author: Stephens, J.

text:
    10420.
    KELLY v. GEORGIA RAILWAY & POWER CO.
    1. An order sustaining a demurrer to a petition upon the ground of misjoinder of parties or of actions is a final judgment, unless the defect be cured by amendment prior to exceptions being taken to the order, and the effect of such order is to dismiss the petition as against the demurrant.
    2. It is not necessary that such order contain a provision therein, or that there be an additional order, expressly dismissing the petition.
    3. Thus, where an order sustaining a demurrer which operates to dismiss a petition allows a specified time in which to amend, such a provision will not necessarily operate to change the character of the order as respects its being a final judgment. The order, as it stands, still operates to sustain the demurrer and may become final. While such order will operate as a final judgment after the time allowed for amendment has expired, in the event no amendment is fined, it may nevertheless beforehand become final upon a refusal to accept the privilege of amendment. In the latter event it will not be necessary to wait until after the expiration of the time allowed for amendment, before excepting to fhe order as a final judgment. Where the plaintiff, before the expiration of the time for amendment, and without filing any amendment to the petition, presents and has certified a bill of exceptions excepting to such order and files it with the clerk of the tidal court, the plaintiff will be considered as having waived any right which he may have had to amend the petition, and such bill of exceptions will be construed as excepting to a judgment thus made final, and will not be dismissed upon motion of defendant in error upon the ground that such judgment was not final and that the bill of exceptions was prematurely brought.
    4. Where the plaintiff charged that she was damaged by two defendants, and alleged that such damage was occasioned by a collision between a street-car belonging to one of the defendants, upon which she was a passenger, and an automobile truck belonging to the other defendant, but separately charged acts of negligence against each defendant as Causing the collision, and it appeared from the petition that such acts of negligence jointly and concurrently caused the collision and thereby produced the damage complained of, the plaintiff sufficiently charged the defendants as being joint tort-feasors.
    5. The paragraph of the plaintiff’s petition alleging drug and doctor’s bills incurred was sufficient specific, and the special demurrer thereto was improperly sustained.
    Decided November 19, 1919.
    Rehearing denied November 28, 1919.
    (Certiorari granted by the Supreme. Court.)
    Action for damages; from Fulton superior court—Judge Bell. February 4, 1919.

      Lowndes Calhoun, for plaintiff.

      Colquitt & Conyers, for defendant.
   Stephens, J.

The defendant demurred to the plaintiff’s petition upon the ground of a misjoinder of parties and actions. The trial judge sustained the demurrer, passing the following order: “This demurrer is upon consideration thereof sustained with leave granted to the plaintiff to amend on or by the 1st of March, 1919. This Feb. 4, 1919.” On February 10, 1919, before the expiration of the time allowed for amendment, the plaintiff, without availing herself of the right to file an amendment, presented and had certified a bill of exceptions assigning error upon the passage of this order, which bill of exceptions was filed in office on February 18, 1919. Counsel for defendant in error moves this court to dismiss the writ of error, upon the ground that there is no exception to a final order and that the bill of exceptions is permaturely brought to this court.

A demurrer to a petition for misjoinder was, at common law and by the earlier decisions of the Georgia Supreme Court, denominated a general demurrer. Governor v. Hicks, 12 Ga. 189. While by later decisions it is denominated a special demurrer (Georgia Railroad &c. Co. v. Tice, 124 Ga. 459, 463, 52 S. E. 916 4 Ann. Cas. 200), still the effect of sustaining such a demurrer is, in the absence of an amendment, just as fatal to the petition and operates in precisely the same manner as the sustaining of a general demurrer, so far as the working of a dismissal of the petition is concerned. Civil Code (1910), § 5631. A judgment sustaining a general demurrer is a final judgment. Whidden v. Thomasville, 10 Ga. App. 194 (73 S. E. 45); O’Neal v. Miller, 9 Ga. App. 180 (70 S. E. 971). It follows, therefore, that such an order, in the absence of any amendment, is a final judgment dismissing the petition against the demurrant, and is directly renewable by this court.

It is not essential to an order sustaining either a general or a special demurrer that there be a provision expressly dismissing the petition or expressly striking the objectionable paragraph specially demurred to. The effect of such an order, without an express provision of dismissal, is to work a dismissal of the petition or the paragraph excepted to. From the original records in the cases of Whidden v. Thomasville, and O’Neal v. Miller, cited supra, where it was held that a judgment sustaining a demurrer to a petition was a final judgment dismissing the petition, and in Blackwell v. Ramsey, 126 Ga. 812 (55 S. E. 968), where it was held that a special demurrer to a paragraph of a petition had the effect of striking the objectionable paragraph, it does not appear in any of the orders excepted to, or anywhere else, that the petition had been expressly dismissed or the objectionable paragraph demurred to had been expressly stricken. It follows, therefore, that the order in the instant case, even though there was no express dismissal, ipso facto operated to dismiss the plaintiff’s petition as against the complaining party defendant upon the ground of a misjoinder of parties and actions. This is true whether the demurrer be denominated a general or a special demurrer.

Where an order sustaining a demurrer, either general or special, allows the plaintiff a specified time in which to amend, such a provision does not in all events operate to change the character of such order as respects its being a final disposition of the petition or the paragraph demurred to. Blackwell v. Ramsey, supra. The order as it stands still operates to sustain the demurrer, and may finally become effective to dismiss the petition or the paragraph excepted to. Whether a demurrer be denominated a general or a special demurrer, it is not necessary for plaintiff to wait until the time allowed for amendment has expired, or obtain a formal order dismissing the petition, before he can except to the order sustaining the demurrer. Had the plaintiff in this case waited until after the time provided for amendment had expired, without filing any amendment, the order would have become final without any change therein or without any formal order dismissing the petition. This being true, it seems that the order could just as effectively have become final before the time for amendment had expired, by the plaintiff doing some affirmative act,—as the tendering of a bill of exceptions,—which would amount to a waiver or a forfeiture of the right to amend. It can hardly be said that the plaintiff could waive or forfeit the right to amend only by waiting until after the time had expired. Where the plaintiff, before the expiration of the time for amendment, and without filing any amendment to the petition, presents and has certified a bill of exceptions excepting to such order, and files the same with the clerk of the trial court, the plaintiff will be considered as having waived any right which he may have had to amend the petition, and such bill of exceptions will be construed as excepting to a judgment thus made final and will not be dismissed upon motion of defendant in error upon the ground that such judgment was not final and that the bill of exceptions was prematurely brought. In the case of Waller v. Clarke, 132 Ga. 830 (64 S. E. 1096), the Supreme Court held, that, where a demurrer was sustained in an order which provided “that the petition be dismissed, unless the plaintiff shall within 30 days amend to meet the grounds,” and where the 30 days did not expire until after a subsequent term of the court had begun, the provision in regard to the amendment did not operate to make such order an order at the subsequent term, but that such order would be treated as one belonging to the former term of court, and was a final order of that term. Justice Holden, speaking for the court, said: .“The thirty days given in that order within which the plaintiff might amend to prevent dismissal of its petition was liable to expire in vacation. The court could not definitely know when the order was passed that the [subsequent] term would be in session at the expiration of the thirty days. . . The plaintiff had the right to offer the amendment at any time before the expiration of the thirty days and hence could have offered it before the [subsequent] term began, and could have thus prevented the order from operating at a time occurring during the [subsequent] term. The plaintiff could also have repudiated the offer of the court to allow amendment, and could have treated the petition as dismissed, by refusing to amend and filing exceptions to the order before the [subsequent] term began. . . When the order of the [former] term was passed, that the petition be dismissed unless the plaintiff amended within thirty days, the plaintiff ought to have accepted, or excepted, but it did neither. It did not accept the terms of the order by offering an amendment within thirty days, nor did it except by filing exceptions within the time required. The order merely gave the plaintiff the privilege to amend to prevent dismissal. If the plaintiff had submitted to the order requiring amendment and amended his petition to conform thereto, he could not be heard thereafter to say that an amendment was not necessary.” In the instant case the plaintiff “did not accept the terms of the order by offering an amendment,” but did “except by filing exceptions” thereto. See also, in this connection, Pratt v. Gibson, 96 Ga. 807 (23 S. E. 839). The instant case is distinguishable from Travelers Ins. Co. v. Callaway, 21 Ga. App. 743 (94 S. E. 1043), and cases there cited. In none of these cases did the plaintiff directly except to an order sustaining a demurrer to his petition with leave to amend without having first availed himself of this privilege.

Plaintiff brings suit against the Georgia Bailway & Power Company, a public carrier of passengers, and the American Express Company, charging that the defendants damaged her in a named sum, alleging that she was a passenger on one of the power company’s cars, which was coming down a certain street in the City of Atlanta, and that upon arriving at the intersection of another street the said street-car and the motor truck of the express company collided, hurling plaintiff violently against the side of the car and injuring her as set out in the petition. The petition thereafter alleges separate acts of negligence upon the part of each defendant, without any allegation, other than as above set out, that such acts of negligence jointly and concurrently caused plaintiff’s injuries. The petition charges that the power company was negligent in operating its car at a rapid and negligent rate of speed in view of the travel and congestion along said street, did not slow down on approaching an intersection street, did not keep a lookout for vehicles coming along said intersecting street, and gave no warning, by bell or otherwise, of the approach of said car to said intersecting street, that the said power company could have avoided said collision, etc.; that said express company was negligent in that it operated its truck at a rapid rate of speed, and at an angle across the car track of the power company, and without giving any warning of the approach of said truck, and without regard to the congested traffic conditions existing at said point, without keeping said truck under control, and without keeping a proper lookout on approaching the intersecting street; that said express company ran its truck in violation of an ordinance of the City of Atlanta, which provides for rules and regulations governing the operation of automobiles upon turning into a cross street. The defendant power company demurred to this petition, upon the ground that there was a misjoinder of parties and actions, and also specially demurred to one of the paragraphs of the petition; which demurrer the trial judge sustained.

We think the petition properly joined the defendants as joint tort-feasors. While it alleges separate acts of negligence upon the part of each defendant, it alleges that the plaintiff’s injuries were caused by both defendants “by reason of the following facts,” and then proceeds seriatim to set out separately acts of negligence of each defendant. The only conclusion that can be drawn from the petition is that the negligence of both defendants jointly and concurrently caused the collision, which collision is alleged as producing and causing the injuries to the plaintiff.

In the case of Matthews v. Delaware &c. R. Co., 56 N. J. L. (1893) 34 (27 Atl. 919, 22 L. R. A. 261), the headnotes read as follows: (1) “One injured by a collision between a locomotive of a railroad company and a car (in which he was a passenger) of a street-railway company may maintain a joint action against both companies if the collision was produced by the neglect of the railroad company to give notice of the approach of the locomotive, concurring with the neglect of the railway company to observe proper care in crossing the railroad track.” (2) “Although such duties are diverse and the neglect to perform each is separate and disconnected, yet, as the wrong-doing of one company unites with that of the other in causing injury, the tort is joint, and one or both tort feasors may be sued.”- The court in its opinion says: “If two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the tort is joint, and upon well settled principles each, any or all of the tort feasors may be held. But when each of two or more persons owes to another a separate duty which each wrongfully neglects to perform, then, although the duties were diverse and disconnected, and the negligence of each was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint and the tort feasors are subject to like liability.” This case has been cited and quoted approvingly by Cooley in his work on Torts, p. 247. The learned author then goes on further to say: “By the weight of authority, if a person is injured by a collision between the trains or cars of two companies, then, if both companies are negligent, both are jointly and, severally liable,” citing numerous cases. See also Bonner v. Standard Oil Co., 22 Ga. App. 532, 535 (96 S. E. 573); Barrett v. Savannah, 9 Ga. App. 642, 644 (72 S. E. 49); Tompkins v. Clay, 66 Cal. (1884) 163 (4 Pac. 1165); 2 Modern Am. Law, 432.

Both defendants owed a duty to the plaintiff. The power company owed to the plaintiff that duty which a carrier owes to a passenger upon one of its cars. The express company owed to the plaintiff the general duty which any one operating a vehicle along the public streets owes to one having the lawful right to use the said streets. It therefore follows that although these duties were diverse and disconnected, and the negligence of each defendant was without concert, if the collision which produced the injuries to the plaintiff was caused by the negligence of both defendants acting jointly, the defendants were joint tort -feasors, and there was no misjoinder of actions or parties.

The trial judge erred in sustaining the demurrer.

Judgment reversed.

Jenkins, P. J., Smith, J., concur.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    10426.
    INTERNATIONAL AGRICULTURAL CORPORATION v. SUBER.
    1. Although the words “superintendent,” “manager,” and the like do not necessarily import that the employee bearing such title was the vice-principal of the master, such designation, coupled with other facts, was sufficient to raise a question for the jury as to whether he was, on the occasion in question, the vice-principal of the master.
    2. An employer is liable if he so interferes with or assumes contral over work being done by an independent contractor as to create the relation of master and servant. Civil Code (1910), § 4415, subsection 5.
    3. Moreover, under the provisions of the code-section cited, supra, the interference or assumption of control does not necessarily create the relation of master and servant, but it is sufficient to make the employer liable if it is such “that an injury results which is traceable to his interference.”
    4. Subsection 5 of section 4415 of the Civil Code, upon which the plaintiff’s right of recovery is based, is entirely applicable to the particular facts of this ease, and the numerous exceptions to the charge of the court are without substantial merit, since the charge, when considered as a whole, was free from reversible error.
    Decided November 19, 1919.

      Action for damages; from city court of Americus—Judge Harper. February 3, 1919.
    J. F. Súber brought suit against the International Agriculture Corporation for injuries to his minor son. From the petition it appeared that the defendant corporation owned and operated a fertilizer plant near Americus, Georgia, and that it entered into a contract with Gammage, as an independent contractor. Hnder this contract, which was executed in behalf of the defendant corporation by E. L. Parker, its superintendent and manager in charge, Gammage agreed to paint the plant and furnish the necessary labor, tools, and supplies. The independent contractor employed the plaintiff’s minor son as one of his workmen to help him paint the plant, and it is alleged that the minor was injured by the fall of the painter’s swing, on which he was working. On the morning of the day when the injury occurred, the defendant’s superintendent objected to the way the independent contractor had hung the swing or scaffold, declaring that it would materially injure the roof of the building if not changed, and directed that it be changed so as not to injure the roof. This objection was met by a statement from the contractor that he did not have sufficient rope to hang the swing as directed by the superintendent; whereupon the superintendent furnished the contractor with a grass rope, which, according to the plaintiff’s petition, looked sound, but was in reality unsound, it having been affected by the acid fumes of the plant and very much weakened by such exposure. This rope, which held one end of the painter’s swing, broke and caused the injury sued for. The suit is based on the idea that the defendant corporation, through its superintendent, so interfered with and assumed control over the affairs of the independent contractor as to create the relation of master and servant between the defendant and the petitioner’s minor son, and that this interference and assumption of control was such that the injury complained of is traceable thereto. Liability was denied by the defendant on the ground that Gammage was an independent contractor, and that therefore the relation of master and servant did not exist between the defendant and the plaintiff’s son, and also that it was not guilty of any actionable negligence in his injury. On the trial of the case the verdict was in favor of the plaintiff. The defendant’s motion for a new trial was overruled, and it excepted.

      The material parts of the evidence on the vital questions in the case are as follows: C. E. Gammage, the contractor, testified: “I was down here at the acid plant on the 2d of July, 1917. I traded for a job down there about two or three weeks before that date. The trade wasn’t in writing whenever I- traded for it. I signed a paper that morning when I went to work. I had that agreement with Mr. Eoy Parker. Mr. Eoy Parker is manager of the plant down there, superintendent. Under that agreement, what I undertook to do for him was paint that high work of that acid plant. The equipment I had for that purpose was a swinging stage. . . The usual way of fastening them to a building is we have hooks made and -everybody uses hooks to put on top. I had hooks. That was attached to the building when we were using it in the ordinary and customary manner, hung over the top of the roof,-—the hooks was. The north end of that building is about 82 feet high. When I went to hang the platform we started to hang it the usual way, I started to hang the hooks on the top of the building, and Mr. Parker says, ‘No, you ain’t going to do that, you will tear up the roof and will have my roof leaking.’ He says/ Do it like you done it before.’ I says, ‘Mr. Parker, I haven’t got a rope.’ He says, ‘I got plenty of rope, 300 or 3000 feet,’—I forget which he said. So I says, ‘Give me a piece of rope.’ He got me a piece about 4 feet long, and I told him that wasn’t long enough; so he got a great long rope. I reckon it was 15 or 20 feet long. That rope was about one inch rope, may he an inch and a quarter. As to the appearance it had as to being perfectly safe, I didn’t see anything wrong with it at all,— no, sir, no apparent defects in it at all; I couldn’t see any. If that rope had been sound, its capacity to hold was—oh, it would have held anything that got on it, I reckon. It would have held up a dozen or more men. There was three of us on it. As to how he told me to fasten that, whether to attach it to the building, he told me to run it through the louver vent and hang my hooks in it. . . I fastened it as he told me to. Dude Slappy, Philmore Súber and Ike Hudson were helping me in that undertaking, they were working for me. Súber and Slappy and me were on that platform when it fell. The first time Mr. Parker spoke to me was when I told Slappy to bring me 4 or 5 boards. He told me that I wasn’t going to hang those hooks on the roof, that I would tear up the roof. I told him if I tore it up I would fix it. I didn’t change my rigging or staging in any way, did not make any alterations in the rope or anything. I didn’t change the rope at all, only had the new rope that Parker gave me. It was complete if I had hung the hooks on the roof, I wouldn’t have needed any other rope. If the rope had been good it would have been safe.”
    J. I. Hudson testified: “On July 3, 1917,1 was painting at the acid plant with C. E. Gammage. I was working for him. I was there when the stage was put in position. They were to swing it from the roof. They had hooks to hook over the roof. Mr. Parker objected to them putting the hooks on the roof. They didn’t have rope to run through the louver, and Mr. Parker furnished them with a grass rope. Mr. Gammage told him it wouldn’t hurt the roof, that that was the way it was painted before and was the way it ought to be painted that time. He told Mr. Parker that if he should leave a hole in the roof he would patch the roof, fix it back. Mr. Parker would not agree to it then. I saw the fall. The west end of that swinging platform gave way first, the rope broke and the stage fell. The grass rope that Mr. Parker furnished them broke. I know because I saw it.”
    The plaintiff’s son who was injured testified: “When we started to hang the hooks on the roof Mr. Parker told Gammage not to hang the hooks on the roof. He didn’t want them hung there because they would tear up the roof. In reply to that Mr. Gammage told him that he didn’t have any other way to fix it,'didn’t have any rope or anything to fix it with. Mr. Parker said he would give him some ropes so he could hang it on the outside and not hang it on the roof. Mr. Parker went and got a rope and told Gammage to fix it, but not to hang it on the roof. Gammage tied it around the piece that goes up in the center of the building. Mr. Parker instructed him to do it that way. Mr. Parker said he could get some rope for him. Mr. Parker then went and got the rope. He got a grass rope. He got it over in one corner of the building. At the time I was down there and they were putting up this scaffolding to paint this building I didn’t know of the effect of acid fumes, of acid on grass ropes and like substance,—what effect it would have.” E. L. Parker, the defendant’s superintendent, testified: “I was manager of the International Agriculture Corporation plant in Americus, Ga., in July, 1917, and I am now. I entered into a contract with Mr. C. E. Gammage for certain work there on that building during that year, and Mr. Gammage entered upon that work. . . I have been superintendent down there 7 years the first of next month. I manufacture acid phosphate in that building.” T. J. Wallis testified: “I observed the effect that fumes from the acid plant and the floating particles from the handling of acid would have on grass ropes, sacks, and like substance. Wherever they come in contact with the fumes which come from the mixing it would go to pieces in little or no time. In the process of deterioration I don’t think they would give any evidence of it to an unexperienced mind. These fumes affect anything anywhere in the building where the mixing is going on.”
    • Little, Powell, Smith & Goldstein, Miller <& Jones, Maynard & Williams, for plaintiff in error.

      Shipp & Sheppard, Eiccon & Pace, contra.
   Smith, J.

(After stating the foregoing facts.) The contention of plaintiff in error that the evidence adduced on the trial was insufficient to show that Parker, its superintendent and manager, was in fact its vice-principal or alter ego is without substantial merit. It will be recalled that Parker himself testified that he had been for seven years and was at the time of the trial the superintendent and general manager of the defendant’s plant at Americus, Georgia, and that he, in behalf of the corporation, entered into a contract with the independent contractor to paint the building. The testimony of Gammage, the contractor, likewise shows that Parker had general supervision of the plant where the injury occurred, and in behalf of the corporation arranged for the painting of the building by the contractor. In this connection the record further shows that the plaintiff in his petition alleged that the defendant corporation, through its agent and superintendent, E. L. Parker, entered into a contract with C. E. Gammage, and the defendant in its answer says that “it owned and operated the acid or mixing plant referred to in the petition, and admits that it employed C. E. Gammage as an independent contractor to do some painting work on the said plant.”

While it is true of course that the words “superintendent,” “foreman,” “overseer,” and the like, do not necessarily import that the employee bearing such title was the vice-principal of the master (Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. E. 839, 10 L. R. A. (N. S.) 772), we do not hesitate to hold that the facts in the instant case were not only amply sufficient to show but demanded the conclusion that Parker was the vice-principal of the defendant corporation.

Plaintiff in error further contends that even if Parker was a vice-principal, the interference relied upon was not such as to create the relation of master and servant. This contention is without merit, since the facts in the case show that the defendant’s vice-principal not only interfered with the manner in which the independent contractor and his employees were painting the building,-—prohibiting them from hanging the hooks on the roof of the building,-—but went further and directed where and how the hooks should be hung, furnishing them with a rope with which to hang the scaffold as directed by him; all of which was contrary to the usual manner which the contractor generally employed in doing such work, for, in the words of the only witness for the defendant, “the stage before [the contractor having previously painted the defendant’s building] was hung from the top of the building, from the roof. The hooks were hung from the top of the building. I did not make an objection then, hanging of it from the roof.” Also the witness Gammage testified that Parker not only interfered and restrained him from hanging the stage as he had started and desired to do, but directed how and where he should hang the hooks which supported the stage or scaffold. The vice-principal having interfered and assumed control to such an extent as to create the relation of master and servant, it was his duty to furnish the employees with a reasonably safe and sound rope. According to the evidence, he got the rope from a corner of the building where they had been mixing acid, and neither the independent contractor nor his employees knew anything of the effect of acid fumes on a grass rope, and they had no opportunity to examine the rope furnished them other than to casually observe it while hanging the scaffold. However, the vice-principal knew or should have known, after his seven years as manager of the acid plant, of the effects of acid fumes on a grass rope, and should have warned the employees of the latent defects thereof. Civil Code (1910), § 3130. See also Huey v. Atlanta, 8 Ga. App. 597 (3), 604 (70 S. E. 71).

Moreover,' had the evidence been insufficient to show that the interference by the vice-principal was such as to create the relation of master and servant, the defendant in the case would nevertheless have been liable under the provisions of the Civil Code, § 4415, subsection 5.- This subsection provides that “the employer is liable for the negligence of the contractor if the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interferenceObviously, therefore, the interference and assumption of control need not necessarily create the relation of master and servant, but it is sufficient to make the employer liable if it is such “that an injury results which is traceable to his interference,”—the conjunction “or” being-used in the code-section in a disjunctive rather than a conjunctive sense. See, in this connection, the case of Johnson v. W. & A. R. Co., 4 Ga. App. 135 (60 S. E. 1025), where it is held: “For an owner to interfere and assume control, so that an injury results which is traceable to his interference, renders him liable, in this State, although, but for his interference, he might have been free from liability.” The evidence in the case at bar clearly established that the injury for which damages are sought was traceable to the interference of the defendant’s vice-principal, since he furnished the contractor with the defective rope which broke and precipitated the plaintiff’s son to the ground.

We have only dealt with the main contentions of the plaintiff in error as they raise the vital questions in the case. However, after a careful examination and consideration of the record before us, we are satisfied that section 4415, subsection 5, supra, is entirely applicable to the particular facts of this case, and that the numerous exceptions to the 'charge of the court are without substantial merit, since the charge, when considered as a whole, was free from reversible error. Therefore the judgment of the lower court in overruling the motion for a new trial is

Affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10465.
    WEATHERBY et al. v. PITTMAN et al.

    1. “Considerations are distinguished into good and valuable. A good consideration is such as is founded on natural duty and affection, or on a strong moral obligation. A valuable consideration is founded on money, or something convertible to money, or having a value in money, except marriage, which is a valuable consideration.” Civil Code, § 4243.

      (a) Thus, a note given for professional services is not nudum pactum merely because the payees named therein, who were attorneys at law, were bound (having been appointed by the court) to defend without compensation the makers’ brother in a criminal prosecution for murder; and this is true notwithstanding such appointment was unknown to the makers at the time they executed the note. The trial judge therefore did not err in striking the plea by which it was sought to set up this defense.
    2. Where one signs the name of another on the back of a promissory note which as to the principal debtors is a sealed instrument, but which is not such an instrument as to the surety whose name is signed thereon, because his signature is not under seal, it is' not necessary that the authority to sign the note be under seal. Neither is it necessary that the Authority to sign the note be in writing; and a subsequent ratification of the same, such as is testified to by one of the plaintiffs in this case, is sufficient to bind the surety.
    3. There was evidence to authorize the judgment of the trial judge (who tried the case without a jury), finding in favor of the plaintiffs and against all three defendants.
    Decided November 19, 1919.
    Complaint; from city court of Eloyd county—Judge Nunnally. March 15, 1919.

      Harris & Harris, for plaintiffs in error.

      L. H. Oopington, contra.
   Smith, J.

Messrs. Townsend and Pittman brought suit on a note against Will Weatherby, W. A. Weatherby, and John Weatherby. The two defendants first named filed a plea setting up that the note sued upon, which was given for professional services to be rendered by the payees, was a nudum pactum, since the plaintiffs, who were attorneys, had been appointed by the court to defend their brother in a criminal prosecution for murder, and had they known of such appointment they would not have executed the note, as the plaintiffs were already under obligation to serve without compensation. The court, upon oral motion, struck this plea; and to this ruling the defendants excepted. The defendant John Weatherby, whose name was signed on the back of the note, filed a plea of non est factum, in which he set up that his name was so signed without his written authority, and that written authority was essential, since the note was a sealed instrument. The ease went to trial on the issue raised by this plea, and the judge, who was sitting without the intervention of a jury, after hearing the evidence submitted by both sides, rendered judgment in favor of the plaintiffs; and to this judgment the defendants excepted.

The note sued upon was introduced in evidence. It was under seal and signed by W. A. Weatherby and Will Weatherby, and indorsed on the back by John Weatherby. C. C. Pittman testified that he was one of the plaintiffs and one of the payees in this note; that the note was given to him and Townsend, the other payee, for defending John Weatherby on the charge of murder; that Will Weatherby signed the note, and also signed W. A. Weatherby’s name thereto, in the presence of and at the request of the latter; that John Weatherby was not present when the note was signed, but that his name was signed on the back thereof by Will Weatherby; that ~eafter the note was signed he saw John Weatherby and told him about the note, and that Will had signed his name on the bacx of it, and he [the defendant] said that was all right;” that at the time the note was executed John Weatherby was in jail and had not been tried. John Weatherby, being duly sworn, testified that he neither signed* the note in question nor authorized any one else to sign it for him, and that he never ratified the signing of his name on the back of the note; that he was not present when the note was signed, and never knew his name was signed on the back thereof until after it became due and payment was demanded.

The record presents only two questions for adjudication: First, did the court err in striking the plea of W. A. and Will Weatherby ; and second, did the court err in holding that John Weatherby was bound on the note, which was a sealed instrument, although his name was signed on the back of the same without his written authority, in view of his oral ratification thereof.

We will .proceed briefly to discuss these questions in their- order. While there is no statute law in this State expressly requiring an attorney to defend a person charged with crime, yet the Civil Code (1910), § 6361, declares that all persons accused of crime shall have the privilege and benefit of counsel. An attorney at law in this State is a sworn officer with all the legal duties.and privileges attached to his office. One of such duties is to never reje'ct, when appointed by the court, the case of the defenseless or the oppressed. This duty is one that has been recognized for many years, having come down to us from the common law; and it may be said to the credit of the bar of this State that it has been so jealously guarded by lawyers generally that to-day they no longer look upon it as a duty, but as á special privilege, always pointed to with professional pride. When, therefore, the presiding judge of a court calls upon counsel to defend a person accused of crime and destitute of means, it is his duty to do so to the best of his ability. If he fails under these circumstances he does a grave injustice not only to humanity, but also to his profession. In such cases counsel must look alone to the possible future ability and willingness of the accused to remunerate him for his efforts where, as in our State, no provision for compensation is made by statute. In some instances, no doubt, it is a hardship upon an attorney to be obliged to defend poor persons without compensation, but when called upon it is a duty which he owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance, nor spare Ms best exertions, in the defense of one who has the double misfortune to be stricken by proverty and accused of crime. It may not be amiss to state that from my observation as a trial judge and from what I know of the members of the bar of this State, I am satisfied that no proverty stricken person accused of crime will ever suffer for want of professional aid, whether he be black or white. ■

While, therefore, it was the duty of the attorneys in the present case, who were appointed by the court, to defend without compensation or even the hope thereof the makers of the note sued on, if he was by reason of poverty or other cause defenseless, this duty did not in any way render nudum pactum their contract for attorneys’ fees, entered into with them after such appointment by the court, since the contract was founded on a moral obligation at least, and the accused was not altogether defenseless, for two of Ms brothers actually employed counsel to defend him. In other words, although it was the duty of the attorneys in this case to render professional aid without compensation, this duty did not relieve the defendants from the moral obligation to pay for the service actually rendered, since the honesty and rectitudé of the thing, taken in connection with the written promise to pay, form a sufficient consideration to make the obligation enforceable at law. As familiar illustrations of this principle and its application) attention is directed to cases of promises to pay debts barred by the statute of limitations, and those to revive debts discharged by the operation of bankrupt or insolvent laws. To hold otherwise would be a travesty not only upon the rights of the attorneys in this case, but upon the honorable profession which they represent,—for to the attorney his profession is his livelihood. There was, therefore, no error in striking the plea which sought to set up this defense.

Coming now to the next question, we affirm the ruling of the lower court in holding that the defendant John Weatheby was not relieved of liability on the note, which was a sealed instrument, merely because there was no written authority under seal to sign his name on the back thereof, or any written ratification of such signing. Although the legal service of the plaintiffs benefited the defendant John Weatherby and helped to clear him of the charge of murder, he was not a principal maker on the note in question, nor was his signature necessary to the transfer of the note. He was a surety only. He did not even know, according to the testimony of one witness, that his name had been signed on the back of the note until he was notified of this fact by one of the plaintiffs; and therefore he was not bound thereon until he ratified such signing. There was ample evidence that this defendant did orally ratify the same. In Ridley v. Hightower, 112 Ga. 476 (37 S. E. 733), the Supreme Court held: "One who wrote his name upon the back of a promissory note merely for the purpose of guarantying its payment, but whose indorsement, because of his not being a party to the paper, was neither essential nor proper to a due transmission of the title thereto, was a surety only, and not liable on the paper as an indorser. The liability of such a surety, though upon a promissory note which is as to the principal a sealed instrument, is barred after the lapse of six years from the time the right to sue accrued, unless the surety also contracted under seal; and he did not so contract if there was no seal nor anything intended as a representation thereof after his signature.” The signature of John Weatherby on the back of the note not being under seal, he did not so contract, and it was unnecessary that the authority to sign his name thereon be under seal. Neither was it necessary for this authority to have been in writing, and a subsequent oral ratification, such as testified to by one of the plaintiffs, 'was sufficient to bind him on the note. “Authority to indorse a promissory note in behalf of another may be orally conveyed. The authority of an agent to indorse a note for his principal is not required to he in writing.” Connor v. Hodges, 7 Ga. App. 153 (4-a) (66 S. E. 546). A ratification is equivalent to a prior authority to perform the act; and consequently, if the prior authority might have been either written or unwritten, express or implied, a ratification may be accomplished in any one of these ways. See 1 Elliott on ^Contracts, 681, § 458.

It is clear from what is said above that the two questions under consideration must he decided adversely to the plaintiffs in error. There was evidence to authorize the judgment of the trial judge, who tried the case without a jury, in finding in favor of the plaintiffs and against all the defendants.

Judgment affirmed.

JenJdns, P. J., and Stephens, concur.


text:
    10466.
    Hartley et al. v. Folds.
    Decided November 19, 1919.
    Action for damages; from city court of Carrollton—Judge Beall. March 14, 1919. Folds sued Hartley and. others, alleging, that he had purchased of them the sawing timber on a described tract of land; that under the contract he was to deliver to the defendants, as payment for the timber purchased, a stated quantity of the lumber and, shingles which he was to saw from the timber on the said premises; that in accordance with the terms of the contract he moved his mill upon the premises, began sawing, and delivered to the defendants a portion of the lumber; and the defendants breached the contract by preventing him from cutting or sawing the remaining portion of the purchased timber, and from entering further upon the premises. He alleged also that on August 29, 1917, his mill “was burned by the defendants, and destroyed, and 15,000 feet of lumber.” He claimed damages “by reason of the breach of said contract,” as follows: (1) the net value to him of the remaining unsawed timber; (2) the value of the timber already sawed; and (3) the value of the sawmill which “was destroyed by fire set by the defendants;” each separately itemized, and all aggregating a stated sum, less a credit represented by the value of the lumber and shingles which still remained undelivered under the terms of the contract of sale. The demurrer to the petition was based partly upon the ground that there was a misjoinder of causes of action. The petitioner amended the petition by striking subsection (k) of paragraph 2, which read as follows: “Your petitioner shows, therefore, that he has been damaged by reason of the said breach of the contract in the above-stated manner, for the following reason,” and substituting the following: “Your petitioner therefore alleges that by reason of the torts aforesaid he has been damaged as hereinbefore and hereinafter set out.” This amendment was allowed over the defendants’ objection, and the court overruled the demurrer to the petition as amended. To these rulings exceptions were taken.
   Smith, J.

1. “All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be jjoined.” Civil Code (1910), § 5521; Hillside Cotton Mills v. Ellis, 23 Ga. App 45 (4), 46 (97 S. E. 459). Claims arising ex contractu can not be joined in the same suit with claims arising ex delicto. Wolff v. Southern Ry. Co., 130 Ga. 251 (60 S. E. 569).

2. The cause of action upon which the plaintiff sought to recover the profits which would have arisen from the purchased timber had not the defendant breached the contract of sale was a claim ex contractu. The cause of action upon which the plaintiff sought to recover damages arising from the alleged destruction by the defendants of the plaintiff’s lumber and sawmill was a claim ex delicto.

3. An action based upon a claim ex contractu can not by amendment be converted into an action ex delicto. Civil Code (1910), § 5683; Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787).

4. In this case the court erred in allowing the amendment by which it was sought to convert the claim sued on ex contractu into an action ex delicto; and in overruling the demurrer based upon the ground that the petition contained a misjoinder of causes of action.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

Smith & Smith, for plaintiffs in error.

S. Holderness, Buford Boylcin, contra.


author: Jenkins, P. J.

text:
    10478.
    Rogers v. Smith.
    Decided November 19, 1919.
    Complaint; from city court of Eastman—Judge Griffin. March 8, 1919.

      G. W. Atwill, W. M. Morrison, for plaintiff in error.

      J. H. Milner, contra.
   Jenkins, P. J.

“Private instructions or limitations not known to persons dealing with a general agent can not affect them. In special agencies for a particular purpose, persons dealing with the agent should, examine his authority.” Civil Code (1910), § 3595. Thus, if a special agent exceeds the scope of his authority as pertaining to any of the material elements of the transaction, the principal is not bound. But where, as in this case, it is undisputed that the purchas'e of the goods as made by the agent for the principal was authorized by the principal, and that the goods as thus purchased were accepted and used by the principal, the mere fact that the principal had privately told the agent not to make such purchase from the plaintiff, for the stated reason that the plaintiff had already refused the credit, can not be properly accounted as such a material variation from the agent’s authority as would relieve the principal from payment for the goods actually accepted and retained.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10482.
    POSTAL TELEGRAPH-CABLE COMPANY v. PUCKETT.
    1. In an action for injuries to an employee occasioned while working in close proximity to a high-powered electric wire, the declaration alleged that the plaintiff, an employee of the defendant corporation, while “in charge and control of” and “working under the' direction” of the defendant’s foreman, owing to the' joint negligence of the defendant corporation and its foreman in failing to provide the plaintiff with a reasonably safe and suitable place in which to work and reasonably safe and suitable instrumentalities and appliances, and in failing to give him proper warning and instructions as to the danger to which he was subjected in the work which he was ordered and directed to perform, was injured, etc. Held, that the declaration alleged joint negligence on the part of the defendants—the corporation and the foreman.
    2. Neither of the words “superintendent” or “foreman” necessarily imports that the one to whom they are applied is the alter ego of the defendant; but where one designated as such has authority to employ laborers and is in charge of the work being done, he is a vice-principal of the master.
    3- If upon the face of the declaration the action is joint, for the purpose of determining the right of removal the cause of action must be deemed to be joint. “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint.”
    4. Where a joint suit is brought by a resident of this State against a foreign corporation doing business in this State, and against one of its employees who resides in this State, for an injury alleged to have resulted from negligent acts committed by both defendants, the suit is not removable by the corporation as a separable controversy.
    5. “The right of a non-resident defendant to remove the cause cannot be defeated by a fraudulent joinder of a resident defendant, but the defendant seeking removal must allege facts which compel the conclusion that the joinder is fraudulent. Merely to apply the term ‘fraudulent.’ to the joinder is not sufficient to require the State court to surrender its jurisdiction.”
    6. A declaration which alleges a cause of action against joint defendants, one a resident of Georgia and the other a resident of Delaware, is conclusive as against the non-resident defendant’s right to remove the cause, where the petition to remove contains no statement of facts from which the court can draw a conclusion that the joinder is not only in bad faith but without right.
    7. In the instant ease the declaration sets out a cause of action against two joint tort-feasors, and the petition for removal, which contains several excerpts from evidence adduced on another trial in another court, failing to show that the resident defendant was made a party fraudulently and in bad faith, the refusal of the trial judge to pass an order removing the case to the Federal court was not erroneous.
    Decided November 19, 1919.
    Petition for removal of cause; from Muscogee superior court— Judge Howard. February 24, 1919.
    Application for certiorari was denied by the Supreme Court. This suit was filed in'the superior court of Muscogee county against the Postal Telegraph-Cable Company and M. C. Welch as joint tort-feasors. The Telegraph Company, being a non-resident corporation, sought to remove the cause to the Federal court, its petition for removal being based on two grounds: (1) that a separable controversy, was stated in the plaintiff’s declaration; and (2) that there was a fraudulent joinder of the defendant Welch. The trial judge, to whom the petition for removal was addressed, passed an order disallowing the removal, and the defendant corporation excepted.
    Substantially, but somewhat abbreviated, the plaintiff’s declaration alleged the following facts: that at the time he was injured he was in the employ of the defendant corporation at Columbus, Georgia, living gone there from Atlanta, Georgia, the day before he wgg hprj;', jfi&t he, together with other employees of the defendant corporation, was changing certain wires from one side of the street to the other, to comply with the requirements of an ordinance of the city of Columbus, when he received his injuries, and that in order so to change the wires he was ordered and directed to climb a telegraph pole of the defendant; that it was approximately 50 feet high, and had telegraph wires strung only a few inches from the top; that the Columbus Power Company built a line of poles to which was strung a high-powered wire carrying eleven thousand volts of electricity; that the poles of the Columbus Power Company bearing this high-powered wire were about equidistant from the defendant’s telegraph pole, and that the high-powered wire was strung only five and a quarter inches above the telegraph wires, crossing them at right angles and only about three feet from the telegraph pole upon which the plaintiff was working when injured. It is further alleged that the rules of the defendant corporation required that no high-powered wire or wires should be strung at a nearer distance above any of its telegraph wires than forty-two inches. The declaration alleged also that the defendant Welch ordered the plaintiff to climb the pole in question for the purpose of cutting down certain wires on the cross-arm at the top of the pole, without notifying him that the high-powered wire was in dangerous proximity to the telegraph wires which he was directed to cut. The declaration also sets out that the negligent acts of the defendant corporation were committed through the defendant Welch, its district foreman for the State of Georgia, who it is alleged was the alter ego of the defendant corporation, having then and there general supervision and direction of the petitioner as well as of' the other employees of the defendant.

      T. T. Miller, Anderson, Rountree & Crenshaw, for plaintiff in error.

      Rd. Wohlwender, Atkinson & Born, contra.
   Smith, J.

[After stating the foregoing facts.) There is but one question presented, to wit: the correctness of the ruling upon the petition for removal to the Federal court. Whether an action is joint' or several is a question for the State court to determine. Rountree v. Mt. Hood R. Co., 228 Fed. 1010; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206 (26 Sup. Ct. 161, 50 L. ed. 441, 4 Ann. Cas. 1147); Wecker v. National Enameling Co., 204 U. S. 176 (27 Sup. Ct. 184, 51 L. ed. 430, 9 Ann. Cas. 757). It is well settled that a plaintiff may elect his own method of attack (5 Fed. Stat. Ann. 138, and numerous cases there cited); and if “upon the face of the declaration — the only pleading in the case — the action is joint, for the purpose of determining the right of removal, the cause of action must be deemed to be joint.” L. & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. ed. 63); Southern Ry. Co. v. Miller, 1 Ga. App. 616 (51 S. E. 1090). The test of separability has been stated a3 follows: “In order to justify such removal, on the ground of a separate controversy between citizens of different states, there must, by the very terms of the statute [act of March 3, 1875, c. 137, § 2, 18 Stat. 470 (U. S. Comp. St. § 1010)], be a controversy 'which can be fully determined as between them” and, by the settled construction of this section, the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.” 5 Fed. Stat. Ann. (2d ed.) 123. See also Hyde v. Ruble, 104 U. S. 407 (26 L. ed. 823); Corbin v. Van Brunt, 105 U. S. 576 (26 L. ed. 1176); Fraser v. Jennison, 106 U. S. 191 (27 L. ed. 131); Winchester v. Loud, 108 U. S. 130 (2 Sup. Ct. 311, 27 L. ed. 677). To say the least, the ease must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more States on one side and citizens of other States on the other, which can be fully determined without the presence of any of the other parties to the suit as it has been begun. This rule applies to torts as well as to contracts. 5 Fed. Stat. Ann. (2d ed.) 133, and numerous eases there cited.

Applying the above-stated test to the declaration under consideration, we hold the action joint and not several, since the same acts of negligence are charged against both defendants. In other words, no act of negligence is charged against either of the defendants which is not charged against the other. The ease of Russell v. Champion Fibre Co., 214 Fed. 963 (131 C. C. A. 259), is substantially parallel to the case under review. The plaintiff had the right to join in the same suit the Postal Telegraph-Cable Company, the master, and Welch, the foreman of that company. As to the right to join causes of action against employer and employee, see Russell v. Champion Fibre Co., supra; Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191); Southern Ry. Co. v. Miller, supra. However, if the master was not liable under what is commonly called the fellow-servant rule, there could be no legal joinder. In the ease under consideration the plaintiff and the defendant Welch were not fellow servants. In this State the character of the duties performed, whether the non-assignable duties of the master or not, has been adopted as the test of whether one is a fellow servant of an injured employee, rather than the grade of rank of the servants respectively. Moore v. Dublin Cotton Mills, 127 Ga. 610 (56 S. E. 839, 10 L. R. A. (N. S.) 772); Williams v. Garbutt Lumber Co., 132 Ga. 215, 231 (64 S. E. 65). While neither the word “superintendent” nor the word “foreman” necessarily imports that the one to whom these words are applied is the alter ego of the defendant, it was alleged that he had authority to employ laborers and was in charge of the work, and under repeated rulings of our Supreme Court such a person would be the vice-principal of the master. ' See Taylor v. Georgia Marble Co., 99 Ga. 512 (27 S. E. 768, 59 Am. St. R. 238); Woodson v. Johnston, 109 Ga. 454 (34 S. E. 587); Moseley v. Schofield’s Sons Co., 123 Ga. 197, 200 (51 S. E. 309); Ingram v. Hilton & Dodge Lumber Co., 125 Ga. 658, 660 (54 S. E. 648). Now, if Welch could not be held individually liable for the resulting injury to the plaintiff, the suit would be merely a suit against the master, the Postal Telegraph-Cable Company; and, that company not being a domestic corporation, and the amount involved being more than $3,000, the case would be removable upon proper application. To determine this question we must look to plaintiff’s declaration to see if it charged Welch with any individual liability. Among other acts of negligence the declaration charged specifically that Welch ordered and directed the plaintiff to climb a certain telegraph pole and cut down certain wires strung to the cross-arm of the pole, without notifying him that a high-powered wire was in dangerous proximity to the wires he was ordered to cut. The failure to warn the plaintiff of the dangers to which he was thus exposed amounted to misfeasance on the part of the defendant Welch. “Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal ”in such a manner as to infringe upon the rights and privileges of third persons. Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. . . When once he enters upon the performance of his contract with his principal, and in doing so, omits or fails to take reasonable, care in the commission of some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf.” Southern Ry. Co. v. Sewell, 18 Ga. App. 552 (90 S. E. 54).

We come now to the question whether or not there was a fraudulent joinder of the defendant Welch. The allegations contained in the petition to remove and the amendment thereto amount to no more than a traverse of the charge of negligence set out in plaintiff’s declaration, and consequently are wholly insufficient to raise an issue of fraudulent joinder of Welch as a codefendant. See, in this connection, Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131 (21 Sup. Ct. 67, 45 L. ed. 121); Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 154 (34 Sup. Ct. 278, 58 L. ed. 544); Chicago &c. R. Co. v. Dowell, 229 U. S. 102 (33 Sup. Ct. 684, 57 L. ed. 1090); Southern Ry. Co. v. Lloyd, 239 U S. 496 (36 Sup. Ct. 210, 60 L. ed. 402). In the Cockrell case, supra, it is said that it is not enough to assert that there was a fraudulent joinder of defendants but there must be “a statement of facts rightly engendering that conclusion,” and that “merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet ‘fraudulent’ to the joinder will not suffice; the showing must he such as compels the conclusion that the joinder is without right and made in had faith." (Italics ours.) See also to the same effect the ruling made in Russell v. Champion Fibre Co., supra.

From what is said above it is clear that the plaintiff had the right to join the telegraph company and Welch as joint defendants in the same suit, and that a joint cause of action and not a separable controversy is set out in his declaration, and that the petition and the amendment thereto, seeking to remove the cause into the Federal court, failed to allege sufficient facts to establish a fraudulent joinder.

Judgment affirmed.

Jenhins, P. and Stephens, J., concur.


author: Stars:, J.

text:
    10490.
    Hawkins v. Smith, sheriff, et al.

    Decided November 19, 1919.
    Money rule; from city court of Floyd county—Judge Nunnally. February 24, 1919.

      John Camp Davis, for plaintiff in error.

      L. H. Covington, Wright Willingham, Karris & Karris, W. B. Mebane, J. F. Kelly, contra.
   Stars:, J.

A landlord’s lien for supplies arises by virtue of the statute when the, supplies are furnished (Cochran v. Waits, 127 Ga. 93 (56 S. E. 241); Civil Code (1910), §§ 3340, 3341, 3348, par. 1), but such lien cannot be assorted against the tenant’s crop except-by foreclosure. Lathem v. Stringer, 145 Ga. 224 (88 S. E. 941); Duncan v. Clark, 96 Ga. 263 (22 S. E. 927). In the instant case the landlord had not foreclosed his lien when the tenant’s crops were sold, and therefore his lien was not in a position to be asserted, in the absence of sufficient equitable reasons.. Realizing that he could not stand on his lien foreclosure, he filed a paper in the nature of an intervention, attempting to set up an equitable claim to the fund in question on the ground that the tenant was insolvent. Even 4f the alleged insolvency of the tenant was sufficient equitable reason for him to participate in the fund raised by the sale of the tenant’s crops, the landlord failed altogether to carry the burden of establishing his alleged equity by evidence. Moore v. Brown, 107 Ga. 139 (32 S. E. 835). It was, therefore, not error for the trial judge to refuse to allow the landlord’s lien to participate in the fund raised by the sale of the tenant’s crops.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10508.
    Webb, administratrix, v. Webb, administrator.
   Jenkins, P. J.

1. While, under the provisions of section 5009 of the Civil Code (1910), an administrator, when sued as- such, or when defending solely the title of the estate, may enter an appeal from the court of ordinary to the superior court without paying costs and giving bond and security, or making oath as to his inability so to do, in no other case can he do so.

2. In a citation proceeding in the court of ordinary by a distributee against an administrator, a personal judgment is intended (Thompson v. Stephens, 138 Ga. 205, 207, 75 S. E. 136; Everett v. Sparks, 107 Ga. 48, 32 S. E. 878, 73 Am. St. R. 107); and such a judgment having been rendered against the administratrix in this case, and the administratrix having desired to take an appeal, she could not do so without paying costs and giving bond and security, or making oath as to her inability so to do; and the appeal having been taken without such requisites, it was properly dismissed. Hickman v. Hickman, 74 Ga. 401; Bryson, v. Scott, 111 Ga. 196 (36 S. E. 619).

Decided November 19, 1919.

.Appeal; from Elbert superior court—Judge Hodges. March 11, 1919.

J. T. Bisk, for plaintiff in error. Z. B. Rogers, contra.

(a) The mere fact that the administratrix in this case set up by way of defense that the plaintiff was not entitled to the share claimed by him, because of the fact that those from whom he claimed to have purchased it denied his title thereto, would not operate to convert the personal proceeding against the administratrix into a proceeding against the estate. By interposing such a defense the administratrix was not “defending solely the title of the estate; ” nor was the judgment rendered one against “the assets of the estate,” but it was a personal one against the administratrix.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10521.
    FIRST NATIONAL BANK OF WAYCROSS v. DICKERSON.
    Where a bank receives for collection a draft for a definite amount oí money, accompanied by a warranty deed and a letter of instructions authorizing the delivery of the deed to the drawee upon the payment of the draft, it is the duty of the bank, as the agent of the drawer, to. adhere faithfully to the instructions, unless modified by the drawer, and the delivery of the deed and draft upon the payment of a less amount than that called for in the draft, without further instructions and without the consent of the drawer, would make the bank liable to the drawer, and the damages would be the difference between the amount called for in the draft and the amount actually received and remitted by the bank.
    Decided November 19, 1919.
    Complaint; from city court of Wayeross—Judge Summeral! presiding. March 18, 1919.
    Application for certiorari was denied by the Supreme Court.

      J. L. Sweat, Wilson & Bennett, for plaintiff in error.

      Parker & Parker, W. T. Dickerson, contra.
   Smith, J.

W. T. Dickerson deposited with the Bank of Homcrville a draft drawn on L. J. Cooper. Accompanying this draft was a warranty deed conveying a tract of land to said Cooper, and a letter of instructions notifying the bank to deliver the draft and deed to Cooper upon the payment of $16,660, the amount of the draft. This draft, with the deed and letter of instructions, was sent by the Bank of Homerville to the First National Bank of Wayeross for collection. The latter bank, instead of collecting the full amount of the draft, delivered to Cooper the draft and the deed, and received from him a much smaller sum, to wit, $13,294, which was in due course remitted to W. T. Dickerson, the drawer. In the trial of the case it was admitted that after the draft was sent for collection additional instructions were given that a credit of $1,700 should be allowed upon it, but the plaintiff insisted that the First National Bank of Way cross had failed to collect or remit $1,666, and that this was in violation of the instructions given. The defendant contended that it was not liable for this amount, because the sum deducted represented an indebtedness due to Cooper, the drawee, and that the bank had the right to deduct this amount in addition to the $1,700. This indebtedness of Cooper was set up in the 3d paragraph of the defendant’s answer, and this paragraph was stricken by the court upon motion of counsel for plaintiff. This action of the trial judge was entirely correct as the defendant bank had no option in the matter other than strictly to carry out the instructions of the drawer, and these instructions made no mention whatever of any indebtedness existing between the drawer and the drawee. The plaintiff introduced documentary evidence showing the whole transaction. The defendant offered evidence to sustain the 3d paragraph of its anwser, which had been properly stricken by the court, and there was therefore no error in rejecting this evidence. The court directed a verdict for the plaintiff for $1,666, the full amount sued for.

In an action against a bank touching a draft received by it for collection, and for violating instructions in respect to the same, the law implies a contract on the part of the bank to obey instructions, and the omission of proper allegations as to such implied matters will not render the declaration fatally defective. Central Georgia Bank v. Cleveland National Bank, 59 Ga. 668 (3). In collecting the bank must use care and diligence. Moreover, if special instructions have been given, these must he followed. Central Georgia Bank v. Cleveland National Bank, supra. See also Georgia National Bank v. Henderson, 46 Ga. 488 (12 Am. R. 590); 5 Cye. 504. “The primary obligation of an agent or factor, whose authority is limited by instructions, is to adhere faithfully to those instructions; for if he unnecessarily exceeds his commission, or risk his principal’s effects without authority, he renders himself responsible to his principal for the consequences of his act; and if loss ensue, it furnishes no defense to him, that he intended the benefit of his principal.” Hardeman v. Ford, 12 Ga. 205. In the case of Central Railway Co. v. Felton, 110 Ga. 597, 600 (36 S. E. 93), the Supreme Court quotes with approval the following from 1 Am. & Eng. Enc. L. (2d-ed.) 1062: “When the directions to an agent are clear and well defined, it is his duty to follow them faithfully, provided this may be lawfully done. . . Although the agent is, in the absence of instructions, bound to follow the established usage or mode of dealing, yet no custom or usage will authorize a departure from positive instructions; the instructions of the principal make the law by which the agent is to be governed.”

Applying the above authorities to the facts of this case, the court did not err in overruling the demurrer to the plaintiffs petition, and in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Jenkins, P. J., and Stephens, J,, concur.


text:
    10562.
    Pope v. Peeples.
   Jenkins, P. J.

1. The petition in this ease, in which the plaintiff bought to recover commissions as a sales broker, set forth a cause of action based on a contract of listment; and, no special objections being entered and preserved setting up the insufficiency of the averments made by the petition relative to the plaintiffs contract with the defendant, the averments as actually made authorized the admission of the plaintiff’s evidence establishing the contract of listment sued on, and its breach on the part of the defendant. The eleventh ground of the motion for a new trial is therefore without merit. The principle' stated likewise disposes of the fifteenth ground of the motion.

2. The evidence set out in the tenth ground of the motion for a new trial (which is the first ground insisted upon) was immaterial and irrelevant to the issues involved, and should have been excluded for that reason. Furthermore, the admission of this'evidence might have been prejudicial to the defendant.

3. The point made in the twelfth ground of the motion is not sustained by the record. The real-estate broker who is suing for commissions does not allege in his petition that under defendant’s listment of the property the purchaser was to pay $2,000 in cash “and $2,000 in notes,” but he alleges that $2,000 was to be paid in cash and the balance “upon such reasonable terms as would suit the convenience of such purchaser and which might be agreed upon between the said purchaser and the defendant.” 'The fact that the purchaser procured by the plaintiff offered the entire $4,000 in cash is not to be taken as a variance in tlie authorized terms, since, under all the evidence, hoth for plaintiff and defendant, the defendant absolutely refused to sell at all, and consequently can not complain that the all-cash offer was one to which he might reasonably have failed to agree.

Decided November 19, 1919.

Action on contract; from city court of Tifton—Judge Price. April 16, 1919.

B. E. Dinsmora, for plaintiff in error. B. D. Smith, contra.

4. While all legal testimony tending to show that 'there was no agreement in the same sense between the parties relative to the alleged contract of listment would be admissible, the refusal of the trial judge to allow the defendant to answer the question, “In this conversation he [the plaintiff] had with you, how did you regard the negotiations?” was not erroneous, since the question could not elicit a substantive fact, but an opinion only.

5. Although the trial judge had properly charged the jury that the burden of proof rested upon the plaintiff to establish by a preponderance of the testimony the contract sued upon and its breach by the defendant, still in one portion of his charge he further instructed them that the defendant was required to carry the burden of proving his defense by a preponderance of the testimony. At the close of his charge he made this additional statement: “In this matter, gentlemen of the jury, it has been called to my attention that I might have charged you in this charge that the defendant is required to carry the burden of the defense by a preponderance of the testimony. That is not the law, but he is only required to prove to your satisfaction his defense in this case.” Inasmuch as the answer in this case is not based upon any matter of affirmative defense, but amounts only to a denial that the contract sued upon had been made as alleged, even the final statement by the judge, that the defendant “is only required to prove to your satisfaction his defense in this case,” does not correctly state the rule. In a case such as this one the burden does not shift, ’and it is not obligatory on the jury to divide the evidence into two parts, and determine their belief provisionally by one of the parts only, but they may consider the evidence for both sides as a whole in ali the stages , of their deliberations, the burden of proof meanwhile remaining where the pleadings originally placed it. Mobley v. Lyon, 134 Ga. 125, 128 (67 S. E. 668, 137 Am. St. R. 213, 19 Ann. Cas. 1004); Hawkins v. Davie, 136 Ga. 550 (71 S. E. 873); R. & D. Railroad Co. v. Howard, 79 Ga. 44 (3 S. E. 426).

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10569.
    HARDY v. SPARKS.
    1. There being evidence to sustain the verdict, the general grounds of the motion for a new trial are without merit.
    2. It is contended that the verdict against the defendant is unauthorized for the reason that at the time of the levy of the attachment and at the time of the trial and judgment the legal title to the automobile in question was vested in the plaintiff in attachment and not in the defendant. There is no merit in this ground of the motion. See ■Johnson v. Walter J. Wood Stove Oo., 6 Oa. App. 65 (64 S. E. 287), where it is held: “Where an attachment for purchase-money of personal property to which the plaintiff 'in attachment has reserved title is served by seizure of the property, before the property can be levied upon and sold under final judgment and execution the plaintiff must convey it by quitclaim to the defendant. But this conveyance is not necessary before the issuance of the attachment and the seizure of the property thereunder.”
    3. It is alleged that the court erred in failing to submit to- the jury the question of failure of consideration. The court fully instructed the jury on the questions of express warranty and implied warranty and fraud and deceit, which necessarily included the doctrine of a failure of consideration; and therefore this ground of the motion is without merit.
    4. It is alleged that the court erred in failing to charge the j)ury on recoupment, which was set up as one of the defenses. The evidence conclusively showed that if there were any defects in the car, they were waived by the defendant after he had run the car for some time, he signing one of the series of notes given for the purchase-price, which had been overlooked when the trade >vas made, and the evidence fails to show that the defendant called the attention of the plaintiff to any defects in the car, or offered to rescind the trade. Therefore, if the failure of the court ter charge on the subject of recoupment was error at all, it was harmless.
    Decided November 19, 1919.
    Attachment; from city court of Floycl county—Judge Nunnally. April 23, 1919.

      W. B. Mebane, for plaintiff in error.

      L. H. Covington, L. A. Dean, contra.
   Smith, J.

This is a purchase-money attachment for the sum of $200, the purchase-price of a certain automobile, which is represented by a series of promissory notes. The defendant filed a traverse to the attachment, in which he alleged that there had been a failure of consideration, and that the notes were void because they hade been secured by fraud. The jury returned a verdict for the full amount of the plaintiff’s claim. The defendant made a motion for a new trial, which was overruled, and he excepted.

The 1st, 2d, and 3d headnotes need no elaboration; but, inasmuch as the ruling made in the 4th headnote, that the failure of the court to charge on the subject of recoupment, if error at all, was harmless, is dependent on the evidence adduced at the trial, we make tlje following brief statement of certain portions of the testimony which show that the sums claimed by the defendant by way of recoupment were expended by him for numerous repairs caused by his careless and improper running of the automobile in question, and not through any fault or fraud on the part of the IDlaintifii. The plaintiff testified: “Mr. Hardy [the defendant] came in to see me about buying the car, and I took him in the car and rode over Third Avenue, and up to North Borne and back with him. While on North Broad Street the ear stopped, and I started the ear again. The car stopped because it had not been in use much as it should have been, and only needed to be loosened up by running. . . It was a 1914-model car. I told the plaintiff when I sold him the car that it had been run about 18 months. On the day the plaintiff bought the car he signed seven of the notes, and he overlooked one of the eight notes. . . On Tuesday afternoon, after selling the ear on Saturday, Sheriff Smith reported to me that a car of mine was over on Trash Alley. The car was brought to the McCartha Garage on Tuesday afternoon, and Mr. Hardy and Mr. McCartha came to look over it. . . I saw the defendant in there, and I went to him and called his attention to the fact that he had overlooked signing one of the notes, and he signed the note at that time. . . He never made any complaint to me about the car. After the attachment was sworn out and since the sheriff’s levy on the car, I saw Mr. Hardy driving this car, and it was running all right. Since then I have frequently seen Mr. Hardy driving this car, and it seemed to be running all right. . . It was in good condition when delivered to him. . . At the time Mr. Hardy bought this car he told me that he did not know how to run a car.” The witness further testified that “when they found the car in Trash Alley on Tuesday they found the switch on, batteries run down, one tire off, no gas in it, gasoline ^line broken, one rim, the car very muddy, and the casings on the back wheels showed that they had been in the mud; they looked as if they had been spun trying to pull somebody out of a hole.” The defendant in his testimony admitted that he knew nothing whatever about the operation of an automobile, and testified that after the car was ditched in Trash Alley he carried it to “McCartha to see what could be done to make it run, and paid him $80 for going over the car and working on it. This $80 was for casings and a new battery, except McCartha fixed the gas line. I then took the car out again and still it would not run, and in about three weeks took it down to the Moss Garage, and Mr. Moss worked on the ear, trying to get it to run, and he charged me $40 for what he did. . . Altogether I expended more than $140 in trying to put this car in a good condition.” S. E. McCartha testified that he was in the garage business, and that at the time the defendant bought this ear it was in good condition; that the car was brought to his “garage on Tuesday after it was bought on Saturday. I went over to Trash Alley and had the car brought over to my place of business, and Mr. Hardy paid for this. The only work that I did on the car was to fix the gas line which amounted to $1.05. The remainder of the $80 bill was for a battery and new casings and tubes. . . The batteries were bad and I put in a new battery, which was the large item. The switch had been left on over in Trash Alley, and the battery was drained and run down. I had never known this car being a bad condition before Mr. Sparks sold it to Mr. Hardy, and I frequently drove the car and it ran all right.” E. M. McCartha testified that he had driven the car several times before it was sold, and that it was in a good condition and ran all right.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10570.
    Western Union Telegraph Co. et al. v. Spencer.
   Jenkins, P. J.

1. Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases. In this case it can not be said that the allegations of the plaintiff’s petition as amended show, as a matter of law, that no other legal conclusion could be reached than that the plaintiff’s injuries were the result of his failure to exercise ordinary care, or that by the exercise of such care the consequences of the defendant’s alleged negligence could have been avoided. See R. & D. Railroad Co. v. Howard, 79 Ga. 44 (3 S. E. 426); International Cotton Mills v. Webb, 22 Ga. App. 309 (4), 310 (96 S. E. 16). The court therefore did not err in overruling the general demurrer. Such of the special grounds of demurrer as were meritorious were properly met by an appropriate amendment. See Charleston &c. Railway Co. v. Lyons, 5 Ga. App. 668 (63 S. E. 862); Charleston Railway Co. v. Boyd, 5 Ga. App. 137 (62 S. E. 714); Atlantic Coast Line R. Co. v. Burroughs, 20 Ga. App. 197 (92 S. E. 1010).

2. “An exception based upon the refusal of the court to award a non-suit will not be considered, where, subsequent thereto, the ease 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 evidence and without evidence to support it.” Dudley v. Isler, 21 Ga. App. 615 (94 S. E. 827).

8 “The refusal to direct a verdict is not error in any ease.” Dudley v. Isler, supra.

4. Under the undisputed evidence in this case, the crossing at which the plaintiff is alleged to have been injured was one maintained over the defendant’s tracks and near its depot, and the road was used in unloading freight from cars to wagons, and in loading cars from wagons, and had also been used by the public generally, in traveling on foot, and by “automobiles, wagons, log carts, buggies—any kind of vehicles that travel the roads,” for 20 or 25 years. The court therefore did not err in charging the jury, “If you should find from the evidence that he [plaintiff] was on the crossing, at a public crossing—not. necessarily a public road crossing—that is to say, that he had a right to cross at that place, and for the purpose of crossing he was where he had a right to be, he was not a trespasser.”

5. The court charged the jury that “Where an adult or grown person^ apparently able to take care of himself, is upon a railroad-track, employees engaged in the operation of trains and cars have a right to assume, in the absence of anything to the contrary, that such person will get off the track, or take such other precautions as may be available, to avoid injury to himself, and the employees engaged in the operation of trains and cars have the right to act upon this presumption.” Immediately following this portion of the charge, the court charged the jury as follows: “I charge you, however, further, in that connection, that before the plaintiff in this case could be chargeable with neglect, he must first be made aware of the danger that is approaching, and until it is brought home to him, notice of the danger, then, until then, the charge as I have jiust then given to you would not apply.” To thus qualify and restrict the excerpt from the charge first quoted was, we think, erroneous. “A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject -to the dangers incident to the operation of trains upon that track.” Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802). The duty therefore rested upon the plaintiff not only to exercise ordinary care to avoid injury to himself from dangers Tonown to him to exist, but, being in a place of danger, he was also bound to use that degree of care and caution which an ordinarily prudent person would exercise under similar circumstances to discover approaching danger, and thereafter avoid the same. Western & Atlantic R. Co. v. Ferguson, supra; Western & Atlantic R. Co. v. York, 128 Ga. 687 (58 S. E. 183); Central Railway Co. v. Larsen, 19 Ga. App. 413, 417 (91 S. E. 517). The charge as given was not in accord with the principles here announced, and, the case being a close one upon the facts, the charge can not be treated as harmless error, even though the court did in other portions of the charge properly instruct the ¿ury as to the general duty devolving upon the plaintiff of exercising ordinary care.

Decided November 19, 1919.

Action for damages; from city court of Hinesville—Judge W. C. Hodges. March 27, 1919.

Bolling Whitfield, N. J. Norman, William L. Clay, for plaintiffs in error.

O. C. Darsey, Oliver & Oliver, contra.

6. The plaintiff brought his suit jointly against the Western Union Telegraph Company and the Seaboard Air-Line Railway, for injuries alleged to have been sustained by reason of negligent operation of the motorcar which occasioned the injury, by a servant of the telegraph company over the tracks of the railway company. Where, without express legislative authority, a railroad company permits another person to run cars over its railway, and thus to use its franchise, it is liable for any injury done as though the company owning the road were itself running the cars. Macon & Augusta R. Co. v. Mayes, 49 Ga. 355; Georgia Railroad Co. v. Haas, 127 Ga. 187, 193. Thus, the court did not err in giving in charge to the jury the provisions of section 2780 of the Civil Code (1910) relating to the presumption of negligence, it having at the same time specifically instructed the jury that these instructions applied only to the railway company, and that they did not apply to the defendant telegraph company. The court, in thus limiting the application of the charge as given, brought itself within the rulings announced by the Supreme Court in L. & N. Railroad Co. v. Hames, 135 Ga. 67 (2), and L. & N. Railroad Co. v. Barrett, 143 Ga. 742.

7. There was sufficient evidence to authorize the verdict; but the verdict as rendered was not demanded, and, because of the error in the charge of the court pointed out. above (paragraph 5), the judgment overruling the motion for a new trial is

Reversed.

Stephens and Smith, JJ., concur.


text:
    10577.
    Bailey v. McClendon et al.

   Jenkins, P. J.

This case is a contest as to whether or not certain materials tarnished by the plaintiff to the defendants were included in a contract Á purchase and sale, or whether they were furnished as extras. While the evidence is conflicting, it does not fail to authorize the finding for the defendant as made by the jury. Even though the evidence admitted over objection may have been, as contended, irrelevant, it was necessarily harmless, and therefore its admission would not authorize setting the verdict aside. The reference by the trial judge to the contentions as “set up” by the defendant could not, when taken in the connection in which the words were used, he construed as an expression of the court’s opinion as to what had or had not been proved.

Judgment affirmed.

Stephens and Smith, JJ,, concur.

Complaint; from Haralson superior court—Judge Irwin. April 5, 1919.

J. S: Edwards, Taylor Smith, for plaintiff.

M. BuMard, Griffith & Matthews, for defendants.


text:
    10579.
    SOLOMON v. RAY.
    1. Where personal property is sold under a conditional contract of sale and a series of notes is given for the purchase-price, each containing a reservation of title until payment of the entire purchase-price, and each properly executed and attested, and the last one, referring to the other notes of the series and containing all of the stipulations as to •the conditions of the sale, is duly recorded, the title to the property remains in the vendor until full payment of the purchase-money.
    2. Where two persons sign such notes as purchasers, but one of them fails to pay any of the purchase-money, a purchaser of the property from the one who nas paid nothing would acquire no equity as against the original vendor.
    3. There being no evidence to sustain the plea of set-off or recoupment, the verdict allowing the defendant $150 as against the plaintiff, the original vendor, must be set aside; and therefore the judgment of the lower court is affirmed with direction that the $150 found in favor of the defendant be written off.
    Decided November 19, 1919.
    Trover; from city court of Floyd county—Judge Nunnally. April M, 1919.

      Denny & Wright, for plaintiff. Nathan Harris, for defendant.
   Smith, J.

This is a bail-trover proceeding to recover a described automobile., The plaintiff sold the machine in question to either William Jackson or B. E. Banks; the evidence is in conflict as to which one was the real purchaser. However, both Jackson and Banks signed six promissory notes covering part of the purchase-price of the car. The notes retained title to the car, and the last one was duly recorded. Two of the notes were paid by Banks, who also made a cash payment on the car at the time it was purchased. There is absolutely no evidence whatever that Jackson ever paid anything on the purchase-price of the car. Jackson sold the car to the defendant Bay, and this suit was brought by the original vendor, to recover it. The defendant failed to make bond, and the plaintiff gave bond and took possession of the property. The defendant in his plea sought to recoup an amount alleged to have been paid by Jackson upon the purchase-price of the car. The case went to trial and tbe jury returned a verdict in favor of the plaintiff for the car, and in favor of the defendant for $150. The plaintiff, being dissatisfied with the verdict in favor of the defendant for $150, made a motion for a new trial, which was overruled, and he excepted.

The whole theory of the defendant’s right to a recovery rests upon an equitable doctrine established by the Supreme Court in the case of Hays v. Jordan, 85 Ga. 741 (11 S. E. 833, 9 L. R. A. 373), wherein it was held that a recovery on the part of a vendee in such contracts was purely an equitable right; the court stating that the trial court had the power to mold a verdict and judgment in order to do justice in the cause. It cannot be said that the verdict in the instant ease, allowing the defendant to recoup of the plaintiff $150, was an equitable finding, since the defendant, who was the vendee of Jackson, could occupy no better legal position than his vendor, who, the undisputed evidence shows, had never paid anything on the purchase-price of the ear.

Applying, therefore, the equitable doctrine which the defendant himself invoked, the finding in his favor of $150 must be set aside; and it is directed that this amount be written off the verdict and judgment.

Judgment affvrmed, with direction.

Jenkins, P. J., and Stephens, J., concur.


text:
    10592.
    Dean v. Merchants & Farmers Bank.
    Decided November 19, 1919.
   Smith, J.

1. Where one purchasing real estate has the opportunity of examining it before buying, but, instead of doing so, voluntarily relies upon the statements of the vendor concerning its character and value, the contract will not be rescinded or set aside, or the purchase-price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practised by the vendor to prevent such examination. This is true even though the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agent. See Tallent v. Crim, 19 Ga. App. 16 (90 S. E. 742), and numerous cases there cited.

2. Under the foregoing ruling, the court did not err in striking the defendant’s plea, and in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., eoncwr.

Complaint; from Franklin superior court—Judge W. L. Hodges. March 27,1919.

Fermor Barrett, W. B. Little, for plaintiff in error.

Linton Johnson, Worley Adams, James B. Thomas, contra.


text:
    10595.
    Continental Life & Health Insurance Co. v. Hand.
    Decided November 19, 1919.
    Action on insurance policy; from city court of Floyd county— Judge Nunnally. April 29, 1919.

      J. L. Wallace, C. LL. Porter, Walter McFlrealh, for plaintiff in error.

      L. H. Covington, contra.
   Smith, J.

1. An alleged statement of facts not being set forth in the bill of exceptions nor made a part of the same as an exhibit thereto and properly authenticated, what purports to be an agreed statement of facts, specified in the bill of exceptions as such and sent up as_a part of the record, but not approved by the judge and ordered filed, cannot be considered by this court. Robinson v. Woodward, 134 Ga. 777 (68 S. E. 553); Blackman v. Garrett, 135 Ga. 226 (69 S. E. 110); Silvey v. Brown, 137 Ga. 104 (72 S. E. 907); Barrow v. Barrow, 139 Ga. 806 (78 S. E. 123); Fitzgerald v. Brown, 22 Ga. App. 57 (95 S. E. 377).

2. The errors assigned in the bill of exceptions being such as cannot be determined from the record without a consideration of such alleged agreed statement of facts so sent up, the judgment of the court below must be affirmed.

3. Could we consider the alleged agreed statement of facts as appears in the record before us, we would hold that the evidence contained therein authorized the verdict.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10599.
    Reeves, guardian, v. Harrell, administrator.
   Jenkins, P. J.

“Any person interested as distributee or legatee may, after the expiration of one year from the grant of administration, cite the administrator to appear before the ordinary for a settlement of his accounts, or, if the administrator chooses, he may cite all of the distributees to be present at the settlement of his accounts by the ordinary; such settlement shall be conclusive upon the administrator, and upon all the distributees who are present at the hearing.” Civil Code (1910), § 4073. This section of the code does not contemplate that after an administrator has thus cited all the distributees to be present at the settlement of his accounts, and after the distributees have appeared and one of them has filed objections to the accounting as made by the administrator, the objecting distributee shall then have the additional right of citing the administrator to appear for a settlement. This is true because the pending proceeding as instituted by the administrator is such as to determine all questions that might be raised by such a subsequent citation on the part of the distributee. Therefore, in the present case, after the objection filed by the distributee under the administrator’s citation had been passed upon by the ordinary, that court did not err in dismissing, such other and additional proceeding undertaken by the distributee; nor did the superior court commit any error in dismissing the appeal entered by the distributee from the judgment of the ordinary in thus dismissing his subsequent and independent proceeding.

Decided November 19, 1919.

Appeal; from Grady superior court—Judge Harrell. March 7, 1919.

8. P. Gain, for plaintiff in error.

B. B. Terrell, contra.

Judgment affirmed.

Stephens and, Smith, JJ., eoneur.


text:
    10601.
    Dollar v. City of Thomasville.
   Smith, J.

The petition as amended alleged, that the plaintiff was inexperienced as to matters concerning the latent dangers incident to working upon and handling electric wires, and that the defendant employed him with full knowledge of this fact; that he had worked only three weeks for the defendant when he was instructed by its foreman to climb an electric-light pole, carrying with him the loose end of a wire, for the purpose of attaching it to the end of another electric-light wire, which had previously broken. He alleged further that he did not know that there were two wires entwined about the pole, one carrying a positive current and the other a negative current, and that when he reached a point' near where these wires were entwined about the pole ho placed his hand around the pole, that being necessary in climbing, and that his hands came in contact with these twp entwined wires, and that this- together with the loose end of the wire which was held in a metal fixture in his belt completed the circuit and he received a shock which threw l^m to the .ground, some 15 feet away from the pole, causing serious injjury ft) his person, all of which was caused by the negligence of the master in not warning him of these latent dangers. Held, that these allegations, taken together with all the other allegations contained in the petition as amended, set out a cause of action, and the trial judge erred in dismissing the suit on general demurrer. See Western Union Telegraph Co. v. Jenkins, 92 Ga. 398 (17 S. E. 620); City of Dawson v. Smith, 18 Ga. App. 603 (90 S. E. 76). The eases of Columbus Railroad Co. v. Dorsey, 119 Ga. 363 (46 S. E. 635), and Dorsey v. Columbus Railroad Co., 121 Ga. 697 (49 S. E. 698), are clearly distinguishable from the case at bar, as is also the case of Zachery v. Madison, 18 Ga. App. 490 (89 S. E. 594).

Decided November 19, 1919.

Action for damages; from city court of Thomasville—Judge W. H. Hammond. April 9, 1919.

Titus, Dekle & Hopkins, for plaintiff.

J. M. Austin, E. E. Wilco.v, for defendant.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.