text:
    10604.
    Mincey v. Edwards.
    Decided November 19, 1919.
    Trover; from Barrow superior court—Judge Cobb. April 3, 1919.

      J. M. Merritt, T. J. Shackelford, for plaintiff in error.

      Richard B. Bussell Jr., contra.
   Jenkins, P. J.

Where property is levied upon under an execution and a claim is filed, and the claimant takes and subscribes the oath in forma pauperis provided for by section 5164 of the Civil Code (1910), but files the affidavit with the clerk and fails to file it with the levying officer as provided by law, and the property is sold under a “short order” regularly granted by the ordinary, the purchaser at the sale obtains a good title thereto. The ruling here made is squarely controlled by what was held by the Supreme Court in Wilson v. Garrick, 72 Ga. 660. The request by counsel that the Supreme Court be asked to review that case is denied. See, as bearing- somewhat upon the principle, Reynolds Banking Co. v. Southern Pacific Cuano Co., 140 Ga. 498 (79 S. E. 132); Reynolds Banking Co. v. Beeland, 23 Ga. App. 228 (97 S. E. 861).

Judgment affirmed.

Stephens and Smith, J.J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    10653.
    Southern Paramount Pictures Co. v. Gaulding
   Jenkins, P. J.

The plaintiff in this case (who was not a servant of the defendant but an employee of an express company) sued for damages on account of alleged personal injuries, alleging that upon the invitation of the defendant he entered within its premises and building for the purpose of trucking and removing, by means of its truck and elevator, certain of its goods from the building, to be delivered to the express company for shipment; that while in the act of driving the truck along a narrow hallway and into the defendant’s elevator, “one of said defendant company’s servants, unknown to the plaintiff, started said elevator up to tlie fourth floor,” causing the elevator to strike and catch the truck and crushing the plaintiff (who was at the rear of the truck) through the wall of the building, thus inflicting serious bodily injuries. The defendant demurred to the petition generally and specially, contending especially that it was insufficient because it did not state that the servant thus moving the elevator was then and there acting within the scope of his authority. The demurrers were overruled, and the defendant excepted. Held:

Decided November 19, 1919.

Action for damages; from city court of Atlanta—Judge Eeid. May 17, 1919.

King & Spalding, John A. Sibley, for plaintiff in error.

Arminius Wright, contra.

1. “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420.

2. In such a case, in order for the doctrine of respondeat superior to have application, it must appear that the alleged negligent act of the defendant’s servant occurred while he was acting as such servant and within the scope of his employment. 4 Words and Phrases (2d Series), 358; 29 Cye. 477; Manning v. Sherman, 110 Me. 332 (86 Atl. 245, 46 L. R. A. (N. S.) 126, Ann. Cas. 1914D, 89).

3. In this ease the allegation in the petition, that “one of said defendant company’s servants, unknown to the plaintiff, started said elevator up to the fourth floor,” must, when construed in the light of the entire petition, be taken to mean that such servant was the defendant’s servant in thus operating the elevator which plaintiff had been invited to use, and that consequently the act was within the scope of his authority; it being, for example, further charged that the defendant “was negligent in that it caused or allowed said elevator” to be thus moved by its servant.

Judgment affirmed.

Stephens, J., eoneurs. Smith, J., disqualified.


author: Smith, J.

text:
    10657.
    Rimes & Stubbs v. National Bank of Savannah.
   Smith, J.

'Where a person by accident or mistake sends certain checks or money for deposit to a bank with which he has never opened an account as a depositor, and there is no agreement between him and the bank creating the relation of depositor and banker, and he draws cheeks thereon which the bank fails to pay, he cannot maintain a suit for damages against the bank. In order to create such relationship the minds of the parties must meet; and without this there is no obligation on the part of the bank to honor checks signed by the person making such deposits. Even though the bank actually received the money, it would not be liable for damages for failing to honor such checks, but would be liable only as a bailee, for the money so deposited. The court therefore did not err in granting a nonsuit.

Decided November 19, 1919.

Action for damages; from city court of Savannah—Judge Rourke. March 20, 1919.

J. P. Dulces, Columbus E. Alexander, for plaintiffs.

Edward 8. Elliott, for defendant.

Judgment affirmed.

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


author: Jeniuxs, P. J.

text:
    10658.
    Clemons v. Estes.
    Decided November 19, 1919.
    Complaint; from Walker superior court—Judge Wright. May 3, 1919.
    The first numbered paragraph of the plaintiff’s petition is as follows:
   Jeniuxs, P. J.

1. In order for any contract for the sale of lands to be binding, it must be in writing, signed by the party to be charged therewith, or by some person by him lawfully authorized, unless there has been such a part performance of the contract as would render a refusal by one of the parties to comply therewith a fraud. Civil Code (1910), §§ 3222, 3223. Whenever such a parol contract has thus become partly performed to the extent that it would be a fraud on the part of the seller to repudiate the agreement, the purchaser is not prevented by the statute from recovering damages for its breach (McLeod v. Henry, 126 Ga. 167, 54 S. E. 949); but where, as in this case, the allegations of the petition go merely to show that the plaintiff paid $10 on the purchase-price of land bought under a parol contract, and that he proceeded to bargain the land to another at a named profit, which he seeks to recover, the averments are not sufficient to show such part performance of the parol contract as would prevent it from falling within the statute of frauds, and would not authorize the maintenance «Of such claim for damages. Wimberly v. Bryan, 55 Ga. 198; Hill v. Jones, 7 Ga. App. 394 (3) (66 S. E. 1099). This ruling is not to bo taken to mean that such a purchaser would be precluded from maintaining his action to recover the portion of the purchase-price actually paid.

2. In this case the petition, when fairly construed against the pleader, sufficiently indicates within itself that the only written contract relied upon as existing between the plaintiff and the defendant for the purchase and sale of the land consists of the written receipt embodied in the petition; and since this receipt, when sought to be treated as a contract of sale, is void for uncertainty, the trial judge did not err in sustaining the general demurrer to the petition. Corbin v. Durden, 126 Ga. 429 (55 S. E. 30). In such a case the ruling made in Bluthenthal v. Moore, 106 Ga. 424 (32 S. E. 344), is not applicable.

Judgment affirmed.

Stephens and Smith, JJ., concur.

“On December 28, 1917, said Clarence Estes agreed to sell to petitioner the following described real estate, to wit: All that tract or parcel of land lying and being, in the seventh district and fourth section of Walker county, Georgia, and the north half of lot of land No. 20 in said district and section, containing 80 acres more or less, and more particularly described as follows: commencing at the public road and running thence south to E. E. Delay’s land, thence east to lands of John Arnold, thence north to Hugh Coffman’s land, and thence with the public road to the beginning point. i

“And at said time, to wit, December 28, 1917, petitioner paid to said Clarence Estes the sum of $10.00, as shown by the receipt, a copy of which is as follows:

“ 'Dee. 28, 1917. Deceived of Luther Clemons, $10.00, on payment of place, other to be paid Saturday, Dec. 29, 1917.

Clarence Estes.’

“At and for the sum of $1050.00, which said purchase-money, according to the statement in, the receipt, was to be paid on Saturday, December 29, and the trade completed.”

Shattuck & Shattuck, for plaintiff.

B. M. W. Glenn, for defendant.


text:
    10671.
    CALVITT v. MAYOR & ALDERMEN OF SAVANNAH.
    1. A driver operating a jitney-bus under a license granted by the City of Savannah, in accordance with the terms of an ordinance regulating the operation of all such vehicles, is not a public officer in contemplation of law, and in a suit against such a driver by a person claiming to have been injured by his negligence in the operation of a jitney-bus, the surety on the bond of the jitney driver was not a proper party to the proceeding, and the court did not err in dismissing the case as to the surety.
    2. Where suit was brought against such a surety after judgment had been obtained against his principal, the jludgment against the principal was not conclusive as to the liability of the surety, but was only prima facie evidence thereof; and the surety could set up any legal defense showing want of liability on the part of his principal.
    Decided November 19, 1919.
    ■ Action on bond; from city court of Savannah—Judge Freeman. June 7, 1919.

      Robert L. Golding, for plaintiff in error.

      F. P. Mclntire, Morris II. Bernstein, contra.
   Smith, J.

F. W. Donnelly, as principal, and W. P. Oalvitt, as surety, gave a bond commonly called a jitnejr-bus bond, to the mayor and aldermen of the city of Savannah, conditioned that “in the event of any person or property being injured or damaged by the operation of any such vehicle for which the owner may be liable under the laws of Georgia, the person so injured in his person or property shall have a right of action under this bond,” etc. This bond was given in accordance with a city ordinance requiring all jitney drivers to make such a bond. Mrs. Mary J. Cullum was injured by a jitney-bus which was operated by Donnelly, and she brought suit against him as principal and Calvitt as surety on his bond. The surety demurred to the suit, upon the ground that there was a misjoinder of causes of action, ■ because the suit was one sounding both in tort and' contract. The court sustained the demurrer and dismissed the case as to the surety. The case then proceeded to trial against the principal, and neither he nor his counsel were in court when the case was called, and a verdict and judgment was obtained against him for $1,000. The mayor and aldermen of the city of Savannah, for the use of Mrs. Mary J. Cullum, then brought the present suit, seeking to hold Calvitt responsible as surety on the bond. The plaintiff introduced in evidence the record in the case of Mrs. Cullum against Donnelly, together with the verdict and judgment in that case. The plaintiff also introduced in evidence the bond, and then rested. The defendant offered evidence to show that Donnelly was not to blame for the injury to Mrs. Cullum, contending that if this were true the plaintiff was not entitled to recover against him as surety. The court held-that the judgment against Donnelly was conclusive as against Calvitt, the surety, both as to the question of injuries sustained and the amount of the damages, and ruled out all the evidence of the defendant. This ruling is complained of as error and raises the only question for adjudication in the ease.

The court erred in ruling out the testimony offered by the defendant. A casual reading of the bond shows that the surety thereon never obligated himself to pay any judgment that might be obtained against the principal named therein, its language being: “This bond is conditioned to the effect that in the event of any person or property being injured or damaged by the operation of any such vehicle, from which the owner may become liable under the laws of Georgia, the person so injured in his person or property shall have a right of action under this bond.” The action in the present case is not one to enforce the obligations of the bond as against both the principal and the surety, but is against the surety alone, seeking to hold him liable for the verdict obtained against the principal on a previous trial. The petition in the case under consideration set forth facts showing that the plaintiff was injured, the manner of her injury, and all attending circumstances. While the record in the former suit is conclusive as to the principal, it is only prima facie evidence of the surety’s liability, since the surety was not a party to the former proceeding, his name having been properly stricken on demurrer. This being true, the surety, who is the defendant in the present suit, had the right to show by competent proof that the principal was not responsible for the injuries sustained by the plaintiff. The principle here laid down was definitely decided in the case of Walker v. Taylor, 21 Ga. App. 39 (93 S. E. 498), where it was said: ‘“A judgment against an administrator, in an action on an alleged debt of his intestate, when the defendant has failed to plead a want of assets, is conclusive as to the question of a sufficiency of assets to pay the debt. As to a surety upon the administrator’s bond, however, the judgment is not conclusive upon such question, but is prima facie evidence only; and when sued upon the bond the surety may plead and prove a deficiency of assets in the hands of his principal liable to the payment of the debt.” See also Gibson v. Robinson, 90 Ga. 756 (16 S. E. 969, 35 Am. St. R. 250); Whiddon v. Williams, 98 Ga. 310 (24 S. E. 437). Clearly, therefore, a person who is not a party to a proceeding is not judicially concluded by a verdict and judgment rendered therein.

There is a manifest difference in holding a surety liable on an attachment bond, a dispossessory warrant bond, or troverbond, or other numerous statutory bonds, because in all such proceedings the bond is conditioned to pay the judgment in a given action. This is not so in a jitney-bus bond like the one under consideration.

The surety was therefore entitled to submit proof to rebut the prima facie case made against him.

Judgment reversed.

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


text:
    10678.
    Tomberlin et al. v. Barber.
    Decided November 19, 1919.
    Certiorari; from Irwin superior court—Judge Eve. April 7, 1919.

      Quincey & Rice, for plaintiffs in error.

      Philip Newbern, J. M. Lee, contra.
   Smith, J.

1. Where one complains of the obstruction of an alleged prescriptive private way across the lands of another, he must show an uninterrupted use of the way for more than seven years, that it was not more than fifteen feet wide, that it is the same fifteen feet originally laid out, and that he has kept it open and in repair. Nashville, Chattanooga & St. Louis Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Hays v. Hays, 23 Ga. App. 689 (99 S. E. 230).

2. As disclosed by the ordinary’s answer to the writ of certiorari, the evidence was conflicting as to all the essential things enumerated above; and it is well settled that unless the judgment rendered in the lower court is absolutely demanded by the evidence, the first grant of a new trial on certiorari, in the absence of any controlling question of law, will not be disturbed. Fair v. Metropolitan Life Ins. Co., 2 Ga. App. 376 (58 S. E. 492); Freeman v. Maxwell, 10 Ga. App. 316 (73 S. E. 349); Cochran v. Minter, 10 Ga. App. 377 (73 S. E. 551); Rowland v. Bell, 12 Ga. App. 137 (76 S. E. 995).

Judgment affirmed.

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


text:
    10684.
    Georgia Grocery Company v. Brunson.
   Jenkins, P. J.

While it is true that a married woman who personally applies to a tradesman for the purchase of groceries, stating that she wishes to open an account in her own name, and directs the plaintiff to charge the goods to her, will be personally liable therefor, where in pursuance of such express understanding the goods are delivered and charged to her (Bell v. Rossignol, 143 Ga. 150, 84 S. E. 542, L. R. A. 1915D, 1184, Ann. Cas. 19170, 576; Goodson v. Powell, 9 Ga. App. 497, 71 S. E. 765; Smith v. Brown, 16 Ga. App. 608, 85 S. E. 950), still the husband is bound to support and maintain the wife, and where necessaries are furnished to the wife in the absence of any such express agreement, the presumption is that she contracted for them in the right of her general agency for her husband, and that he, and not she, is liable. Civil Code (1910), § 2996; Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371, 378 (71 S. E. 691); Oliver v. Webb, 12 Ga. App. 216 (76 S. E. 1081). This is true even though the creditor may have himself intended to credit the wife and not the husband, unless it be that such intention was expressly declared or communicated to the wife. Rushing v. Clancy, 92 Ga. 769 (19 S. E. 711). There being a contested issue of fact for the jury in this case, as to whether or not the credit was expressly given to the wife, the judgment of the superior court sustaining the certiorari and granting a first new trial will not be disturbed. Mitchell v. Treanor, 11 Ga. 324 (4) (56 Am. D. 421); Weathersby v. Jordan, 124 Ga. 68 (52 S. E. 83); Loftin v. Great Southern Home Ben. Asso., 9 Ga. App. 121 (70 S. E. 353).

Decided November 19, 1919.

Certiorari; from Laurens superior court—Judge Kent. May 1, 1919.

M. H. Blctchshear, for plaintiff in error.

Larsen & Crockett, contra.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10592.
    Dean v. Merchants and Farmers Bank.
    Decided November 19, 1919.
    Complaint; from Franklin superior court—Judge W. L. Hodges. March 27, 1919.

      Ferino: Barrett, W. B. Little, for plaintiff in error.

      Linton Johnson, Worley <& Adams, James B. Thomas, contra.
   Smith, J.

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

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

Judgment affirmed.

Jenldns, P. J., and, Stephens,.J., concur.


text:
    10692.
    McAdoo, director-general, v. Martin.
   Jenkins, P. J.

The plaintiff in the court below sued the director-general of railroads for $50 damages, alleging the killing of a valuable bird dog belonging to the plaintiff, by reason of the negligent operation of a locomotive belonging to the Atlantic Coast Line Railroad Company while under the control of the director-general. The defendant did not contend that the defendant would not be liable for the negligent killing of the dog. Seaboard Air-Line Ry. v. McDonald, 19 Ga. App. 627 (91 S. E. 1053). A judgment was rendered in favor of the plaintiff. Held:

Decided November 19, 1919.

Action for damages; from city court of Hinesville—Judge W. C. Hodges. May 19, 1919.

Application for certiorari was denied by tbe Supreme Court.

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

1 The evidence authorized the verdict.

2. The act of Congress approved March 21, 1918, c. 25, § 10 (40 Staf.. part 1, pp. 451, 456 [U. S. Comp. St. 1918, § 3115%j]), provides: “That carriers while under Federal control shall be subject to^all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with any order -of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government.” The contention of the plaintiff in error that the provisions of section 2780 of the Civil Code (1910) are inapplicable, because the suit is brought against the director-general of railroads, is therefore without merit.

3. Even if the portion of the charge excepted to could be treated as erroneous when taken and considered in connection with what was said immediately following it, still the defendant would not be entitled to complain, since the error of the charge affected adversely the rights of the plaintiff only, and was necessarily harmless so far as the rights of the defendant were concerned.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10695.
    McDermid v. Rentz.
   Smith, J.

1. Where a bank brought suit on a promissory note given for capital stock in the bank, and at the trial term an amendment was allowed, making a named person, termed a liquidating agent, an additional party plaintiff, the amendment alleging that two persons had been named by the stockholders as liquidating agents for the purpose of winding up the affairs of the bank (the bank having no assets to pay its debts in full), the amendment did not set up a new cause of action or make a new party plaintiff, but in legal effect the amendment was merely an attempt to make the person termed liquidating agent an additional nominal party plaintiff, suing for the use of the bank, its depositors and outside creditors.

2. Motions for continuance are addressed to the broad discretion of the court, and there was no abuse of this discretion in overruling the defendant’s motion to continue because of the filing of the amendment referred to above.

3. Neither in the answer nor in the evidence is any question of fraud properly raised; and there being no evidence to sustain a plea of fraud, the judge did not err in directing a verdict for the plaintiff.

Decided November 19, 1919.

Complaint; from Cook superior court—Judge Thomas. May 23, 1919.

B. A. Hendricks, for plaintiff in error.

IT. B. Smith, W. D. Buie, contra.

Judgment affirmed.

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


author: Smith, J. Jenkins, P. J.,

text:
    10698.
    PACIFIC MUTUAL LIFE INSURANCE CO. v. MELDRIM.
    The allegations of the plaintiff’s petition as amended, as to the cause of the death of the insured, stated a cause of action, under the terms of the accident policy sued on, and the trial judge did not err in overruling the general demurrer.
    Decided November 19, 1919.
    Action on insurance policy; from Chatham superior court—■ Judge Meldrim. May 13, 1919.

      Saussy & Saussy, for plaintiff in error,
    cited: 19 Ga. App. 127; 151 N. W. 479; 146 Fed. 396, s. e. 149 Fed. 198; 69 So. 64; 1 Corpus Juris, 426; 198 S. W. 1163; Cornelius on Accidental Means, 8; 34 Conn. 574; 8 Bissell, 362 (Fed. Cas. No. 8682); 75 Fed. 244; 78 Fed. 285; 158 Fed. 1 (aff’g 143 Fed. 651); 190 Fed. 258; 213 Fed. 595; 193 Ala. 90 (69 So. 64); 156 Pac. 1029; 96 Ga. 818; 166 Ill. App. 38; 42 Ind. App. 483 (85 N. E. 1032); 106 Iowa, 281 (76 N. W. 683); 107 Iowa, 538 (78 N. W. 252); 118 Iowa, 436 (92 N. W. 53); 153 Iowa, 118 (133 N. W. 752); 152 N. W. 617; 219 Mass. 147 (106 N. E. 607); 85 Miss. 31 (37 So. 461); 83 N. Y. Sup. 238, aff’d, 180 N. Y. 514; 87 N. Y. Sup. 640; 91 Ohio, 155 (110 N. E. 475); 133 Tenn. 672 (182 S. W. 252); 29 Scot. Law Epr. 303; 1 King’s Bench (1905), 387; 100 Ga. 46.
    Osborne, Lawrence & Abrahams, contra,
    cited: 1 Corpus Juris, 425; Vance, Ins., art. 570; 116 Ga. 121.
   Smith, J.

This was a suit upon a .policy of insurance which covered “bodily injury sustained during the term of this policy through accidental means . . resulting directly, independently, and exclusively of all other causes in death.” The material allegations of the petition are as follows: “Deceased was^ttacked with appendicitis December 9th, 1916. He was operated upon, upon the same day. Deceased recovered from the disease of appendicitis and the operation therefor at 6:30 p. m. December 18th;” that “on the 30th day of December, 1916, plaintiff [the deceased] having a wound in his side caused by an operation for appendicitis from which lie had fully recovered, an embolus from some accidental cause became attached to the wound, and said embolus, from accidental means, independently and exclusively of all other causes, was separated from said wound and was projected through the veins of the body of deceased to his heart and killed him almost immediately. An embolus is an infinitesimal particle of foreign matter. It may come from an infinitestimally small blood clot which hardens and accidentally escapes or resists antiseptics. Plaintiff [deceased] charges that an embolus lodged upon the surface of the wound, floating through the air lodged upon the wound. 'This embolus escaped or resisted the antiseptics. While lying in bed propped up on pillows deceased slipped off the pillows, and the head of deceased dropped suddenly off the pillows, and the jar of the body of the insured, incident to this fall, separated the embolus from its lodgment on the surface of the wound, and was taken up by the blood projected through the veins to the heart, and caused the death of the insured. Insured was a strong muscular man. He was strong and in normal condition. The lodgment or formation of an embolus in a wound is a rare and unusual occurrence, is the result of a chance and not to be expected. When an embolus becomes detached from a wound it is a most rare and unusual occurrence for it to be taken up by the blood and projected through the veins to the heart. Such an occurrence is so rare as not to be reasonably anticipated.” It was further alleged that “the disease of appendicitis, from which the insured was suffering, did not contribute to the death of the insured, and had no connection t therewith, other than that the wound in his body for the purpose of amputating the appendix had not healed up, and it was upon the surface of the wound that the embolus lodged and formed, and from which it was projected into the heart.” The defendant filed a demurrer to the petition as amended, which was overruled, and it excepted. The determination of the case depends upon whether or not the facts quoted from the plaintiff’s petition make out a case of accident within the meaning of the accident policy sued upon, sufficient to withstand a general demurrer.

Able counsel fox tbe insurance company contend that the insured’s death was not, under the allegation of the petition, brought about through “accidental means,” and that even if the insured did suffer an accident his death did not result “directly, independently and exclusively of all other causes of death,” but that his death was caused by the disease of appendicitis with which he was afflicted, and the means taken for his relief,—the operation. To us the fact that the petition shows that the wound caused by the operation upon the insured had not completely healed, which may or may not have contributed to the death of the insured, would not necessarily render the petition subject to general demurrer, and this is true although it is stipulated in the contract of insurance that the insurer would only be liable when death was caused by accidental means resulting directly, independently and exclusively of all other causes. The fact that the insured had suffered an attack of appendicitis, been operated upon, and the wound had not healed, and that his death might or might not have resulted therefrom independently and exclusively of the alleged accident, is immaterial, the true question in the case being whether or not he would have died at the time that he did die if it had not been for the accident alleged to have occurred; and in view of the allegations contained in the petition, this is a question for determination by a jury. In other words, we think the circumstances alleged in the petition were sufficient to withstand a general demurrer, and the trial judge did not err in so holding. The question of proximate cause is purely a jury question. Of course had the petition showed conclusively that the facts alleged to be an accident were insufficient to bring them within the meaning of that term, it would have been subject to general demurrer, since the policy sued upon was an accident policy. In this connection it will be recalled that the petition alleged that the insured, “while lying in bed propped up on pillows, . . slipped off the pillows, and the head of deceased dropped suddenly off the pillows, and the jar of the body of the insured, incident to this fall, separated the embolus, from its lodgment on the surface of the wound, and was taken up by the blood projected through the veins to the heart.” This allegation precludes us from saying as a matter of law that an accident was not alleged. “The terms ‘accident’ and ‘accidental/ as used in insurance policies covering accidental death, or injuries by accident or accidental means, are presumed to be employed in their ordinary and popular sense as meaning happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected; an event which takes place without the foresight or expectation of the person acted upon or affected by the event. . . An event happening without any human agency, an event whcli, under the circumstances, is unusual and not expected to the person to whom it happens.” 1 Corpus Juris, 425. See also Atlanta Acc. Asso. v. Alexander, 104 Ga. 709 (30 S. E. 939, 42 L. R. A. 188), in which it was held that where a blacksmith, a hale and hearty man, in striking a slanting blow with a sledge-hammer, suddenly felt a severe pain in the lower part of his abdomen which proved to be a rupture,'producing hernia, his death was caused by accidental means. See also in this connection the case of Fetter v. Fidelity Ins. Co., 174 Mo. 256 (61 L. R. A. 459, 73 S. W. 592, 97 Am. St. R. 560). The Supreme Court and this court have, we think, decided the principle controlling the case under consideration, since both courts have announced the doctrine not only that the disease from which the insured suffered must have been a substantial contributing cause to the injury, but that liability is not defeated merely because the existence of the-disease aggravated or rendered more serious the consequences of tire accident. See Thornton v. Travelers Ins. Co., 116 Ga. 121 (42 S. E. 287, 94 Am. St. R. 99), and Hall v. General Accident Assurance Corp., 16 Ga. App. 66, 74 (85 S. E. 600). In the Thornton case, supra, Mr. Justice Cobb, speaking for the Supreme Court, says: “To illustrate: If a policy-holder should have a serious and 'long continued illness, such as a fever of some nature, and while recovering therefrom, and in a condition unable to resist successfully any serious shock, should receive a blow upon the head from falling plastering, from which death ultimately, though not immediately, resulted, the proximate cause of the death would be, not the fever, but the blow from the plastering, although death might not have resulted but for the debilitated condition of the injured person resulting from the fever. In such a case the immediate cause of the death was the blow on the head, though the consequences might be the result of the disease from which he suffered. In order to defeat a recovery under such a clause it must be shown that the disease was the substantial cause of the injury, and the mere fact that the disease may aggravate the consequences of the injury and make them more serious than they .would have been otherwise does not bring the case within the exception stated in the policy.” While this is of course obiter dictum, we are satisfied it states a correct principle of law. In the Hall ease, supra, which was based upon the ruling made in the Thornton case, supra, this court held: “Where an old man, large and heavy, and suffering from an incurable chronic affection of the kidneys, slipped and fell in a heap while endeavoring to step down from a sidewalk into the street, with the apparent intention of crossing the street diagonally, and death resulted in a few days thereafter, . . the insurer is not necessarily relieved from liability upon its contract because the death may only have been accelerated by the fall; nor is the insurer relieved even if the chronic malady from which the insured suffered may have contributed to cause his death; for if the fall was the sole proximate cause of the death, it would be immaterial that the physical condition of the insured aggravated his injury or hastened his - death.”

In conclusion the insurer contends that even if the insured’s death was caused by accidental means, it did not result “directly, independently and exclusively of all other causes in death.” It is a settled rule that policies of insurance are to be construed most liberally in favor of the insured and most strongly against the insurer. Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256 (2) 277 (30 S. E. 918, 42 L. R. A. 261). If the contention of the insurer in this particular is correct, or if the contract in this case is given an absolute literal meaning,, the clause “resulted directly, independently and exclusively of all other causes,” would mean nothing to the insured, with the result that the writing was no contract at all, for, as was said by Russell, C. J., in the Hall case, supra, “To hold in any case that a contract which stipulates that the loss for death should be payable only when the loss results solely and exclusively from an injury, would be to hold that death must, in every case, be instantaneous and the immediate effect of the injury in question, for it is a matter of common knowledge that almost every human being has some weak spot in his organisms which might to a larger or smaller degree contribute to bring about death in a particular way in that particular case, although another person under the same circumstances might not have died. Except in case of a human being who is in perfect health, or unless the death is instantaneous, death never supervenes when it cannot be said that there was perhaps more than one cause which contributed to the fatality. If a company which writes accident insurance insures one who is suffering from a number of maladies against loss of life solely and exclusively due to the accident, and an accident happens which perhaps would not have caused the death of a normally healthy person and yet which, by precipitating the baneful effects of the maladies, shortens the life of the person in question by any appreciable length of time, no matter how short, the injury, as the underlying essential proximate cause, must at last be said to have produced the result which otherwise would not have happened at the time and place at which it occurred.” See also Driskell v. U. S. Health & Accident Ins. Co., 117 Mo. App. 362 (93 S. W. 880).

As suggested above, we are constrained to hold that the petition set out a cause of action, and the trial judge did not err in overruling the demurrer.

Judgment affirmed.

Stephens, J., concurs. Jenkins, Tr. J., dissents.

Jenkins, P. J.,

dissenting. The writer has been unable to satisfy himself that the conclusion reached by the majority of the court on the difficult question presented by this case is the correct one. If, under the statements contained in the petition, the proximate cause of the death can properly be taken to be the involuntary slipping by the insured from his pillow while lying in bed, then the mere fact that the dangerous open wound caused by the previous operation for appendicitis might have accelerated or even contributed to the fatal efect of such an accident would not preclude a recovery. In the Hall case, cited in the opinion, this court held that where the death of the insured had resulted from a fall upon a street pavement, the mere fact that the decedent was already afflicted with an incurable malady which would necessarily and within a short time have terminated his life would not furnish a valid reason whv the insuring company would not be liable for his death, when actually brought about by such accidental cause, even though the antecedent disease might not only have accelerated but even contributed to the death. The Supreme Court decided the Thornton case, also cited in the opinion, on this same theory. The doctrine thus recognized both by the Supreme Court and by this court would seem to be that under the terms of such an accident-insurance policy, the mere fact that the effect of an accidental injury may have been aggravated or contributed to by the existence of an antecedent disease does not preclude a recovery when it appears that such effect, however else it may have been influenced, was nevertheless actually brought about by an accident as its sole and proximate cause. In other words, the course of an event may be affected by superinducing agencies so as to alter the final actual result, without displacing as the real and moving cause the act or thing which put the incident into operation. The policy in the instant case insured the decedent against bodily injury sustained from accidental means, and such accidental means must constitute, in the sense already indicated, the direct, independent, and exclusive cause of death. Thus, if the dropping of the head of the decedent from his pillow could be properly accounted an independent accident within the meaning of the policy, and the effect of the antecedent disease and of the operation for its cure could be taken as merely aggravating the effect of such independent accidental injury, there would seem to be no reason why a recovery could not be had under the policy. But could this be true in a case where the accident is not independent of the disease, but where the alleged incident, in order to be treated as an accident at all, must be taken and considered in connection with the disease as furnishing the sole, direct, and moving cause from which it must have originated? Just as it would not do to say that an accident ceases to be the.sole and exclusive cause of death within the meaning of the policy simply because the course of events set in operation by the accident may be subsequently influenced, and the final result contributed to, by superinducing agencies, just so it certainly would not do to say that because the happening of the accident might itself have been influenced or contributed to by an antecedent disease, then and for that reason the accident can not be accounted as independent within the meaning of the policy. However, it is a different thing for the disease to aggravate, or affect an independent injury caused by an accident, and it is also a different thing for the happening of an independent accident to be influenced or contributed to by an antecedent disease, from a case where the alleged incident amounts to nothing at all except in so far as it results from and relates to the disease. Under tbe pleadings in the ease at bar it would seem that, after all, the wound necessarily caused the death, for the reason that the wound furnished the sole and direct basis of the accident, since without the wound the mere slipping of the decedent from his pillow, even though involuntary, could not by any stretch of the imagination be accounted an accident at all within the meaning of the policy. If the policy had been written to insure in case of death from appendicitis, or an operation incident thereto, it surely could not possibly be said that the incident alleged as the accident in this case would amount to such an independent, intervening cause as would prevent a recovery in such a case as that; .and if this be true, it necessarily follows that' the incident set forth is only such an occurrence as would ordinarily be likely to happen in the natural course of events. To the writer it thus appears from all of the allegations of the petition that the real and proximate cause of the insured’s death must necessarily have been the danger'ous open wound left by the operation for appendicitis, • and that death resulted from such wound in the natural course of events without the intervention of any independent accident within the meaning of the policy; this being true for the reason that the disease could not be accounted as merely contributory to the effect of the accident, there being nothing whatever for it to contribute to—there being no accident, except as it was directly and solely dependent upon the disease to make it so.


text:
    10737.
    Foundation Company v. Gobay.
   Smith, J.

Substantially the allegations of the petition under review show: that on November 4, 19IS, the petitioner, who was a steel and iron worker, was in the employ of the defendant company, at its shipyards near the city of Savannah; that he was employed as an erecting foreman, having charge of a gang of men engaged in putting up steel and iron framing for the pilot house of a vessel known as “Hull 2,” which was.afloat and in course of construction, that while he was standing on its deck, examining a set of blue prints, the vessel, being afloat, suddenly began to sway and rock violently from side to side, causing a piece of timber, measuring 10 by 12 inches, 14 feet long, which had been negligently left on the deck by the defendant, to roll down the deck to where he was standing and to crush and bruise his left foot; that the piece of timber was not placed on the deck for the purpose of being used in any work on the vessel, and that the swaying and rocking of Hull $ 2 was caused by Hull # 1, which was also in the course of construction by the same defendant, afloat and lying immediately alongside the Hull 2, the propeller of which was being tested, thus agitating the waters and causing the aforementioned swaying and rocking. It was further alleged that the petitioner did not know of the presence of the timber which rolled upon and injured his foot, and that he did not have equal opportunity with the defendant of knowing thereof, and that he was not at fault in any way and did not cause or contribute to his injury. Held:

Decided November 19, 1919.

Action for damages; from city court of Savannah—Judge Freeman. June 6, 1919.

O’Byrne, Hartridge & Wright, for plaintiff in error.

Seabroolc & Kennedy, contra.

1. Since the allegations of the petition disclose that the injury received by the plaintiff, who was a foreman in charge of a gang of workmen, in the defendant’s service resulted’ from the operation of a natural law, the effect of which the plaintiff could estimate as well as the master, and that he had equal means with the master of knowing the obvious danger incident to the performance of his duties in the place in which the injury occurred, he assumed the risk, and the trial judge erred overruling the general demurrer interposed by the defendant. See Williams v. Atlantia Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158), and eit.

2. “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. The general rule of law requiring the master to furnish a safe place to work is usually applied to a permanent place, or one which is quasi-permanent. The obligation of a master to provide reasonably safe places for his servants to work does not oblige him to keep the place where they are employed in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow-servants.” Falla v. Pine Mountain Granite Co., 22 Ga. App. 651 (3) (97 S. E. 114).

8. Where several employees in the same service are engaged in labor for the furtherance^ of the general purpose of the business in which they contract to serve, and are. subject to the general control and direction of a common master, though employed in different departments of duty and so far removed from each other as that one cannot in any degree control or influence the conduct of the other, they are nevertheless fellow-servants within the meaning of the rule stated in the Civil Code, § 3129. Brush Electric Light Co. v. Wells, 110 Ga. 192 (35 S. E. 365); Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289 (62 S. E. 193, 127 Am. St. R. 228); Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100); Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 (82 S. E. 586); Dawn v. Great Eastern Lumber Co., 15 Ga. App. 108 (82 S. E. 666); Falla v. Pine Mountain Granite Co., supra.

Judgment reversed.

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


text:
    10756.
    Vaughn, administrator, v. Castleberry.
    Decided November 19, 1919.
    Distraint; from city court of Americas—Judge Harper. Jane 28, 1919.

      Shipp & Sheppard, for plaintiff in error.

      T. 0. Marshall, contra.
   Smith, J.

1. “All contemporaneous writings are admissible to explain each other; and parol evidence is admissible to explain all ambiguities,, botli latent and patent.” Civil Code (1910), § 5789.

2. The contract in the instant case was ambiguous as to whether the lease oí the building was included in the consideration of $1,500, for which the note and mortgage were given to the plaintiff, and the court did not err in admitting parol evidence to explain this ambiguity.

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

Judgment affirmed.

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


text:
    10783.
    Gibson & DeJournette v. Graham.
    Decided November 19, 1919.
    Complaint; from city coart of Floyd coanty—Judge Nunnally. Jane 5, 1919.

      Wright Willingham, L. H. Covington, for plaintiff.

      Denny & Wright, fox defendant.
   Smith, J.

Gibson & DeJournette sued S. L. Graham upon his written assumption of a debt duo by King & Graham, a corporation; the writing relied upon as the basis of the suit being as follows: “Rome, Ga., June 20, 1918. Messrs. Gibson & DeJournette, Rome, Ga. Gentlemen: In reference to the bill of King & Graham, following my conversation with your Mr. DeJournette, beg to advise I will be personally responsible for same and see it is paid by July 15th. Very truly, [Signed] S. L. Graham.” At the conclusion of the evidence introduced in behalf of the plaintiff the court directed a verdict in favor of the defendant. Held:

1. “A writing relied on to satisfy that provision of the statute of frauds which requires a promise to pay the debt of another to be in writing must either itself or in connection with other writings identify the debt which is the subject of the promise, without the aid of parol evidence.” Pearce v. Stone Tobacco Co., 125 Ga. 444 (54 S. E. 103). See also Fields v. Bullington, 20 Ga. App. 102 (3) (92 S. E. 653).

2. The writing relied upon in the instant case, as a promise by the defendant to pay the debt of the corporation, failing altogether to identify the indebtedness sued upon, and there being no other writing introduced in evidence to supply this defect, the court did not err in directing a verdict for the defendant.

Judgment affirmed.

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


text:
    10358.
    BELL, administrator, v. STATE LIFE INSURANCE COMPANY OF INDIANAPOLIS.
    1. In an action to recover under a policy of accident insurance, it is incumbent upon the plaintiff to prove the accidental character of the injury as laid in his petition. Travelers Insurance Co. v. Newsome, 147 Ga. 608 (95 S. E. 4).
    2. Under the evidence in this ease the jury would have been authorized to find that the preponderance of the testimony established the plaintiff’s contention that the fatal infection originated at the place upon the ear where the accidental abrasion had occurred. If, therefore, the direction of the verdict in favor of the defendant had been based upon the contrary theory, that it must have originated in the throat, as contended for by the defendant, such action would not have been justified.
    3. Where the evidence shows either that an infection occurred at the time an accidental wound was received, or that it followed as a natural and ordinary consequence, the death ensuing from such injury and infection can properly be accounted as accidental within the meaning of the terms of the policy herein quoted.
    4. If, however, one who has knowingly sustained an accidental abrasion upon the exposed surface of his body nevertheless thereafter continues to bring himself in contact with and to treat a patient affected with a virulent type of contagious disease such as is capable of being transmitted through immediate proximity with such exposed wound or abrasion, and as a result of such voluntary risk he thus becomes infected with and contracts’ the disease, and it results in his death, the proximate cause thereof can not properly be said to be the original “bodily injury sustained and effected directly through external, violent and accidental means, exclusively and independently of all other causes.” Southern RailwaysJjO. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. E. A. 109).
    5. All pleadings mush receive a construction in accordance with the natural intendment of the words and language used, and, as a general rule, must be construed most strongly against the pleader (Athens Mfg. Co. v. Ruclcer, 80 Ga. 291 (4 S. E. 885) ; but if a petition be subject to two constructions, and there be no demurrer thereto, and the ease has proceeded to trial and resulted in a verdict, then, in determining whether the case has been proved as laid, that construction will be adopted which is most favorable to the assertion of a cause of action in the plaintiff’s favor. Payton v. Gulf Lime Ry. Co., 4 Ga. App. 762 (62 S. E. 469).

      (a) Construing the petition in this case in accordance with the natural meaning of the language used, its allegations to the effect that the deceased, “while attending” an erysipelas patient, accidentally scratched his ear in adjusting his glasses, and the scratch “became” infected with the germ of the disease, would seem necessarily to mean that the wound or scratch occurred while the decedent was attending his patient, and that by reason of such exposure to the patient it then and there became infected. Giving the petition what seems to be the only reasonable and 32 proper construction, the evidence adduced upon the trial entirely fails to sustain the ease as laid, since from the plaintiff’s own evidence it is shown that the abrasion upon the ear occurred at the office of the assured in the city of Atlanta, whereas the erysipelas patient was a resident oí another and neighboring city. If the infection occurred as a consequence of the voluntary act of the assured in thereafter subjecting the wound or abrasion to such a serious and dangerous exposure, then, under the ruling made in the preceding paragraph, the defendant would not be liable.
    ¡(6) But even were it possible to give to the petition the construction contended for in the brief of plaintiff’s attorneys,—that is, that the assured contracted the disease from his infected glasses in the very act and at the same time the accidental abrasion upon the ear occurred,—there is absolutely no evidence of any character from which it could possibly be said that the plaintiff has carried the burden thus imposed upon him, since it is disclosed by his own evidence that the infection might have easily originated at the point of the abrasion in another and different way, namely, by the subsequent voluntary exposure of the wound to the disease germs, and there being no evidence of any character which could possibly tend to show to the satisfaction of the j)ury which of these two reasonable theories, both presented by the plaintiff’s evidence, was in fact the more probable. Georgia By. <£• Ml. Go. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Carroll v. Atlanta Paper Co., 7 Ga. App. 584 (67 S. E. 680).
    Decided November 26, 1919.
    Rehearing denied December 10, 1919.
    (Certiorari granted by tbe Supreme Court.)
    Action on insurance policy; from Fulton superior court—Judge Pendleton, January 14, 1919.
    This was a suit on a policy of life-insurance for the recovery of the disputed double indemnity provided for under one of its clauses and which was to be paid in all cases where it should be shown that the death of the assured resulted from “bodily injury sustained and effected directly through external, violent, and accidental means, exclusively and independently of all other causes.” The petition (which was not demurred to) alleged that “the insured was a physician by profession, and on or about May 3, 1916, he began to attend professionally the infant child of one T. M. Kobinson of East Point, Georgia, said child suffering from the disease known as erysipelas. Insured wore glasses, and while attending his said patient the insured, in adjusting his glasses, accidentally caused a scratch or abrasion of the skin on or near his right ear, which scratch or abrasion of the skin became infected with the germs of the disease of erysipelas, same developing in the insured on or about May 20th. As a result the insured died, as above stated, on June If, 1916.”

      The undisputed evidence submitted by the plaintiff at the trial was to the effect that the abrasion caused by the glasses occurred on May 14, 1916, at the office of the deceased in the Candler building in the city of Atlanta; that he commented upon the occurrence at the time, and that he thereafter continued to treat and come in immediate contact with the patient affected with erysipelas, who was living out from College Park about two miles, on the Fairburn car-line, until the 23d day of May. The evidence itself as adduced from the plaintiff’s witnesses, and the deductions which might be drawn therefrom, were conflicting as to whether the erysipelas from which the assured died originated from within the throat, or at* the point of abrasion on the ear. T. M. Robinson, plaintiff’s witness, swore that on Sunday before the death of his child, which occurred on Wednesday, May 24, Dr. Bell, the deceased, called at his house and was complaining of sore throat; that at that time he did not notice any sign of erysipelas upon Dr. Bell’s ear, and that Dr. Bell at that time complained only of a sore throat, and that is what he said he had,—a sore throat. On the other hand another witness for the plaintiff, Miss Pearl Nash, testified that on Friday, May 19, she attended a moving-picture show with Dr. Bell, the assured, and that on this occasion she noticed the red and irritable condition of his ear, whereupon they stopped by a drug store and applied to it a healing salve.
    Dr. Cosby Swanson, sworn for plaintiff, testified as follows: “I am a physician and practice at 929 Candler building, here in Atlanta. I knew Dr. Bell in his lifetime. I was called to see him about three or four days after he contracted the disease from which he died. My specialty is that of skin diseases. When I was called in to attend Dr. Bell I found that he had a red inflamed patch on the right side of his face and his right ear, extending down a little bit on the neck, and back of his ear. I examined the inflammation as a whole, but I didn’t go into minute details. I saw him three or four days after he contracted it, and there was a large area inflamed when I saw him, which was on the right ear and right side of his face. As to locating the center of ify one part was as much inflamed as the other, when I looked at him. Erysipelas is a contagious, infectious disease, and usually comes from somebody else that has the disease, or sometimes from some patient that they have been handling with that disease. It is characterized by swelling, redness, and some pain, and with a sharp line or demarcation, with an elevation of temperature, and the best authorities, I might state, state that it is most apt to be from an abrasion of the skin or mucous membrane before contracting the disease, through the abrasion may be very slight, and the cause is streptococcus, which is one of the pus-forming organisms. The ultimate cause of death is septicemia, which is a general infection of all the tissues in the body, the common every-day name for which is blood poison, death being caused by absorption of the toxins that the germs generate which break away from the main seat of the inflammation and spread to other parts of the body and become a general infection. Anybody that has á -break of the skin or mucous membrane is susceptible should they come in contact with the germ. The conditions under which erysipelas is most usually carried from one person to another is by direct contact. If a man has poor health they are more susceptible than a man with high resistance. Any break or anything that lowers the vitality makes them more susceptible. After an operation a man’s vitality is lowered, and if he comes in contact with an infection the organism is more likely to grow and develop. The idiopathic form of erysipelas is an old term that we used when we didn’t know anything of what caused it. We would just put it down idiopathic. It was merely a term used where we-didn’t know. Erysipelas is manifested in different degrees, some being more superficial than others, but alf of them involve the skin; they are deeper or superficial, but always involve the skin. I attended Mr. Bell up to the time of his death and went in the same room where he was sick, but never caught the disease. Most physicians, in attending contagious or infectious' diseases like that, use the ordinary precautions; we never touch the patient if we can help it, and a great many of them use rubber gloves and wash their hands in antiseptic before or shortly after leaving the room.
    "Supposing that a physician is in attendance upon a patient with erysipelas, and his custom is to wear glasses in the form of spectacles with guards that go over his ears, and supposing that in attendance upon that patient he has occasion tO*toueh the patient from time to- time and then uses his hands to take off and put on his glasses over his ears, and that m that act he makes an abrasion, of the skin on his ear and subsequently contracts erysip-

      elas, my opinion would be that he contracted the disease from the person that had it. If he broke the skin at the time, of course, that would make him more liable to contract the disease. If he had a break of the skin and touched a patient with erysipelas and then touched his ear, he would be liable to contract it. As I said a while ago, it is thought that a person cannot contract the disease unless they have a break in the skin. There is perhaps some difference between doctors in their theories. It is held by some authorities that a wound is not necessary (among them Dr. Osier, one of the recognized authorities), but by the majority that it is. All this difference between doctors is more from clinical experience, but a great deal of it is theory. One doctor might have a theory that you contract it by scratching your ear, and that is his theory, and another might have a theory that you blow your nose and rupture something and contract it, and that would be another theory, and another theory might be that you might cough and draw something into the throat and break the skin and contract it in the throat or mucous membrane. It is contracted that way sometimes. Yes, erysipelas more frequently develops through the mucous membrane. Dr. T. H. Smith was called in consultation with us. I think he treated his (Dr. Bell’s) throat during his illness. Yes, it is possible that he may have contracted it through his throat. Dr. Smith is Dr. T. H. Smith, a doctor here in Atlanta, a throat specialist. The last time I heard from him he was in France with the boys. When I saw Dr. Bell his erysipelas was well pronounced over the major portion of the right side of his face and behind his ear, and his throat was involved. . . There is a tube that connects the throat and the ear, known as the eustachian tube. Were it not for the thin membrane of the ear-drum you could stick a tube back into his throat and blow the air out through the ear; there is a surface that has to be punctured. Were it not for the thin membrane constituting the ear-drum, which you can puncture, you could take a knitting needle and stick it from the ear clear into the throat. If a person is infected in the throat by erysipelas it would be possible for it to come out of that tube and manifest itself on the side of the face. It is just as possible and just as easy for the infection .to go from the outside through that tube into the throat as the other way round.”
    The plaintiff’s witness, T, M. Robinson, the father of the patient treated by Dr. Bell, testified that in attending the patient Dr. Bell used the serum treatment, giving hypodermic injections, and in this way came in close contact with and handled the erysipelas patient.
    At the trial the only evidence submitted by the defendant consisted of the following questions and answers from the plaintiffs proof of death: “Question 7. State all facts regarding cause and circumstances of death. Answer. Erysipelas contracted from patient,” together with the following portion of the statement made by the attending physician and furnished by the plaintiff as a part of the proof of death: “Q. When did he show the first symptoms of his final illness? A. May 30th, 1916. Q. What is the date of your first visit? A. May 34th, 1916. Q. Your last visit? A. June 17th, 1916. Q. What cause, in your opinion, operated to produce the disease or diseases of which he died? A. Followed an infection contracted while attending a patient.”
    A verdict for defendant was directed by the trial judge, and exception was taken.

      Smith, Hammond & Smith, for plaintiff.

      W. Carroll Latimer, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) A few words might properly be said in elaboration of subdivision (&) of the fifth paragraph of the syllabus, it being borne in mind, however, that the construction which is there assumed to be the meaning of the pleadings is not that which we have in fact held to be the only proper and necessary one. In point of fact, there is no direct or specific evidence tending to show that the fatal infection might have been contracted from germs collected upon the glasses and which entered the wound or scratch upon the ear at the time the abrasion occurred, but construing the evidence along this line most favorably for the plaintiff, and conceding that such might reasonably be within its purport, it is also true that from the plaintiff’s own evidence it is plainly shown that had the scratch occurred free from all concurrent contamination, the assured, in subsequently handling and bringing himself within immediate contact with the erysipelas patient with such an exposed abrasion might readily and easily have contracted the disease in this way. If the disease was contracted by reason of such subsequent volun■fcary exposure, there would be no liability under the policy. Thus, since the plaintiff has shown by his own evidence that there were two reasonable and likely theories as to how the disease might have been contracted from the scratch upon the ear, assuming now that it in fact originated at the point of abrasion, and since there is no testimony whatever of any character which tends in any way to throw light upon the question as to which of these two theories thus presented was in fact the more probable, it is our opinion that the plaintiff has failed to carry the burden devolving upon him. Had the evidence been disputed as to the existence of the latter of the two reasonable theories, or had there been any conflict in the evidence as to which of these two reasonable theories was in fact the more probable, it could not have devolved upon the judge to determine such an issue; but since the plaintiff himself has presented both theories, and since there is no evidence, and therefore no conflict, as to which of the two theories thus presented is the more probable, it was not error to direct a verdict on the theory that the burden resting upon the plaintiff had not been met.

Judgment ajjffo'med.

Stephens and Smith, JJ., concur.


text:
    10373.
    Thornton v. Story.
   Jenkins, P. J.

1. The assignment of error upon the exceptions pendente lite, taken to the overruling of the defendant’s demurrer, not having been argued by counsel, will be treated as abandoned.

2. In order to recover in an action for malicious prosecution, it must appear that the criminal prosecution has terminated in favor of the plaintiff, and the burden is on him to show that it was maliciously carried on, and that it was without probable cause. Civil Code (1910), §§ 4439, 4446; Wilcox v. McKenzie, 75 Ga. 73; Joiner v. Ocean Steamship Co., 86 Ga. 238 (12 S. E. 361); Seamans v. Hodge, 105 Ga. 159 (31 S. E. 156); Grist v. White, 14 Ga. App. 147, 151 (80 S. E. 519); Turner v. Davison-Paxon-Stokes Co., 22 Ga. App. 403 (95 S. E. 1001); McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190).

3. “Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” Civil Code (1910), § 4440. The mere fact that the prosecution was abandoned, or that the person charged with a criminal offense has, upon trial therefor, been acquitted, is not sufficient to prove, malice or want of probable .cause. Joiner v. Ocean Steamship Co., supra; Stuckey v. Savannah Railway Co., 102 Ga. 782, 784 (29 S. E. 920).

Decided November 26, 1919.

Action for malicious prosecution; from city court of Elberton— Judge Tutt. February 11, 1919.

Z. B. Rogers, for plaintiff in error.

J. T. Sisk, contra.

4. While the want of probable cause will not be inferred from the fact that malice on the part of the prosecutor is shown to have existed, yet the proof of a total lack of probable cause may be sufficient to authorize a rebuttable inference establishing the existence of malice. Civil Code (1910), §4444; Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459); Stewart v. Mulligan, 11 Ga. App. 660 (3), 661 (75 S. E. 991).

6. The fact that the prosecution was instituted on the advice of counsel is a circumstance which may be considered by the jury in passing upon the questions of malice and want of probable cause (Stewart v. Mulligan, supra); and while it is a good defense that the prosecution was instituted in good faith upon the advice of the solicitor-general that the facts as stated constitute an indictable offense, when such advice is based upon a true statement of all the facts known to the prosecutor, even though on the trial under the indictment i.t appears that the facts as stated do not constitute a crime and that the accused was not' in fact guilty of any offense (Hicks v. Brantley, supra), yet the advice of the State’s attorney is no defense, unless it is given after a full, fair, and complete statement by the prosecutor of all the facts known to him relating to the alleged offense. Baker v. Langley, 3 Ga. App. 751 (3) (60 S. E. 371).

6. Applying the foregoing principles of law to the facts of this ease,, it was for the jury to determine from the evidence whether the defendant instituted the prosecution in good faith, or maliciously and without probable cause. No error of law is complained of. It can not be said that the verdict in favor of the plaintiff is- without any evidence to support it; it has the approval of the trial judge, and this court does not feel authorized to set it aside.

Judgment affio-med.

Stephens and Smith, JJ., concur.


text:
    10377.
    Dunn v. Freeman.
   Jenkins, P. J.

1. The original petition showed a plaintiff and a defendant, and set out sufficient allegations to indicate and specify some particular fact or transaction as a cause of action. It was defective, if at all, only in that it omitted to sufficiently allege facts essential to raise the duty or obligation involved in the cause of action which the plaintiff evidently originally intended to declare upon, and was therefore amendable by -supplying the omitted facts. The trial court erred, therefore, in holding that there was not enough in the original petition to amend by, and in refusing to allow the proffered amendment. Civil Code (1910), §§ '5681, 5682; Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809); Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S. E. 30).

Decided November 26, 1919.

2. While it is true that in order for a contract of purchase to become . effective when entered into by correspondence through the mails, the offer to sell must be accepted by the buyer unequivocally, unconditionally, and without variance of any sort, and while it is true that if the acceptance by the' buyer contains a change or modification of the offer as made by the seller, or a counter proposition, the latter is privileged to- repudiate the proposed contract in its entirety, still, if the seller elects to assent to and acquiesce in the change, modification, or counter-proposition as thus made, the contract as so altered becomes binding in its entirety upon each of the parties thereto, for in that way their minds have "met and assented to the same thing in the same sense. Civil Code (1910), § 4231; Phinizy v. Bush, 129 Ga. 479, 490 (59 S. E. 259); Gray v. Lynn, 139 Ga. 294 (77 S. E. 156); Dillin-Morris Co. v. Gillespie, 15 Ga. App. 210 (82 S. E. 812); Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (2) (93 S. E. 1018); Matthews v. American Textile Co., 23 Ga. App. 675 (99 S. E. 308); Saluda Wholesale & Warehouse Co. v. Rooney, 24 Ga. App. 11 (99 S. E. 542); 9 Cyc. 269 (3).

3. When it'-is possible to do so without contravening any rule of law, the courts will construe a contract as binding on both the parties, where, from the language of the contract, the conduct of the parties, and all the attendant circumstances^ it appears that the intention of the * parties was that both should be'bound by the sale, and substantial justice requires that the contract be given effect. Good Roads Machinery Co. v. Neal, supra, and cit.

4. The special demurrer attacking paragraph 5 of the petition which alleges, “Petitioner shows that it was understood between himself and the defendant that the hay contracted for was to be shipped to plaintiff at Atlanta, Ga,.” upon the ground that it is an attempt to vary the terms of the contract alleged in the petition, is without merit, since the correspondence between the parties, set out in the petition as amended, shows that such a shipment of the hay was contemplated by them.

5. The special ground of the demurrer, that the allegations of the 6th . paragraph of the petition “are not germain to the plaintiff’s action and ,are irrelevant,” is likewise without merit, _ since it is therein alleged, among other things, that the plaintiff had demanded of the defendant that he comply with his contract, and that the defendant had failed and refused to do so, and these allegations were germain and material to the plaintiff’s cause. If it was intended by this special ground-'of*demurrer to attack any particular allegations of this paragraph, the demurrer is too vague and indefinite to be considered by the reviewing court, since the office of a special demurrer is to point out clearly and specifically the alleged imperfection in the pleading attacked by it. It “must lay its finger, as it were, upon the very point.” Alford v. Davis, 21 Ga. App. 820 (95 S. E. 313).

6. The petition as amended set out a cause of action, and the trial court erred’ fin sustaining the demurrer thereto.

Judgment reversed.

Stephens and Smith, JJ., concur.

Action on contract; from city court of Blakely—Judge Sheffield. January 20, 1919.

W. P. Dunn sued Joseph Freeman for breach of a contract, alleging substantially that on or about December 24, 1917, the defendant agreed to sell to him, and he agreed to buy from the defendant, five car-loads of hay, a minimum of ten tons to the car, at the price of $15 per ton loaded on the cars at Blakely, Ga.; that the agreement was arrived at by correspondence, plaintiff receiving a letter from the defendant as follows: “Blakely, Ga., Nov. 21, 1917. W. P. Dunn, Atlanta, Ga. I am sending you sample of hay that I can put on cars at Blakely, Ga., for $18.00 per ton. Can let you have about five cars. [Signed] Joseph Freeman;” to which letter the plaintiff replied as follows: “Atlanta, Ga., Dee. 13th, 1917. Mr. J. Freeman, Blakely, Ga. Quote peavine hay, and let me know what is the best you will now do on the five cars of hay that you have like sample bale that you shipped me. [Signed] W. P. Dunn.” To the last quoted letter the defendant replied as follows: “Blakely, Ga., Dec. 22nd, 1917. Mr. W. P. Dunn, Atlanta, Ga. Yours to hand' and noted. Will take $15.00 per ton for the hay of the sample bale sent you. [Signed] Joseph Freeman.” To this letter the plaintiff replied as follows: “Atlanta, Ga., Dee. 24, 1917. Mr. Joseph Freeman, Blakely, Ga. Replying to your favor of the 22nd inst., I note what you have to say about the hay and the price on same. You can book the five car-loads, subject to approval of first car, and you can ship out to me right away one ear.”

The petition alleges in paragraph 5 that it was understood that the hay was to be shipped to the plaintiff at Atlanta, Ga. It is alleged in paragraph 6 that the plaintiff insisted upon the defendant’s delivering to him the hay as agreed upon, which the defendant put off from time to time on one excuse or another, until finally, on or about January 17, 1918, he positively refused to deliver any part of the hay, the refusal being contained in a letter addressed to the plaintiff, as follows: “I’m needing the money out of this hay, and the price has advanced to about $20.00 per ton, and I would be glad you let me out. [Signed] Joseph Freeman;” that after receipt of this letter the plaintiff again demanded of the defendant that he deliver the hay, or pay the. iHffp.rp.-noe in the contract and the market price> which demand the defendant refused. It is further alleged that on January 16, 1918, and for some time thereafter, hay of the quality bought of the defendant by the plaintiff was worth upon the market, both in Atlanta and Blakely, $20 p^er ton; that under the terms of the agreement the plaintiff was to receive a minimum of 50 tons of hay at the price of $15 per ton, and that the difference in the contract price and the market price at the time of the breach of the agreement by the defendant amounts to $250, for which sum the plaintiff prays judgment as damages.

The defendant demurred upon the following grounds: '(1) No cause of action is set forth. (2) The petition shows that the contract attempted to be set up therein is incomplete and not binding on the defendant. (3) Paragraph 5 of the petition is an attempt to vary the terms of the contract by adding a stipulation not expressed therein and provable only by parol evidence, and should be stricken. (4) The allegations of paragraph 6 are not germain to the action and are irrelevant, and should be stricken.

Before any ruling had been -made upon the demurrer the plaintiff offered the following amendment to his petition: “Now comes the plaintiff in the above-stated case and, by leave of the court first obtained, amends his petition by adding thereto after paragraph No. 3 of said petition, the following paragraph: ‘3-1/2. That on December 20th, 1917, the plaintiff wrote the defendant the following letter: ‘With further reference to the five cars of hay you have like sample shipped me, please advise if you can load this hay on any other road besides the Central of Georgia By. In other words, is there any way to get this hay into Atlanta over any other road outside of the Central of Georgia By.?’ The defendant, having already received plaintiff’s letter of Dec. 24th, which is quoted in paragraph 3 of this petition, wrote to plaintiff on Dee. 27th, 1917, in reply to plaintiff’s letter of Dec. 20th, as follows: ‘Yours to hand and noted. My only shipping point will be Blakely on the Central,, unless* you can arrange by boat via Columbus, Ga. I am right on the Chattahoochee Biver. Shall I ship this car from Blakely at once? Will await your instructions.’ To which letter of the defendant the plaintiff replied on Dec. 29th, 1917, as follows:- ‘Mr. Jos. Freeman, Blakely, Ga. Your letter pf the 27th inst. to hand, I note what you say about routing of the hay. All right, ship from Blakely over the Central of Georgia Bailway so it will arrive in Atlanta over the Central of Ga. By/ And also on Jan. 7th, 1918, the plaintiff wrote defendant as follows: T wrote you a few days ago to just ship over the Central of Ga. By. to me the five car-loads of hay that you had booked for me/ To which the defendant replied, on bottom of plaintiff’s said letter of Jan. 7th, as follows: ‘The trouble has been to secure a car; however, the agent has promised me a car to load out Friday or Saturday, and I’ll try and ship Saturday/ ”

The defendant objected to the allowance of this amendment, upon the ground that there was nothing in the original petition to amend by. The court sustained this objection and refused to allow the amendment, and sustained the demurrer to the petition, on all the grounds thereof, and to these rulings the plaintiff excepted.

A. E. Gray, for plaintiff. L. M. Rambo, for defendant.


text:
    10415.
    Carroll v. Carman.
    Decided November 26, 1919.
    Distraint; from DeKalb superior court—Judge Smith. February 7, 1919.

      Alonzo Field, Carl T. Eudgms, for plaintiff in error.

      L. B. Norton, G. M. Lancaster, rW. S. Dillon, contra.
   Jenkins, P. J.

1. The excerpts from the charge of the court, that “patent defects are not covered by a general express warranty, unless intended to be covered,” and that “the burden of keeping the premises in.repair is generally on the landlord; but if in any case the tenant could recoup as against the rent damages flowing from patent defects existing at the time of the renting and as to the existence of which both parties had equal opportunities of informing themselves, he can not do so where it appears the landlord was not notified to repair or notified of the defect,” are not subject to the criticism that they were “not authorized by the pleadings or by the evidence.” These were correct statements of principles of law. Civil Code (1910), §4140; Henley v. Brockman, 124 Ga. 1059 (5) 1061 (53 S. E. 672); Weyman v. Maynard, 24 Ga. App. 94 (2) (100 S. E. 25), and cases cited. Some ol the alleged defects, if they existed at all, must necessarily, under the evidence and from their very nature, have been patent.

2. The evidence, though conflicting, was sufficient to authorize the verdict, which has the approval of the trial judge, and no reason appears why the verdict should be set aside.

Judgment affirmed.

Stephens, J., concurs. Smith, J., 'disqualified.


text:
    10474.
    Stewart Brothers v. Cook.
   Jenkins, P. J.

Mrs. Willie C. Cook leased certain lands to Stewart Brothers for the years 1913, 1914, and 1915, at a stated yearly rental. During the year 1916 Mrs. V. C. Conyers, as agent for Mrs. Cook, took out a distress warrant, claiming for Mrs. Cook a certain sum as balance of rent due under the lease contract for the year 1915. Stewart Brothers filed a counter-affidavit alleging that the relation of landlord and tenant did not exist between Mrs. Cook and themselves. They also undertook to plead a set-off growing out of their services rendered Mrs. Cook in connection with the sale of said land to one Coggins, which set-off they contended they had the right to interpose by reason of the fact that Mrs. Cook was a non-resident of this State. On the trial of the distress warrant proceedings Stewart Brothers offered in evidence a recorded deed of conveyance dated December 81, 1918, under which Mrs. Cook had conveyed the rented premises to the said Mrs. Conyers. They also offered in evidence a bond for title from Mrs. Conyers to Coggins dated October 16, 1916. Both of these instruments, upon objection made by Mrs. Cook, were excluded from evidence, as was all evidence relating to any sale of said land, together with all evidence offered to prove the fact of the non-residence of Mrs. Cook. Upon the conclusion of the testimony the trial judge directed a verdict in favor of the plaintiff in the amount distrained for. Stewart Brothers except to the exclusion of the said evidence, and to the action of the court in directing a verdict against them. Held:

1. “The tenant can not dispute the landlord’s title, nor attorn to another claimant while in possession” (Civil Code of 1910, § 3696); but where the landlord parts with his title pending the lease, the tenant thereupon, and by operation of law, in the absence of any reservation to the contrary, becomes the tenant of the purchaser (Grizzle v. Gaddis, 75 Ga. 350, 354); and in such a case the right to recover rent which had not accrued at the time of the sale is therefore ordinarily not with the original landlord, but rests in the vendee. Powell’s Actions for Land, § 369. In such a case, where the former landlord attempts to distrain for subsequently accruing rent, the tenant is not estopped from denying the relationship of landlord and tenant by showing that during the term of the tenancy the landlord conveyed to another his title to the rented premises, as this does not involve a dispute as to the title held by the landlord at the time the contract for rent was made, but, on the contrary, necessarily involves an admission that the landlord then had title. Garrison v. Parker, 117 Ga. 537, 540 (43 S. E. 849); Beall v. Davenport, 48 Ga. 165, 168 (15 Am. R. 656); Raines v. Hindman, 136 Ga. 450, 452 (71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann. Cas. 1912C, 347); Ferguson v. Hardy, 59 Ga. 758. See also note to Glidden v. Investment Co., L. R. A. 1915C, 228 (2-a); Speicher v. Lacy, 35 L. R. A. (N. S.) 1066, and note (28 Okla. 541, 115 Pac. 271); 16 R. C. L. 915, § 422. But where, as in this case, the distress warrant is instituted by the vendee as agent for the original landlord, not only would such vendee be estopped from claiming the rent on her own behalf, but such action on her part is sufficient to conclusively show that under the terms of the sale the original relation of landlord and tenant had not been disturbed, and that the rent remained due and owing as originally provided.

Decided November 26, 1919.

Distraint; from Eockdale superior court—Judge Smith. February 7, 1919.

A. G. & J, II, McCalla, for plaintiffs in error. J. li. Irwin, contra.

2. The rejection of the evidence offered for the purpose of showing the fact of non-residence of Mrs. Cook could not have been harmful to defendants, since not only did the defendant entirely fail to supply any valid testimony showing the contract for the services by reason of which the set-off is claimed, but at the time the alleged sale to Coggins was effected, the defendants themselves contend that title to the land had long since passed out of the plaintiff.

Judgment affirmed.

Stephens, J., concurs. Smith, J., disqualified,.


text:
    10492, 10503.
    Covin v. Cairo Banking Company; and vice versa.

   Jenkins, P. J.

1. Under the evidence in this case, this court is unable to say that the court below abused its discretion in the first grant of a new trial, even though it appears that a different judge than the one who tried the case was then acting. See in this connection Van Giesen v. Queen Insurance Co., 132 Ga. 515 (64 S. E. 456); Ga. So. & Fla. Ry. Co. v. Bryan, 15 Ga. App. 253 (82 S. E. 913). The judgment complained of in the main bill of exceptions is therefore affirmed.

2. The cross-bill of exceptions assigns error upon exceptions pendente lite taken to the order of the trial court refusing to sustain and overruling the plea of res adjudicata interposed by the defendant. The assignment of error contained in the exceptions pendente lite is as follows: “The issue as to the plea of res adjudicata was submitted to the presiding judge for determination without the intervention of a jury; and said plea of res adjudicata was not sustained by the court and was overruled, the court holding that the former suit was not between the same parties and was not the same cause of action as that appearing in the suit at bar, to which ruling and judgment of the court defendant then and there excepted, now excepts, and assigns the same as error.” The Judgment thus excepted to is in the following language:- “The foregoing plea of res adjudicata is not sustained, and is therefore overruled, as not being same parties and same subject-matter.” EelcL: The language used in the judgment and in the exceptions pendente lite assigning error thereon must, when taken together, be construed as meaning that the court, acting as both court and jury, passed upon the issue raised by the plea of res adjudicata after a hearing had thereon, and not merely upon its legal sufficiency as against a motion to dismiss. On such a hearing there must necessarily have been introduced in evidence the entire record of the former action, since to simply attach copies thereof to the plea was not sufficient. Findley v. Johnson, 84 Ga. 69 (10 S. E. 594). Thus, while the plea of res adjudicata, together with the alleged copies of the former proceedings attached thereto, is specified in the cross-bill of exceptions, and is set forth in this record, yet the record of the former suit, in which it is claimed that the questions here raised were determined, is not set forth in the bill of exceptions or in a brief of the evidence, nor in any way properly authenticated; and therefore the objection made to the consideration of the cross-bill must be sustained. Hodges v. Talbert, 135 Ga. 253 (3), 259 (69 S. E. 103). See also Cutts v. Scandrett, 108 Ga. 620, 623 (34 S. E. 186); Hall County v. Gilmer, 123 Ga. 173 (51 S. E. 307).

Decided November 26, 1919.

Complaint; from city court of Cairo—Judge Harrell presiding. March 27, 1919. y

P. O. Andrews, 8. P. Gain, for Covin.

M. L. Ledford, Bell & Weathers, contra.

Judgment affirmed on the main bill of exceptions; eross-bill dismissed.

Stephens and Smith, JJ., concur.


text:
    10498.
    Brown v. Bank of Covington.
    Decided November 26, 1919.
    Complaint; from Newton superior court—Judge Smith. March 28, 1919.

      King & Johnson, for plaintiff in error.

      Rogers & Knox, contra.
   Jenkins, P. J.

The fact that the cashier who acted for a bank in making a loan to the defendant was the same individual who sold an automobile to defendant, and as such seller received the proceeds of the bank’s loan, could not operate to render the bank liable to the purchaser of the ear for a breach of the seller’s warranties by reason of the fact that the bank’s cashier thus had knowledge of the terms of the warranty. This ruling is not in conflict with the principle announced in Singleton v. Bank of Monticello, 113 Ga. 527 (38 S. E. 947), since it is not here shown that the bank itself in any way furthered or participated in the sale. Even the statement imputed to the cashier and seller, that the bank would guarantee the terms of the warranty as made by the seller, would not render the bank liable thereon, since any such undertaking on the part of the bank would be ultra vires, illegal, and void. Bank of Omega v. Wingo &c. Shoe Co., 19 Ga. App. 177 (91 S. E. 251). The judge did not err in directing a verdict in favor of the plaintiff.

Judgment affirmed.

Stephens, J., concurs. Smith, J., disqualified.


text:
    10593.
    Brown v. Brown.
   Jenkins, P. J.

The transfer of this ease to this court by the Suprema Court is equivalent to a holding by the Supreme Court that it is one at law, not in equity. Marion Pilcher Brown, on her own behalf and as the natural guardian for her minor daughter, Laurie Brown, brought suit against the husband, L. K. Brown, asking that a certain decree for alimony for the support of herself and the said minor child, rendered by the chancery court of Hamilton county, Tennessee, be made the judgment of the superior court of Chatham county. The'petition alleged, that the defendant had failed and refused to contribute to the support of either the wife or the child, and asked, as the other of its two prayers, that the court by its decree would award and require the payment of proper sums by way of permanent alimony for the support of the wife and child. The defendant demurred to the petition, upon various grounds, one of which was that the petition failed' to show jurisdiction in the chancery court of Tennessee to grant the decree here sued on. The defendant filed also a plea denying jurisdiction in the foreign court as to that proeeding, and setting up that when that suit was brought in the State of Tennessee, the defendant was a resident of Georgia, and that he had never been served in that proceeding. On the hearing of the demurrer the petitioners in open court expressly abandoned the prayer by which it had been sought to set up in the Georgia court the foreign decree for alimony, and it was also expressly stated that the prayer for permanent alimony as embraced in the original suit was likewise abandoned. This action on the part of the petitioners is recited in the order overruling the demurrers. The allegations setting out the grant of the foreign decree for divorce and alimony were not, however, stricken from the petition. After each of the original prayers had thus been expressly abandoned, the petition was amended, over the defendant’s objection, by attaching and praying judgment on an itemized bill of particulars for necessaries alleged to have been furnished by the defendant’s wife for the support of the minor child, and the suit thereafter proceded in her name and solely for the recovery of the specific sums thus alleged to have been expended. A verdict for the items of expense thus sued for was rendered against the defendant, and he excepted. Held:

1. If it be true, as contended by the defendant in error, that the petition set forth sufficient facts to authorize the court to uphold the validity of the foreign decree for divorce and alimony (see 23 Cyc. 1566, 1567, 1568), then the prayer asking the Georgia court to award permanent alimony was properly and necessarily abandoned, since after a wife obtains a decree of total divorce the marital relation no longer exists, and she can not thereafter maintain an action for alimony. Joyner v. Joyner, 131 Ga. 217 (3), 218 (62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. R. 220).

2, Nor could she, where the petition shows that the former decree for alimony made provision for the support of the minor child, maintain an original action at law to recover necessary expenditures made by her, after such decree, for the support of the child. Hall v. Hall, 141 Ga. 361 (2-a) (80 S. E. 992); Civil Code (1910), § 2981. Bor this reason the amendment setting np such a claim was not permissible.

Decided November 26, 1919.

Action on foreign judgment; from Chatham superior court—1 Judge Meldrim. July 1, 1918.

Robert L. Golding, for plaintiff in error.

Robert J. Travis, David 8. Atkinson, contra.

3. Moreover, under the general law governing pleading, the original proceeding which sought on behalf of the wife and minor child to set up a foreign decree for alimony and to have permanent alimony awarded could not under any view be changed by amendment into a new and distinct action at law on behalf of the wife alone to recover specified sums expended by the wife for the necessary support of the child. Civil Code (1910), § 5683.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10676.
    Johnson v. Johnson.
    Decided November 26, 1919.
    Trover; from city court of Valdosta—Judge Cranford. April 15, 1919.

      James M. Johnson, for plaintiff in error.

      Dan R. Bruce, contra.
   Jenkins, P. J.

1. While it is true that where a suit is defended by a person claiming as the transferee of a deceased person, the plaintiff is not allowed to testify in his own behalf against the title of the deceased person, as to transactions or communications had with the deceased person, whether the transactions or communications were had by the deceased person with the party testifying or with any other person (Civil Code of 1910, § 5858 (1)), still where the defendant was neither an indorsee nor an assignee, transferee, or persbnal representative of the deceased person from whom the plaintiff claimed to have acquired title, but the defendant claimed title under a third person, the court did not err in permitting the plaintiff to testify as follows (the suit being trover for the recovery of personal property) : “My husband, Turner Johnson [deceased], gave me his one-half interest in the cow.” White v. White, 71 Ga. 670; Florida Central R. Co. v. Usina, 111 Ga. 697, 700 (36 S. E. 928); Austin v. Collier, 112 Ga. 247 (37 S. E. 434); Boynton v. Reese, 112 Ga. 354 (37 S. E. 437).

2. The ruling announced in the preceding paragraph disposes of the only special ground of the motion for a new trial. There was sufficient evidence to authorize the verdict, which has the approval of the trial judge, and no reason appears why the verdict should be set aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10681.
    Whatley v. Cohen & Company et al.

    Decided November 26, 1919.
    Action for damages; from Kichmond superior court—Judge Henry C. Hammond. June 3, 1919.

      1. S. Peebles Jr., T. 8. Harrison, for plaintiff.

      C. H„ & B. 8. Cohen.. Pierce Brothers, for defendants.
   Jenkins, P. J.

1. The transfer of this ease to this court by the Supreme Court is equivalent to a holding that the suit is one at law.

2. “Distinct and separate claims of or against different persons can not be joined in the same action.” Civil Code (1910), § 5515; Van Dyke, v. Van Dyke, 120 Ga. 984 (48 S. E. 380). Thus, when properly demurred to, a suit for damages can not be maintained where the suit in one count proceeds against the owner of property for his failure to comply with a contract of lease as. executed in his behalf by his duly authorized agent, and where in another count it is attempted to proceed against the agent on the theory that he was without authority in the execution of such contract on behalf of his principal; since such a suit is an attempt to join distinct and separate alleged causes against different persons in one and the same action. This is true without reference to the question as to whether or not the alleged cause of action against the agent is maintainable.

3. “Breach of contract gives a right of action whether special damages be alleged or not, and therefore excluding from the declaration all averments of special damages, will not warrant the court in dismissing the action.” Kenny v. Collier, 79 Ga. 743 (8 S. E. 58).

4. The defendants entered general demurrers, and set up that the petition was multifarious, that it contained a misjoinder of parties, and that the special injury sued for was not the proper measure of damages to be applied in such a case. The demurrers were sustained in general terms, to which ruling plaintiff excepts. The plaintiff in error has requested this court to give him leave to amend his petition in the event it should be held that in the petition as brought there was a misjoinder of parties. This request is granted, and it is directed that the plaintiff be allowed to amend the petition in respect to the defects above indicated before the judgment of this court is made the j)udgment of the court below. Civil Code (1910), § 6205; Central Railroad Co. v. Paterson, 87 Ga. 646 (13 S. E. 525); Georgia Railroad &c. Co., v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 400); Civil Code, § 5688; Brown v. Bowman, 119 Ga. 153 (46 S. E. 410); Lippincott v. Behre, 122 Ga. 543 (50 S. E. 467); Green v. Massee & Felton Lumber Co., 6 Ga. App. 389 (65 S. E. 44).

Judgment affirmed, with direction.

Stephens and Smith, JJ., coneur.