintiff, agreed with this defendant that if he would convey to him the land described in paragraph 2 of plaintiff’s amended petition, he would accept it in full settlement of the debt due by this defendant to the plaintiff at that time, and surrender the notes held by plaintiff on said E. 0. Miles, and indorsed by this defendant; that this defendant agreed to said proposition, went home, drew the deed conveying the land described in paragraph 2 of plaintiff’s amended petition, executed the same, and mailed the same to said Hanahan, or plaintiff, at the same time requesting the return of the two notes referred to as having been executed by E. Q. Miles to defendant, and by him indorsed to plaintiff, but that, notwithstanding said Hanahan accepted said deed, and placed the same of record as a full and complete settlement of all demands of the plaintiff against this defendant, neither the said Hanahan nor the said plaintiff has ever surrendered to this defendant the two notes mentioned.” On the trial the verdict was as follows: “We, the jury, find for the plaintiff the sum of eight hundred and six dollars and sixty-six cents ($806.66/100) principal, and two hundred and forty dollars and fifty-eight cents interest. We further find a special lien upon the property described in the petition.” A judgment following the verdict was entered, and the defendant made a motion for a new trial, which was overruled, and he excepted.

1. The first ground of the amendment to the motion for a new trial- was not referred to in the brief of the plaintiff in error, and will be treated as abandoned. The second ground contains two distinct exceptions to the admission of evidence. This ground was properly overruled, for two reasons: (a) At least a part of the evidence in each portion excepted to was relevant and admissible. “Some of it was clearly admissible, and the objection to the whole of it was properly overruled.” Ray v. Camp, 110 Ga. 818 (36 S. E. 242); Harris v. Amoskeag Lumber Co. 97 Ga. 465 (25 S. E. 519); American Insurance Co. v. Bailey, 6 Ga. App. 424, 425 (65 S. E. 160); Walker v. Biley, 6 Ga. App. 519 (65 S. E. 301); Thompson v. Carter, 6 Ga. App. 604 (65 S. E. 599). (&) The ground-is not complete within itself, and each exception would require reference to the brief of evidence, — the first to ascertain what “bills” were referred to, and the-second to determine what portion of the evidence was admitted. “No ground of a motion for a 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 Ry. Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001); Head v. State, 144 Ga. 383 (87 S. E. 273); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668). However, the admission of this evidence could not have been harmful to the defendant; for there was ho conténtion on his part that the goods were not delivered, but his defense was based upon the ground that the debt was that of another, and that he settled his portion of the account by giving the deed to the land described in the petition.

2. The 3d and 4th grounds of the amendment to the motion for a new trial complain of errors in the charge of the court. The judge charged the jury: “If you further find that the warranty deed was made to Hanahan, vice-president and general manager, for the use and benefit of the plaintiff, to secure that indebtedness, and you believe that from the evidence, by a preponderance of the evidence, ‘then you would further find that the plaintiff have a special lien upon the tract of land set out in the petition, to secure this indebtedness.” We think this was error, for the reason stated in the motion for a new trial. It was not adjusted to the facts, and no doubt led the jury into the error of finding a special lien upon the land, which finding was without evidence .to support it. The deed, as shown by the copy thereof in the brief of evidence, was made, not to “Hanahan, vice-president and general manager,” nor to Hanahan “for the use and benefit of the plaintiff,” so far as appears from the deed itself, but to P. G. Hanahan individually, and is an ordinary warranty deed; and although it was testified that it was agreed between Haijahan and the defendant that the conveyance to Hanahan was to be security for the defendant’s indebtedness to the plaintiff corporation, it did not create'a lien in favor of the plaintiff, and, under the pleadings and the evidence, such a lien could not be established in this action. This error, however, can be cured by striking from the judgment that portion thereof which provides for a special lien on the land; and, there being ample evidence to support the general judgment, the judgment overruling the motion for a new trial is affirmed, on condition that at the time the remittitur is made the judgment of the lower court, the judgment be remolded in accordance with this opinion; otherwise the judgment will be reversed.

Judgment affirmed, on condition.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    8832.
    McKEE v. HURST & COMPANY.
    1. “The general rule is, that in order for the exclusion of oral evidence to he-considered as a ground for a new trial, it must appear that a pertinent question was asked, that the court refused to allow the answer, and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material and would have benefited the complaining party.” Allen v. Kessler, 120 Ga. 319 (47 S. E. 900). “Even if the objection of the opposite party was insufficient, this would not relieve the counsel who propounded the - question from the duty of informing the court as to the nature of the answer expected.” McAllister v. State, 7 Ga. App. 541 (4) (67 S. E. 221). “Questions may be answered so that the testimony will benefit the party propounding them, or so that it will benefit the adverse party, or so as to show entire want of knowledge on the part of the witness. Reversals are granted for material errors, calculated to injure the party complaining.” Tillman V. Bomar, 134 Ga. 660 (68 S. E. 504). See , also Artesian Lithia Water Go. v. Central■ Bank & Trust Corporation, 138 Ga. 618 (75 S. E. 646); Hope v. Hedgerose Heights Co., 19 Ga. App. 10 (2) (90 S. E. 731) ; Cooner v. State, 16 Ga. App. 539 (85 S. E. 688); International Life Ins. Co. v. Nix, 11 ‘fljjp. App. 664 (10) (75 S. E. 1058). In view of the rulings stated alitrffc, grounds 1, 4, 5, and 6 of the amendment to the motion for a.new trial present no question for determination by this court.
    2. Although a motion for a new trial may assign reasons why evidence is inadmissible, this court can not consider such grounds unless it appears that the same reasons were urged before the trial judge at the time the evidence was offered. Georgia Railroad v. Daniel, 135 Ga. ■ 108 (2) (68 S. E. 1024); Johnson v. Ware, 135 Ga. 365 (69 S. E. 481) ; Wynne v. State, 123 Ga. 566 (51 S. E. 636) ; Pool v. Warren Co., 123 Ga. 205 (3), 207 (5T S. E. 328); Powell v. Georgia, Fla. & Ala. Ry., 121 Ga. 803 (49 S. E. 759) ; Ándreios v. State, 118 Ga. 1, 3 (43 S. E. 852); Frey v. Macon Sash &c. Co., 112 Ga. 242 (2), 244 (37 S. E. 376) ; Wilkinson v. State, 18 Ga. App. 330 (89 S. E. 460); Soell v. State, 4 Ga. App. 337 (61 S. E. 514). .
    3. The court did not err in directing a verdict for the plaintiffs.
    Decided January 21, 1918.
    Complaint; from city court of Greenville — Judge Revill. April 13, 1917.

      McLaughlin & Jones, for plaintiff in error.

      John B. L. Smith, N. F. Culpepper, contra.
   Bloodworth, J.

1, 2. The first and second headnot’es need no elaboration,

3. W. A. McKee was indebted to John E. Hurst & Co. on an account which was closed by note signed by W. A. McKee and his father, J. W. McKee, due April 15, 1913. This note was not paid, and on April 26, 1913, in renewal and extension thereof, four new notes were given, one for $679, due September 15th, one for $675.62, due October 15th, two each for $676, due respectively November 15th and December 15th. These notes were signed by W. A. McKee and J. W. McKee. Suit on these notes was brought against J. W. McKee only, W. A. McKee having been discharged in bankruptcy after the making of the notes. The defendant filed a plea in which he admitted a prima facie case, but further pleaded that he signed the original note on the express condition that Hurst ■ & Co. would extend to W. A. McKee an additional credit of $1,000 for which he was not to be liable, this additional credit to be given to enable W. A. McKee “to get a start in Tampa, Florida,” to which point he expected to move from Cordele, Ga. The plea alleged also: “It was agreed by >and between the plaintiff and W. A. McKee, the principal and this defendant, that said note for $2,589.13, due April 15, 1913, should be renewed when due, from time to time, to enable the said W. A. McKee,, to get a better foothold and pay the additional amount for goods to be purchased. Defendant, relying upon the contract so made and agreed upon in good faith by the defendant, gave the matter no further consideration, believing that the contract was being carried out as made and 'entered into, when he [was] requested, renewed the original note as aforesaid by signing as surety the notes sued on in this case. This defendant further answering says, that it was months after the notes sued on were signed and delivered that this defendant learned that the plaintiff had failed and refused to comply with the said contract and failed and refused to ship the goods bought from plaintiff by W. A. McKee, the principal on said notes, after the salesman of plaintiff had taken the order for the goods in pursuance of the contract, which was the consideration of the original note and the notes sued on. This defendant would not have signed the original note as aforesaid, as security for W. A. McKee, had it not been for the consideration of the additional credit to be extended to W. A. McKee and which fact was well known to plaintiff, that the additional credit to be extended by plaintiff to W. A. McKee was the sole consideration moving defendant to sign said note as security as aforesaid. That this defendant would not have signed the notes sued on, if he had even suspected that the consideration of the first note had not been complied with, defendant presuming that the contract made as aforesaid by plaintiff with W. A. McKee and this defendant was in good faith and had been complied with. This defendant now believes and charges that the contract made by plaintiff with W. A. McKee and this defendant was a scheme on the part of plaintiff to fraudulently obtain this to sign as security with W. A. McKee, that said plaintiff never intended to comply with his said contract, though he had his salesman to call upon said W. A. McKee and took his order as per said contract, but declined and refused to ship the goods after the order was taken. This defendant further answering says, that other creditors of 'W. A. McKee, who had knowledge of the agreement made and entered into by W. A. McKee and the plaintiff in this case, learning that the said plaintiff had declined and refused to comply with his said contract, they also refused and declined to sell W. A. McKee, and by reason of the conduct as aforesaid of the plaintiff in refusing to comply with his said contract, the said W. A. McKee was forced to go into bankruptcy, and did go into bankruptcy, increasing the risk of this defendant on these notes, all of which was caused by the failure of said plaintiff to carry out his said contract, made as aforesaid, same being the consideration of the note sued on. This defendant charges that by reason of the failure of the said plaintiff to carry out his contract made as aforesaid in good faith was the direct cause of the said W. A. McKee’s failure to meet the original note when due, or at some other time ere this, thereby increasing the risk of this defendant as security on the note sued on; that this defendant signed the original note as surety, as well as the note sued on, the consideration being as above set forth, which failed, thereby releasing this defendant from any obligations of said note.”

The evidence is conflicting as to the agreement, made when the original note was signed, as to the terms on which additional credit was to be extended; but, granting that the defendant could prove all that he alleges in his p'lea and that the same would be a good defense to the first note, would these facts be a legal defense to a suit on the renewal notes? We think not. It appears undisputed that after the original note fell due and remained unpaid, W. A. McKee appealed to Hurst & Co. for more time, — an extension of the note, — which was granted, and four notes were sent to W. A. McKee for the signature of himself and his father. Plaintiffs had nothing whatever to do with the signing of these renewal notes by J. W. McKee, further than to prepare them and send to W. A. McKee. They made no statement or representation to J. W. McKee, and did not even request him to sign these notes. When the request for extension of time came from W. A. McKee the notes were sent to him, he signed them, und secured his father’s signature, and the notes were returned to Hurst & Co. If any fraud or wrong was perpetrated upon defendant in the signing of' these notes it was by his son, and not by plaintiffs. Their rights could not be affected by anything the son did or said to induce the father to sign the notes. “A debtor is not the agent of his creditor in procuring security, though the creditor designate the very security required, and furnish to the1 debtor the instrument of writing which he demands to be executed by third persons as a condition precedent to granting indulgence on the debt.” Campbell Y. Murray, 62 Ga. 86 (4). “Acts of the principal debtor or of any other person than the creditor himself by which one is induced to become a surety do not affect the rights of the creditor, even though the acts be fraudulent. Eights of the creditor are not affected by conditions of agreements which may influence one to become a surety for the principal debtor.” Broughton v. Joseph Lazarus Co., 13 Ga. App. 153 (2) (78 S. E. 1024).

W. A. McKee, the principal debtor, knew all of these facts, admitted his liability, asked for an extension of time from spring to fall, obtained it, signed the notes, and is bound thereby; and his father will not be relieved from liability because he “would not have signed the notes sued on if he had even suspected that the consideration of the first note had not been complied with, defendant presuming that the contract' made as aforesaid by plaintiff with W. A. McKee and this defendant was in good faith and had been complied with.” Parties signing notes who do not wish to be bound thereby can not act on mere presumptions. They can not take advantage of their own negligence. By giving the renewal notes, voluntarily so far as plaintiff knew, and thus securing an extension of the time of payment, — a thing of value, — the failure of consideration, if any there was, was waived, and both defendants are-liable. The principle just announced seems settled by the decisions of our courts of last resort. In American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254 (28 S. E. 40), it was held: “When a promissory note payable at a future day, signed by the purchaser of personal property as principal and by other persons as sureties, was given for a balance due upon the contract of purchase, and at or about the time of maturity of such note the principal with the same sureties and one other renewed the original note, the principal then having full and complete knowledge of certain defects in the property, which knowledge had been acquired after ample opportunity for observing and ascertaining the character and condition of the property, neither such principal nor the sureties upon the second note could defeat a recovery in an action thereon, by setting up the defense of ‘failure of-consideration’ based upon the existence of such defects; especially is this so when such principal after the giving of the second note repeatedly in writing acknowledged liability thereon and promised to pay the same.” In Harder v. Garter, 97 Ga. 273 (23 S. E. 82), the decision was hs follows: “Even if the machinery for the agreed price of which the action was brought was in fact defective and worthless, yet as the defendant, after the most complete and ample opportunities for trying and testing it, and with full knowledge of its character, deliberately promised in writing to pay for it, she could not thereafter set up in resistance of such action the defense of failure of consideration predicated upon alleged defectiveness or worthlessness of the machinery.” To the same effect are the decisions in the cases of Edison Electric Co. v. Blount, 96 Ga. 272 (23 S. E. 306); Tuttle v. Stovall, 134 Ga. 325 (67 S. E. 806, 20 Ann. Cas. 168); Unitype Co. v. Shelton, 11 Ga. App. 742 (76 S. E. 80). “Where a note is executed in renewal of a previous note, from which the sureties have been released, and the sureties signed the renewal note uninfluenced by fraud or deceit, they are bound by it, as there is a sufficient consideration.” Davis v. Bank of Clarkston, 144 Ry. 417 (138 S. W. 246). See also N. H. Savings Bank v. Colcord, 15 N. H. 119 (41 Am. D. 685); Steger v. Jackson, 139 Ey. 491 (102 S. W. 329).

The defendant admitted a prima facie case, and, although he filed additional pleas, the evidence and all reasonable deductions and inferences therefrom demanded a verdict for the plaintiff, and the court did not err in so directing

Judgment affirmed.

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


text:
    8858.
    FRANKLIN BUGGY COMPANY v. CARTER.
    Where, after dissolution of a partnership, a former member of the firm, . on being approached and offered goods for sale by a traveling salesman for a dealer who before the dissolution sold goods to the firm, tells the salesman that he is no longer a member of the firm, this is notice of the dissolution to the dealer represented by the salesman. The court in this case did not err in admitting evidence as to such notice, or in charging the jury as to its effect.
    The evidence authorized the verdict; and the affidavits as to newly discovered evidence are insufficient.
    Decided January 21, 1918.
    Complaint; from Stewart superior court — Judge Littlejohn. April 20, 1917.
    • Suit on a promissory note signed, “E. L. & J. B. Carter, by J. B. Carter,” and payable to Franklin Buggy Company, was brought by the payee against E. L. and J. B. Carter, who were alleged to be a partnership. E. L. Carter filed a plea denying that he had executed the note or had authorized its execution, and denying the existence of the alleged partnership, or that he was a member of the firm, at the time of the execution of the note. The trial of the case resulted in a verdict in his favor. A new trial was refused to the plaintiff, and it excepted. Grounds 1, 2, and 3 of the amendment to the motion for a new trial are as follows:
    1. “Because the court allowed, over the objection of attorney for the plaintiff, the admission of the testimony of E. L. Carter, as follows: ‘Mr. Henslee came to me and wanted me to purchase some buggies. I don’t remember the date, but it was some time in 1914, I think, and I told him I was no longer a member of the firm, and he would have to see Mr. J. B. Carter. That happened several months before the execution of the note sued on.’ - The attorney for the plaintiff then and there objected to this testimony, on the grounds, that no evidence had been shown to connect said Henslee with the plaintiff as having authority from the plaintiff to receive notices of dissolution from parties, and that such notice did not bind the plaintiff, and was not actual notice to the plaintiff ; furthermore that said evidence would be hearsay to the' plaintiff. The court allowed this testimony to be admitted, and the plaintiff’s attorney then and there excepted to the same and now assigns the same as error, for the reason that the testimony is illegal, hearsay, and would not be such notice as to bind the plaintiff, under the law of giving notice to parties who were former customers and creditors of the alleged partnership.” (From the evidence it appeared that the note 'sued on was for buggies sold by A. H. Henslee, a traveling salesman of the plaintiff in 1914, on orders given by J. B. Carter, in the name of E. L. & J. B. Carter, who had in previous years dealt in buggies as a partnership and had bought buggies from the plaintiff. E. L. Carter ■testified that the firm dissolved in 1913.)

      2. “Plaintiff amends further by alleging: that the evidence shows that the representative of -the plaintiff did not have the authority to pass on the financial standing of parties, and had no connection with the plaintiff further [than?] to act as salesman, and that it was not in the scope of the business of the salesman, A. H. Henslee, to receive notices of the dissolution- of partnership; and under this showing it was error in the court to allow the admission of evidence, over against objection by plaintiff, to the effect that notice to the salesman was notice to the-plaintiff of the dissolution of partnership. Plaintiff herein assigns the same as error.”
    3. ■ “Plaintiff further alleges that the court erred in charging as follows: ‘Now I charge you that-if the authorized agent or salesman of the plaintiff, the Franklin Buggy Company, came here for the purpose of selling goods, and approached the defendant in this case, E; L. Carter, and if E. L. Carter informed him that the partnership of E. L. & J. B. Carter was dissolved, and that he had nothing further to do with it, and then, if that salesman went and sold these goods to J. B. Carter, — went to the old place of business and sold the goods to him, — and J. B. Carter issued orders, or any order, in the name of E. L. & J. B. Carter, that would not be binding on E. L. Carter. I charge you that notice to the traveling salesman, if you find there was a traveling salesman, that took orders for the goods, then notice to him that the partnership had been dissolved would be sufficient notice to the Franklin Buggy Company to relieve E. L. Carter from liability in this ease, if that partnership had been dissolved prior to the giving of the order for the goods,- prior to the purchase of the goods, and that notice had been given to the traveling salesman who took the order for the goods for which the note sued on was given.’ Plaintiff alleges that the-above charge was error, for that the giving of notice to the salesman by one of the partners was not actual notice to the'creditor of the partnership, especially when the evidence discloses that it was not the business of the salesman to pass on partnerships, credits, and standing of mercantile businesses.”

      T. T. James, for plaintiff, cited:

      Collins v. Crews, 3 Ga. App. 338 (4); Mims v. Brook, 3 Ga. App. 347 (6); Camp v. Southern Bkg. Co., 97 Ga. 583; Lewis v. Equitable Mortgage Co., 94 Ga. 573 (4); Walton Guano Co. v. McCall, 111 Ga. 114; Wilde v. L. & N. B. Co., 116 Ga. 309; Moon Brothers Carriage Co. v. Devenish, 43 Wash. 415 (85 Pac. 17, 7 A. & R. Ann. Cases, 649). Cases cited for defendant distinguished; citing also: Hamberger v. Marcus, 157 Pa. 133, 139; Clark v. Gumming, 77 Ga. 64, 67; 9 Corpus Juris, 510, § 10; Id. 536, § 37.

      G. 7. TIarrell, for defendant, cited:
    Civil Code (1910), §§ 3598-9; Githens v. Murray, 93 Ga. 748, 750; 9 Corpus Juris, 536, § 38; Jenkins Brothers Shoe Co. v. Renfrow, 151 N. C. 333 (66 S. E. 313, 35 L. B. A. (N. S.) 331).
   Bloodworth, J.

' 1. There was no error in admitting the testimony of E. L. Carter as complained of in the ground 1 of the amendment to the motion for a new trial.

3. “A ground of a motion for a new trial based upon the admission of testimony is altogether vain and futile unless the ground is complete in itself and shows what objections to the testimony were urged at the time it was offered or admitted. Register v. State, 10 Ga. App. 623 (74 S. E. 429); Smith v. Smith, 133 Ga. 170 (65 S. E. 414); Cook v. State, 134 Ga. 347 (67 S. E. 813); McCray v. State, 134 Ga. 416 (68 S. E. 62, 20 Ann. Cas. 101); Georgia Railroad v. Daniel, 135 Ga. 108 (68 S. E. 1024); Jones v. State, 135 Ga. 357 (69 S. E. 537); Johnson v. Ware, 135 Ga. 365 (69 S. E. 481); Glasco v. State, 137 Ga. 336 (73 S. E. 578); Hill v. Chastain, 138 Ga. 750 (75 S. E. 1130). And it must appear that the same objection urged in the motion for a new trial was made upon the trial. Murphy v. Creamer, 10 Ga. App. 593 (74 S. E. 61); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688), and cases there cited.” Wilkinson v. State, 18 Ga. App. 330 (3) (89 S. E. 460). For these reasons, ground 3 of the amendment to the motion for a new trial can not be considered by this court.

3. As we see this case there was no error in the charge complained of in ground 3 of the amendment to the motion for a new trial. The effect of the verdict is to establish the fact, so far as this court is concerned, that the notice to the traveling salesman was given as claimed by the defendant. The only question for determination is, was the notice sufficient? Section 3163 of the Civil Code (1910) is as as follows: “The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. By the retiring of a dormant partner, it must be made known to all who had knowledge of his connection-with the firm.” As the plaintiff in this case had previously sold goods and given credit to the firm of which the defendant was formerly a member, that firm was a “creditor” in the meaning of the word as employed in this section, and it must appear that actual notice was given to the said firm. Bush v. McCarty Co., 127 Ga. 308 (56 S. E. 430, 9 Ann. Cas. 240). Section 3599 of the Civil Code (1910) is as follows: “Notice to the agent of any matter connected with his agency is notice to the principal.” The question then arises, is the giving by a former member of a firm to a commercial traveler, “a drummer,” whose business is. to sell goods for his principal, notice of the dissolution of the firm a “matter connected with his agency?” We think it is. Where a firm is dissolved, ánd a salesman approaches a former member thereof and is told he is no longer a member of the firm, we think this is actual notice to the principal; and where the salesman later goes to the other member of the firm, who gives an order for goods and signs the firm’s name thereto, we think it is the duty of the salesman to report to his firm the information received from the former member concerning the dissolution, and his failure to- do so would not prevent the member of the firm who had retired from successfully pleading “no partnership,” especially when sued upon a note given after dissolution, in renewal of the account. See Civil Code (1910), §§ 3188, 4387. A case almost exactly like the instant one is that of Ach v. Barnes, 107 Ky. 219 (53 S. W. 293), in which it was held that notice to the plaintiff’s, traveling salesman that the defendant had withdrawn from a firm to which the salesman sold goods for the plaintiff was notice to the plaintiff, so as to relieve the defendant from liability for the price of the goods sold.

4. The alleged newly discovered evidence can not be considered, for it is not made to appear “by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910),.§ 6086.

5. There was evidence to support the verdict and no error was committed when a new trial was refused.

Judgment affirmed.

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


text:
    8863.
    Price v. Rimes Brothers Incorporated.
    Decided January 21, 1918.
    Complaint; from city court of Hinesville — Judge W. C. Hodges. May 5, 1917.

      Melville Price, for plaintiff in error. O. G. Darsey, contra.
   Bloodworth, J.

1'. The grounds of the amendment to the motion for a new trial are without merit.

2. Where in a suit on an open account the allegation in the petition and the total of the bill of particulars showed an indebtedness of $85.11, and after verdict it was discovered that the items of the account, when correctly added, made only $84.11, the judge did not err in allowing the plaintiff to write off from the verdict the amount of $1.

3. There was some evidence to support the verdict; and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).

Judgment affirmed.

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


text:
    8880.
    BARNES et al. v. SLATON DRUG COMPANY.
    “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the ■ contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.”
    Decided January 21, 1918.
    Complaint; from Butts superior court — Judge Searcy. May 5, 1917.
    . C.-L. Redman, for plaintiffs in error. W. E. WatTcins, contra.
   Bloodworth, J.

Slaton Drug Company sued E. L. and W. H. Barnes on a contract of guaranty. The only defense was that the signatures of the defendants were obtained by fraud and deception. The evidence of W. H. Barnes was in part as follows: “I met Mr, Cariker and Mr. Pruitt. W. T. Pruitt was right over on this side, and Mr. Cariker asked me, said 'I would like to get you to sign a paper for me.’ I said, 'What sort of a paper?’ and he said, 'I am going to take a job with Slaton Drug Company to sell medicine, and I would like to get you [to] sign for me to get me started.’ I told him I was not able to sign any bond. I said, 'I have nothing, and I don’t suppose they would have me on a paper of that kind.’ Mr, Pruitt was right there,.and Mr. Pruitt said 'Yes, that’s all right,’ — said, 'You sign it, and we will take you.’ I said, 'Well, I have nothing. It would not be worth anything, and if my name will do you any good I will do it.’ And he said, 'You sign it, and we will go out and get Lynn [E. L. Barnes?] to sign it.’ I signed it as' a recommendation for Cariker, and he said it would not amount to anything, that it was a mere matter of getting him started in business. He said I would never be bothered about it. He said it was all right. I signed when he said he was going to get Lynn to sign.” E. L. Barnes testified in part as follows: “Pruitt came and handed me a paper and asked me to sign it, and I asked him to read it or wait until I went to the house and got my glasses. He said, 'No, no use of that,’ it was only a recommendation and amounted to nothing, and I would not hear from it any more. That is all he did and all he said, except he refused to read it. I took it to be a recommendation. He said it was a recommendation and would not amount to anything, and I signed it. From where I was to my house was about as far as from here to the New York Store, something like 200 yards T guess.” Cariker was the person for whom E. L. and W. H; Barnes became guarantors, and Pruitt was the representative of the plaintiff.

The court did not err in directing a verdict for the plaintiff. The specific facts relied on in this case are not sufficient to constitute fraud. “Negligence in failing to read a written contract and in relying upon representations of the other party to the contract bars the defense of fraud.” See Gibbs v. Fourth National Bank, 17 Ga. App. 388, 390 (87 S. E. 155), and cases cited; Sloan v. Farmers and Merchants Bank, 20 Ga. App. 123 (92 S. E. 893). In the case of Hanes v. Farmers & Merchants Bank, 20 Ga. App. 129 (92 S. E. 896), the defense.was somewhat similar to that relied on in the instant case, and Judge Jenkins said: “The additional statement that the defendant did not have his spectacles with him, and therefore could not read at the time the notes were signed, is not sufficient, under the authorities cited in the other case [Sloan v. Farmers & Merchants Bank, supra], to alter the .rule.” The parties signing this contract may have been very indiscreet in doing so, but for this alone the law will not- relieve them. “Polly is not always fraud.” “A party who can read must read, or show legal excuse for npt doing so. Fraud which would relieve a party who can read must be fraud which prevents him Srom reading.” Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915). “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238). “One who executes and delivers a promissory note without reading or knowing its contents can not avoid liability thereon because he acted ignorantly, without showing some justification for his ignorance, either by reason of his inability to read or by some misleading device or contrivance amounting to |raud on the part of the person with’whom he was dealing.” Radcliffe v. Biles, 94 Ga. 480 (20 S. E. 359); Josey v. Ga. S. & F. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664); Walton Guano Co. v. Copelan, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268); Harrison v Wilson Lumber Co., 119 Ga. 8, 9 (45 S. E. 730). The signing of the contract on the part of the defendants “was not induced by any action or representation amounting to fraud on the part of the person with whom they were dealing.” See also Tinsley v. Gullett Gin Co., ante, 512 (94 S. E. 892).

Judgment affirmed.

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


text:
    8899.
    Albright v. American Central Insurance Company.
    Decided January 21, 1918.
    Motion to set aside judgment; from Fulton superior court— Judge Ellis. March. 10, 1917. (See 145 Ga. 515 (89 S. E. 487); 147 Ga. 492 (94 S. E. 561)).

      James L'. Key, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Bloodworth, J.

Under the particular facts of this case the court did not err in overruling the motion to dismiss the petition to set aside the verdict and judgment; nor did it err in setting aside the verdict and judgment.

Judgment affirmed.

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


text:
    8903.
    FISHER v. DARSEY, administrator.
    The mere fact that the wife received the benefit of goods bought by her husband on his own credit would not make her liable in law to the seller for the price of the goods.
    Decided January 21, 1918.
    Complaint; from city court of Hinesville — Judge W. C. Hodges. May 5, 1917.

      Melville Price, for plaintiff in error. O. G. Darsey, contra.
   Bloodworth, J.

A note was given by a husband for the purchase-price of certain wire fencing, and suit for the same amount was afterwards brought against his wife. A copy of the note was attached to the petition, which alleged that the defendant was indebted to "the plaintiff “upon a certain contract,” that A. B. Fisher, her husband, bought certain wire fencing, for which the note was given, and that the wire fencing was carried to her home and “placed upon her property by being stretched upon and around her said lands, which she knowingly permitted done; that while the said debt was made by said A. B. Fisher, Mrs. Maggie E. Fisher [the defendant] received the benefits of said contract, by allowing the said fencing put upon and around her individual property, and that when so done increased the value of said property to the extent of the price of the said fencing as above stated.” To this petition a demurrer was filed as follows: “First, that said petition fails to set forth a cause of action against this defendant; Second, that said petition shows on its face that the note sued upon, or attempted to be sued upon, is made by .A. B.. Fisher, and does not bear the signature of this defendant as maker, indorser, or. otherwise. Third, that said petition shows upon its face that the indebtedness sued upon, if existing at all, is the indebtedness of said A. B. Fisher, and is not the indebtedness of this defendant. Fourth, that said petition shows upon its face that said suit is brought for the purpose of rendering the defendant liable for the indebtedness of her husband, the said A. B. Fisher, contrary to law.”

The demurrer was good, and the court erred in overruling it. There is nothing in the petition to show that the credit was not extended absolutely to the husband, and nothing to indicate that he was acting as the wife’s agent, or that she was his undisclosed principal. Before evidence could properly be introduced to show agency of the husband in such a case as this, the agency must be alleged. In the decision in the ease of Pinkston v. Cedar Hill Nursery &c. Co., 123 Ga. 303 (51 S. E. 387), it was said: “The mere fact that [the wife] got the benefit of .the purchase would not make her liable to the seller. Hightower v. Walker, 97 Ga. 748 [25 S. E. 386], Nor could she be held accountable unless her husband acted as her agent in the transaction" (Axson v. Belt, 103 Ga. 578 [30 S. E. 262]), nor even then, if the fact of agency was known to the seller, and the seller extended credit to her agent, not to her. Civil Code, § 3025; Mitchell v. Printup, 68 Ga. 675; Miller v. Wait, 70 Ga. 385.” See also Blount v. Dugger, 115 Ga. 109 (41 S. E. 270). The allegations in the petition in this case fail to bring it under the principle upon which was decided the case of Pinkston v. Cedar Hill Nursery Sc. Co., supra, relied on by the defendant in error; nor do they bring it under the principle upon which was, decided the case of Home Fertilizer &c. Co. v. Dickerson, 12 Ga. App. 149 (76 S. E. 1040), or the case of Swearington v. Virginia-Carolina Chemical Co., 19 Ga. App. 658 (91 S. E. 1050).

Judgment reversed.

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


author: Bloodworms, J.

text:
    8925.
    Mullis, sheriff, for use, v. Farmers Gin Company.
    Decided January 21, 1918.
    Trover; 'from city court of Eastman — Judge Eeese. May 10, 1917.
    An action of trover for certain bales of cotton was brought by Mullís, sheriff, for the use of Improved Guano Company, against Farmers Gin Company. The case was tried on an agreed statement of facts, and the court directed a yerdict for the defendant. A new-trial was refused, and the plaintiff excepted. The agreed statement of facts was in substance as follows: On September 13, 1914, a mortgage fi. fa. in favor of Improved Guano Company, and a distress warrant in favor of another plaintiff, both against C. C. Adams, were levied “upon the cotton which is the subject-matter of this suit, which said cotton was found in the cotton warehouse of the Yancey Gin Company and the cotton warehouse of the Farmers Gin Company, where said cotton was levied upon and left there' properly tagged with notices of said levies.” The levy of the distress warrant was met by a claim filed on November 3, 1914, by J. C. Studstill, who gave a claim bond and a forthcoming bond, which the levying officer accepted, for the cotton claimed. The levy of the mortgage fi. fa. was not arrested by any proceeding, and the bales of cotton levied on “were advertised to be sold, and were offered for sale, and sold to the Improved Guano Company, but the sheriff was unable to deliver them to the purchaser at said sale, for the reason that said cotton had been removed from the warehouse where the same was stored at the time said levies were.made, without any authority from the Improved Guano Company, the plaintiff in the mortgage fi. fa., Or from the levying officer, except whatever authority was given by his taking and accepting the said claim bond and forthcoming bond.”

      0. J. FranTclin, for plaintiff, cited Miller v. Mattox, 118 Ga. 269.

      J. H. Milner, for defendant, cited Houser v. Williams, 84 Ga. .601.
   Bloodworms, J.

Under the pleadings and the agreed statement of facts in this ease, the court did not err in directing a verdict for the defendant. Judgment affirmed.

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


author: Broyles, P. J.

text:
    9013.
    GREAT EASTERN CASUALTY CO. v. BLACKWELDER.
    1. Where a contract of accident insurance, prepared by the insurer, contains a word susceptible of being construed, without violence, as having more than one meaning, the meaning most favorable to the interests of the insured and most unfavorable to the interests of the insurer must be given to it.

      (a) This court will take judicial cognizance that it is the universal custom of insurance companies to prepare their contracts of insurance.
    2. Under a contract of accident insurance which provides that the insurer will be liable if the insured is killed by “the collapse of a building,” liability arises when the insured is killed by the collapse of any substantial portion of a building.
    3. The word “building,” in its legal sense, is ambiguous, and is susceptible of being construed, without violence, as including many different kinds of structures and edifices erected by man.
    4. Keeping in view the rulings made in the preceding notes, the word “building,” as used in the contract of limited accident insurance sued upon, included the structure, the collapse of a substantial portion of which caused the death of the insured.
    Decided January 21, 1918.
    Action upon accident-insurance policy; from city court of Atlanta — Judge Reid. April 17, 1917.
    . Bryan, Jordan & Middlebroolcs, W. B. Tichenor, for plaintiff in error. Little, Powell, Smith & Goldstein, contra.
   Broyles, P. J.

Mrs. Stella Blackwelder brought suit against the Great Eastern Casualty Company upon a policy of accident insurance issued by the defendant upon the life of her husband. This was not a general policy, hut specifically limitéd the insurance to fourteen named contingencies. Only one of these is involved in the present case, — the 14th, which reads as follows: “By collapse of a building (except buildings in process of construction, repair or demolition).” Upon the trial there was no dispute that the structure in question was not in process of construction, repair, or demolition. The structure, by the collapse of which the insured was killed, was erected upon the bank of a river and adjoining a railroad track, in Floyd county, Georgia, and was used to unload sand from barges in the river and to load this sand in cars upon the railroad track. The foundation of the structure was of concrete, upon which was built a heavy wooden framework or trestle. This trestle consisted-of six wooden uprights, 12 inches square and 12 to 15 feet in length. These wooden uprights were held togeiher by 'wooden cross-braces, bolted to the uprights. Across the top of the trestle-work was affixed a floor, or platform, of strong timbers, about 20 or 25 feet square. On this platform and bolted to it were four steel I-beams. These I-beams were bolted together and formed a square box. Across each corner of this box were placed four braces which were bolted to the I-beams. On this box and braces was bolted a circular track of railroad iron. Inside of the railroad-iron track was affixed a circle of cogs; and inside of this circle of cogs were several steel beams which ran to the center of the circle. At the place where these beams joined there was a concave arrangement, like a wash-pan, called a “duck-nest.” This duck-nest had in its center a hole about 2% inches in diameter. On the circular railroad track there was a circle of wheels, the flanges of which were on the outside of the rail. These wheels were called a “floating circle,” and came in sections of about four wheels each. These sections were bolted together. Above this floating-circle of wheels was constructed a second platform, made of steel and wooden beams, over which was a plank floor. On the bottom of this upper platform was attached a circle of railroad iron, the same size as the circle attached to the lower platform. This railroad-iron circle rested on the top of the wheels which formed the floating-circle. In the center of the upper circle of railroad-iron, which was attached to the bottom of the upper platform, was a convex arrangement like an inverted wash-pan, which fitted into the “duck-nest;” and through this convex arrangement was a hole similar in size to the one in the center of the “duck-nest.” On top of this upper platform was an A-frame of strong timbers, to which was attached the necessary drums and pulleys. Attached to this- upper or second platform was still another and smaller platform, about 3 by 3 feet in size, upon which the engineer stood to work the levers and raise or lower the “clamshell” bucket attached to the end of the boom, or to swing the bucket around to the place where he desired to unload it; and above this small platform was a small roof, to protect from the weather the engineer and the wooden drum on which the cable worked. From this roof there were canvas sides which could be rolled up or lowered as the engineer desired. Above the roof which sheltered the engineer, and attached to the A-frame was a box-like covering for the protection of the wooden drum. The upper platform and the parts of the derrick thereon weighed about thirty tons. It was held-in place by its weight, forcing the convex arrangement on the bottom of the upper platform into the dnck-nest on the lower platform, and by the flanges of the wheels of the floating-circle, which-were on the outside of the circular rail track on both the upper and the lower platforms. In addition, through the hole in the center of the upper and lower platforms, there was (placed a long bolt, called a “king-pin,” and a nut or “key” secured the lower end of it, binding together the upper or revolving and the lower, or stationary, parts of the structure. The testimony is that it was not necessary to put this king-pin in, and that it was not customary to use such a pin in similar structures, but, in order to be doubly sure that the upper platform was securely fastened to the lower one, this king-pin was put in. The evidence is not altogether clear as to whether the king-pin was in place on the day of the accident.

The derrick which constituted the upper portion of this structure was a steam hoisting-derrick, or revolving crane, known as a McWyler “Whirley” derrick. This derrick belonged to Brewer & Jones, contractors and dealers in sand in Borne, Georgia; and Blackwelder was the engineer employed by them to operate the derrick. It was purchased, dismantled, in Cleveland, Ohio, and ivas shipped to and erected at the.place where it collapsed (part of the timber used in its erection being bought at Borne, Georgia), and where it had been located for about three years prior to the accident.

How the accident occurred is not material in this case, but it was undisputed upon the trial that everything above the floating circle of wheels, including the second platform, the boom, the A-frame, the cables, the drums, the boiler, the engine, the water tank, and the coal box, fell or slipped off into the river, carrying Blackwelder with the wreckage, and killing him. Neither the floating- circle of wheels nor anything thereunder fell.

1. The rule as to the construction of ambiguous words in a contract of insurance, as stated in the first headnote, is so well known and recognized that we think it unnecessary to cite- authority in connection therewith. Although the evidence did not specifically show that the insurance contract sued upon was prepared by the insurer, it is so well known in the legal world that it is the universal custom for insurance companies to prepare their contracts of insurance that this court will take judicial cognizance of that fact.

2. No citation of authority is deemed necessary to .support the second headnote, as the principle of law stated therein is well settled.

3, 4. It is agreed by counsel for both parties that the only question for this court to decide is whether the structure described above was a “building,” within the meaning of the contract of insurance sued upon. It is contended by the learned counsel for the plaintiff in error that this structure or fabric was merely a portable derrick, or piece of movable machinery, and could not reasonably be considered as a building. It is first necessary, therefore, to find .out how the lexicographers have defined the word “building,” and how the courts have construed it.

The Century Dictionary (copyright dates 1889 to 1911) gives the following definitions of the word: “A fabric built or constructed; a structure; an edifice; as commonly understood, a house for residence, business, or public use, or for shelter for animals or storage of goods. In law, anything erected by art and fixed upon or in the soil, composed of different pieces connected together, and designed for permanent use in the position in which it is so fixed, is a building. (Edw. Livingston.) Thus a pole fixed in the earth is not a building, but a fence or a wall is.”

The Standard Dictionary (date 1913) defines it as “An edifice for any use; that which is built, as a dwelling-house, barn, etc.

“And think ye that building shall endure Which shelters the noble and crushes the poor?”

From Webster’s Dictionary (date 1909), we get the following definitions: “That which is built; specif: (a) as now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and cover a space of land, for use as a dwelling, storage, shelter for beasts, or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, boarding, or similar structure, though designed for permanent use where it stands; nor a steamboat, ship or other vessel of navigation, (b) As interpreted under some statutes, a part of a house occupied as a separate tenement; an apartment or tenement.” According to Black’s Law Dictionary a building is “A structure or edifice erected by the hand of man, composed of natural materials, as stone or wood, and intended for use or convenience.” And in Bouvier’s Law Dictionary (Bawle’s third revision, 1914), a building is defined as “An edifice eretted by art, and fixed upon or over the soil, composed of brick, marble, wood, or other proper substance, connected together, and designed for use in the position in which it is so fixed. . .”

The learned counsel in this cause have not cited, nor have we been able to find, any case where it has been held that a structure substantially similar to the one here involved was, or was not, a “building,” within the meaning of the .contract of accident insurance which covered the. death of the insured if caused by the “collapse of a building.” It is clear, however, that the answer to the question involved in this case depends.upon another question, to wit, is the word “building” ambiguous? Has it only one generally accepted and understood meaning, or has it more than one? To state the proposition more precisely, as applied to the facts of this case, — does the word “building” include only houses of a certain class, such as dwellings, stores, offices, barns, and structures of the same general character, or is it susceptible, without a violent interpretation, of being construed as including many kinds of edifices and structures erected by man, which are not of the same general' character as dwellings,, stores, offices, or barns? It appears from the definitions we have just quoted from the dictionaries that’the word “building” embraces edifices and structures of many and varied character, for occupation, habitation, storage of goods, shelter, and for other useful purposes. There seems to be no single, restricted and well-accepted definition of the term. The books are, however, full of cases which supply the answer to the latter question. In Smart v. Hart, 75 Wis. 471 (44 N. W. 514), and Gillock v. People, 171 Ill. 307 (49 N. E. 712), it was held that a “chicken-house” was a building. In Whitmore v. Wenlock, 44 E. C. L. 15 (134 Eng. Beprints, 460), and in Smart v. Hart, supra, a “cow-house” or stable was declared to be a building. A “dug-out,” 13 feet long, 10 feet wide and 7 feet deep, covered with a roof, was held to be a building, in State v. Sanders, 81 Kan. 836 (110 Pac. 1029). In State v. Anderson, 154 Iowa 701 (135 N. W. 405), a freight-car, resting on timbers on railroad ground, the trucks having been removed, was adjudged a building. See, to the same effect, 1 Words & Phrases (2d series), 512; Hardin v. State, 92 Neb. 298 (138 N. W. 146). In Montclair v. Amend (N. J. Eq.), 68 Atl. 1067, it was held that a.lunch wagon, located on a vacant lot, and connected with gas and telephone fixtures, was a building. In Watson v. Cotton, 57 E. C. L. 51 (136 Eng. Keprints, 792), a shed, closed on two sides, was declared a building. In Concord v. Morgan, 74 N. H. 32 (64 Atl. 725), it was held that the word “building” included a structure for the shelter of an engine and consisting of a roof composed of boards and roofing paper, supported by rows of posts, with walls made of boards and “piles of wood.” In Olmsted v. McNall, 7 Blackf. (Ind.) 387, a floating wharf was held to be a building. In Coburg Hotel v. London County Council, 19 Cox C. C. 411, a “portico” was held to be a building. In Wood v. Cooper (1894), 3 Ch. 671, a “trelliswork screen” was held to be a building. A “wooden advertisement boarding” was held to be a building, in Pocock v. Gilham, Cab. & E. 104. In several jurisdictions it has been held that even a fence is a “building.” Mecca Realty Co. v. Kellogg &c. Co., 166 App. Div. 74 (151 N. Y. Supp. 750); Swasey v. Shasta County, 141 Cal. 392 (74 Pac. 1031); Moore Planting Co. v. Morgan’s La. &c. Co., 126 La. 840 (53 So. 22); Parsons v. New York, 107 App. Div. 324 (95 N. Y. S. 131); Wright v. Evans, 2 Abb. Pr. N. S. 308.

The case, however, which in its facts most nearly resembles the instant one is .that of Aylward v. Matthews, 1 K. B. (1905) 343 (9 Corpus Juris, 686, note a). In that ease the headnote says: “A temporary wooden structure of a substantial nature, such as a platform sixty-two feet in height, for a steam crane, to be used in the construction of a building, may be a building within the meaning of section 7 . . of the workmen’s compensation act, 1897.” In that ease the platform was being erected to support a steam-crane, which was to be used in the construction of a SGhool building. The platform was made of wood and was supported by three legs, which were composed of upright pieces of timber, connected together with cross-braces of wood. These legs-went down into the ground and were strengthened, at the base with bricks or other heavy substances to keep them fixed. Upon the cross-pieces of the legs planks were placed, upon which ladders rested, thus forming a scaffolding by means of which the platform was being erected. The platform was about sixty-two feet above the ground. It was intended as a temporary structure only, as it was to be torn down and removed when the school building was' completed. Aylward, who was engaged in the erection of the platform, fell from a ladder forming a part o£ the scaffolding, in consequence of the breaking of a plank upon which the ladder rested, and sustained injuries for which he claimed compensation under the workmen’s compensation act of 1897. That-act provided for compensation, among other things, for injuries sustained by a workman while engaged in the erection or repair of a “building” exceeding thirty feet in height. The sole question in that case was, whether the platform was a “building,” within the meaning of the act. Counsel for the respondent (the • contractor and the employer of Aylward)' contended that as the platform was only a temporary structure and was being built solely for the purpose of erecting a building, it could not itself be regarded as a building for the purposes of the act. The trial judge, however, held that it was a'“building,” within the meaning Of the statute, and this decision was upheld by the King’s Bench Division.

In our opinion there is decidedly more reason for holding that the structure in the case at bar was a building, within the meaning-of the contract of accident insurance; for here the structure was much more substantial and permanent in its character, and the rule of construction is much more favorable to the insured. The fact that only the top part of the structure in question here fell, or collapsed, and that the lower platform and trestle remained standing, is, in our judgment, immaterial. The entire structure, taken as a whole, was necessary for the proper operation of the work being accomplished by it. If the top part, consisting of the derrick proper, had been removed from the lower part, the ■ efficiency of the structure as to workability would have been destroyed. Either part would have been useless without the other. The structure then must be considered as a whole, and when so considered it is obvious that it is immaterial in this case whether the insured was killed by the collapse of the entire structure, or by the collapse of the top portion only. It is well settled that in cases of this character the insurance company is liable if the insured is accidentally killed by the collapse of a substantial portion of a building. It is not necessary for the plaintiff’s recovery to show that the entire building collapsed.

Under all the facts of the case the court did not err- in holding that the structure in question was a.“building,” within the meaning of the contract of insurance sued upon, or in directing a verdict in favor of the plaintiff.

Judgment affirmed.

JBloodworth and Harwell, JJ., concur.


author: Harwell, ,J.

text:
    9139.
    TIPTON et al. v. CONRAD & LEE.
    The Civil Code (1910), § 3367, provides that “in all foreclosures of liens on personalty, in -which the property levied on is replevied, and in which verdicts shall be found for the plaintiff, the plaintiffs shall enter up judgments against the defendants and their securities in the same manner, and to the effect, as in cases of appeal.” In the absence of a counter-affidavit, the plaintiffs in this case were authorized, under the foregoing code-section, to enter up judgment on the replevy bond, against the defendant and his surety, in the same manner as in cases of appeal. Giddens v. Gaskins, 7 Ga. App. 221 (66 S. E. 560). See also Argo v. Fields, 112 Ga. 677 (37 S. E. 995). The court did not err in sustaining the demurrer to the rúotion to vacate the judgment, and the judge of the superior court did not err in overruling the certiorari.
    Decided January 21, 1918.
    Certiorari; from Bibb superior court — Judge Mathews. July 5, 1917.

      G. H. Garrett, for plaintiffs in error.

      Moore & Turpin, contra.
   Harwell, ,J.

On October 23, 1916, Conrad & Lee foreclosed their lien as mechanics upon a certain automobile of E. W. Tip-ton in the municipal court of the City of Macon, and on the day following Tipton replevied the automobile by giving a bond, with Spier as surety, conditioned to pay to said Conrad & Lee the amount of the judgment that might be rendered against him in said case. Tipton did not, file a counter-affidavit to the lien foreclosure. The ease was marked in default by the judge of the trial court, at the next term, and Conrad & Lee thereupon entered up judgment against Tipton and the surety .on his bond, for the amount claimed in the lien foreclosure. Tipton and his surety then made a written motion to vacate this judgment, and a rule nisi was served upon Conrad & Lee, requiring them to show why the judgment should not be set aside. Conrad & Lee demurred generally to the motion. The grounds of the motion are: "(1) Because it -takes a valid' counter-affidavit to convert a lien-foreclosure execution into mesne process, and no counter-affidavit .whatever had been filed in said case when said judgment was taken. (3) That at the time said judgment was taken, there was no suit in court, no is'sue to be tried, and no pleading which authorized any judgment against petitioners or either of them. (3) Because the court, under the circumstances hereinbefore recited, was without jurisdiction to enter any general judgment against petitioners or either of them in said ease at the time the said judgment was entered.” The court sustained the general demurrer and overruled the motion to vacate the judgment. Tipton and his surety sued out a writ of certiorari, the judge of the superior court overruled the certiorari, and the case came to this court upon exceptions to this ruling.

It is not necessary to elaborate the ruling announced in the headnote.

Judgment affirmed.

Broyles, P. J., and Bloodworlh, J., concur.


author: Harwell, J.

text:
    9146.
    JONES v. HODGES, administrator.
    1. Where an action is brought on an indebtedness, and the petition, which is not sworn to, alleges that the indebtedness is secured by a deed, but does not allege how it arose, whether upon an account or a promissory note, an answer denying separately by paragraphs the allegations of the petition is legally sufficient, though not verified.
    .2. Under the act creating the city court of Quitman, where a valid plea is filed and a jury trial demanded at or before the call of the appearance docket, the case should be transferred to the jury docket .for trial at the next jury term of the court. The plea in the instant case being a valid plea, and, together with the demand for jury trial, having been filed in time, the court erred in striking the plea and jury demand at the appearance term and in entering Up judgment against the defendant at that term.
    3. The motion to set aside the judgment, to reinstate the plea, and to allow the case to be tried by a jury, which was made by the defendant at the next term of the court, should therefore have been sustained by the trial judge.
    Decided January 21, 1918.
    Motion to set aside judgment; from city court of Quitman— Judge Long. July 9, 1917. •
    E. E. Hodges, as administrator of J. G. Hodges,- brought suit to the January term, 1917, of the city court of Quitman against M. F. Jones. The suit was for an indebtedness of $2,000, and alleged that a deed to a certain tract of land described in the petition was given by Jones to J. C. Hodges to secure that indebtedness. The petition does not disclose whether this indebtedness is on open account or promissory note; it does not indicate, in fact, how the indebtedness arose. The petition prays for a judgment against the defendant for the said sum, and for a lien against the land described. A copy of the deed is attached to the petition. The defendant filed an answer at the January term, 1917, before the call of the appearance docket. The answer was' as follows: “1. Defendant admits that he is a resident of said county of Brooke. 2. Said defendant denies the second paragraph as well as subsections a and b of said 'paragraphs. 3. Defendant denies paragraph three of said petition. - Defendant demands a trial by jury, and prays that he may be discharged without cost."'
    At the appearance term the plaintiff demurred to the answer and moved to strike it, upon the following grounds: “1. Because the suit of plaintiff is based upon written evidence of indebtedness, and the answer of defendant amounts to nothing more than a .general denial, which is not sustainable under law. 2. Because said answer is vague and indefinite and not sufficiently specific to inform plaintiff of the nature of the defense of the defendant. 3. Because the answer of the defendant is not verified as required by'law when the suit is based upon a deed to secure debt." The court sustained this motion to strike and allowed the plaintiff, without any verdict being entered, to take judgment against the defendant at the January, or appearance, term. The defendant was not present when his plea was stricken and judgment entered against him.
    At the April term, 1917, the defendant made a motion in the city court to set aside the order striking his answer, and to set aside the judgment in favor of the plaintiff, entered by the court without a jury, and further praying that the court reinstate his plea and try the case on its merits before a jury. This motion was based upon various grounds, substantially as-follows: That plaintiff’s suit is not a good suit in law, and no good and valid judgment could be entered thereon, because it does not declare upon any cause of action; that the answer filed by the defendant was a good answer in law and a complete denial of plaintiff’s cause of action; that it did not need to be sworn to, and that it was illegally stricken by the court; and further, that it was illegal for the court, at the appearance term of the case, to enter a judgment against the defendant, the court being without authority to do so because the defendant had, before the call of the appearance docket, filed in writing a demand for jury trial, and this demand for a jury trial transferred the case, as a matter of law, to the April term of the court; that the court was without power and authority to enter üp a judgment without a jury against the defendant at the appearance term, and that the rendition of the judgment in the case was therefore void. The motion further recites that it is made under oath, that the defendant sets up a meritorious defense, has paid the costs, and announces ready to proceed with the trial of the case, and he sets out as exhibits all of the (proceedings in the case. The court granted a rule nisi, directing the plaintiff to show why the motion to set aside the judgment should not be granted and the defendant allowed to refile his plea and answer, and the case be tried on its merits, and requiring that a copy of the petition and motion be served on the plaintiff.
    The plaintiff answered this motion, denying each paragraph thereof. TJpon the hearing of the motion the court refused to set aside the judgment and to reopen the case, and to this order the defendant excepts. TJpon the hearing of the motion the defendant testified: “I got Mr. Baum, attorney, to prepare my answer for me. He prepared it and told me, when filed, it would carry the case over to the April term of the court. I relied on the statement and advice given me by said Baum, attorney, and did not attend the court any further.” The attorney was present and stated: “I prepared the plea for Mr. Jones as a matter of accommodation to him; did not agree to represent him in the case, but, on the contrary, told him I would not represent him, that I would only prepare the answer for him. I told him if he signed and filed that answer, it would carry the case over to the April term of court. It had not been the custom in the city court of Quitman to hear demurrers to suits and answers at the appearance term. It had been customary^ to hear them at the trial term. In the majority of cases, they have gone over to the trial term for hearing.”

      O. M. Smith, for plaintiff in error.

      Bennet & Harrell, contra.
   Harwell, J.

(After stating the foregoing facts.) The defendant filed a good plea, and the court erred in striking it. The plea did not have to be sworn to. The suit was not upon an unconditional contract in writing, and the petition was not verified. Civil Code (1910), §§ 5638, 5660. The petition does not indicate how the indebtedness arose, whether on account or promissory note; the plea should not have been stricken for any of the reasons alleged. Civil Code (1910), §§ 5634, 5636; Ocean Steamship Co. v. Anderson, 112 Ga. 835 (38 S. E. 102); DeSoto Co. v. Hammett, 111 Ga. 24 (36 S. E. 304); Kahn v. Southern Building & Loan Asso., 115 Ga. 459 (4) (41 S. E. 648). The decisions holding that a general denial of certain paragraphs of the petition is insufficient relate to suits on promissory notes, and in that re'spéct differ from the instant case. Johnson v. Cobb, 100 Ga. 139 (2) (28 S. E. 72); Lester v. McIntosh, 101 Ga. 675 (29 S. E. 7).

The act establishing the city court of Quitman (Ga. L. 1912, p. 293) provides: “Section 14. The first term shall be the appearance term, and the second term the trial term, of all civil cases except eases in which trial by jury shall have been demanded by either party; provided, however, that in all eases in which no defense has been filed upon the call of the appearance docket of in which the defense may be stricken, judgment may be entered at the first term thereof. That the regular term held in the months of January, April, July and October shall be jury terms, at which terms all cases in which trial by jury has been demanded, and which are ripe for trial under this act shall stand for trial by the judge and a jury of twelve men.” Section 15 provides: “In any ease where a trial by jury is- demanded in writing by either party before or upon the call of the appearance docket, said case shall be transferred to the jury docket of said court, and shall stand for trial by a jury at the next jury term of said court. .- . The parties in any cause shall be entitled to a trial by jury' in said court by entering a demand by themselves or their attorneys in writing as herein provided before or upon the call of the appearance docket; provided, that it shall be the duty of the judge of said city court to call the appearance docket at some time fixed by him during the term for the purpose of ascertaining in what eases trials by jury have been demanded, and for the purpose of entering judgment in cases in which no .defense has been filed;” Section 16 provides that “the judge of said city court shall have the power and authority to hear and to determine all civil cases of which said court has jurisdiction, and give judgment therein; provided, always, that either party in any cause shall be entitled to a trial by jury in said court upon entering a demand therefor, by himself or attorney, in writing as provided for in section 15.” Section 24 provides “that the clerk of the city court of Quitman, in addition to the regular issue dockets, shall keep a docket which shall be called a jury docket, in which shall be entered all cases in which trial by jury is demanded,” etc.

Under the provisions of this act, the 'defendant’s plea having been filed and a jury demanded before or upon the call of the appearance docket, at the January term, the case should have been transferred to the jury docket of the court, and would have been ripe for trial at the next jury term (the April term). The court was without authority to give judgment against the defendant. He was denied his constitutional right of trial by jury. He complied strictly with the law in filing his plea and in demanding a jury trial. The court struck the plea and the demand and exercised jurisdiction of the case at the appearance term, and rendered judgment at once without a jury and without a hearing, in the absence of the defendant.

Whether under the.terms of this act, where a jury is demanded but no plea filed, the court would have authority to enter up judgment without the verdict of a jury, at the first-term, need not be determined. Suffice it to say that a good plea was filed in the instant case. The judgment was voidable and could be set aside' on motion timely made. Civil Code (1910), §§ 4358, 5957; Welch v. Singleton, 95 Ga. 519 (20 S. E. 496); Phillips v. Phillips, 124 Ga. 912 (53 S. E. 457); Murray v. Derrick, 101 Ga. 113 (28 S. E. 616); King v. Meyer, 97 Ga. 379; (24 S. E. 32); Horrigan v. Savannah Grocery Co., 126 Ga. 127 (54 S. E. 961); 17 Cyc. 1072; 23 Cyc. 924. The motion to set nside was made at the first term of court (the April term) after the defendant discovered that his plea and jury demand had been stricken and judgment rendered against him. It was shown by him that he procured an attorney to prepare the answer for him, and that this attorney told him that when the answer was filed it would carry the case over to the April term. He relied on the attorney’s statements and did not appear at the January term. Under the facts as they appear in the record we think that the court should have sustained the defendant’s motion to set aside the order striking the plea and jury demand, and also the judgment entered in favor of the plaintiff, and should have reinstated the plea and jury demand and let the case be tried by a jury on its merits. That the defendant did not appear at the January term when his plea was stricken and did not discover that judgment was entered against him until too late to certiorari or make a motion for a new trial would not, under the particular facts of this case, preclude his right to move to set aside this voidable judgment.' Regardless of the assurances given him by his attorney that the case would go over to the April term, or of the custom of the court, the act of 1912j supra, distinctly says that when a jury is demanded, as therein provided, the case “shall he transferred to the jury docket of said court, and shall stand for trial hy a jury at the next jury term of said court.” The defendant certainly had the right to presume that his case would be. transferred to the jury docket and stand for trial at the April term. The court therefore erred in overruling the motion, and the judgment is

Reversed.

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


text:
    9171.
    FLOURNOY v. AMERICAN HAT MFG. CO.
    This being an action against a master to recover damages for injuries to a servant, and it appearing, from the allegations of the petition, that the servant must have known the facts charged as negligence of the master, there was no error in sustaining the general demurrer and dismissing the action.
    Decided January 21, 1918.
    Action for damages; from Fulton superior court — Judge Pendleton. June 20, 1917.
    Mrs. Flournoy brought suit against the American Hat Manufacturing Company for damages on account of personal injuries alleged to have been caused by negligence of the defendant in failing tó furnish her a safe place in which to labor. In the original petition she alleged that she was an employee of the defendant, at work on the third floor of the place of business operated and controlled by it; that a stairway leading from the second to the third floor of tbe said building was used by the employees of the defendant; that this stairway was located near the center of the building, and there was an electric light about half way down the stairway from the third to the second floor, for the purpose of lighting the stairway; that in the afternoon of the date alleged in the petition, to wit, September 9, 1915, at about 5:30 o’clock, she stopped work on the third floor and started down to the second floor, where she was required to register, and the only way provided for her and the other employees as a means of ingress and egress was down the stairway described in the petition; that at the time she started down said stairway the electric light over the stairway was not burning, and the stairway was dark, and the steps of the stairway were made of wooden boards or planks, which were old and had become worn by constant use until they were slick; that at the time she started down said stairway and when she had gone down one or two steps from the third floor, she fell some six feet down the stairway. Plaintiff amended her petition and alleged: that the room in which she worked was separated from the stairway by means of a swinging door that swung to and from the room in which she worked; that opposite this door was another door of like kind; that these doors were so arranged as to lead from the stairway on the third floor directly to the stairway running from the third to the second floor, and these doors were- so constructed as to work upon spring hinges, and were always closed except when being pushed outwardly or inwardly by those passing through, and that when they were pushed open for the purpose of affording ingress or egress to and from the room, they immediately sprung back into a closed position; that on the date alleged, at about 5:30 o’clock in the afternoon, she prepared to leave by means of these doors described; that when coming through, the door swung back into position, leaving her in absolute darkness at the top of the stairway; that the space between the door and the top of the stairway was scarcely big enough for a person to turn around there, it being a little vestibule between the doors and top of the stair, about two or three feet in width and from four to five feet in length; that during the whole time she worked for the 'defendant it had been the policy of the company to have suspended from the ceiling of the second floor an electric drop-light, in the position about- half way down the stairway described, and that this was so suspended as to give a perfect illumination up the stairway, and when burning furnished a safe exit to the employees, and that during her whole term of service for defendant company, covering a period of three or four years before the date alleged, she had never known this light not to be burning at the time when the employees were leaving at night or late in the afternoon; that she could not have known that the light was not burning, prior to coming through the door, and that, the door swinging back into position while she was in a walking position, she missed the stairway leading to the second floor and fell down the steps, sustaining certain injuries described in her petition; that she could not by the exercise of ordinary care have known of the dangerous position in which she was placed, and that in stepping out in utter darkness in the manner described, she hit the open stairway, falling down the steps as alleged in the original petition. She charged that under the facts as stated in the petition as amended, the defendant was guilty of negligence in failing to provide her with a lighted stairway, and that she could not, by the exercise of ordinary care, have avoided the injury sustained.

      B. B. Blackburn, O. F. Wells, for plaintiff.

      Bosser, Slaton, Phillips & Hoplcins, for defendant.
   Harwell, J.

.(After stating the foregoing facts.) Conceding that the petition as amended shows negligence on the part of the master, in that the steps were worn and slick, and that no light was burning at the place where it was usual for the light to be, when the plaintiff started to descend the steps, do not the facts alleged show that she was fully aware of the danger, and that she would be, therefore, precluded from any recovery ? She had been working for the defendant, as she alleges, for three or four years, had to use these steps constantly, and must have known that they were worn and slick. She certainly had equal means with the master of knowing that fact, which is charged as negligence to the defendant company. When she emerged from the room upon the landing at the head of the steps, she must have seen immediately that no light was burning at the place where she alleges it usually burned. In the original petition she alleges that she had descended a step or two before she fell. The danger, if danger there was, from the absence of the usual light, was obvious to her before she started to descend, and she assumed the risk of those dangers, which were known and obvious. “Upon one who brings a suit against a master for injuries to a servant it is incumbent to show not only negligence on the part of the master, but due care on the part of the servant; and it must appear that the servant injured did not know and had not equal means of knowing all that which is charged as negligence to the master, and by the exercise of ordinary care could not have known thereof.” Ludd v. Wilkins, 118 Ga. 525, 526 (45 S. E. 429), and cases there cited, Civil Code (1910), § 3131; Holland v. Durham Coal & Coke Co., 131 Ga. 715 (63 S. E. 290); Attleton v. Bibb Mfg. Co., 5 Ga. App. 777 (63 S. E. 918); Jellico v. White, 11 Ga. App. 836 (76 S. E. 599). “No recovery can be had upon mere proof of negligence on the part of the master; but the plaintiff must .show, in addition to the exercise of due care on his part, that he was not aware of the danger, that his opportunities for knowing the existence of the danger were not equal to those of the master, and that in the exercise of ordinary care he could not himself have known of the danger.” Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (4) (86 S. E. 82), and citations. See also Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 117 (89 S. E. 158); Stubbs v. Atlanta Cotton-Seed Oil Mills, 92 Ga. 495 (17 S. E. 746); Lowry v. Atlanta Joint Terminals, 145 Ga. 782 (89 S. E. 832). Under the facts shown by the allegations of the petition as amended, the court did not err in sustaining the demurrers and dismissing the petition.

Judgment affirmed.

Broyles, P. J., and Bloodworlh, J., concur.


text:
    9172.
    Jackson v. Moore.
    Decided January 22, 1918.
    Certiorari; from Eulton superior court — Judge Ellis. July 6, 1917.

      Louis H. Foster, for plaintiff in error. C. F. Wells, contra.
   Broyles, P. J.

Under the facts of the case the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Luke, J.

text:
    8719.
    Camilla Cotton Oil & Fertilizer Co. v. Walker.
   Luke, J.

1. Where, in an action for a personal injury, one of the elements of damages alleged was decrease of the plaintiff’s earning capacity, and he testified that for three years preceding the injury he had satisfactorily served the defendant as machinist, it was not error to allow him to testify further “as to what the usual and customary wages of an expert machinist in this community at that kind of business are.”

2. A master owes to each servant the duty to exercise ordinary care in ' the selection of other servants engaged in the same enterprise, and not to retain them after knowledge of their incompeteney. Civil Code (1910)', § 3130.

3. In a proper case a servant may recover of the master for an injury occasioned by the act of a fellow servant. It is incumbent upon the injured servant, however, except where the employer is a railroad company, to show the following facts: first, that the fellow servant was incompetent; second, that the injury complained of resulted directly or proximately from such incompeteney; third, either (a) that the master knew of such incompeteney, or (6) that by the exercise of ordinary care he could have known of it; fourth, that the injured servant did not know of such incompeteney; fifth, that by the exercise of ordinary care he (the injured servant) could not have known of it; and, sixth, that he did not have equal means with the master for acquiring knowledge of such fact. Civil Code (1910), §§ 3129, 3130, 3131.

4. In such a case there is but one degree of care prescribed by law, namely, “ordinary care;” and -that degree of care is prescribed alike for the master and for the servant. If the master has exercised such care, and has neither employed nor retained, the alleged incompetent servant with knowledge of such incompeteney, he is not liable. On the other hand, if the injured servant knew of such incompeteney, or by the exercise of ordinary care could have known of it, or had equal means with the master for knowing it, but nevertheless continued in the master’s employ and sustained an injury as alleged, he can not recover, even though it appear that the master knew or ought to have known of the fellbw servant’s incompeteney. Civil Code (1910), § 3131.

5. Although the admissions of an agent, made outside the scope of his employment and while not engaged in the business of his principal, are not admissible in evidence against the principal as proof of the facts thus admitted, yet if there is any other evidence before the jury sufficient to authorize a finding that the facts thus indicated actually existed, the admissions may be proved for the purpose of showing knowledge of such facts on the part of the agent. Rosentiel v. Pittsburg Ry. Co., 230 Pa. 273 (79 Atl. 556, 33 L. R. A. (N. S.) 751 and notes).

6. Where the issue is whether the master knowingly employed or retained an incompetent servant, it is not error to. allow a witness to testify as to admissions of such incompeteney made by the master’s alter ego prior to the occasion in controversy.

7. Specific complaints by the master, or the master’s alter ego, to the sei'vant whose ineompeteney is the alleged cause of the injury in controversy, or by other persons to the master concerning that sex-vant, may be proved upon the issue as to whether or not the servant was in fact incompetent as alleged by the plaintiff, and especially to show the master’s knowledge of his ineompeteney.

Decided January 22, 1918.

Action for damages; from Mitchell superior court — Judge Cox. December 29, 1916.

Miller & Jones, Pope & Bennet, for plaintiff in error.

Peacoclc & Gardner, Pottle & I-Iofmayer, contra.

8. Where the issue is whether the master knowingly employed or retained an incompetent servant, it is not error to allow the plaintiff to prove that the servant had long borne ux the community of'the master’s place of business a general reputation for ineompeteney in the particular line of work in which he was employed by the master on the occasion in controversy. But the master and the injured servant are equally chargeable with knowledge that is general; and ithe burden of proof being upon the plaintiff to show that lie was without knowledge, as. well as that the defendant did have knowledge, of the ineompeteney of the fellow servant, such evidence would seem to militate more strongly against the plaintiff than the defendant. In a case of this character, the defendant will not, therefore, be heard to complain of the admission of such evidence.

9. The court erred in instructing the jury as follows: “If the servant was incompetent and the master knew it, or could by the exercise of ordinary care have discovered it, the master would be liable for any injury to a servant caused by his negligence, provided the injured servant did not know of his ineompeteney or had not equal means with the master of knowing such facts, or could not by the exercise of ordinary care have discovered it, and provided further the injured servant would be otherwise entitled to recover under the law.” In such a ease, the master’s liability is limited to such negligence as flows directly from the ineompeteney of the negligent servant, and to such injuries as flow directly or proximately from such ineompeteney. He is not liable for the general negligence of the fellow servant, even though the fellow servant be incompetent in the particulars alleged. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 197 (33 S. E. 961).

10. Since the other matters on which error is assigned may not recur upon another trial of this ease, no decision is made thereon.

Judgment reversed.

Wade, O. J., and J enjoins, J., coneur.