author: Wade, 0. J.

text:
    7758.
    COX v. THE STATE.
    1. While, under the provisions of article 6, section 5, paragraph 1 of the constitution of this State, in any county where there is a city court, the judge of that court and of the superior court of the county may “preside in the courts of each other in cases where the judge of either court is disqualified to preside,” no authority is conferred either by the constitution or by statute upon the judge of a city court to originate a proceeding in a superior court by assuming to act as the judge/ of the superior court.
    2. An extraordinary motion for a new trial institutes • an entirely new case, requiring discretionary action on .the part of a judge having jurisdiction thereof to bring it into actual existence as a cause in the courts.
    (») The granting of a rule nisi by a judge having authority, upon an extraordinary motion for a new trial, filed at the time contemplated by law, amounts to a grant of authority to file the same, and is as effectual as if the permission had been expressly conferred by a special order or by precise recitals in the rule nisi itself.
    • (&) In a county where there is a city court, the judge of that court, when the judge of the superior court in whose circuit the county is included is disqualified because of relationship, can not assume to act as a judge of the superior court and grant a rule nisi in an extraordinary motion for a new trial, and thereby authorize or ratify the filing of such a motion in the superior court, and thus originate a proceeding in that court.
    8 Where an extraordinary motion for a new trial in the superior court is presented to a judge of a city court, who signs the rule nisi, the entire proceeding being void ab initio, the judgment of a judge of the superior court dismissing the same will not be reviewed by this court.
    Decided February 2, 1917.
    Conviction of manslaughter; from Mitchell superior court— Judge Thomas. May 27, 1916.

      Little, Powell, Smith & Goldstein, Charles Watt Jr., P.ottle & Hofmayer, for plaintiff in error. R. C. Bell, solicitor-general, P. A. Hooper & Son, Johnson & Warren, W. H. Haggard, contra.
   Wade, 0. J.

At the April term, 1915,- of the superior court of Mitchell county T. TJ. Cox was' convicted of voluntary manslaughter, the honorable W. E. Thomas, judge of the superior courts of the Southern circuit, presiding on account of the disqualification of Judge E. E. Cox of the superior court of that county. A motion for a new trial was overruled by Judge Thomas, and his judgment was thereafter affirmed ty this court (17 Ga. App. 727, 88 S. E. 214), and the remittitur made the judgment of the lower court. During the April term of Mitchell superior court counsel for T. U. Cox requested Judge Cox, who was then presiding, to allow the honorable E. D. Bush, judge of the city court of Camilla in Mitchell county, to take the bench and preside as a judge of the superior court for the purpose of passing upon, a disqualified case. Judge Cox physically yielded the bench, Whereupon Judge Bush assumed it; and, without any request from Judge Cox to preside therein, an extraordinary motion for a new trial was presented to Judge Bush in behalf of the said defendant, and, Judge Cox having entered thereon the fact of his disqualification on account of his relationship to the movant, Judge Bush thereupon, over objection by the solicitor-general, granted a rule nisi ordering the solicitor-general to “show cause before the court at the court-house at Camilla, Georgia, on the 6th day of May, 1916 (to which time the court stands open for the purpose of trying case), why the new trial should not be granted.” The bill of exceptions recites that “on the last-mentioned date [May 6], the superior court of said county being still in session, movant appeared for the purpose of presenting said motion to Judge Bush, but on said day'and date his honor *Wm. E. Thomas, judge of the superior courts of the Southern circuit, appeared in court and went upon the bench and undertook to take jurisdiction of said motion,” announcing in substance that he had been requested by Judge Cox, the regular presiding judge of the said superior court, to preside for him, upon that date in certain eases in which' Judge .Cox was disqualified, among which cases was the extraordinary motion for a new trial filed by T. TJ. Cox. Judge Thomas further announced that before going upon the bench he had discussed this extraordinary motion with Judge Bush, the judge of the city court of Camilla, and 'the latter had stated in. substance that he had no personal desire to hear and determine the motion, but Avish'ed only to discharge his duty under the law, whatever that might be; that “Judge Bush did not decline to exercise jurisdiction in the matter, but simply stated that he did not personally care to act upon the motion;” and thereupon Judge Thomas announced that for the. reasons stated by him he would take jurisdiction of said motion, and, over the objection of counsel for movant, he assumed such jurisdiction, called the case, and set it down for a hearing before him at a future date, before the next regular term of the court. After Judge Thomas had vacated the bench and left the court-house, Judge Bush again took the bench, assumed jurisdiction of. the case, and set it for a hearing at the next term of Mitchell superior court, over objection by the solicitor-general as to his authority so to do. When the cause came on to be heard before Judge Thomas at the time and place set by him, counsel for the movant appeared, “solely for the purpose of making a special appearancé and objection to the Honorable William E. Thomas taking jurisdiction in said case, and to object to said motion being heard and determined at this ’ time and place, because of its having been continued [by the subsequent order of Judge Bush] to the October term, 1916, of said court.” Judge Thomas overruled the objections, of counsel for movant, and there- ' after sustained a motion, previously filed on April 13, 1916, by the solicitor-general, to dismiss the extraordinary motion for a new . trial. The motion to dismiss the extraordinary motion was urged upon the grounds: that the judge of the city court of Camilla was without authority or jurisdiction to pass any order in the nature of a rule nisi therein, and that such an order signed by him, which required the solicitor-general to show cause why the motion should not be granted, was absolutely null and void; that the motion, being an extraordinary motion, could not be entertained by any court or be filed of record until it was first judicially determined whether or not it set forth good and sufficient reasons why the same had not been made during the term at which the trial was had, or why the grounds thereof had not been set forth in the original motion for a new trial filed at the term when the trial was had, and the judge of the city court of Camilla was without authority to assume jurisdiction over it for the purpose of granting a rule nisi or passing upon the reasons why the grounds of the motion were not incorporated in the original motion; that the said extraordinary motion did not constitute a case pending in the superior-court of Mitchell county until a rule nisi had been granted thereon and it had been judicially determined by the court whether the motion might be filed at a term subsequent to the trial term; and the judge of the city court of Camilla was without authority or jurisdiction to preside in the superior court in the cause until the case had been filed in court after an adjudication upon the question whether it should be filed or not, and until the motion became a case in court by filing; that the motion had never been ordered filed by a superior court or any other judge of competent jurisdiction, and the filing thereof without such an order was ineffective, and the motion,-therefore, was not a case in court and was subject to be dismissed and stricken from the superior court; that, the motion having* been set down for hearing and determination at Valdosta on May 27, 1916, before Judge Thomas, of the superior courts of the Southern circuit, by an order duly passe,d by him on May 6, 1916, in open court at Camilla, at the April adjourned term, 1916, of Mitchell superior court, while presiding therein by request of the judge of that court, and counsel for the movant T. U. Cox appearing before Judge Thomas on said May 27, 1916, solely for the purpose of insisting upon his disqualification to preside therein, and, after such objections had been overruled, declining to present his motion to the court for hearing, and refusing to offer it to the court for adjudication on the merits, or to offer any evidence in its support, and wholly refusing to prosecute it before the court, the motion should be dismissed for want of prosecution.

To the judgment dismissing the extraordinary motion the defendant excepts, counsel for the movant insisting that Judge Bush, “having assumed jurisdiction of said motion, had full power and authority to hear and determine the same,” and that Judge Thomas erred in refusing to hold that he was himself disqualified to act upon the motion, and erred in disposing of it on May 27, 1916, and in not continuing it until the October term, 1916, of Mitchell superior court, in accordance with the order granted by Judge Bush, after the date May 27 had been fixed by Judge Thomas.

1. The authority of the judge of a city court to preside in cases in the superior courts of'this State is derived from the following provision of the constitution: “In any county within which there is, or hereafter may be, a city court, the judge of said court and of the superior court may preside in the courts of each other in eases where the judge of either court is disqualified to préside.” Article 6, section 5, paragraph 1, of the constitution of Georgia (Civil Code, § 6519). At first blush it might appear that the construction of this part of the constitution is necessarily involved in the decision of this case. The amendment to the constitution adopted in 1916 provides that the Supreme Court shall have jurisdiction “in all cases that involve the construction of the constitution of the State of Georgia or of the United States, or of treaties between the United States and foreign governments; in all cases in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question,” etc. It is apparent that if the Supreme Court has jurisdiction in this case, under the above-quoted provision of the amendment, it must be* because the case is one that involves the construction of the constitution of Georgia. It is therefore of interest first to determine when a case pending in this court may be said to involve a construction of the constitution of the State, within the meaning of this provision of the amendment. The original amendment creating the Court of Appeals provided that this court should exercise certain jurisdiction “except that where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this State or of the United States, or as to the constitutionality of an act of the General Assembly of this State, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court,” and the last-named court Avould thereupon determine the question. The language of the amendment of 1916, conferring jurisdiction upon the Supreme Court in all cases (whether coming on writs of error to the Court of Appeals or to the Supreme Court) “that involve the construction of the constitution,” is apparently equivalent to the language employed in the ' amendment' creating the Court of Appeals which required that court to certify to the Supreme Court a question raised in any case as to the construction of a provision of the constitution, where* a decision of the question was necessary to the determination of the case. Speaking broadly, since under our form of government the constitution of the United States and the constitution adopted by the sovereign people of this State together furnish the foundation upon which the entire structure of our laws rests, and consequently the one constitution or the other is “involved” in every case coming before the trial courts for determination, or before the appellate courts for review, it is obvious that neither the provision in the original amendment establishing the Court of Appeals and requiring that court to certify to the Supreme Court questions involving the construction of a clause- of the constitution where necessary for a determination of a case, nor the provision in the amendment of 1916 conferring upon the Supreme Court exclusive jurisdiction “in all cases that involve the constitution of the State of Georgia or of the United States,” was intended to cover cases where no distinct question ivas raised in the record as to .the proper meaning or construction of the constitution of the United States or of this State, and where the right claimed or denied depended upon a plain and unambiguous provision of either constitution.

To hold that the Court of Appeals must lose jurisdiction over all cases where any right or privilege asserted or denied depended for its allowance or refusal upon the construction of plain and unambiguous language in the constitution, though no question as to the construction of such constitutional provision .was raised, would be practically to enable any litigant (not relying upon a construction of the constitution to support his contentions)' to select the appellate forum in which he might prefer his ease to be determined. ' If the mere insistence that a particular constitutional question was involved would be sufficient to give exclusive jurisdiction over a case to the Supreme Court, it would be easy to inject into any case a constitutional question of that kind, by contending that some perfectly plain provision of the constitution, which perhaps had not been previously construed by the Supreme Court, because susceptible of but one construction, should have some special or strained construction given to it, and thus create a constitutional question in the case. The practical effect of the language elnployed by the amendment of 1916 is apparently to confer automatically upon the Supreme Court exclusive jurisdiction over every case coming to that court or to this court which properly involves the construction of the constitution of this State or of the United States, instead of permitting this court to certify the constitutional questions involved, while retaining the case itself for decision. However, it is not for the Court of Appeals to construe an amendment to the constitution any more than to construe the original constitution itself, and hence what is said on this particular point is merely remarked in passing. The able discussion by Judge Powell of the question when a construction of the constitution is involved, which may be found in tñe case of Fews v. State, 1 Ga. App. 122 (58 S. E. 64), is of interest in this connection, and the following language is especially apropos to the point now under consideration: “A case which involves merely the applicability of a concededly unambiguous clause of the constitution to a given state of facts raises no question of construction. Likewise, where a- clause in the constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged, there is still no question raised as to the construction of a clause of the constitution.”

Paragraph 1 of section 5 of article 6 of the constitution of Georgia (Civil Code, § 6519) reads as follows: “In any county within which there is, or hereafter may be, a city court, the judge of said court and of the superior court may preside in the courts of each other in cases where the judge of either court is disqualified to preside.” There being no statutory provision authorizing the judge of a city court to preside as a judge of a superior court, the paragraph of the constitution quoted above furnishes the only warrant authorizing him so to act, and the authority therein con-. ferred may not be extended by implication. It declares that the judge of a city'court may “preside” for a judge of the superior court “in cases” where the judge of the latter court is disqualified to preside. This language is seemingly too plain and unambiguous to require any interpretation or construction, and distinctly authorizes a judge of a city court to preside in cases in the superior • court, without' suggesting in the remotest manner any grant of authority to such a judge to originate in his judicial capacity, acting as a judge of the superior court, where the regular judge of that court is disqualified, a proceeding of any kind in the latter court. Though, measured by the rule laid down in the Fews case, supra, it seems evident that the language employed in this paragraph of the constitution is too plain to involve or require interpretation, and, therefore, that no constitutional question is “involved,” even if the question were distinctly and clearly made in the record as to the proper construction of this section, it is not necessary to declare what its plain meaning is, for the Supreme Court has already construed this section of the constitution in a case.which in principle decides the precise point in this case. So that, under the ruling in the Fews case, supra, that “if the particular question of construction sought to be raised has been passed upon directly by the Supreme' Court, such question will not be certified to the Supreme Court for repetition of its former decision,” it can not be said that a present construction of the constitution is involved. In' Edmondson v. State, 123 Ga. 194 (51 S. E. 301), the Supreme Court held: “Neither under the act of 1885 (Acts of 1884-5, p. 475, § 30), nor under the constitutional . provision, allowing the judge of the superior court to preside in the city court in cases where the judge of the latter is disqualified to preside, did the judge of the superior court of the Macon circuit have authority to administer an oath and .attest an affidavit made as a basis for an accusation in the city court of Macon, on the ground that the judge qf the latter court was disqualified from attesting the affidavit because of relationship to the defendant. A judgment based upon such an affidavit and accusation should be arrested on motion.” It will be observed that there is a distinct ruling in that case that a judge of the superior court had no authority to take and attest an affidavit upon which an accusation was based in a city court, where the judge of the city court was disqualified from acting by reason of relationship to the defendant. As was said by Mr. Justice Lumpkin, “this is not p'esiding [italics ours] in a case in the city court, within the meaning of the constitution.” The Supreme Court, therefore, has construed this paragraph of the constitution, and has declared that the authority conferred by it upon a judge of a superior court is only the authority to “preside” in a city court, and has distinctly ruled that the judge of the superior court could not attest an affidavit which furnished the-basis for'an accusation in a city court, or in other words do judicially anything necessary to originate a proceeding in a city court. If the authority thus conferred upon a judge of the superior court is merely authority to preside in a city court, equally true must it be that the authority it confers upon a judge of a city court is merely to preside in a superior court. In other words, the effect of the ruling by the Supreme Court is that neither a judge of a superior .court nor a judge of a city court can do anything but preside for each other, and that neither can originate a proceeding in the court of the other by assuming to act as a judge of that court.

2. Without attempting any extended discussion of the rules obtaining where an ordinary motion for a new trial is made, it may be said that as far back as the case of Graddy v. Hightower, 1 Ga. 252, it was held that “When the term of the court at which the judgment was rendered has passed, and no application made and recorded at that term, the record in the cause having been finally made up, the court has no power to grant a new trial, except in some peculiar and extraordinary cases.” In Cox v. Hill- yer, 65 Ga. 57, and numerous cases since, the Supreme Court has clearly indicated what is generally necessary to constitute an extraordinary motion for a new trial presented at a later term than the term at which the trial was had. One well-recognized difference between an ordinary motion for a new trial and an extraordinary motion for a new trial is that the former may be filed as a matter of right, and the rule nisi is granted therein as a matter of course by the presiding judge; whereas in an extraordinary motion for a new trial, the trial judge should exercise his discretion and may refuse to entertain the motion and breathe into it the breath of life by granting the rule nisi, unless it appears to him that enough is therein set forth to warrant at least a stay of proceedings and call for a full and more thorough consideration. In Harris v. Roan, 119 Ga. 379 (46 S. E. 433), it was said that, “when an alleged extraordinary motion for a new trial is entirely ' without merit, it is proper for the judge to decline to entertain the same and to refuse to grant a rule nisi thereon,” and it was further held that the Supreme Court will not by mandamus compel a judge to certify to a bill of exceptions assigning error upon his refusal to entertain an extraordinary motion for a new trial and grant a rule nisi thereon when it appears that the motion is without merit. As was said by the writer in Griffin v. Brand, 18 Ga. App. 643 (90 S. E. 90), in his special concurrence, “Of course, where the judge declines to entertain an extraordinary motion for a new trial which is entirely without merit, the Supreme Court or this court will not by mandamus compel him to certify a bill of exceptions assigning error upon such refusal.”’ See cases there cited.

From Harris v. Roan, supra, as well as from many other cases, it is apparent that the trial judge should exercise his discretion in granting or refusing a rule nisi on an extraordinary motion for a new trial. As was said by Powell, J., in Seaboard Air-Line Ry. v. Reid, 6 Ga. App. 18, 20 (63 S. E. 1130), “Where the party has had one review by the higher court and a decision has been made against him, and he seeks to obtain from the judge of the court below a second bill of exceptions, the reviewing court will make a preliminary examination into the error complained of, and will not grant, the mandamus nisi unless the contentions of the applicant present such a show of merit as to raise a fairly debatable question as to their validity.”. From the statement of facts in the case last quoted from it appears that after examining the application for an extraordinary motion for a new trial, the trial judge refused to grant a rule nisi; a bill of exceptions complaining of this ruling and judgment was then presented to him, which he declined to certify, and application for a mandamus nisi was made to this court, and the application was refused. So it is clear, under that ruling also, that the judge granting or refusing a rule nisi on an application for an extraordinary motion for a new trial should exercise his discretion. See also New England Mortgage Security Co. v. Collins, 115 Ga. 104 (41 S. E. 270). It was said in East Tennessee &c. Railroad v. Whitlock, 75 Ga. 77, 82, that “The motion for new trial in extraordinary . . cases was intended in a great degree to take the place of a bill in equity for new trial;” and since the judge to whom such an application is made should exercise his discretion, or in other words, exercise a judicial and not a mere clerical or administrative function in granting or refusing a rule nisi thereon, it can not be logically insisted that such a motion has any force or vitality until such discretion has apparently been exercised, or until a judge having authority under the law to vitalize or originate a proceeding in the court in which the motion is made has judicially acted thereon. As was determined in the Edmondson case, supra, originating a proceeding in the superior court and presiding in a case in that court are entirely different. Since the judge of the city court of Camilla had no authority to originate a'case in the superior court of Mitchell county by assuming to act as a judge of the superior court, the proceeding based upon his action in granting a rule nisi on an extraordinary application for a new trial was void ab initio; and therefore the action of the judge of the superior court who undertook to dismiss such a wholly void proceeding was not error and can not furnish sufficient ground for complaint in this court, regardless of the precise facts under which he assumed jurisdiction. However, from the record it would appear that if the rule nisi on the extraordinary motion had been in fact granted by one having authority, the judge of the superior court who thereafter set it for a hearing and dismissed the motion would have had, and should have retained, jurisdiction to pass upon the motion.

We think it obvious that the original case which had been tried and determined and brought to this court, and in which the judgment of this court had been made the judgment of the lower court, was certainly not pending at the time the extraordinary motion was presented to the judge of the city court; and therefore that judge had no authority to commence a new case in the superior court by signing a rule nisi; but if the other horn of the dilemma should be selected,* it is clear that, under the facts in the record, the judge of the superior court of an adjoining circuit, who had been requested by the judge of the superior court of Mitchell county to preside in the case, and had accordingly presented him- ' self and assumed. jurisdiction, could not be deprived of his jurisdiction by a subsequent order, passed by another judge, not requested to preside, while he was still in office, able and ready to dispose of the motion.

Furthermore, if the attempted extraordinary motion in this case was merely an additional proceeding in the original ease, and was therefore a “pending” case when the judge of the city court was requested by counsel for plaintiff in error to assume jurisdiction of the same (as argued by counsel for movant), that judge was not requested to preside by the disqualified judge of the superior court, and there is no existing provision of law which would allow one of the parties in a pending case to select the judge to pass thereon.

Judgment affirmed.

Jenkins and George, JJ., concur. (Luke, J., disqualified.)


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    7125.
    Broyles v. Young.
   Wade, C. J.

1. The clerk of the superior court may issue a fl. fa. at any time after á verdict is rendered and judgment entered thereon (Civil Code, § 6020); but there is no statutory provision in this State imposing upon such a clerk the duty of issuing executions without express direction from the plaintiff or his counsel. See, in this connection, 17 Cyc. 986, and cases there cited.

2. Where a judgment was rendered against a defendant and his surety in a bail-trover proceeding, and the clerk of the superior court issued an execution thereon against the principal defendant only, which was so entered upon the execution docket, and loss resulted to the plaintiff because of the failure of the clerk to include the surety by name in the execution and also in the docket entry thereof, the plaintiff in execution has no right of action against the clerk for damages, unless it further appears that the clerk failed or refused to properly issue and docket the execution after express direction given to him by the plaintiff or his attorney; and this is true notwithstanding the clerk of the superior court is liable in damages for a failure to perform his official duty or for improper or neglectful performance thereof. Markham v. Ross, 73 Ga. 105; Luther v. Banks, 111 Ga. 374 (36 S. E. 826).

Decided February 16, 1917.

Certiorari; from Fulton superior court—Judge Pendleton. November 30, 1915.

Harvey Hatcher, for plaintiff in error.

Bachman & Simmons, contra.

3. One in whose'favor a judgment is rendered has the right, by himself or -through his counsel, to control it and direct whether execution shall issue thereon; and where he fails to give any direction it is not the duty of the clerk to issue an execution; and if the clerk, without direction, issues an execution, and it is defective, the plaintiff can not recover damages against him because of the negligent doing of a thing not required of him by the law; especially is this true where the consequences of the negligence of the clerk in this respect could have been avoided by the exercise of ordinary care on the part of the plaintiff or his counsel in ascertaining whether the execution so issued conformed to the judgment upon which it was based. See Nicholas V. Tanner, 117 Ga. 223 (43 S. E. 489).

4. The judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

George and Luke, JJ., concur.


author: Wade, C. .J.

text:
    7329.
    Sellers et al. v. Wolverine Soap Company.
    Decided February 16, 1917.
   Wade, C. .J.

1. It does not appear in this ease that the evidence introduced, with all reasonable deductions or inferences therefrom, demanded a particular verdict. The court therefore erred in directing the verdict returned. See Wolverine Soap Co. v. Sellers, 13 Ga. App. 380 (79 S. E. 246).

2. There is no provision of law requiring the record of a written instrument guaranteeing the performance of a contract for the services of a salesman. Such a paper is not a mortgage or a conditional bill of sale or an instrument of like character; nor does it describe any property with sufficient certainty to constitute constructive notice, when recorded, as to the articles or goods sold or to be sold to the salesman, The execution of the instrument being admitted, the court did not err in receiving it in evidence.

3. The issues involved should have been submitted to a jury, and for that reason alone the judgment of the lower court is

Reversed.

George and Luke, JJ., concur.

Action on guaranty; from city court of "Cairo—Judge Willie. January 18, 1916.

J. M. Betters, 8. P. Gain, W. V. Custer, for plaintiffs in error.

B. G. Bell, J. 8. Weathers, contra.


author: Luke, J.'

text:
    7354.
    STATE MUTUAL LIFE INSURANCE COMPANY v. FORREST, administratrix.
    1. Insurance policies are prepared and proposed by the insurers; and, where such a contract is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured. Especially is this true where, as in this case, the construction insisted upon by the company would work a forfeiture of the policy, while the other will preserve the obligations of both the company and the insured.
    2. The policy involved in this case contains a loan clause wherein the company agrees to loan the insured, at his option, stated amounts of cash, upon the policy as sole security, the company further agreeing that any such “loan may be renewed annually, if interest be paid for one year in advance.” The insured obtained such a loan, and died four months and eight days after its maturity, without having either renewed or repaid it. The company now insists that, under these facts, it is entitled to charge against the loan value of the policy a full year’s interest. Held, that since the policy makes no provision for such a ease, the amount of interest to be charged is controlled by the rules of law applicable to written obligations to pay in general; that is to say, the company is entitled only to the contract rate of interest for the actual time of its forbearance. No more can be charged against the loan value of the policy so as to reduce the amount thereof available for other purposes under the policy; and no more can be charged against the liability of the company, if any, which accrued upon the death of the insured.
    3. The “automatic” non-forfeiture clause of the policy stipulates that “the company, upon failure of the insured to pay any premium, will charge the premiums as they fall due as loans against the policy until the loan value is consumed.” The insured died four months and eight days after the due date of an annual premium, leaving the premium wholly unpaid and leaving the policy without a sufficient loan value to pay a. full annual premium. The company insisted that under these fácts the “automatic” clause was inoperative to sustain the policy or keep it of force for any length of time, notwithstanding it may have had some small loan value remaining; and that such a construction is •made imperative by a provision of the loan clause requiring the payment in advance of a full annual premium before the insured could obtain a cash loan. Held:

      (a) The obligation of the company, under the “automatic” clause, to charge the unpaid premiums against-the loan value ol the policy “mi-til the loan value is consumed,” entitled the insured not only to such full years of insurance as the available loan value was sufficient to cover, but also to such fractional part of a year as any remaining loan value then available for such purpose might cover, continuing the policy in full force until its stated loan value should become wholly exhausted.
    (6) The “automatic” clause, under its own express provisions, could become operative only “upon the failure of the insured to pay any premium.” It can not, therefore, be nullified by ingrafting thereon through a process of construction the contradictory provision of the loan clause that, before obtaining a cash loan, “premiums under this policy shall be paid in full up to the end of the policy year when the loan is obtained.” The last-quoted provision is a limitation upon the loan clause only, applies to cash loans only, and does not affect the charges to be made “as loans” under the provisions of the “automatic” clause.
    (c) In order, however, for this policy to have boen sustained by its own loan value and the provisions of the “automatic” clause for the period of time in question, it was necessary that the loan value be sufficient to cover the interest as well as the principal debt, both as to the cash loan' obtained under the loan clause and as to- the charges made as loans under the “automatic” clause.
    i. The grace clause of this policy refers to premiums only, and does not affect the cash loan or the accrual of interest thereon. But it applies with equal force to any premium, whether annual, semiannual, or quarterly, and whether paid in cash under the premium clause or by allowing the company to charge it as a loan under the provisions of the “automatic” clause. The fact of the payment, rather than the method thereof, together with the expiration of the period for which the premium was paid, fixed the date when the grace clause became operative, if it ever became operative under the facts of this case.
    6. Considering this policy as a whole, its loan value, as fixed in the table of values incorporated in the policy, was, at the time of the death of the insured, sufficient to cover the amount of the loan, and also the amount of the unpaid premiums for that part of the policy year preceding the death of the insured, with interest upon both the loan and the unpaid premiums, and therefore, under the provisions of the “automatic” clause, the policy was in full force at the time of the death of the insured, subject only to such charges.
    0. The policy provides: “If the insured makes written application within six months after default in payment of premiums, the company will extend the policy as a term policy for its full amount . . as stated in the -table on the third page hereof. ” The insured died within six months after the maturity of the eighth annual premium, without having paid it, and without having made any written or other application in accordance with the above-quoted provision of the policy. Held: .

      (a) The privilege so extended the insured is not a mere gratuity personal to the insured alone, but it is a property right which on his-death survives to his beneficiary or legal representative, as the case may be.

      (6) The provisions of the policy relating peculiarly to the continuation of the insurance risk become inapplicable and immaterial when the policy is converted into a death claim by the death of the insured.

      (o) Upon the death of the insure.d within the period covered by this . clause of the policy (where the extended insurance would have run beyond that period) his legal representative was entitled to hold and sue upon the original policy as a death claim against the company for the full amount of its face value.
    (d) The insured having died before the expiration of his right to pay up his indebtedness to the company, which would have entitled him to the full benefit of the seven years and four months extended insurance provided by the table, this right also survived to his legal representative; and, where such payment was made by her, or was legally tendered, or where she was excused by law from making such tender, such indebtedness can not operate to defeat or nullify the provisions of the “six months” clause of the policy by shortening the term of extended insurance as fixed by the table.
    (e) “A formal tender is unnecessary where express declarations are made by the party to whom money is payable that he will not accept it if tendered. The law takes one who makes such a-statement at his word, and does not thereafter require the doing of a vain thing.” And “tender may be made by an agent or friend at the instance of an interested party.”
    7. The trial judge did not err in overruling the'demurrer to the petition.
    Decided February 16, 1917.
    Action on insurance policy; from city court of Floyd county— Judge Nunnally. February 24, 1916.

      King & Spalding, Maddox & Doyal, for plaintiff in error.

      Barry Wright, Sheppard Brothers, contra.
   Luke, J.'

This case arose as an action on a life-insurance policy. It comes to this court on questions of construction. The policy was issued on January 19, 1907, for $5,000, in consideration of an annual premium of $190.40, payable in advance, the insured being allowed the privilege of paying a semiannual premium of $99 or a quarterly premium of $50.45, as he might elect at the time for paying any premium. The policy contains the following special provisions:

“Grace in payment of premiums. An extension of thirty days will be allowed in the payment of any premium, except the first, and the company agrees to accept any premium, without interest charge, if tendered within, thirty days of the time of default, during which thirty days the policy will remain in force.”

“Loans. After this policy has been in force two years, the company will loan thereon, as sole security, the amount stated in the table on the third page hereof, at not more than five per cent, per annum, payable in advance. The loan shall be made in accordance with the company’s loan agreement; the amount of loan available at any time shall include any previous loans then unpaid, and premiums under this policy shall be paid in full up to the end of the policy year succeeding the date when the loan is obtained. The company agrees that the loan may be renewed annually, if interest be paid for one year in advance.”

“Automatic” non-forfeiture clause. “If the insured shall fail to pay any premium when due, and if there is no indebtedness to the company, the insurance will automatically continue from such due date as term insurance, if premiums have been paid for three months, for 30 days; if for six months, for .40 days; if for nine months, for 50 days; and for the period specified in the table on the third page in the table hereof, if premiums have been paid for one year.

“If premiums have been paid for two or more years the company, upon failure of the insured to pay any premium, will charge the premiums as they fall due as loans against the policy until the loan value is consumed, and this policy shall thereby continue in full force. At any time while the policy is thus sustained, the payment of premiums may be resumed, without medical re-examination, and the accumulated debits may be paid or stand as a loan against the policy.”

“Six-months” non-forfeiture clause. “If the insured makes written application within six months after default in payment of premiums, the company will extend this policy as a term policy for its full amount; or, upon surrender of this policy, will issue a participating paid-up policy, or will pay the cash surrender value, as stated in the table on the third page hereof under the respective heads.” .

The table referred to in the foregoing clauses is printed in the body of the policy, under the heading, “Table of Cash Loans and Guaranteed Surrender Values.” It is there based upon a policy for $1,000, with a stipulation ■ that certain figures therein shall be increased or diminished in proportion to the sum for which the policy may be issued. Eeproducing that table on the basis of a policy for $5,000—the amount of the policy in this case—for the period here in point, we have the following:

Table of Cash Loans and Guaranteed Surrender Values.

End of Policy Year

1st

2nd

3rd

4th

5th

6th

7th

8th

Cash

Loan

200.00

300.00

405.00

510.00

620.00

730.00

840.00

Cash

Value

$100.00

100.00

200.00

300.00

405.00

510.00

620.00 730.00

Participat-

ing

Paid-Up

Insurance

190.00

380.00

560.00

740.00

940.00

1095.00

1265.00

Extended

Insurance

d

<D

¡X

3

a

o

2

6

1

5

9

7

4

5

The plaintiffs petition contains the following material allegations: The first seven annual premiums were paid as they fell due, carrying the policy in full force to January 19, 1914. Under the loan clause the insured, during the year 1913, borrowed from the company the sum of $592.87, paying'the interest thereon in advance and making the principal due January 19, 1914. On May 27, 1914, the insured died, without having renewed or paid the loan, and without having paid any part of the eighth annual premium. On July 1, 1914, the plaintiff notified the defendant of the death of the insured, and demanded the usual form for making proof of his death. The defendant, however, refused to furnish such forms, claiming that the policy had lapsed prior to the death of the insured. The plaintiff, nevertheless, prepared such proofs and furnished them to the defendant, together with proof of her appointment as administratrix of the estate of the insured, and demanded payment of the amount due under the policy; but the defendant refused to pay. On July 6, 1914, the plaintiff, through her attorney, offered to pay to the receiver of the company all indebtedness which the insured owed the company at the time of his death, and demanded the benefit of the extended insurance provided by the “six-months clause” of the policy; but the defendant has continually persisted in the original position taken by it,* namely, that the policy had lapsed prior to the death of the insured, and that it was no longer of force. The Other allegations of the petition, based upon section 2549 of the Civil Code of 1910, are unimportant here. To' this petition the defendant interposed a demurrer, insisting upon a construction of the several clauses of the policy above set forth which, if sound, would leave the plaintiff without any cause of action.

The plaintiff contends, (1) that she is entitled to recover under the provisions of the “automatic” clause, because the loan value of the policy was sufficient to sustain it from its seventh anniversary to the death of the insured; and that even if the loan value was • sufficient to sustain the policy only-to a time within thirty days of such death, then the grace clause, in connection with the “automatic” clause, would prevent a-forfeiture of the policy. The defendant contends, on the other hand, that even if the policy did have some small loan value left after the cash loan was obtained, the amount of it was insufficient to pay both interest on the loan and the premiums on the policy in accordance- with the terms of the policjr, because any amount of such loan value would be ineffective under the “automatic” clause of the policy unless it should be sufficient to pay both a full year’s premium on the policy and a full year’s interest on the outstanding loan; and it contends that in no event wortld the insured be entitled to tack the benefits of the grace and “automatic” clauses in order to cover the period in point. The plaintiff contends, (3) that, without regard to either the grace or the “automatic” clause of the policy, she is entitled to recover under the “six-months” clause, because the death of the insured occurred within six months after the due date of the unpaid premium; and, in this connection, she further contends that the conduct and attitude ’ of the defendant, taking the position that the policy had lapsed and refusing the parol application of her attorney and his offer to pay the outstanding indebtedness, not on the ground that the application was in parol or the tender was not legal, but on the ground that it recognized no such right or rights in her, excused her from the useless formality of making a written application under the “six-months” clause or making any additional tender of payment of the loan, oven if linder other circumstances it might be -necessary for the legal representative of the insured to make such payment or such written application. The defendant contends, on the other hand, that the privileges provided by the “six-months” clause of the policy were personal to the insured.and terminated upon his death, notwithstanding he died before the expiration of the period covered by this clause; and that, even if the privileges under this clause had survived him, the plaintiff had not complied with the condition precedent to the rights it provided by making “written application within six months.” These contrary contentions arise solely from the different constructions which opposing counsel would place upon the policy in question.

1. The rules of law applicable to the construction of a policy of insurance are too well settled to admit of discussion. They were fixed by early decisions in this State, and have never been departed from. Where a provision in such a contract is clear and unambiguous, if it is within the law, it will be enforced as it is written; but where it is capable of being construed in two ways, that interpretation which is most favorable to the insured will always be placed upon it. Civil Code of 1910, §§ 2475, 2499, 4268 (4); Northwestern Mutual L. Ins. Co. v. Ross, 63 Ga. 199; Mass. Ben. Life Asso. v. Robinson, 104 Ga. 256 (2) (30 S. E. 918, 42 L. R. A. 261); Warwick v. Knights of Damon, 107 Ga. 121 (32 S. E. 951); Arnold v. Empire &c. Ins. Co., 3 Ga. App. 685 (60 S. E. 470); Hall v. Royal Fraternal Union, 130 Ga. 820 (1) (61 S. E. 977).

2. What interest is the company entitled'to charge, under the facts of this case, on the loan it made to the- insured ? It is necessary that this question be decided, for the reason that such interest must be deducted from the loan value of the policy and may therefore'materially affect the amount available-for other purposes under the policy. So, we would first ask, what is there in the policy, if anything, to take the case out of the general rule? The loan clause, which is set out in full in the foregoing statements of facts and which contains all of the provisions of the policy here in point, does not contain the loan agreement, but does contain a provision as follows: “The company agrees that the loan may be renewed annually, if interest be paid for one year in advance.” But the plaintiff’s petition, which as against the demurrer must be taken as true, alleged that the loan matured on the due date of the unpaid premium and that the loan was neither paid nor renewed. The petition, therefore, shows a set of facts for which the policy does not provide. The policy itself provides for but two contingencies: (1) payment and (2) renewal; whereas, according to the plaintiff’s petition, the insured neither paid nor renewed the loan. So we would next ask: By what rule of law or reason can the company now claim a full year’s interest for less than a half year’s nse of its money? We know of no authority for so doing, and the plaintiff in error has cited none. We therefore hold, without hesitation, that, under the facts of this case, the amount of interest which the company is entitled to charge against the loan value of the policy—or to deduct from the amount of the death claim, as for that matter—is controlled by the general rules of law applicable to any other creditor who holds a note that is neither paid nor renewed upon its maturity; that is to say, the company is entitled to the contract rate of interest, for the actual time of its forbearance, and no more than that.

This case differs from the case of McEachern v. New York Life Ins. Co., 15 Ga. App. 222 (82 S. E. 820), so far as this point is concerned, in that here the policy was not delivered to the company, the loan agreement is not made to appear, and nothing else appears to add to, take from,*or otherwise vary the provisions of the policy by making the loan agreement a part of it. Each case must be decided upon its' own facts as they appear in the record; and this court can not, and does not, now attempt to say what are the rights of either party as fixed by the loan agreement or any affirmative action which the company may have taken in accordance with its provisions.

'3. Upon the failure of the insured to pay the eighth annual premium, or any part, thereof, in cash, was it necessary that the available loan value of'the policy should be equal to a full year’s premium, with interest thereon, in order for the “automatic” clause to prevent immediate forfeiture of the policy? A decision of this questidn is necessary, for the reason that the amount of the loan value available in connection with the “automatic” clause' is clearly insufficient to cover a full year’s premium with interest thereon. That the company is entitled to interest on a premium paid only by allowing it to be charged as a loan against the policy is settled by the decision of the Supreme Court in MacIntyre v. Cotton States Life Ins. Co., 82 Ga. 478 (1) (9 S. E. 1124). And it is conceded by the plaintiff that the amount of the loan value available under the “automatic” clause is only such sum as remains after deducting from the amount fixed by the policy the total amount of the cash loan and interest thereon. ' So the question is then narrowed down to this: If the policy did have some loan value, but not enough to cover a full year’s premium with interest, did the insured forfeit the value which admittedly did^ remain, or did that value continue the policy of force pro tanto? Upon the answer to this question depends the answer to the first’ question; and this answer must be found in the terms of the policy itself. Looking alone to the “automatic” clause of the policy here in point, the question admits of but one answer, namely, that the insured was entitled to the benefits of whatever amount of loan value may have been available, whether it was more or less than a full year’s premium. The company’s express obligation under that.clause is to “charge the premiums as they fall due as loans against the policy until the loan is consumed.” Thus, the company’s obligation did not cease when such loan value became less than a full year’s premium, and could not then cease, because the loan value had not then been consumed. But every contract must be so construed as to give effect to all its parts and provisions, where such construction is reasonably possible, and the whole contract should be looked to in arriving at the construction of any part. Civil Code (1910), § 4268 (3). By reason of this rule of law and because premiums under the “automatic” clause are charged as “loans,” the company now insists that the insured could not be entitled to the benefit of having any premium charged as a loan, unless the facts were such'as to entitle him to a cash loan under the provisions of the loan clause. The particular provision of the loan clause insisted upon is, that, before a cash loan can be obtained, “premiums under this policy shall be paid in full up to the end of the policy year succeeding the date when the loan is obtained.” We think such a contention is not maintainable under any rule of law, reason, or common-sense construction. It is not necessary to point out the necessarily apparent 'distinction between a cash loan under the loan clause and a so-called loan under the “automatic” clause of the policy. But looking to the “automatic” clause we see that it prescribes but one condition upon which it shall become operative, namely, “upon the failure of the insured to pay any premium. ” And mot only this provision, but the entire “automatic” clause, would be absolutely nullified, left a mere group of meaningless words, if' it should be held, as insisted by counsel for the company, that premiums could not be charged as “loans” in accordance with the provisions of this clause, until, as provided for obtaining a cash loan, premiums were paid in full to the end of the policy year. The above-quoted provision of the loan clause is thus clearly a limitation upon that clause only, applies to cash loans only, and does not affect charges to be made as “loans” under the provisions of the “automatic” clause. There is but one valid purpose which grace clauses and non-forfeiture clauses can serve, and that is to prevent a lapse of the policy immediately upon the failure of the insured to pay the stipulated premium, and no construction will ever be put upon any of them which totally destroys the benefits that they are designed to preserve.

4. The fourth headnote needs no elaboration. Non-forfeiture provisions of insurance policies sometimes expressly stipulate that “no grace will be allowed under this provision,” and where the meaning of the policy is thus made clear it will be enforced as written. Perkins v. Empire Life Ins. Co., 17 Ga. App. 658 (87 S. E. 1094). But there is nothing in the policy involved in this case to imply that the insured forfeits his rights under one clause by availing himself of the benefits under the other; and where the policy is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured.

5. What was the loan value of the policy in question following its seventh anniversary? According to the table of values incorporated .in the policy it was, at the end of the sixth year, the sum of $620. But following the sixth anniversary, the insured borrowed $592.87, thereby reducing the loan value to $27.13. Under the rulings above announced, this remaining loan value, in connection with the “automatic” clause, was certainly sufficient to carry the policy of force until the sum of $27.13 was consumed, which would be well past the seventh anniversary of the policy, when, according to the same table, the loan value became $730. And a mathematical calculation shows that the sum of $730 exceeds the sum total of the loan ($592.87) and a semiannual premium ($99), together with the contract rate of interest (5% per annum) on both from their due date, January 19, 1914, to the death' of the insured, May 27, 1914, and this is true without regard to the provisions of the grace clause.

But the defendant contends that, because the insured failed to pay an annual premium of $190.40 at the end of the seventh year, the loan value did not upon the arrival of that anniversary increase in the sum of $110, as appears from the table of values. Upon this contention, we have carefully considered the table and every provision of the policy pertaining thereto. The table itself affords but one index pointing to the loan value of the policy at any period of time or under any set of facts, and that index is the number of the last preceding anniversary of the policy, the seventh anniversary pointing clearly to the figures $730. And the provisions of the policy outside the table authorize no change whatsoever in the values as stated in the table, except only such as result from the consumption of those values in accordance with the purposes for which they were created and written into the policy. Upon this point the policy is not ambiguous. It does not reasonably admit of any construction other than that the loan value of the' policy at the time of the 'death of the insured was $730, less such items as could properly be charged against the value as hereinbefore pointed out.

6. The rulings announced in the sixth headnote are sufficiently full and explicit. They are controlled by the decisions of this court in Veal v. Security Mut. Ins. Co., 6 Ga. App. 721 (65 S. E. 714); Arnold v. Empire &c. Ins. Co., 3 Ga. App. 685 (5, 6), and authorities there cited, and McEachern v. New York Life Ins. Co., supra.

7. From what is said above, the plaintiff is, under the allegations of her petition, entitled to recover of the defendant, not only because of the provisions of the “automatic” non-forfeiture clause, but also because of the provisions of the “six-months” clause. The trial judge therefore did not err in overruling the demurrer to the petition.

Judgment affirmed.

Wade, G. J., and George, J., concur.


author: .Wade, C. J.

text:
    7427.
    May v. Subers, executrix.
   .Wade, C. J.

1. “When an admission is given in evidence, it is the right of the other party to have the whole admission and all the conversation connected therewith.” Civil Code of 1910, § 5783. Nevertheless, in a suit by an executrix to recover certain personal property from another, there was no error in excluding a self-serving declaration made by the surviving party to a contract under which the possession of the property in dispute was held by him, which attempted to set up an additional claim or demand against the deceased party to the contract, as a basis for his adverse possession. The defendant’s admission of possession related to an independent substantive fact, was not made to the deceased person, and had no reference to any “transactions or communications” with him, whereas the additional statements made at the same time set up an alleged agreement directly between the survivor and the deceased.

Decided February 16, 1917.

Trover; from city court of Bainbridge—Judge Spooner. April 3, 1916.

Hartsfield & Conger, for plaintiff in error. W. V. Custer, contra.

(а) Besides, it appears from the record that the defendant admitted in his plea that he held the property in possession, and there could be no liax’mful error in allowing evidence as to another admission to that effect, though the remainder of the conversation connected with the admission was excluded.

(б) It likewise appears from the approved brief of evidence that the witness Custex1. did in fact testify that at the time the defendant admitted to him that he was in possession of the property in dispute, the defendant assex-ted the existence of the additional demand against the estate of the deceased which he afterwards set out in his plea.

2 There was no error in excluding a certain check payable to “J. I. S.,” together with the testimony of the drawer to the effect that the “J. I. S.” written thereon was intended for J. I. Subers, the deceased pai'ty to the contract that the defendant sought to establish. Nor was there any error in excluding the testimony of the surviving party that the estate of J. I. Subers was indebted to the witness in the sum alleged by him in his plea. Unless • connected by the parol evidence of the surviving party to the contract with the deceased, the check was irx-elevant, and, under the provisions of the Civil Code of 1910, § 5858 (1), his testimony was inadmissible to identify the check as an evidence of indebtedness against the deceased, secured by the property in dispute, or to set up any demand against his estate, based upon transactions or communications with the deceased.

3. Under the legal testimony in this case there was no error in directing a verdict for the plaintiff; nor did the court thereafter err in over-x-uling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    7507.
    TEMPLES v. CENTRAL OF GEORGIA RAILWAY CO.
    1. The action being for the recovery .of damages on account of personal • injuries received by the plaintiff while engaged as an employee of the defendant railway company in interstate commerce, there was no presumption of negligence against the defendant; and the court did not err in charging the jury generally that the burden of proof rested upon the plaintiff throughout the case, and in failing to instruct the jury as to when and under what circumstances this burden might be shifted.
    2. The- charge complained of' in the 9th ground of the motion for a new trial is in exact accord with the ruling in Worlds v. Georgia Railroad Co., 99 Ga. 283 (2) (25 S. E. 646), which was approved in Freeman v. - Savannah Fleetrie Co., 130 Ga. 449, 454 (60 S. E. 1042) ; and .this ground of the motion is therefore without merit. The decision in the case of Southern Railway Co. v. 'Rutledge, 4 Ga. App. 80 (60 S. E. 1011), is not at variance with these rulings or with the ruling now made.
    3. There is no merit in the objection made in the 10th ground of the motion for a new trial to an excerpt from the charge of the court relating to the doctrine of assumed risks. Washington & Georgetown R. Co., v. McDade, 135 U. 8. 554 (10 Sup. Ct. 1044, 34 L. ed. 235, 241) ; Seaboard Air-Line Railway v. Horton, 233 U. S. 492, 504 (34 Sup. Ct. 635, 58 L. ed. 1062, 1070, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475) ; Middle Ga. &e. Ry. Co. v. Barnett, 104 Ga. 582; 584, 585 (30 S. E. 771); Charleston and Western Carolina Railway Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275). In the absence of any request for a fuller charge where a correct charge as to the assumption of risk is given, the failure to instruct precisely as to what would not constitute an assumption of risk by the plaintiff is not reversible error. See, in this connection, Charleston de. Ry, Co. v. Brown, 13 Ga. App. 744, 751 (79 S. E. 932). The charge did not tend to confuse the jury, nor was it subject to the exception that it was calculated to prejudice the plaintiff’s case because argumentative.
    4. There is no merit in the 11th ground of the motion for a new trial, as the charge complained of did not tend to eliminate or disparage any evidence offered in behalf of the plaintiff.
    5. There is no merit in the 12th and 13th grounds of the motion for a new trial, assigning error because the court appointed a commission of physicians to make a physical examination of the plaintiff. No abuse of discretion by the trial court appears, and no objection was raised to the personnel of the commission appointed.
    6. The court did not err in holding that the juror objected to by the plaintiff was not disqualified, and in declining to require him to stand aside.
    7. The ground of the motion for a new trial that “a new trial is demanded by the general countenance of the case,” etc., need not be considered.
    Decided February 16, 1917.
    Action for damages; from city court of Alb.any-^Judge Clay- . ton Jones. April 27, 1916.

      John Henry Pool, for plaintiff.

      Pottle & Hofmayer, for defendant.
   Wade, C. J.

The 4th, 5th, 6th, and 8th grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error. No review of the evidence developed at the trial is necessary, nor is it necessary to amplify any of the rulings set out in the foregoing headnotes, other than the 1st, 5th, and 6th, referring to the 7th, 12th, 13th, and 14th grounds of the motion for a new trial.

The 7th ground of the motion for a new trial assigns error on the following excerpt from the charge of the court: “The burden of proof in this case rests upon the plaintiff. There is no presumption of negligence against the defendant. The fact that the plaintiff may have been injured raises no'presumption of negligence against the defendant, but the burden 'rests upon the plaintiff throughout the case to prove that any injury he may have received was caused by the defendant’s negligence.” It is clear that there is no substantial merit in this exception. Under the allegations of the amended petition of the plaintiff and the admissions made in the plea of the defendant, the plaintiff was employed by the defendant in interstate commerce at the time he suffered the alleged injury, and the Federal “employer’s liability .act” of 1908 therefore governs, to the exclusion of the State statute. Landrum v. Western & A. R. Co., 146 Ga. 88 (90 S. E. 710). “As the action is under the Federal employer’s liability act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal courts. Seaboard Air-Line Railway v. Horton, 233 U. S. 492 [34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834]; Central Vermont Ry. Co. v. White, 238 U. S. 507 [35 Sup. Ct. 865, 59 L. ed. 1433, 9 N. C. C. A. 265]; Great Northern Ry. Co. v. Wiles, 240 U. S. 444 [36 Sup. Ct. 406, 60 L. ed. 732].” Southern Ry. Co. v. Gray, 241 U. S. 333 (36 Sup. Ct. 558, 60 L. ed. 1030). This being true, no presumption of negligence on the part of the defendant was created by proof of the injury resulting to the plaintiff while so engaged in interstate commerce. Ivey v. Louisville & Nashville R. Co., 18 Ga. App. 434 (89 S. E. 629). It was held by the United States Supreme Court in Southern Ry. Co. v. Prescott, 240 U. S. 632 (36 Sup. Ct. 469, 60 L. ed. 836), in passing upon the liability of a carrier under a bill of lading for an interstate shipment, that the question as to responsibility under the bill of lading was a Federal question, and that “the railway company was therefore liable only in case of negligence. The plaintiff, asserting neglect, had the burden of establishing it. This burden did not shift.” This is equally true in a personal injury suit brought under the Federal “employer’s liability act.” The charge of the court complained of amounted to no more than 'a mere statement of the law that the burden of proof rested upon the plaintiff, or that he must prove his case by a preponderance of ’ evidence, and was equivalent to the final instruction “if you believe, by a preponderance of the evidence, that the plaintiff should prevail,” etc., given by request of counsel for the plaintiff. As was said by Justice Lumpkin in Hawkins v. Davie, 136 Ga. 550, 552 (71 S. E. 873), “Where the presiding judge, in an ordinary action at law, correctly charges the- jury in regard to the general burden of proof, he is not required, as an essential part of his charge, to discuss the shifting of the burden of introducing evidence on special points which may arise during the progress of the case; and it will not be held error that he omits to do so.” See also Martin v. Nichols, 127 Ga. 705, 709 (56 S. E. 995); Brandon v. Pritchett, 133 Ga. 480 (66 S. E. 247); Central of Georgia Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (64 S. E. 1128). There was no request for a charge upon any rule of evidence or upon the shifting of the burden of evidence.

■ [5] The 12th ground of the motion for a new trial is as follows: “Because the court erred in appointing Dr. J. C. Keaton [and] Dr. J. M. Barnett to examine the person of plaintiff; to which plaintiff objected at the time of the appointment, upon the ground: that said examination caused plaintiff nervous derangement and physical pain and exhaustion; that plaintiff was willing to be examined in the presence of the jury, and expected to be examined that way; that defendant’s doctors had already made ample examination of plaintiff; which objections were then and there overruled, and the appointment made, and an examination made in pursuance thereof.”. The 13th ground of the motion for a new trial is as follows:, “Because the court erred in admitting the following material evidence [set out in an exhibit attached] of Dr. J. M. Barnett, of the examination made by him of the person of plaintiff W. H. Temples, under the order of the court. Movant objected to the evidence at the time it was offered, and did then and there urge the following ground of objection: because said Dr. J. M. Barnett had twice previously testified upon behalf of the defendant.” To these two grounds of the motion the trial judge attaches the following note: “In reference to grounds 12 and 13, defendant made due application for a commission of doctors to examine the plaintiff, which was duly assigned for hearing and heard on the 13th day of October, 1915. After hearing the same on the pleadings and evidence submitted, including the briefs of evidence of the two previous trials, I announced that under all of the circumstances I thought the appointment of a commission was proper and would grant an order accordingly. Suggestions were made as to whether or not the doctors should be appointed from other cities, or whether or not they should be residents of Albany, and both sides seemed to prefer the appointment of resident doctors, and I invited suggestions from both sides informally, in an effort to get doctors who would be agreeable to both sides. When the name of Dr. Keaton was suggested I mentioned the fact that he was my brother-in-law, and both sides stated that would not affect the matter, and made no objection personally to his appointment. It was further stated that he was the only doctor in the city who had an X-ray machine. Dr. Barnett’s name was suggested by me, as I recall it, because he was generally recognized as one of the most competent physicians and surgeons in south Georgia, and the court knew also that he was a man of high honor and integrity. Plaintiff’s counsel said that he previously testified in the case, but the record showed also that he had never examined the plaintiff, had previously testified on hypothetical questions, and that there was practically no dispute between the doctors who testified on both sides in the former trials in regard to the answers on these hypothetical questions. When this appeared, counsel for the plaintiff stated that while he objected to the appointment of a commission, he had no objections to offer to Dr. Barnett or Dr. Keaton, his objections going to the appointment of any commission of doctors. From all that occurred and was said at the'hearing, I understood that the appointment of the two physicians named was satisfactory to both sides, as they were to the court, in so far as their professional and personal standing, ability, integrity, and impartiality were concerned, and I never heard any suggestion to the contrary from plaintiff or his counsel until after the physicians named had examined the plaintiff. The court ordered the examination of the plaintiff to take place at Columbia, Ala., where plaintiff was, and refused to order it done at Albany; but it was agreed by counsel that plaintiff’s counsel was to try to get his client to come to Albany at defendant’s expense, in which event it was agreed that the examination might be held at Albany. At a hearing before .me about two or three weeks before the case was assigned for trial, I was informed that the plaintiff refused to come to Albany and would not let the doctors examine him if they came to Columbia, Ala., unless his doctor was present. Defendant then insisted on the right to have its doctor' also present, and I was asked by both sides to construe the order previously granted, which I did by inserting in the order, by consent. of both sides, that no one should be present except the doctors heretofore appointed. It was brought to the attention of the court later, some time having been consumed in the effort to have the examination made at Albany, that the doctors had not been able to go to Columbia, for various reasons, one of them when a date had been set, on account of the continued critical illness of one of the members of the family where one of the doctors appointed lived. The case had been assigned for trial for the 16th day of November, 1915, on Tuesday, -and, for the reasons above slated, it was brought to the attention of the court that defendant’s counsel had requested plaintiff’s counsel to have his client come to Albany on the day before the case was set, so that the •doctors could examine him then; otherwise, they stated, they would be compelled to ask the court to postpone the ease sufficiently long to have the examination made on the day the case was assigned for trial. About two days before the case was set, plaintiff’s counsel came up to the bench while another case was on trial, and stated to the court the contentions of defendant’s counsel, as above set forth, and asked if I would postpone the case if the examination was not had previous to the trial. I stated to counsel that I hoped he would have his client submit to the examination before trial, because neither the doctors nor defendant’s counsel had been at fault, and if defendant made a motion on the date the case was assigned for trial, for the reasons above stated, to postpone the case sufficiently long for such examination to be had, I would be compelled as a matter of justice to do so, although I did not want to do it, as that was the last case left on the calendar for trial, and there was no other business before the court to occupy the attention of the jury.”

The objection raised in the 13th ground was to the appointment of any commission to examine the plaintiff, unless the examination was to be conducted in the presence of the jury; whereas in the 13th ground the plaintiff insisted that the court erred in admitting the evidence of one of the physicians who conducted the examination by an order of the court, for the reason that this physician had previously testified twice as a witness called by the defendant. It will be-Observed from the note of the trial judge, which is quoted above in full, that the witness Dr. Barnett had previously testified in reply to hypothetical questions propounded to him, but had never personally examined the plaintiff, and that there was no actual dispute between the various physicians who testified for the plaintiff and the defendant at the former trials of the case as to the correctness of his answers to these hypothetical questions. It furthermore appears, from the note of the presiding judge, that when the commission was named, counsel for the plaintiff in the lower court stated that “while he objected to the appointment of a commission, he had no objections to offer to Dr. Barnett or Dr. Keaton, his objections going to the appointment of any commission of doctors.” The defendant, in applying for the appointment of a medical commission, appears to have acted in accordance with the practice approved in such cases. It was held in Richmond & Danville R. Co. v. Childress, 82 Ga. 719 (9 S. E. 603, 3 L. R. A. 808, 14 Am. St. E. 189), that “It is within the discretion of the trial court to require the plaintiff suing for a physical injury, alleged to be permanent, to submit to an examination by competent physicians, at the instance and at the expense of the defendant in the action, to ascertain the nature, extent, and probable duration of the injury, so as to afford means of proving the same at the trial.” See also City of Cedartown v. Brooks, 3 Ga. App. 583 (3), 590, 597 (59 S. E. 836). This power “is one to be exercised or not according to the sound discretion of the presiding judge.” Macon & Birmingham Ry. Co. v. Ross, 133 Ga. 83 (65 S. E. 146). There is nothing in the record in this case to suggest that the trial judge abused his discretion in appointing a commission, or that the appointment of Dr. Barnett on the commission was improper, or that the testimony thereafter delivered by Mm was legally inadmissible for any reason.

The 14th ground of the motion for a new trial is as follows: “Because the court erred iu refusing to remove juror W. A. Sumter from the panel of twenty-four jurors put upon plaintiff, and thereby refusing to put another qualified juror upon the panel of twenty-four jurors; said juror being,.plaintiff contended, disqualified for the reason he could obtain a pass over the defendant, the Central of Georgia Eailway Company, by reason of his employment by the Georgia Southwestern & Gulf Eailway Company; he not being able to obtain a pass automatically by his request, but his request, as movant contends, would have to go through the proper officials of the Central of Georgia Eailway Company, the defendant, from the officials of the Georgia Southwestern & Gulf Eailroad. When the above facts were elicited at the trial the plaintiff urged the objection that said juror was disqualified, and moved the court to put said juror off the panel of twenty-four, and to put on said panel of twenty-four jurors another qualified juror. The objections to said juror Sumter were overruled, and the motion to remove him from the panel of twenty-four jurors and to put in his place another juror upon the list of twenty-four' jurors was overruled.” It further appears in the record, from an exhibit attached to the motion, that at the trial of the case the plaintiff exhausted his entire six strikes and struck the juror W. A. Sumter. To this ground of the motion for a new trial the trial judge attaches the 'following note: “When objections were made to juror W. A. Sumter, as above stated, he was put on the court as trior, and upon the evidence submitted, including satisfactory answers by the juror to the questions on his voir dire, the usual questions being propounded to the juror under oath, I held that he was not disqualified as a matter of law, and that under the evidence he was a competent, impartial, and qualified juror.”

When the panel of twenty-four jurors, including the juror W. A. Sumter, was put upon the plaintiff, the juror, upon examination, testified that he worked for the Georgia Southwestern & Gulf Eailway Company, and as an employee of that railway company could obtain a pass over the Central of Georgia Eailway Company, not on his own request, but by making proper application through the officials of the company employing him; that he was not employed by the Central of Georgia Eailway Company, and had no connection with the Central in any way, and could only obtain trip passes for transportation; that he did not believe he had received such a pass “for a long time,” and had no pass over the Central Railway Company at the time of the trial; that he had no annual pass over the Central, and had never applied for one. In response to notice the Central of Georgia Bailway Company produced several requests made during the years 1914 and 1915, alid one on January 18, 1916, by the president and general manager of the Georgia Southwestern & Gulf Eailway Company, for trip passes to be issued to Miss Eosalie Sumter, a dependent daughter of “IV. A. Sumter, agent, G. S. W. & G. E. B.” Several stubs showing the issuance of passes to Miss Sumter, referred to in the requests therefor as a person “not prohibited by law from receiving free transportation,” were likewise produced. So far- as can be determined from the requests therefor and from the stubs from which they were apparently detached, all of the passes shown by the evidence to have been issued to the dependent daughter of the juror Sumter were limited by their express terms to periods of 30 and 60 days, and all had therefore expired by limitation except one issued on October 20, 1915, good until December 22, 1915; and one issued January 20, 1916, which was, according to the request therefor, to cover a period of 60 days from its date. The record is silent as to whether the pass that was issued on November 22, 1915, to Miss Eosalie Sumter as the daughter of the agent of the “G. S. W. .& G. E. B.,” from Cuthbert to Atlanta and return, and which expired by its terms on December 22, 1915, was or was not used by her before the date when the jury was selected on November 16, 1915, for the trial of this case. To the contrary, the juror Sumter testified in his examination that he had no pass over the “Central Railway now,” and a fair interpretation of this testimony, in the absence of anything whatever to indicate the contrary, would be that neither the witness himself nor any dependent member of his family then had such an unused pass. The pass applied for on January 18, 1916, and issued January 20, 1916, was issued two months after the trial of the case, and therefore can not affect the consideration of question as to this juror’s disqualification to try the ease. It will be observed that the juror Sumter did not in fact sit on the jury that returned a verdict in favor of the defendant, the Central of Georgia Eailway Company; but, of course, both parties to the ease were entitled to have twenty-four qualified and unbiased jurors put upon them, from whom to select the actual twelve who should hear the evidence and return a verdict. It appears that the plaintiff exhausted all six of the strikes to which he was entitled under the law, one of the jurors stricken by him being the juror W. A¡ Sumter; and therefore, if Sumter was in fact disqualified to serve as a juror, the plaintiff presumably suffered a substantial injury, as the number of his arbitrary strikes was thereby reduced to five only.

When this case was here before (15 Ga. App. 115, 82 S. E. 777), a new trial was granted because one of the jurors trying the case was an employee of the Atlantic Compress Company, a corporation in which the defendant, the Central of Georgia Eailway Company, owned at the time of the trial 610 shares of.stock of the par value of $100, and it was agreed when the motion was heard that, though the juror Whitehead owned no stock in either the Atlantic Compress Company or the Central of Georgia Eailway Company, his position as an employee of the Atlantic, Compress Company was his sole occupation, and, under his contract of employment, the duration thereof was fixed by the pleasure of his employer, and that the juror was under the impression and in a general way believed that the Central of Georgia Eailway Company owned stock in the compress company, though he had no actual knowledge of the fact or of the amount so owned, and that he would testify that these facts did not in any way influence him as a juror in the trial of the ease. The disqualification held to be material existed at the time when the juror Whitehead actually served, for the Central of Georgia Eailway Company then owned the stock in the Atlantic Compress Company, and Whitehead was then an employee of the latter company, and subject at that time to a discharge, which might be brought about or induced by the Central of Georgia Eailway Company, as one of the large stockholders of the compress company. In the trial now under consideration there was no evidence showing that either the juror Sumter or any member of his family then was in possession of any unused pass or other evidence of favor from the Central of Georgia Eailway Company. Sumter neither owned stock in the Central of Georgia Eailway Company nor had any apparent interest in the result of the litigation between the plaintiff and that company. The court saw no reason to impute to him bias or prejudice, either from his demeanor -when examined on the voir dire, or on account of any circumstances in proof; and nothing appears to -indicate that this witness was in fact consciously biased or prejudiced in the case, or that any existing facts might subconsciously warp or affect his judgment. As there is nothing to show that at the time of the trial the witness Sumter was in possession of any pass or other evidence of favor or consideration from -the Central of Georgia Railway Company, it would be stretching the rule beyond reasonable or practical limits to hold that the grant of a trip pass to an employee of one railroad company by the officers of another road, not upon his request, hut by the request of the officials of-the company for which he worked, amounted to such a personal favor to the employee as would disqualify him as a juror in a case where the company issuing the pass was a party. Such passes are issued by permission of the law, and are received by an employee, whether over his own company or obtained for him from another road upon the request of his superior officers, generally as a matter of course as well as of right, and actually place the recipient under no obligation to the road granting the pass. Where the pass is granted on another road the applicant is not personally known in the matter, but the pass is issued upon the request of his superiors, who reciprocate in like eases when called upon by the other company in behalf of its employees. To say that an employee of one railroad company, who had several times ridden upon the road of another company on passes obtained from it by his own employer, would feel any appreciable degree of interest or bias towards the company from which his own company had obtained for him a trip pass would be exaggerating beyond all reasonable bounds the influence of the sentiment of gratitude. In fact, to arrive at such a conclusion, it would appear that gratitude was not the rarest, but the commonest of human virtues.

From the former opinion in this case (Temples v. Central of Georgia Railway Co., 15 Ga. App. 115, 82 S. E. 777), it appears that Whitehead, on account of whose disqualification as a juror a new trial was granted, actually served on the jury that returned the verdict complained of, while in the present ease the juror Sumter did not -aid in fashioning the verdict arrived at by the jury. Regardless of. what may be the rule in other jurisdictions, the question as to the disqualification of a juror in this State must be determined by the law of this State, as declared by the Supreme Court and this court. Without intending to recede from the doctrine asserted by this court when this case was formerly here for review, no reason for extending the rule there laid down is now presented, nor do we think that any extension is authorized by law. In -this view we are confirmed by the ruling of the Supreme Court in Campbell v. State, 144 Ga. 224 (87 S. E. 277), and, under the facts in this record, we hold that the trial judge did not err in finding the juror Sumter qualified to serve.

It may not be inapropos to say generally that there was a sharp conflict in the evidence as to whether or not the plaintiff in this case had in fact suffered injury as alleged by him, and some testimony from which the jury were authorized to infer that if the plaintiff had in fact suffered such injury, the injury resulted from accident purely, and not from negligence on the part of the defendant. Likewise, at the trial now under review a sharp attack was made upon the credibility of the plaintiff, and admissions were drawn from him that on previous trials he made various statements which he knew to be untrue, for the purpose of misleading, or, as he expressed it, “bluffing” counsel for the defendant. It is not for us to say what degree of credibility a jury should attach to the testimony of any witness or witnesses in a trial, or to question their acceptance of the testimony of the medical commission appointed by the court, to the general effect that the plaintiff was a malingerer, who was not in fact suffering from any physical injury, but that his state of health resulted from his unfortunate and long-continued use of drugs. The conclusion reached by the jury is apparently supported by a preponderance of the testimony, but whether this is true or not it -is not within the purview of this court to determine. The fact that after two previous verdicts in his favor, the jury hearing the explanations offered by the plaintiff as to his previous contradictory evidence, and hearing the testimony of the physicians who examined him under the order of the court, to the effect that he was not injured at all, and also hearing his own statements in regard to this physical examination, and observing his manner while on the stand, nevertheless found a verdict against him and in favor of a railroad corporation, in whose behalf but little partiality is generally shown by the mass of citizens from whom juries are drawn, indicates clearly that in the opinion of the jury the burden resting upon the plaintiff, to establish all the essential allegations showing injury to him and negligence on the part of the defendant, was not successfully carried; and there was no presumption against the defendant to aid the plaintiff in this case.

Judgment affirmed.

George and Luke, JJ., concur.


author: Luke, J.

text:
    7612.
    PEEPLES et al. v. BERRIEN COUNTY BANK.
    1. Tlie materiality of an alleged alteration of a promissory note is a question of law for the court.
    2. An alteration in a promissory note must be made with intent to defraud, before it will void the entire contract.
    3. Under no view of the evidence could the defendants’ plea be sustained, and the court did not err in directing a verdict for the plaintiff.
    Decided February 16, 1917.
    Complaint; from city court of Nashville—Judge Christian. May term, 1916.

      J. A. Alexander, J. A. Buie, for plaintiffs in error.
    W. B. Smith, contra.
   Luke, J.

1. Berrien County Bank instituted suit against T. M. Peeples, as principal, and N. T. Peeples and I. C. Avera as sureties, on a promissory note originally executed and delivered to Farmers State Bank of Nashville, and held by the plaintiff as purchaser for value before maturity. The note was for $1,856.50, and above the figures in the left-hand corner of the note appeared a notation as follows: “Discount $192.00.” The defendants admitted the execution of the note, but pleaded that it was infected with usury, for which a set-off was prayed by the maker; the sureties alleged that they had no knowledge of the usury charged, and pleaded that they were thereby discharged as sureties.- The defendants further pleaded that the plaintiff was not a holder of the note for value; that the note had been changed, in that a “discount of $192 was added;” and that this was a material alteration and a forgery. After the introduction of evidence by both sides the court directed a verdict in favor of the plaintiff; and to this the defendants except, upon the grounds that the evidence showed that the note had been altered, and that it was infected with usury, known to the plaintiff at the time of purchase.

Under no view of the evidence did the defendants sustain their plea of usury. Did the notation, “Discount $192.00,” amount to a material alteration of the note? “If a written contract be altered intentionally, and in a material part thereof, by a person claiming a benefit' under it, with intent to defraud the other party, such alteration voids the whole contract, at the option of the other party. If the alteration be unintentional, or by mistake, or in an immaterial manner, or not with intent to defraud, if the contract as originally executed can be discovered and is still capable of execution, it will be enforced by the court. If the alteration be made by a stranger, and not at the instance or by collusion of a party or privy, if the original words can still be restored, the contract will be enforced.” Civil Code of 1910, § 4296. The materiality of an alteration is a question of law for the court to pass upon. Civil Code of 1910, § 4297. This contract was not changed in its terms by the simple notation “Discount $192.00.” The evidence in no way sustaining the plea of the defendant as to the ownership of the note or the plea of usury, and the materially of the alleged alteration being a question of law for the court, and the court having correctly determined that the alteration alleged, if an alteration at all, was- not material, the direction of a verdict in favor of the plaintiff will not be disturbed.

Judgment affirmed.

Wade, G. J., and George, J., concur.