text:
    A95A2475.
    ROWLAND v. DEPARTMENT OF ADMINISTRATIVE SERVICES.
    (466 SE2d 923)
   Smith, Judge.

This is a subrogation action under OCGA § 34-9-11.1 (b). When an employer pays workers’ compensation benefits and the injured worker also recovers damages from a third-party tortfeasor, this statute creates a lien in favor of the employer against the worker’s tort recovery. We must determine the effect of a settlement between the injured worker and the tortfeasor on the employer’s subrogation lien.

The underlying facts have been stipulated by the parties. Joseph Young and Tracy Rowland were involved in a motor vehicle collision caused by Rowland’s negligence. Young was driving his vehicle in the scope and course of his employment with a state agency. The Department of Administrative Services (DOAS) paid Young $3,324 in workers’ compensation benefits and brought suit to recover that amount from Rowland. DOAS soon discovered, however, that Young had already settled his personal injury claim with Rowland without filing suit. The parties have stipulated that DOAS had no knowledge of Young’s settlement of his personal injury claim, that Rowland and her insurer had no knowledge of the workers’ compensation subrogation claim, and that no personal injury lawsuit was ever filed by Young.

The parties filed cross-motions for summary judgment. Rowland contended that her settlement with Young extinguished any subrogation lien against her. DOAS, on the other hand, contended that under OCGA § 34-9-11.1 (c), it had a separate and distinct claim that was not extinguished by the settlement. The trial court denied Rowland’s motion for summary judgment and granted summary judgment in favor of DOAS. Rowland appeals.

This appeal turns on the precise nature of the subrogation right granted under OCGA § 34-9-11.1. The statute became effective in 1992, approximately one month before the underlying collision between Young and Rowland, and we have little guidance in interpreting this aspect of the statute. Decisions exist interpreting a similar although not identical right of subrogation given to an automobile insurer paying benefits under the former no-fault law. See former OCGA § 33-34-3 (d) (1). In their briefs here and below, both parties rely heavily on cases construing the former no-fault subrogation statute.

The language used in OCGA § 34-9-11.1, however, varies considerably from that of the no-fault statute, and it creates a substantially different right of subrogation. Under the no-fault statute, the insurer paying no-fault benefits to a party involved in a collision with an uninsured motorist was “subrogated to the rights” of the payee and had “a right of action to the extent of benefits provided against such tortfeasor.” (Emphasis supplied.) Former OCGA § 33-34-3 (d) (1). The workers’ compensation statute, in contrast, creates in favor of the employer or its insurer “a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery.” (Emphasis supplied.) OCGA § 34-9-11.1 (b). A right of action in the employer is not unconditionally granted by the statute. As the statute read at the time, only if the injured employee or his survivors failed to bring an action against the tortfeasor within a one-year period, was “any cause of action in tort which the injured employee . . . may have against any other person” assigned to the employer by operation of law. (Emphasis supplied.) OCGA § 34-9-11.1 (c).

Rowland contends that her settlement with Young and Young’s release of all claims he may have had extinguished any potential subrogation claim of DOAS against her under § 34-9-11.1 (c) before it could come into existence. Since the assignment did not occur until Young failed to bring suit within one year, and by the terms of the statute there was an assignment only of “any cause of action” which “the injured employee . . . may have,” an earlier settlement and release by Young operated to extinguish his cause of action against Rowland before the assignment took effect. Under well-established Georgia law, “in order for subrogation to take place the insured must have a right of recovery against some person to which the insurer can succeed by subrogation.” (Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Southeastern Fidelity Ins. Co., 144 Ga. App. 811, 812 (242 SE2d 743) (1978). See also Aetna Cas. &c. Co. v. Sosebee, 150 Ga. App. 354, 355 (258 SE2d 37) (1979) (release executed by recipients of no-fault benefits extinguished rights supporting subrogation).

Under OCGA § 34-9-11.1 (b), the employer or its insurer has a right to intervene in any tort action brought by the employee in order to “protect and enforce” its lien. See Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27 (464 SE2d 7) (1995). In this case, however, the parties to the tort claim settled before suit, and no action was ever filed. Under the plain wording of OCGA § 34-9-11.1, Bennett v. Williams Elec. Constr. Co., 215 Ga. App. 423, 424 (3) (450 SE2d 873) (1994), the employer has no remaining right of action against the tortfeasor. But the loss of the right to bring this cause of action did not extinguish DOAS’s lien on the recovery, that is, the money now in the hands of the injured employee. This lien is created by OCGA § 34-9-11.1 (b) independently of the assignment of any cause of action against the tortfeasor under subsection (c).

Had Rowland settled with Young despite having knowledge of the workers’ compensation claim and DOAS’s right of subrogation, a different result would obtain. “[A]s a matter of general law, where the wrongdoer settles with the insured . . . without the consent of the insurer . . . with the knowledge of the insurer’s payment and right of subrogation, such right is not defeated by the settlement.” (Citation omitted; emphasis supplied.) Vigilant Ins. Co. v. Bowman, 128 Ga. App. 872, 874 (198 SE2d 346) (1973). The parties have stipulated that Rowland had no actual knowledge of the existence of the workers’ compensation claim or the assertion of a subrogation lien. DOAS contends, however, that Young’s release does not extinguish its subrogation rights because Rowland should be deemed to have had constructive knowledge of its potential claim. DOAS bases this contention on the holding in Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755, 757-758 (294 SE2d 570) (1982) (construing former OCGA § 33-34-3).

Poole Truck Line is inapplicable here for two reasons. First, as noted above, the lien on a recovery granted to DOAS by this statute is substantially different from the right of subrogation created by former OCGA § 33-34-3. Moreover, the theory of constructive notice relied on in Poole Truck Line is inapplicable here. Although the tortfeasor and insurer in Poole Truck Line had no actual knowledge of the settlement, this court concluded that they had constructive knowledge through former OCGA § 33-34-3: “Those who use the roads in Georgia (in this case a transport trucking firm and its insurance carrier) are presumed to know the law which gives the injured party’s insurance company statutory right of subrogation in accidents involving a vehicle weighing more than 6,500 pounds. Therefore, anyone who seeks to settle with the insured party and obtains a release without the insurer’s consent does so at his own risk.” Poole Truck Line, supra at 758.

Rowland contends that the circumstances giving rise to a subrogation lien under OCGA § 34-9-11.1 (c) are substantially different from those creating subrogation in Poole Truck Line and cannot amount to constructive knowledge. We agree. OCGA § 34-9-11.1 (c) is not limited to vehicular collisions arising under a specific, well-defined set of circumstances. By the terms of the statute, it applies to any case of compensable injury or death, whatever the circumstances and however arising. It would be difficult, if not impossible, to have knowledge of the applicability of workers’ compensation to virtually any incident resulting in an injury. Even if we limit our consideration to vehicular accidents, the potential existence of a workers’ compensation subrogation lien is still much less certain than a claim under former OCGA § 33-34-3. All drivers were required to have no-fault coverage, OCGA § 33-34-4, and to carry proof of insurance, OCGA § 33-34-12, and the involvement of a truck weighing in excess of 6,500 pounds could be determined at the scene or from a police report. Knowledge of these easily ascertainable facts was sufficient to put the tortfeasor on notice of a potential subrogation claim. Poole Truck Line, supra at 758.

Decided January 23, 1996

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Webb & Lindsey, Mark D. Oldenburg, for appellee.

In contrast, a driver involved in a collision does not necessarily fall within the scope of the Workers’ Compensation Act. The employer, for example, may be exempted from the scope of the Act by reason of its type of business or number of employees, OCGA § 34-9-2 (a), or it may have opted out under OCGA § 34-9-1 (2). More importantly, a tortfeasor cannot easily determine whether an injured litigant was acting in the scope and course of an employer’s business, an issue that itself gives rise to much litigation. Whether an employee was acting in the scope or course of employment is often determined only after extensive discovery and litigation. See OCGA § 34-9-1 (4) and annotations thereto. It would be unjust to place constructive knowledge on a tortfeasor of the existence of a potential claim so uncertain under the law. Moreover, as noted above, Young was the only party in this triangle of employer, worker, and tortfeasor who was in full possession of all the facts. If, as Poole Truck Line observes, “a wrongdoer will not be permitted to profit from wrongdoing,” id. at 757, Young should not be permitted to profit from his failure to disclose the existence of these simultaneous claims, to the extent, if any, that he received more than full compensation for his injury. The trial court erred in granting summary judgment to DOAS and should have granted summary judgment to Rowland.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       OCGA § 34-9-11.1 (c) was substantially rewritten by Ga. L. 1995, pp. 642, 643.

       A party seeking subrogation under OCGA § 34-9-11.1 must also consider an additional provision of the statute: “[T]he employer’s or insurer’s recovery ... shall only be recoverable if the injured employee has been fully and completely compensated ... for all economic and noneconomic losses incurred as a result of the injury.” OCGA § 34-9-11.1 (b). The assurance of full compensation to the injured employee was a major consideration in the legislative history of the statute. See Bennett, supra at 425. The parties did not stipulate, and the record does not reveal, whether Young was fully compensated for his injuries, and we do not reach that issue here.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2642.
    KEITH v. THE STATE.
    (467 SE2d 222)
   Beasley, Chief Judge.

Keith was convicted by a jury of two counts of cruelty to children, OCGA § 16-5-70 (b). Specifically, the jury found, as alleged, that he had maliciously caused cruel and excessive physical pain to the same male child on November 21, 1993, when he struck the then nine-year-old child in the face with a plastic cord, and on May 4, 1994, when Keith struck the child, then age ten, with a hot iron. The iron left a first-degree burn on the child’s right rib cage area, which the physician who examined the child testified would be “very painful.” These incidents occurred during a period of several years during which Keith lived with the victim, his mother, and his sister.

The child testified that he was hit with the cord because he left it in the yard after he was told by defendant to pick it up and that he was hit by the iron one morning before he woke up to go to school. He was supposed to iron his own clothes for school. There was testimony that these acts were committed for the purpose of discipline.

The State gave advance notice that it would seek to introduce evidence of another incident on August 15, 1993, and a pretrial hearing was held in accordance with Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The earlier incident involved defendant’s hitting the same child with an electrical cord, leaving marks on his abdomen and lower right leg. The boy understood that it occurred because he did not pick up his toys fast enough. The mother testified he had welts across his face. Keith pled guilty to simple battery in connection with this electric cord incident, on the day after he hit the child with the plastic cord.

The prosecution’s stated purpose for offering this evidence was to prove defendant’s intent toward the child, that he intended to inflict pain and that this was the purpose of the batteries, which were intended as a scheme of discipline. The court gave a limiting charge, the contents of which appellant does not challenge. Instead, his sole enumeration is that the admission of the August incident was error because the State did not show its admissibility for a proper purpose and because there was not a sufficient connection or similarity between that incident and the plastic cord incident of November 21 so as to tend to show defendant’s intent in the charged instances.

The August incident occurred only two months earlier. One of the elements of the crimes charged is maliciousness, that is, the desire to bring pain to the victim. The repetitive nature of the defendant’s attacks and the common purpose expressed for initiating them tended to prove this element. Thus the first prong of the Williams test was met. Cf. Evans v. State, 209 Ga. App. 606, 608 (434 SE2d 148) (1993) (Beasley, P. J., dissenting).

The appellant also urges that the August 15 incident was inadmissible because it was different and thus did not satisfy the third prong of the Williams test. To the contrary, the similarities are, literally, striking. The action was taken against the same victim, in the same place (home), for the same purpose (discipline), with a similar object (cord). The fact that the injuries may not have been inflicted on the same part of the child’s body does not erase their similarity. See Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995).

Decided January 23, 1996.

David B. Brown, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

The grounds raised by appellant do not show error.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A96A0131.
    A96A0132.
    A96A0133.
    THE STATE v. SMITH. THE STATE v. SMITH. THE STATE v. PUTNAM.
    (467 SE2d 221)
   Beasley, Chief Judge.

Indictments were returned against the Smiths and Putnam charging them with violations of the Georgia Controlled Substances Act based on allegations that they were in possession of marijuana with intent to distribute. They filed motions to suppress, based on the illegality of the seizure; the motions were granted following a hearing. The State appeals this interlocutory ruling, which it is permitted to do by OCGA § 5-7-1 (a) (4).

A search warrant executed by GBI narcotics agent Ramey and other law enforcement officers at the Smiths’ residence resulted in the seizure of marijuana. Putnam and Samples were present at the residence at the time of the search, but the Smiths were not there.

At the hearing, Ramey testified as follows on direct examination. When he and the other officers arrived at the residence, they saw Samples and one or two other individuals standing outside the residence. They did not know if anyone was inside. They exited their vehicle and announced that they were police and had a search warrant, entered through an unlocked door, and encountered Putnam.

Both Putnam and Samples testified that Ramey and the other officers ran into the house without knocking or identifying themselves.

On redirect examination, Ramey testified that he and the other officers announced that they were police and had a search warrant when they exited their vehicle fifty to sixty feet from the residence and again when they approached the door to the residence, and that they probably gave the individual inside the residence ten to fifteen seconds to come to the door. On recross-examination defense counsel pointed out that although Ramey testified on direct examination that the officers announced that they were police and had a search warrant when they exited their vehicle, he did not testify that they again announced their authority and purpose when they approached the door to the residence.

Decided January 23, 1996.

Ralph L. Van Pelt, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellant.

Richard K. Murray, Edward F. Hurley, for appellees.

A law enforcement officer entering an occupied residence for the purpose of executing a search warrant is required to give or attempt to give verbal notice of his authority and purpose. See OCGA § 17-5-27; Barclay v. State, 142 Ga. App. 657 (236 SE2d 901) (1977); Jackson v. State, 129 Ga. App. 901, 905 (1) (e) (201 SE2d 816) (1973). Unless excused by the presence of exigent circumstances, an entry which is illegal under the statute taints the search. Barclay, supra. Exigent circumstances exist where the police have reasonable grounds to believe that forewarning would either greatly increase their peril or lead to the immediate destruction of the evidence. Scull v. State, 122 Ga. App. 696 (1) (178 SE2d 720) (1970). A search warrant with a no-knock provision may be issued where the facts set out in the affidavit demonstrate exigent circumstances. Jones v. State, 127 Ga. App. 137 (1) (193 SE2d 38) (1972).

The search warrant in this case did not have a no-knock provision, and there is no evidence of exigent circumstances.

“ ‘Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal.’ [Cit.]” State v. Davis, 261 Ga. 225, 226 (404 SE2d 100) (1991). The evidence supports a finding that, in executing the search warrant, the officers entered the residence occupied by Putnam without giving or attempting to give verbal notice to any occupant of their authority and purpose. The trial court was thus authorized to conclude that the officers’ entry into the residence was illegal, thereby tainting the search. See generally Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A96A0236.
    SCOTT v. THE STATE.
    (467 SE2d 348)
   Blackburn, Judge.

Frank Ellis Scott appeals his conviction for sale of cocaine and possession of cocaine.

1. Scott asserts that the trial court erred in excusing a prospective juror who was the brother of Scott’s long-time girl friend and the uncle of Scott’s two children. While the juror answered affirmatively that he would be able to arrive at an impartial verdict based solely upon the evidence and the law as presented during the proceeding, the trial court granted the State’s motion to excuse the juror for cause. This was not error.

In determining whether a juror can impartially decide a case in accordance with the evidence presented during the trial, the trial court is given the utmost discretion and will not be reversed absent a manifest abuse of that discretion. Perry v. State, 264 Ga. 524, 525 (448 SE2d 444) (1994). Prejudice or bias sufficient to merit a prospective juror’s exclusion may arise from that juror’s relationship to the parties involved. Lively v. State, 262 Ga. 510, 511 (421 SE2d 528) (1992). Moreover, the party seeking exclusion of a juror on grounds of bias need not demonstrate the bias with “unmistakable clarity.” Crowe v. State, 265 Ga. 582, 589 (458 SE2d 799) (1995). During voir dire the juror stated under oath that he had visited Scott’s home on a number of occasions, that he was close to Scott and that it would be difficult for him to sit as a juror on Scott’s case. In light of the prospective juror’s relationship with Scott, we find the trial court did not abuse its discretion in discharging the juror for cause.

Moreover, a defendant has no vested interest in a particular juror but rather is entitled only to a competent and impartial jury. Wells v. State, 261 Ga. 282 (404 SE2d 106) (1991); see also Perry, supra. Thus, even assuming that the trial court wrongfully dismissed the prospective juror, the error affords no ground for appeal if, in the end, Scott’s case was heard by a competent and unbiased jury. Id. As Scott has offered no evidence or argument that the jury hearing his case was unqualified in either of these respects, this enumeration is without merit.

2. Scott asserts that the trial court erred in not permitting the identification or testimony of a confidential informant who assisted the police in the undercover investigation that led to his arrest. The trial court conducted an in camera hearing to determine whether the identity of the confidential informant should be disclosed. During the hearing, Scott’s co-defendant argued that the informant’s testimony was relevant as to his claim of misidentification, focusing primarily on a meeting with undercover agents that took place outside of Scott’s presence. While on appeal, Scott described the confidential informant as a “key witness,” at no time during the hearing did Scott indicate how the identity or testimony of the informant was relevant to his own case.

Georgia law provides that “ ‘(w)here the disclosure of an [informant’s] identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [government’s] privilege [of source confidentiality] must give way.’ [Cit.]” Wilson v. State, 209 Ga. App. 436, 438 (433 SE2d 703) (1993). As Scott failed to demonstrate how disclosure was relevant or helpful to his defense or essential to the fair determination of his cause, we find the trial court did not err in precluding disclosure of the informant’s identity.

3. In his third enumeration of error, Scott asserts that the trial court erred in permitting the State to present evidence of two similar transactions. Citing Santamaría v. State, 165 Ga. App. 288, 289-290 (299 SE2d 758) (1983), Scott contends that the transactions were not admissible as they took place after the offenses for which he stood trial. In Santamaría, the defendant was charged with possession with intent to distribute marijuana. The trial court permitted testimony from a prosecution witness that “several days after [the defendant] had been charged . . . [the defendant] asked [the witness] if he knew of anyone who might be interested in buying drugs.” Id. at 289. This Court reversed, holding that the statement did not qualify as a “prior similar transaction” and that its introduction impermissibly placed defendant’s character at issue. The holding in Santamaría was based in large part on the fact that the defendant’s remark was not made as part of a viable crime or even a transaction — facts not present here. Id. at 290. Moreover, this Court has previously held that similar transactions which occur subsequent to the charge being tried are admissible when the State satisfies the applicable test for similar transactions. See Lefler v. State, 210 Ga. App. 609, 611 (436 SE2d 777) (1993).

In this matter, the State satisfied the applicable test, outlined in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), by offering evidence that (1) the defendant committed the acts in question, (2) that these acts were sufficiently similar to the offense for which the defendant is charged, and (3) that the similar acts were being introduced for a relevant purpose. We note that the test set forth in Williams focuses on the “similarity or connection between that independent offense and the crime charged” without reference to the order in which they occurred. Id. at 643. Thus, the fact that the similar incidents which the prosecution seeks to evidence occurred after the offense for which a defendant is charged, considered by itself, does not render the similar transaction evidence inadmissible. Accordingly, this enumeration of error is without merit.

Decided January 23, 1996.

Dunaway & Wallace, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, M. Eric Eberhardt, Assistant District Attorney, for appellee.

4. Scott asserts that the trial court erred in allowing a law enforcement officer to testify, without first being qualified as an expert, that the substance acquired from Scott during various undercover drug buys was cocaine. A review of the record reflects that the agent testified, when asked, that the substance appeared to be cocaine but further stated that he could not testify with certainty that the substance was cocaine. Assuming arguendo that this testimony was improper, the error was harmless as a qualified expert had earlier testified, without objection, that the substance was, in her opinion, cocaine.

5. In light of the foregoing, we find Scott’s final enumeration — that he was denied his constitutional right to a fair trial due to the errors addressed above — to be without merit.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       In Georgia, public policy favors the non-disclosure of a confidential informant’s identity to encourage the free flow of information about criminal activity between the public and law enforcement authorities. Wells v. State, 212 Ga. App. 60, 63 (441 SE2d 460) (1994).


author: Harwell, J.

text:
    9162.
    HEARN v. CENTRAL OF GEORGIA RAILWAY CO.
    From the plaintiff’s petition it appears that the defendant railway company rented to him a portion of its right of way as a pasture for live stock, under a contract containing a provision that “the tenant will save and hold harmless the company, its successors -and assigns, from all damage, injury, or liability that may arise from the destruction or injury of any building, improvements, or personal property of any description, by lire, or from any other cause whatever, whether the same should be attributable to the negligence of the employees of said company or not, where such damage, injury, or liability is caused or increased by reason of the use of the premises hereunder.” This suit is for injuries to the plaintiff’s live stock while in the above-mentioned pasture, alleged to have been caused by negligence on the part of the defendant’s employees in the running of its trains. Eeld: The court did not err in dismissing the petition, on general demurrer.
    The provision of the contract exempting the railway company from liability for negligence was not void as contrary to public policy.
    Decided March 12, 1918.
    Action for damages; from Bibb superior court—Judge Mathews. August 6, 1917.
    Paul Hearn sued the Central of Georgia Railway Company for $680, alleging, that this amount represented the value of his live stock killed at stated times by the running of the defendant’s trains thrpugh described property which he alleged he had charge of and was using as a pasture* for his live stock; that the place where the stock was killed was a straight track for more than a mile; that there was nothing to prevent the defendant’s employees in charge of the trains from seeing the cattle on the track, and that due care required them tó cheek the speed of the trains, and, if necessary, to 'stop the trains in order to prevent striking and killing the stock; and that the defendant was negligent in that it operated its trains through the said property at a great rate of speed, to wit, approximately forty piiles an hour, and “made no attempt to cheek the speed of said trains to prevent striking and killing” his stock. By amendment the plaintiff alleged that at the time of the injuries complained of he was a tenant of the defendant, under a rent contract, a copy of which was attached to his petition, and which contained, among other provisions, the' following: “Whereas said tenant desires, with the permission of the company, to occupy a portion of the right of way or land of the company in Bibb county, Georgia, known as ‘Barrel Factory’ property, at Yineville, for pasturage purposes, at monthly rental of $16.66, and whereas the tenant is not desirous of affecting in any, manner the right of the company to the full and undisturbed possession of the premises, nor the interfering in any way with any of the rights of the company relative thereto, and whereas the company has consented to license for the time being the tenant to occupy the premises as aforesaid, now, therefore, in consideration of the premises and license aforesaid, the tenant hereby covenants and agrees with the company, its successors and assigns, as follows: First. That the tenant will save and hold harmless the company, its successors and assigns, from all damage, injury, or liability that may arise from the destruction or injury of any building, improvements, or personal property of airy description, by fire, or from any other cause whatever, whether the same should be attributable to the negligence of the employees of said company or not, where such damage, injury, or liability is caused or increased by reason of the use of the premises hereunder.”
    A general demurrer to the petition- was sustained, and the plaintiff excepted.

      Feagin & Hancoch, for plaintiff.

      Jordan & Lane, for defendant.
   Harwell, J.

(After stating the foregoing facts.) The plaintiff contends that the provisions in the lease contract between the railroad company and himself, stipulating “that the tenant will save and hold harmless the company, its successors and assigns, from all damage,” etc., whether “attributable to the negligence of the employees," etc., is an attempt on the part of the railroad company to relieve itself from any liability arising from the negligence of itself and its agents and employees, and is therefore contrary to the public policy of this State and null and void. There can be no doubt that a railroad company, in its character as a quasi-public corporation, can not contract to relieve itself from the diligent performance of those duties to the public which the law imposes on it. The public has an interest in the proper performance of such duties on the -part of the railroad company, and any contract attempting to relieve it therefrom is contrary to public policy. Thus, the railroad company is under the duty, as a common carrier, of exercising diligence in transporting goods; and although it may relieve itself from its liability as an insurer of such goods, it is well established -that it may not, by special contract, limit or procure release from its liability for negligence in so doing. Civil Code (1910), § 2726; Ga. R. Co. v. Keener, 93 Ga. 808 (21 S. E. 287, 44 Am. St. R. 197); A. & W. P. R. Co. v. Jacobs Pharmacy Co., 135 Ga. 113 (4) (68 S. E. 1039), and cases cited. Further, the law imposes on the railroad company the duty of exercising extraordinary diligence in the carrying of passengers (Civil Code (1910), § 2714); and it may not by express contract relieve itself from liability arising from a failure to exercise such diligence. “The liability of a carrier of passengers is not that of an insurer, but such carrier is bound by law to extraordinary diligence to protect the lives and persons of its passengers. This duty can not be waived or released, even by an express contract. Being one in which the public has an interest, public policy forbids such a waiver or release.” Central Ry. Co. v. Lippman, 110 Ga. 665 (2) (36 S. E. 202, 50 L. R. A. 673); Charleston &c. Ry. Co. v. Thompson, 13 Ga. App. 528 (80 S. E. 1097), same case 234 U. S. 578 (34 Sup. Ct. 964, 58 L. ed. 1476), and cases cited; Wright v. Central Ry. Co., 18 Ga. App. 290 (89 S. E. 457). The railroad company is permitted to relieve itself from liability for injury caused by its negligence to one riding on a gratuitous pass, however, because in such case the relation of carrier and passenger does not in its full sense exist. Holly v. Southern Railway Co., 119 Ga. 767 (47 S. E. 188); Charleston &c. Ry. Co. v. Thompson, supra; see also cases cited immediately above. By express statute in this State, a contract by which a master attempts to relieve himself from the duties imposed on him by law towards his servant is null and void, as against public policy. Civil Code (1910), § 3132.

Let us consider the contract in the instant case, with a view to determining whether it was an attempt by the railroad company to relieve itself from any duty which the company owed the public, or whether the contract prejudiced any right or interest which by law the public had in the services of the carrier. Before the lease was made the plaintiff had no right to enter upon the defendant’s property and right of way, or to allow his cattle to pasture on the same. To allow the plaintiff’s cattle to graze on its right of way and to be free to cross its tracks would impose on the defendant a greater liability than it was already under. The railroad company was willing to' perform all the duties which if theretofore owed to the jpublie, but was not willing to impose upon itself this additional burden. It was not compelled to execute' such a lease, and we do not think any public interests were violated by -the company providing, as a condition to such a lease' contract, that it should not assume any greater burden than- the law imposed upon it. “The condition exempting the company from liability for damages to the property of the lessee, . . caused by the negligence of the company, relieved the company from no duty it was required by law to perform, but simply provided that' it should not assume an additional burden, which it had the' option to take or refuse.” Hartford Fire Ins. Co. v. Chicago &c. R. Co., 70 Fed. 201 (17 C. C. A. 62, 30 L. R. A. 193).

Hnder the law the company was bound to run its trains with ordinary care, and of course this duty it could not exempt itself from by contract; but before the lease was made it was not bound to anticipate the presence of 'the plaintiff’s cattle on its tracks. Therefore, in making such a lease contract with the plaintiff, it assumed burdens which the law did not impose upon it. By this contract the road virtually agreed that it would still operate its trains, as before, with due regard to the public, but that as to the plaintiff it would not assume the additional obligation of anticipating the presence of his cattle on its tracks by reason of its having given him, by contract, the right to pasture his cattle upon its right of way. Certainly no- duty to the public was violated by this stipulation.

This x ruling, we believe, is in harmony with the great weight of authority; certainly the principles upon which it is based are universally recognized by the courts of this country. Neither is this ruling in conflict with the decisions of our own courts. In Blitch v. Central of Ga. Ry. Co., 112 Ga. 711 (50 S. E. 945), the Supreme Court held: “Where, by a written contract, a railroad company gave to the other party' to the contract the right to maintain a warehouse on -its right of way, the tenant agreeing on his part to ‘save and hold harmless the company, its successors and assigns, from all damage, injury, or liability that may arise from the destruction or injury of any building, improvement, or personal property of any description, by fire, or from any- other cause whatever,- whether the same should be attributable to the negligence of the employees of said company or not, where such damage, injury or liability is caused or increased by reason of the use of the premises hereunder/ the company was not liable to the tenant for the destruction of the warehouse by fire presumably communicated from one of its trains, it being neither alleged nor proved that the communication of the fire to the warehouse was' caused by the gross negligence of the company.” It may’ be true, as pointed out by counsel for the plaintiff in error, that in that case there was no consideration moving to the railroad company for such use of its premises by the plaintiff, and that that case may be in that respect differentiated from the case at bar. But by the overwhelming weight of authority in this country “a provision in a lease by a railroad company of- a parcel of land for warehouse purposes, which places the risk of fire upon the lessee, who assumes all^risk thereof whether caused by the negligence of the lessor or otherwise, is not void as against public policy.” Checkley v. Ill. Cen. R. Co., 257 Ill. 491 (100 N. E. 942, 44 L. R. A. (N. S.) 1127, Ann. Cas. 1914A, 1202). For collections of numerous cases from courts of this country in support of this ruling, see notes in the books last cited. An examination of these cases will show, as noted, that “the ground on which the contract is upheld is that the company owes no duty to the public to exercise care with respect to buildings on its right of way, and may exact its own conditions for permission to place them there, and that it- is acting not as a carrier, but in a private capacity.” As was said by the Supreme Court of Kentucky, in Greenwich Ins. Co. v. L. & N. R. Co., 112 Ky. 598 (66 S. W. 411, 67 S. W. 16, 56 L. R. A. 477, 479, 99 Am. St. R. 313), passengers are compelled frequently to travel by railroad or not at all, and freight is required to be' shipped by that means or not at all; common carriers, by the conditions under which they exist, and to some extent by operation of law, have the'practical monopoly of this business; they are not upon an equal footing with customers in the matter of making such contracts, as where they undertake to secure in advance indemnity against the result of their negligence. Such contracts, the court said, are clearly against public policy. But in regard to the erection of a building on the fight of way of 'the railroad in that case the' court said: “No such necessity exists to' the owner of the building that he should erect it upon the company’s right of way, nor is the company compelled under any state of case to permit him to do so. It is under no obligation to extend its liabilities. It certainly could not be expected to voluntarily do so. Therefore the parties, when they come to contract with reference to the location of such a building, are dealing at arm’s length, and upon an equal footing.” Although the exact point decided in all of the cases cited above is not the same as in this case, the same fundamental principles of public policy which govern them are controlling in this case. Compare also Ashley v. Central of Ga. Ry. Co., 7 Ga. App. 711 (68 S. E. 56).

Counsel for the plaintiff insist that the ruling of this.court in Massee & Felton Lumber Co. v. Ga. & Fla. Ry. Co., 12 Ga. App. 436 (77 S. E. 366), is conclusive authority for the contention that the contract in the instant case was contrary to public policy. In that case it was held that a contract exempting a raijroad company from injuries inflicted by the negligence of its employees upon the employees of a lumber company using its tracks would be void as against public policy; but in the opinion the same distinction is made as to contracts in which the other party contracting is not on equal footing with the railroad. It is there said: “So far as the real situation of the parties in the present ease is concerned, the lumber company is perhaps not as much on an equality with the railroad company as an employee would be. A servant is not obliged to accept employment from a master, but apparently, from the facts in this, record, the lumber company was compelled to contract with the railway company to get logs to its mill at a cost that would enable it to conduct its business at a profit . . . We are inclined to hold that unless the contract of exemption from liability is one which has been expressly allowed by legislation, the public has such a right in the public service, of the carrier as that any attempt to contract against its own liability for negligence is contrary to public policy and void.” In the instant case the contract was not with shipper, passenger, or employee. No necessity, as in the case of a shipper who must use the railroad, compelled the plaintiff to contract with the railroad company for pasturage of his cattle upon its right of way. The public duty of the railroad company as a carrier was not limited or restricted by the making of this contract.

It must be remembered that “The power of the courts to declare a contract void for being in contravention of a sound public policy is a very delicate and undefined power, and, like tbe power to declare a statute unconstitutional, should be exercised only in cases free from doubt. The authority of the lawmaking power to interfere with the private right of contract has its limits, and the courts should be extremely cautious in exercising the power to supervise private contracts which the lawmaking power has not declared unlawful.” Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (44 S. E. 320, 62 L. R. A. 93, 97 Am. St. R. 177). Eor the reasons heretofore stated, we hold that the contract in this case is not void as being contrary to public policy.

There was no allegation of wilful and wanton injury to the plaintiff’s cattle, and we can not hold that the facts stated in the petition constitute, as the plaintiff insists, wilful and wanton negligence. The trial judge did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Broyles, P. J., and Bloodworih, J., concur.


author: Bkovxes, P. J.

text:
    9163.
    Roberts v. Converse, administratrix.
   Bkovxes, P. J.

1. This was a suit upon promissory notes. The defendant admitted a prima facie ease in the plaintiff, and assumed the burden of proof, and in his answer set up that the notes were infected with usury, and set forth in detail the facts which he alleged showed the usury. Substantially the questions presented to the jury were whether the original amount of the indebtedness was $450, and whether the defendant was charged 12 per cent, interest on that amount,—the principal and interest being added together and divided into sixteen installments,—or whether there was. other indebtedness of the defendant to the plaintiff’s testate which, added to the $450, made the real consideration of the notes sued on. The burden was upon the defendant to sustain his plea of usury; and the evidence which he presented upon this subject, while authorizing a finding upon this issue in his favor, did not demand such a finding. The jury’s finding, in effect, that he had not carried this burden was authorized by the evidence.

Decided March 12, 1918.

Complaint; from Lowndes superior court—Judge Thomas. August 4, 1917.

J. P. Knight, Dan R. Bruce, for plaintiff in error..

E. P. 8. Denmark, contra.

2. Under the facts of the case the sourt did not err in refusing' to give the requested instructions, as complained of in the first ground of the amendment to the motion for a new trial.

3. All of the remaining grounds of the amendment to the motion for a new trial virtually raise, in various ways, the same question, viz., whether the court correctly charged the law of usury and properly instructed the jury as to its applicability to the facts of the case. In this respect the charge was correct, clear, and sufficiently full, and no omission or language complained of was erroneous when considered in the light of the charge as a whole.

4. The verdict was authorized by .the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworih and Harwell, JJ., concur.


author: Brotles, P. J.

text:
    9176.
    Barnard v. Durrence, commissioner, et al.

   Brotles, P. J.

1. Under the act of the General Assembly creating the board of commissioners of roads and revenues for the County of Evans, approved August 16, 1915 (Acts, 1915, p. 220, sec. 17), and the act of the General Assembly providing for the working of public roads, etc., in that, county, approved August 16, 1915 (Ga. L. 1915, p. 227), the commissioners of roads and revenues of the county have exclusive jurisdiction, control, power, and authority to establish, discontinue, lay out, open, or alter public roads therein. There is no provision in either of these acts, or elsewhere, authorizing the commissioners, under any circumstances, to delegate their authority to any one else. Civil Code (1910), § 694; Green v. Road Board of Bibb County, 126 Ga. 693 (56 S. E. 59). It follows that the county commissioners of Evans county, while sitting as a court for the purpose of passing upon the altering of a public road, and the condemnation of a person’s land in connection therewith, even if they were indirectly or directly interested personally in the judgment to be rendered by them, or biased or prejudiced in the matter, were not disqualified from presiding in the case.

Decided March 12, 1918.

Certiorari; from Evans superior court—Judge Sheppard. July 27, 1917.

W. B. Stubbs, P. M. Anderson, for plaintiff in error.

J. Saxton Daniel, contra.

2. It was not necessary to show that the proposed alteration in the road was a public necessity; it was sufficient to show that it was of public utility. Civil Code (1910), § 640.

3. Section 6457 of the Civil Code (1910) has no application to such proceedings.

4. Where proceedings to alter a public road are commenced under sections 640 et seq. of the Civil Code of 1910, the remedy of a person who will be damaged by the appropriation or injury of his property in the alteration and construction of the road is pointed out by section 678 of the Civil Code of 1910. Hightower v. Jones, 85 Ga. 697, 702 (11 S. E. 872).

5. The alteration of -an old road involves the discontinuance of that part of it which is altered, and it is lawful to provide for both the alteration and the discontinuance in the same proceedings, and under a citation which refers merely to an alteration. Ponder v. Shannon, 54 Ga. 188 (2).

6. The description of the proposed alteration .in the road, as -given in the proceeding for its establishment, was sufficiently full, it being stated therein where the alteration was to begin, where it was to end, how wide the road was to be, whose lands the road 'was to be run through, and that throughout its entire length it was to follow a eertaim, roadway or right of way through those lands that had previously been cut hy the authorities of Evans county.

7. The constitutional question as to the taking of private property for public use without just compensation being first paid was virtually abandoned in the brief of counsel for the plaintiff in error.

8. The allowance of leading questions to be propounded to witnesses on the direct examination is within the sound legal discretion of the trial court. The admission of the evidence objected to, under the facts of the case, was not reversible error.

9. Upon the trial of the case the county commissioners directed the sheriff to summon a jury for the purpose of assessing the damages claimed by the plaintiff in error, in accordance with section 678 of the Civil Code of 1910. This was the proper'procedure in the case. -

10. The county commissioners did not err in overruling the motion to dismiss the proceedings.

11. A petition for certiorari can not under any circumstances be amended; and the judge of the superior court did not err in refusing to allow the petition for certiorari to be amended by attaching certain exhibits thereto.

12. The judgment of the county commissioners was authorized by the evidence, and the judge of the superior court did not err in refusing to sanction the writ of certiorari.

Judgment affirmed.

Bloodworth and, Harwell, JJ,, eoneur.


text:
    9179.
    UNION SALT COMPANY v. BOONE.
    1. The burden was on the plaintiff to show title in itself to the property for which the suit was brought. The salt levied on and sold by the officer as the property of the Jelks Company, and for which the purchaser was sued in this ease, was not identified by the evidence as that consigned to Jelks Company by the plaintiff; the verdict for the defendant was demanded by the evidence, and the court did not err in overruling the certiorari.
    2. The evidence demanding the verdict, the charge of the court excepted to on the subject of agency will not be considered. Clarh v. Empire Mercantile Co., 2 Ca. App. 250 (58 S. .B. 363); Taylor v. Street, 82 Ga. 723 (9 S. B. 829, 5 L. R, A. 121) ; White v. Southern By. Co'., 123 Ga. 353 (4) (51 S. E. 411) ; McCoy v. Central By. Co., 131 Ga. 378 (2) . (62 S. E. 297).
    Decided March 12, 1918.
    Certiorari; from Bibb superior court—Judge Mathews. July 28, 1917.

      O. II. Garrett, for plaintiff. W. D. McNeil, for defendant.
   Harwell, J.

The Union Salt Company brought suit in the

municipal court of Macon against Boone, to recover certain salt. The testimony for the plaintiff showed that it consigned to the Jelks Company, of Macon, brokers, to be sold'on commission, certain sacks and cases of salt, and that the Jelks Company, on discontinuing business, stored it with the Macon Paper Company at Macon. An officer of the Macon Paper Company testified that the Jelks Company stored in the warehouse of the Macon Paper Company a lot of salt—some sacks and some cases, and that the cases of salt which were levied upon and sold under a distress warrant were part of the only lot of salt that the Jelks Company ever had in the warehouse. The testimony further showed that the deputy sheriff seized, as the property of the Jelks Company, certain cases of salt found in the warehouse of the Macon Paper Company, and sold the salt at public sale, and that it was purchased by the defendant. There was no evidence of any marks or writing on the cases to indicate that it was the salt belonging to the Union Salt Company; nor was it shown that the Jelks'Company did not have, at the time of the levy, other salt than the salt consigned to it by the Union Salt Company. . No evidence was offered by the defendant. The jury found a verdict for the defendant," and the plaintiff carried the case by certiorari to the Superior Court, alleging that the verdict was contrary to the evidence, and also complaining of excerpts from the charge of the court on the subject of agency. The judge of the superior court overruled the certiorari, and the plaintiff excepted.

It is not necessary to elaborate the rulings stated in the head-notes.

Judgment affirmed.

Broyles, P. J., and Bloodworih, J., concur.


text:
    9183.
    MORRIS v. EVANS.
    As the alleged defamatory words did not charge the commission of a crime, and were not for any other reason slanderous per se, and no special damage being alleged in the petition, the court did not err in sustaining the demurrer and dismissing the petition.
    Decided March 12, 1918.
    Action for slander; from Whitfield superior court—Judge1 Tarver. July 7, 1917.

      Glenn & House, W. F. Mann, for plaintiff.

      J. J. Copeland, Maddox, McCamy & Shumate, for defendant.
   Harwell, J.

Mrs. Victoria Morris brought suit against J. L. Evans for slander, alleging that he slandered her by saying that she had -raised up her children to steal, brought them up to steal, that she had plotted to-burn him out, and that he would heap coals of fire on her head in hell, for that was where she was going when she died. The petition alleged no special damages, the prayer being- only for general damages in the sum of $5,000. General and special demurrers to the petition were sustained and the petition was dismissed.

If the alleged slanderous words properly come under the 4th subdivision of section 4433 of the Civil Code (1910), that is, “disparaging words productive of special damage flowing naturally therefrom,” then it was essential to allege special damage; and, none being alleged in this case, the court did not err in sustaining the demurrer and dismissing the petition. “If merely fraud, dishonesty, immorality or vice be imputed, no action lies without proof of special damage.” Roberts v. Ramsey, 86 Ga. 433 (12 S. E. 644); Ford v. Lamb, 116 Ga. 655 (42 S. E. 998). The words complained of do not charge the commission of a crime punishable by law. The most that can be said of the alleged defamatory words is that they charge an intention to commit crime or to have others (her children) commit crime. “Oral defamation is generally more strictly construed than is libel, and yet even written words imputing a criminal disposition to another are not libelous per se. Spoken words showing'merely an intention or disposition to commit crime in the future are not actionable since such intent constitutes no crime. . . Dickey v. Andros, 33 Vt. 55. In the case last cited it was held not to be slander per se to say of another that he was going to start a house of ill fame, since the words only charge an intention to commit the offense.” Whitley v. Newman, 9 Ga. App. 89, 97 (70 S. E. 686); 25 Cyc. 277 (8).

If the words spoken are plain and unambiguous and do not impute a cripie, they can not be enlarged and extended by an innuendo. “The office of an innuendo is merely to explain the ambiguity, where- the precise meaning of terms employed in the alleged slanderous statement may require elucidation. The true scope and meaning of the statement can not be enlarged or restricted by innuendo.” Whitley v. Newman, supra; Park v. Piedmont &c. Life Ins. Co.; 51 Ga. 513; Smith v. Wright, 55 Ga. 220; Spence v. Johnson, 142 Ga. 267 (82 S. E. 646, Ann. Cas. 1916A, 1195).

We do not think the alleged defamatory words come under the second division of section 4433, supra,—that is, words “charging him with having some contagious disorder, or being guilty of some debasing act which may exclude him from society.” In a sense, -of course, anything contrary to good morals, or anything vicious, is debasing, but this expression in the code, “guilty of some debasing act which may exclude him from society,” has reference, in our judgment, to those repulsive acts which would cause him -to be shunned or avoided, just as having a contagious disease would cause one to be shunned or avoided. The ground of an action for words of this discription is the presumption that the . party charged will be wholly or partially excluded from society by reason of the charge, and the rule that such oral words are actionable is one of the few exceptions to. the general rule that oral words, to be actionable per se, must impute a crime involving moral turpitude punishable by indictment. 18 Am. & Eng. Enc. of Law (2d ed.), 930. See also Newell on Slander & Libel, § 215 et sec Odgers on Libel & Slander, 38, 51; Townsend on Slander & Libel, § 175; 25 Cyc. 326 (F).

Moreover, the petition refers to these alleged defamatory words, in several paragraphs, by stating that they “are crimes under the laws of Georgia, and the charge and imputation thereof, were slanderous per se, and import damage to your petitioner.” It was’ the evident purpose of the pleader to place these words Under the first division of section 4433, supra,—that is, to treat them as charging a crime. The most that can be said is that the alleged slanderous words impute 'dishonesty and vice, but no action lies for this without allegation and proof of special damage; and, there being no allegation of special damage, the court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

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


text:
    9193.
    GOODWIN v. BICKERS.
    There was evidence to support the ordinary’s judgment refusing to order tlie obstructions removed from the alleged private way; and no error of law appears.
    Decided March 12, 1918.
    Certiorari; from Greene superior court—Judge Park. August 1, 1917.

      A. G. Brown, J. G. Faust, for plaintiff.

      Noel P. Parle, for defendant.
   Harwell, J.

This was a proceeding before the ordinary of Greene County, brought by Miss Abbie Goodwin against D’. H. Bickers, to remove obstructions from a private way leading to the rear of her lot in Greensboro. The evidence was rather volumñ nous, and it would serve no good purpose to attempt to set it out at length. She claimed the right to the way under section 824 of the Civil Code of 1910, alleging that it had been in constant and uninterrupted use for more than seven years, and that no legal steps had been taken to abolish it. She claimed a prescriptive right to the way by the uninterrupted use of it by her tenant and the tenant of her predecessor in title, for more than seven years, and by the keeping of it in repair during that time. The ordinary refused to remove the obstruction's. She carried the case by certiorari to the superior court; the trial judge overruled the certiorari, and she excepts.

The burden was on the'plaintiff to show the constant and unin-' terrupted use of the .way for seven years or longer, and that it had been kept in repair during that time. The evidence was conflicting; and the ordinary, after personally inspecting the premises, determined the issue against the plaintiff. It appears that she can lay out over her own lot a way to her barn, without the use of this way, which is over the property of others, and for which no compensation has been paid. The judge of the superior court carefully reviewed the judgment of the ordinary, writing an-opinion of some .length, and citing in support of his opinion the following cases: Forrester v. McKaig, 144 Ga. 702 (87 S. E. 1060); Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 (85 S. E. 863, Ann. Cas. 1917A, 497); Johnson v. Sams, 136 Ga. 448 (71 S. E. 891); Nashville &c. Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Gardner v. Swann, 114 Ga. 304 (40 S. E. 271); Chattanooga &c. Ry. Co. v. Philpot, 112 Ga. 153 (37 S. E. 181); Wade v. Johnson, 94 Ga. 349 (21 S. E. 569); Cook v. Gammon, 93 Ga. 298 (20 S. E. 332); Cunningham v. Elliott, 92 Ga. 159 (18 S. E. 365); Herndon v. Strickland, 86 Ga. 323 (12 S. E. 642); Russell v. Napier, 82 Ga. 770 (9 S. E. 746); Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Woolbright v. Cureton, 76 Ga. 107; Nott v. Tinley, 69 Ga. 766; Childers v. Holoway, 69 Ga. 758; Puryear v. Clements, 53 Ga. 232.

We have carefully gone through the record and the briefs, and we see no reason to interfere; and the judgment overruling the certiorari is

Affirmed.

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


author: Broyles, P. J.

text:
    9322.
    Roberts v. Swift & Company Fertilizer Works.
    Decided March 12, 1918.
    Affidavit of illegality of execution; from city court of Ashburn —Judge Tipton. October 16, 1917.

      E. Wall, for plaintiff in error. J. A. Comer, contra.
   Broyles, P. J.

Under 'all the facts of the ease, the court did not err in dismissing, upon an oral motion made by the plaintiff in execution, the affidavit of illegality as amended.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9325.
    Porter v. Improved Order of Samaritans, etc.
    Decided March 12, 1918.
    Complaint; from Clarke superior court—Judge Cobb. October 12, 1917.

      J. Thomas Heard, for plaintiff.
   Harwell, J.

Prom the record in the instant ease this court is unable to say that any error was committed by the trial court. The judgment must, therefore be. ' '

Affirmed.

Broyles, P. J., and Blóodworlh, J., concur.


text:
    9342.
    McLendon et al. v. Ricks, for use, etc.
    Decided March 12, 1918.
    Complaint; from city court of. Swainsboro—Judge Kirkland. September 24, 1917.
    I. L. Price, for plaintiffs in error. W. F. Grey, contra.
   Broyles, P. J.

1. Under the facts of the case the court did not err in excluding from the evidence the common-law execution.

2. This was a suit on a note given in part payment for a meat-market outfit; to which the defendants pleaded total want of consideration. The evidence showed that there was an outstanding mortgage on the property at the time of its sale to the defendants, which was foreclosed subsequently to the sale, and that the property was bought in by a third person, and the defendants were deprived of its possession. Upon the trial there was a sharp conflict in the evidence as to whether the vendor of the property, at the time it was sold to the defendants, warranted the property against this mortgage and promised them to • pay it off. This material fact being in dispute, the court erred in directing a verdict for the plaintiff. Although the mortgage was not recorded, it was .a valid lien upon the property, as the evidence shows that the purchasers had actual notice thereof at the time of the sale.

Judgment reversed.

Bloodworth and Sarwell, JJ., concur.


text:
    9359.
    Bolton v. City of Newnan.
   Broyles, P. J.

1. This case, under the writ of error, was transmitted from the superior court to the Supreme Court, and the latter court by a formal order transferred it to this court. 147 Ga. 400 (94 S. E. 236). Prom this order it necessarily follows that in the judgment of the Supreme Court the constitutional questions attempted to be raised in the case were not properly presented. Under these circumstances this court itself has no jurisdiction to pass upon the constitutional questions, even if properly raised. ,

Decided March 12, 1918.

Certiorari; from Coweta superior court—Judge Terrell. March 19, 1917.

Hall & Jones, for plaintiff in error. A. H. Freeman, contra.

2. Aside from the assignments of error based upon alleged constitutional grounds, the only other specific assignment of error in the bill of exceptions to the judgment therein complained of is as follows: “Because, as the plaintiff in error insists, there was, under the law, no sufficient evidence that the acts charged against the plaintiff in error contaminated the wholesomeness, purity, or healthfulness of the .water of the city reservoir.” As to this question, there was some slight evidence which authorized the finding of the mayor of the City of Newnan, exercising the functions of both judge and jury, againstNhe plaintiff in error; and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodworth, J.

text:
    9438.
    Smith v. The State.
    Decided March 12, 1918.
    Conviction of manslaughter; from Macon superior court—Judge Littlejohn. November 37, 1917.

      R. L. Greer, Jule Felton, for -plaintiff in error. ■

      John A. Fort, solicitor-general, contra.
   Bloodworth, J.

1. When the excerpts from the charge of the court which are complained of in the motion for a new trial are viewed in the light of the whole charge and of the explanatory notes of the trial judge in approving the grounds of the motion, and in connection with the evidence and the statement of the defendant, no error appears therein. See Deal v. State, 145 Ga. 33 (88 S. E. 573); Worley v. State, 21 Ga. App. 787 (95 S. E. 304).

2. There was evidence sufficient to support the verdict of voluntary manslaughter.

Judgment affirmed.

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


author: Luke, J.

text:
    8930.
    AKIN v. CAMP.
    The charge of the court having fully and fairly submitted to the jury the contentions of the parties, and the evidence authorizing if not demanding the verdict, it was not error to refuse a new trial.
    Decided March 13, 1918.

      Lien foreclosure; -from Oconee superior court—Judge Cobb. April 12, 1917.

      0. J. Tolnas, for plaintiff in error.

      It. B. Burger, W. M. Smith, contra.
   Luke, J.

Akin as landlord and Camp as cropper undertook to make a crop beginning on January 1. In the following June a disagreement resulted in Camp’s surrendering the crop. Akin, in writing, agreed to pay him for his services one hundred dollars-in November, and to discharge him from all claims. Aki-n defaulted in the payment of the one hundred dollars, and Camp foreclosed a laborer’s lien on the crop. The jury found in favor of the plaintiff, and the defendant filed a motion for a new trial, which was overruled, and this ruling is excepted to. The charge of the court, which was full and fair, submitted the contentions of the parties; and the evidence of the defendant authorized, if it did not demand, a verdict in favor of the plaintiff. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


author: Wade, 0. J.

text:
    8947.
    DUNN v. YOUNG.
    The special grounds of the motion for a. new trial amount to no more than an amplification of the contention that the verdict was not authorized by the evidence, and, there being some evidence to sustain the verdict, thej court did not err in overruling the motion.
    Decided March 13, 1918.
    Trover; from city court of Zeb'ulon—Judge Dupree. May 10, 1917.

      Beagan & Reagan, for plaintiff in error.

      Bedding & Lester, Mundy & -Mundy, contra.
   Wade, 0. J.

This was an action of trover by Mrs. Mattie M. Young against C. M. Dunn, to recover an automobile to which she claimed title, and which she alleged had been in his possession since April 1, 1916, and’was of the value of $650, and of a rental value of $200 a year. The defendant admitted the possession of the property, and that he had exercised such possession, -using and enjoying the automobile, since April 1, 1916, but denied that the machine was of the value alleged, and set up that he hád purchased it in good faith from the husband of the plaintiff, without any knowledge of her title to the property. The jury returned a verdict for the plaintiff for $575 principal and $32.08 “interest,” as the plaintiff elected to take a money verdict. The defendant’s motion for a new trial was overruled and he excepted. The grounds of the motion other than the usual general grounds were merely amplifications of those grounds.

. It was insisted that since the evidence discloses that the plaintiff’s husband sold the automobile to the defendant in part payment of an interest in a certain business from which profits were derived and paid over to Mrs. Young by various checks signed by the defendant, which were made payable to her husband and by him indorsed, the receipt of such checks by her, together with her testimony delivered at the trial, that “if Mr. Dunn had carried out the trade,” she “would have made no objections to the sale,” showed conclusively that she had ratified or consented to the said sale, and therefore she could not recover the property from the purchaser. Whether or not there was a ratification of the sale made by her husband was clearly a question for determination by the jury, and.they found to the contrary, and it can not be held that her statement, that she “would have made no objections to the sale” if the defendant had carried out a certain contract with her husband, amounted to conclusive proof that at the time the sale was effected she had agreed thereto, or that she ever subsequently ratified the same, especially in view of her direct and positive testimony that she “never knew of the sale of the automobile in question to C. M. Dunn until [she] received letter from him.” Neither is there anything in the record to show that Mrs. Young, when receiving several cheeks signed by Dunn and payable to her husband, knew of or had any reason to believe that such cheeks were proceeds derived from a business purchased by the transfer of the automobile sued for, or that the automobile had.then in fact been delivered by her husband to Dunn.

The motion for a new trial presents the contention that there was no evidence in the case showing that $575 was the proved value, or the highest proved value from the date of the conversion of the property, but that the evidence showed only that $575 represented the original purchase-price paid by Mrs. Young when she first acquired the property. ■ This contention is not well founded, in view of the express admission in the plea of the defendant that he was in possession of the property sued for on April 1, 1916, and had been ever since that date, and the testimony of Mrs. Young that “the ear was worth $575, April 1, 1916. .After purchase I. put new top and made other repairs,” and the testimony of B. H. Young, her husband, that “the car was worth $575 at the time of purchase [the original.purchase by the plaintiff] and on April 1” (evidently referring to April 1, 1916), and his further, testimony that there were some repairs made after the purchase, which added to the original value of $575, a.new top being put on and other improvements made. Likewise, one J. W. Carriker'testified'that a new ear of the same model was worth $1,550, that he examined this car-at the time Dunn bought it, and “the market value of the car was forty per cent, of the original cost price at the time” of such examination. Forty per cent, of $1,550 is in excess of $575 principal, found by the jury. It is clear that there was testimony from which the jury could find that the value of the car at the time of its conversion on April 1, 1916, amounted to as much as $575, and there is no merit in the contention that a verdict -of this amount was wholly unauthorized. Whether oNnot the title to the property was relinquished by the plaintiff, and whether or not she ever ratified in any way her husband’s act in disposing of the property, were questions solely for the jury, and with their conclusion we have no fight to interfere..

The only definite proof of value made by the plaintiff being proof of such value at the time of conversion, as set forth in the evidence recited above, and the verdict being clearly .based thereon, the jury properly added interest to the sum representing the value of the property at the time of conversion. “The only evidence of the value of the property being as to .its value at the date of the conversion, there was no error in instructing, the jury that they should find for the plaintiff the amount so proved, with interest from that date to the time the trial was had.” Midville Railroad Co. v. Bruhl, 117 Ga. 329 (2) (43 S. E. 717). “The measure of damages in a suit brought to recover personal property which has been wrongfully converted, where the plaintiff elects to .take a money verdict, is the highest proved value of the property at -any - time between the date of the conversion and the trial, or its value at the date of the conversion> with interest from that date.” (Italics ours.) Mashburn v. Dannenberg Co., 117 Ga. 567 (15), 584 (44 S. E. 97). Interest on $575, the value shown at the date of the conversion, at seven per cent, per annum from that date until the date the verdict was rendered, would amount to more than $32.08, the sum specified as “interest” by the verdict; and the defendant had therefore no ground for complaint on this score. The petition, fairly construed, clearly indicates an intention to seek a recovery of the value of the property at the time of its conversion, with hire or interest on such value from that date, until judgment should be obtained, since, while alleging a value of $650, it is therein further alleged that the defendant had the use and possession of the property since April 1, 1916, and that the petitioner was entitled to the rents of the property from that date, .of the yearly value of 200. “When the plaintiff elects to demand a verdict for damages alone, and the proof shows’ a conversion, and that the plaintiff was at the date qf the conversion the absolute owner of tl}e property, the measure of damages shall be, at the option of plaintiff, either the highest proved value of the article between the date of the conversion and the time of trial, or the value of the article at the date of the conversion.” Holmes v. Langston, 110 Ga. 861, 867 (36 S. E. 251).

There was evidence to support the verdict,-and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Wade, C. J.

text:
    8951.
    Myers v. Lee & Company.
   Wade, C. J.

1. The testimony of the.sheriff was that he had the property within his view and where he could control-it, and that he professed, to levy and assume control thereof by virtue of the attachment execution, and with the avowed purpose of holding tli,e same to answer the exigencies of the writ under which he acted (Corniff v. Cook, 95 Ga. 61, 66 (22 S. E. 47, 51 Am. St. R. 55)); and though no actual seizure was accomplished by a manucaption of the lumber in question, he testified that he left the lumber there in possession of the defendant Myers, “and asked Mm to take care of it; ” from which the -jury were authorized to infer that the defendant agreed to hold the property levied upon for the officer (Sanders v. Carter, 124 Ga. 676, 678, 52 S. E. 887), and that there was, at least a constructive seizure (Civil Code of 1910, § 6057), because the officer had the custody or control of the property by an agent. Moore v. Brown &c. Furniture Co., 107 Ga. 139 (32 S. E. 835). The testimony of the defendant was directly to the contrary, but the jury passed upon this issue.

Decided March 13, 1918.

Trover; from fcity 'court of Albany—Judge Clayton Jones. May 3, 1917.

T. H. Miller, for plaintiff in error. Peacock & Gardner, contra.

2. While' there was testimony that the defendant had delivered to the plaintiffs some part of the property sued for, there was direct testimony from one of the plaintiffs that after such delivery “there was at least sixteen thousand feet of decking left, which was’ Worth $13 per thousand;” and this testimony would exactly support the verdict for $208 principal.

3. There is no merit in the special ground of the motion for a new trial complaining of the rejection of certain testimony; we cannot say that there was no testimony to support the verdict returned; and therefore the trial judge did not .err in overruling the motion for a'new trial.

Judgment affirmed..

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    8952.
    McIntyre v. Habersham Bank.
    Decided March 13, 1918.
    • Motion to set aside judgment, etc.; from Wilkes superior court —Judge Walker. May 8, 1917.
    ■ At the August term, 1916, of Wilkes superior court a verdict and judgment were rendered in favor of th.e defendant in- a proceeding to foreclose a-chattel mortgage, to which an affidavit of illegality had been interposed; and at the next term-of .thé court the plaintiff—the,Habersham Bank, of Clarkesville—filed a motion to set aside the verdict and judgment' and reinstate the case; .alleging, that a few days before the August term an agreement to continue the ease until the November term was made between the attorneys of record in the case, viz., I. H. Sutton for the plaintiff and J. T. Sisk for the defendant; Sisk promising to notify the clerk of the court as to this agreement; that nevertheless the defendant appeared at the August term and had the verdict and judgment entered in his favor; and that neither the plaintiff nor its attorney knew of it until the day when this motion was filed, when the plaintiff appeared in court ready to try-the case. The. defendant answered that although he employed Sisk to draw the affidavit of illegality filed by him, that was the end of Sisk’s connection with the ease; that J. M. Pitner was -to represent him in the trial and did so represent him; that he did not consent to a continuance of the ea'se, and Sisk had no authority to continue it. On the hearing of the motion Sutton, the plaintiff’s attorney, testified to the alleged agreement, and that Sisk later informed him that he (Sisk) “had written to the court, advising of this agreement; but that Judge B. F. Walker, to whom the letter was addressed, did not preside at the August term, his place'being filled by Judge J. B. Park, and the agreement was not brought to the attention of the judge presiding, for the reason that Judge Walker did not receive the letter in time to do so;” that he (plaintiff’s attorney) did not appear at the August term of the court, and that J. T. Sisk “appeared on the docket of said court and upon the counter-affidavit as being the attorney of record of said defendant.” Sisk testified to the same facts, and that when he prepared the counter-affidavit for the defendant he told the defendant to “carry the papers to Washington, Georgia, and consult a lawyer there so that the case might be properly docketed and notice given when the trial would be had.” The defendant testified, that he paid Sisk for preparing the counter-affidavit and Sisk told him to carry the paper to Washington, file it with the sheriff, and “employ him a lawyer to look after the matter;” that Sisk “was not to represent him further, and had no connection with the matter except to prepare the counter-affidavit, for which he was paid, and it was .understood that he was to employ counsel in Washington to defend the matter, which he did; and, having no notice or knowledge that . . Sisk was undertaking to further represent him in the matter, and never having employed him so to do, the attorney whom he employed, upon the call of the case, took a verdict and judgment in favor of defendant.” After hearing this testimony Judge Walker passed an order setting aside the verdict and judgment and reinstating the c^se; to which the defendant excepted.
   Jenkins, J.

Under the facts and procedure as here presented, it was,not error to vacate the previous judgment of the court and reinstate the case on the docket for trial. Civil Code (1910), § 5958. Ford v. Clark, 129 Ga. 292 (58 S. E. 818); Turner v. Jordan, 67 Ga. 604; East Tenn. Railway Co. v. Greene, 95 Ga. 35, 37, (22 S. E. 36); Gillespie v. Farkas, 19 Ga. App. 158 (91 S. E. 244).

Judgment affirmed.

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

J. M. Pitner, George M. DuBose, for plaintiff in error,

C. E. Sutton, contra,

cited: Civil Code (1910), §§ 4964, 4955, 6278; Hughes v. Coursey, 46 Ga. 116; East Tenn. &c. Ry. Co. v. Greene, 95 Ga. 37; McWilliams v. Standard &c. Co., 92 Ga. 438-9.


text:
    8971.
    Jordon et al. v. Colquitt National Bank.
    Decided March 13, 1918.
    Complaint; from city court of Miller comity—Judge Geer. June 15, 1917.

      P. D. Rich, for plaintiffs in error. Billie B. Bush, contra.
   Jenkins, J.

The note sued on had been previously held as collateral by the bank in whose name suit was brought. At the trial the bank filed its motion to dismiss the suit brought in its name, in which it was alleged that neither then nor at the time the suit was instituted did it own any interest in the note. It appears from the undisputed testimony of the bank president, given in support of this motion, that, previously to the time suit was filed, the bank had turned back and surrendered the note, sued on to the payee, with instructions that suit should not be brought in the bank’s name. Held, that under these circumstances the bank’s motion to dismiss the suit should have been sustained, notwithstanding the fact that the blank indorsement on the note may have remained uncaneeled. Civil Code (1910), § 5516; Bomar v. Equitable Mortgage Co., 111 Ga. 143 (36 S. E. 601); Bell v. Whitestone, 18 Ga. App. 536 (89 S. E. 1050).

Judgment reversed.

Wade, G. J., and Luloe, J., concur.


text:
    9090.
    Buchanan v. Satterwhite.
   Wade, C. J.

1. Section 5185 of the Civil Code of 1910 requires2 among other things, that “before any writ of certiorari shall issue, the party-applying for the same, his agent or attorney, . . shall . . produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all [italics ours] costs which may have accrued on the trial below have been paid.” Where such a certificate shows that all the costs which accrued on the trial below were paid “except tlnee dollars allowed by the court to the garnishee for cost of answering the garnishment,” it is obvious that the mandatory provision of the code that all costs shall be paid before the writ will issue was not complied with; and the judge of the superior court did not err in dismissing the certiorari for this reason. See Savannah, Griffin & North Alabama Railroad v. Shell, 72 Ga. 201; Western & Atlantic R. Co. v. Carder, 120 Ga. 460 (47 S. E. 930).

Decided March 13, 1918.

Certiorari; from Muscogee superior court—Judge Howard. June 20, 1917.

B. Terry, 8. T. Pinkston, for plaintiff in error.

Paul Blanchard, contra.

2. Section 5294 of the Civil Code of 1910 provides that “if the garnishee shall have to incur any expense in making his or her answer to the garnishment, or in turning over said personal property, the amount so incurred shall be taxed in the bill of costs, under the approval of the court, and be paid by the party east in the suit, as other costs are now paid.” The amount incurred in answering the garnishment in the present suit was therefore a proper item of costs.

(a) The contention of the plaintiff in error that the cost of answering the garnishment was not proved in the lower court, and therefore could not be taxed as a part of the costs, cannot be considered, since this complaint was made in the bill of exceptions for the first time, whereas the question as to the sufficiency of the evidence to warrant the judgment allowing the garnishee the cost of answering should have been raised in the petition for certiorari. See Jefferson v. City of Perry, 18 Ga. App. 690 (90 S. E. 366).

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9120.
    Fourcher v. Roberson Cutlery Company.
    Decided March 13, 1918.
    Writ of error; from Richmond. Motion to dismiss.

      Paul T. Chance, P. Poster Brigham, for plaintiff in error.

      Samuel H. Myers, contra.
   Luke, J.

1. All bills of exceptions must, within fifteen days from the date of the certificate of the judge, be filed in the office of the clerk of the court where the case was tried. Civil Code (1910), § 6167. Within ten days after the bill of exceptions is signed and certified a copy thereof must be served as provided by the Civil Code (1910), § 6160.

2. In this case the bill of exceptions was certified on June 9, 1917, and was filed in the clerk’s office on July 7, 1917, and was served by the deputy sheriff on the attorney for the defendant im error on July 9, 1917. There being no waiver of service, and no agreement by the defendant in error or its attorney that the case may be heard without proper service, the motion to dismiss the bill of exceptions must be granted.

Writ of error dismissed.

.Wade, G. J., and Jenkins, J., concur.


author: Nade, C. J.

text:
    9228.
    ROBINSON v. GRAY.
    Error in admitting testimony is not cause for a new trial, where the trial judge, in his charge to the jury, effectually withdraws it from their ‘consideration.
    Decided March 13, 1918.
    Action for damages; from city court of Jefferson—Judge Mahaffey. September 15, 1917.
    IF. W. Stark, for plaintiff in error.
    TF. A. Stevenson, T. J. Shackelford, contra.
   Nade, C. J.

1. The court admitted, over objection, certain testimony as to the law of South Carolina, where the injury to the plaintiff’s property occurred. Regardless- of whether this testimony was properly admitted or not; it wasv expressly, withdrawn from the consideration of the jury by the charge of the court in the following instruction: “Now there has been something said, about the law on this case, the law of South Carolina and the law of Georgia. You will pay no attention to that, except what you get from the court.” Evidence can be as effectually withdrawn by means of the charge of the court as by a ruling during the course of the trial. Coweta County v. Central Railway Co., 4 Ga. App. 94 (5) (60 S. E. 1018). See also Verdery v. Savannah, Florida & Western Ry. Co., 82 Ga. 675 (2) (9 S. E. 1133); Phœnix Insurance Co. v. Gray, 107 Ga. 110 (3), 113 (32 S. E. 948); McLean v. Hattan, 127 Ga. 579 (56 S. E. 643). It is apparent, therefore, that there is no merit in the only special ground of the motion for a new trial.

2. There being evidence to support the verdict, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9238.
    Hufstetler v. Parker.
    Decided March 13, 1918.
   Luke, J.

This case is here upon the overruling of a motion for a new trial, based upon general grounds'only. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment- affirmed.

Wade, O. J., and, Jenkins, J., concur.

Appeal; from Murray' superior court—Judge Tarver. September 8, 1917.

II. II. Anderson, for plaintiff in error. King & Starr, contra.


author: Wade, C. 3.

text:
    9256.
    International Cotton Mills v. Carroll.
    Decided March 13, 1918.
    Action lor damages; from city court ol LaGrange—Judge Harwell. September 38, 1917.

      A. H. Davis, lor plaintiff in error. Hatton Lovejoy, contra.
   Wade, C. 3.

1. Under the allegations' of her petition, when the plaintiff, 15 years of age, was wiping off a spinning-frame, in the discharge of her duties as an employee of the defendant, her hand was caught in one of the gears at the end of the frame, and the first joint of the little finger on her right hand was mashed off. The gear which inflicted the injury was partly covered, and thus protected, but an open and unguarded part of it was left on the opposite side of the frame from the plaintiff, and this defect was unknown to her and could not have been known by the exercise of ordinary care, and she believed that the guard provided was sufficient to protect the entire gear, and did not discover the contrary until the injury was inflicted. Negligence was charged, in that the master failed to provide safe machinery, and did not inspect and discover the hidden danger and warn the servant thereof.

(a) Upon the master rested the duty of furnishing reasonably safe machinery, and of inspecting to find latent defects and dangers therein, and the servant was not bound by law to detect latent defects, or such as would be, disclosed only by a positive and careful investigation and would not be manifest to a person of ordinary intelligence or experience in the line of work in which the servant was engaged. Duke v. Bibb Manufacturing Co., 120 Ga. 1074 (48 S. E. 408).

(5) “A servant assumes the obvious risks of the business about which he is engaged, but this does not ordinarily impose upon him the burden of ' ascertaining by positive investigation if the place where he is directed to work is safe, or make him responsible for what such an investigation might reveal, but generally he assumes such risks only as would be obvious to a person of ordinary intelligence and familiar, with the business. In the absence of anything to suggest that the place where he is working is dangerous, he has the right to rely upon the performance by the master of the duty to furnish a reasonably safe place and to properly inspect it and preserve such safety.” City of Atlanta v. Trussell, 21 Ga. App. 340 (3) (94 S. E. 649).

(c) Questions of diligence and negligence being peculiarly for a jury, the court should decline to determine them on demurrer, except where the proper solution is evident and unmistakable.

2. The petition as amended set forth a cause of action good as against a general demurrer, and the court did not err in so ruling.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9275.
    Green, for use, etc., v. Taliaferro et al.

    Decided March 13, 1918.
    Action upon bond; from city court of LaGrange—-Judge Harwell. September 20, 1917.

      Boyd A. Lovvorn, Hall & Jones, for plaintiff.

      W. G. Wright, A. H. Thompson, for defendants.
   Luke, J.

1. Where in a forthcoming bond, executed, and delivered in a claim ease, it is provided that the principal and the sureties acknowledge themselves jointly and severally bound unto the levying officer, “in the sum of one hundred dollars, subject to the following conditions: if the said claimant shall deliver the property described in the foregoing affidavit, at the time and place of sale, then this bond to be void,” etc., the plaintiff in fl. fa., upon a breach of the .bond by the principal, can recover no more than the amount named in the bond, together with interest, even though the proof show that the property is of greater value than the sum' named in the bond and Of less value than the amount due on the fi. fa. Westbrook v. Moore, 59 Ga. 204; Jones v. Fayette Fertilizer Co., 141 Ga. 32 (80 S. E. 306).

2. The court did not err in granting a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9418.
    Brown v. Powers.
    Decided March 13, 1918.
    Action for damages; from city court of Sandersville—Judge Jordan. October 30, 1917.

      Evans & Evans, for plaintiff.

      Rawlings & Wood, for defendant,
   Wade, C. J.

From the testimony of the plaintiff himself it does not appear that he suffered any actual loss from the alleged injuries to the mule for which rec'overy was sought; and under the testimony of the only person present at the time of the injury, other than the defendant, and under all the circumstances shown, the burden resting upon the plaintiff, to establish that the damages resulted from the conduct of the defendant, was not carried. The trial judge therefore did not err in awarding a nonsuit.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8244.
    NEWSOME v. TRAVELERS INSURANCE COMPANY.
    Where an insurance policy covers “bodily injuries effected through external, violent, and accidental means,” but stipulates that it does not cover injuries “intentionally inflicted upon the insured by any other person,” and where the petition -in a suit on the policy alleges that the insured* was killed by another person, but states facts in connection therewith which show an accidental death within the meaning of the policy, ánd where upon the trial (the defendant in its answer having admitted the payment of the premiums due upon the policy, and that the' plaintiff had given the required notice of the death of the insured) the plaintiff proves that the death of the insured resulted from an external and violent wound, but further proves merely that the wound was inflicted by a third person, no presumption arises that the wounding occurred under the circumstances stated in the petition; and in order to make a prima facie case warranting a recovery, the proof must show that it did so occur.
    Decided March 13, 1918.
    Action upon accident-insurance policy-; from Pulton superior court—Judge Pendleton. October 8, 1915.

      J. F. Golightly, Gus Russell, J. 0. Newsome, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Broyles, P. J.

This was a suit upon a policy of insurance which covered “bodily injuries effected through external, violent, and accidental means,” but stipulated that it did not cover injuries “intentionally inflicted upon the insured by any other person.” The petition alleged: that the insured was -accidentally killed by being stabbed by an unknown negro, who did not know the insured and was unknown to him; that there had been no difficulty between the insured and the negro, and no provocation had been given by the insured; that the negro did not intend to kill any one, but did intend to wound- another person, and, mistaking the insured for such other person, ran upon and stabbed him while he was walking the streets; and that the assault upon the insured was a pure accident. 'The Supreme Court held that this petition set forth a cause of action, and reversed the judgment of the trial court which dismissed it on general demurrer. Newsome v. Travelers Insurance Co., 143 Ga. 785 (85 S. E. 1035). Subsequently, upon the trial of the .case (the defendant in its answer having admitted payment of the premiums on the policy, and that the plaintiff had given the required notice of the death of the insured), the plaintiff, who was the beneficiary in the.policy sued upon, introduced proof showing that the death of the insured resulted from an external and violent 'wound in tlie chest, which some of the witnesses described as being a “stab wound.” . The plaintiff introduced also a letter written by her to the insurer, in which she notified it that the insured died “from being stabbed by a negro on the streets.” No evidence relating to the circumstances under which the wound 'was inflicted was offered. Upon the conclusion of the plaintiff’s evidence, the court, upon motion of the defendant, granted a nonsuit; and this court reversed that judgment and held, in substance, that under the facts of the case, the plaintiff having proved that the death of the insured was caused by external and violent means, there was a presumption of law that it was also accidental, and a.further presumption that the accident occurred under the particular circumstances set forth in the plaintiff’s petition, and therefore that it was not necessary to prove that it did so occur. (For the reasoning upon which this ruling was based’ see the opinion in 19 Ga. App. 264, 91 S. E. 441.) Thereupon the defendant in error applied to the Supreme Court for and obtained a writ of certiorari to review the judgment of this court. On Fébruary 12, 1918, the Supreme Court handed down its decision, reversing the judgment of this court and remanding the case to this court for further proceedings not inconsistent with the de-/ cisión of that court. See 147 Ga. 608 (95 S. E. 4).

In accordance with -that decision it is now held by tjiis court' that, under the facts of the case, there was no presumption that the fatal wounding of the insured occurred under the circumstances as set forth in the petition, and, the plaintiff-having failed to prove those averments’ of her petition, a recovery was not warranted, and the court did not err in awarding a nonsuit. The contrary ruling in this case in 19 Ga. App., supra, is necessarily overruled; and as the former judgment of reversal by this court' was based solely upon the alleged error of the trial court in awarding a nonsuit (the other' assignments of error being passed upon and adjudged to be without merit), that judgment is withdrawn and vacated, and the judgment of the lower court is

Affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodwobth, J.

text:
    9004.
    Harbin v. Flannigan.
    Decided March 13, 1918.
    Action for damages; from Cherokee superior court—Judge J. B. Jones presiding. June 9, 1917.
    That part of the brief of counsel for the plaintiff in error to which the decision refers is as follows: “Counsel insists the various excerpts excepted to in the amended motion were prejudicial to plaintiff in error; and also insists the evidence of Miss Nina Axley should not have gone to the jury, as she did not qualify as an expert;”

      Herbert Clay, W. D. Mills, for plaintiff in error.

      Howell Broolce, Fred. Morris, contra.
   Bloodwobth, J.

1. Tlie reference in the brief of counsel for the' plaintiff in error to the grounds of the amendment to the motion for a new trial does not amount to an argument, and these grounds will be treated as abandoned. Mills v. State, 19 Ga. App. 623 (1), 624 (91 S. E. 918), and cases cited; Laffitte v. State, 105 Ga. 595 (1), 596 (31 S. E. 540); Moss v. Bohanon, 111 Ga. 871 (36 S. E. 954).

2. There Is evidence to support the verdict, which has the approval of the trial judge, and this court will not interfere.

Judgment affirmed.

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


text:
    9014.
    Kelley v. Williams.
    Decided March 13, 1918.
    Complaint; from city court of Atlanta—Judge Reid. April 16, 1917.

      A. F. Wilson, for plaintiff in error.
    J. 8. Slicer, W. T. Moyers, contra.
   Bloodworth, J.

1. The court did not err in striking the plea in this case, and the verdict rendered was proper.

2. The request of the defendant in error that the statutory damages of 10 per cent, be awarded him against the plaintiff in error, for bringing the case to this court for delay only, is granted.

Judgment affirmed, with damages.

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


text:
    9301.
    WATTS v. JACKSON.
    The fact that a defendant whose case had been set for trial on a certain day was not then present in court in person or by counsel, because the case had been incorrectly stated in a newspaper in which the court calendar was printed, is not a sufficient reason for setting aside the judgment, when it does not 'appear that the plaintiff was in any way . responsible for the publication of the incorrect statement.
    Decided March 13, 1918.
    Certiorari; from Fulton superior court—Judge Bell. October 5, 1917.

      Neufville £ Neufville, for plaintiff in error.

      Boy Lewis, contra. •
   Harwell, J.

Watts filed a motion to set aside a judgment rendered against him in the municipal court of Atlanta at the term preceding that at which his motion was filed, upon the grounds, that the case against him had been incorrectly stated in the calendar published in,the Fulton County.Daily Deport newspaper, and for that reason his counsel was not present when the judgment wus rendered against him; that he had a meritorious defense, etc. It was agreed that the case was published in the newspaper as P. P. Jackson vs. C. R. White. The petition for certiorari further states that it was agreed that Frank Neufville, one of the attorneys for Watts, was present when the case was called and heard his name called as counsel for the defense, and heard the statement of the chief judge of thé municipal court that the said case went down for trial on the date on which the judgment was rendered. The answer of the judge of the municipal court to the petition for certiorari, says: “The allegations as to the evidence'set forth in said petition are true and correct, with the exceptions as to the agreement of counsel, which is true with the exception that Mr. Frank Neufville was in court and heard-the case sounded and his name called for the defendant in the case.” The trial judge overruled the demurrer filed by Jackson, sustained the motion,- and set aside the judgment. The case was carried by Jaekson to the superior court by certiorari; the superior-court judge sustained the certiorari and rendered final- judgment for Jaekson, the plaintiff in the original suit, and Watts excepted.

Under the facts thus appearing, the judge of the superior court did not err in sustaining the certiorari and in rendering final judgment in favor of Jackson. Kellam v. Todd, 114 Ga. 981-83 (41 S. E. 39); Gillespie v. Farkas, 19 Ga. App. 158 (91 S. E. 244).

Judgment affirmed.

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