text:
    8126, 8127.
    SELMAN, administrator, v. MANHATTAN LIFE INSURANCE COMPANY; and vice versa.

    1. Where a ten-payment endowment policy of life insurance is issued, and it is provided therein that it- is to, be as of a certain date in the future, and an agreement is made for term insurance to run from the date of the entry thereof on the policy to the time when the regular ten-payment policy begins, and a note is given for the amount of the premium due at the time named in the policy for the ten-year insurance to begin, in order to make the policy effective the note must be. paid when due, or the time of payment extended by proper authority, (a) If the time of payment is extended, the note must be paid within the extended period. (6) Propositions made by the insurance company to extend the time of payment of the note, or of the premium, must be accepted by the insured, before they will be binding on the company.
    2. There was no error harmful to the defendant in excluding from the evidence the letter of the State manager of the insurance company to the insured, dated December 16, 1914. Nor was there error in admitting certain testimony objected to as a whole, where a part of it was admissible and other parts were covered by evidence previously admitted without objection.
    Decided June 29, 1917.
    Action on insurance policy; from Chattooga superior court— Judge Wright. September 15, 1916.

      John D. & B. 8. Taylor, H. L. Lanham, for plaintiff.

      Robert C. & Philip H. Alston, Maddox & Doyal, for defendant.
   Bloodworth, J.

On April 21, 1914, C. S. Smith made application to the Manhattan Life Insurance Company of New York for insurance on his life for $5,000. On May 4, 1914, the application was amended so as to reduce the amount of insurance applied for to $2,000. In the application there was a clause as follows: “That there shall be no contract of insurance until the policy shall have been issued by the company and manually received and accepted and the first premium paid, all during the good health of the person whose life is to be insured.” A policy of insurance was issued, the concluding clause of which was as follows: “ In witness whereof the Manhattan Life Insurance Company has caused this policy to be executed as of the 15th day of November, 1914.” On this policy was the following endorsement: “In consideration of the payment of $19.54, being the charge for term insurance from the 5th day of May, 1914, to the 15th day of November, 1914, the Manhattan Life Insurance Company hereby agrees, in ease of the death of the insured within the above-mentioned period, to pay, according to the terms of the within policy, the sum insured, less an amount equal to the difference between the premium for one full year on said policy and the amount paid as above. On payment of the premium due on the 15th day of November, 1914, the within policy shall have the same force and effect as if said policy had been originally issued on that date. In witness whereof the Company has caused this agreement to be endorsed on the within policy, and executed this 5th day of May, 1914.”

Upon the delivery of the policy to the insured he executed and delivered to the agent of the insurance company two promissory notes,—one for $19.54, in payment of premium to cover “term insurance” provided for on the back of the policy, as above set out, and the other what is known as a “pink note,” which read as follows:

“$213.24. New York, May 8th, 1914.
“Nov. 15th, 1914, after date, for value received, I promise to pay to the Manhattan Life Insurance Company, or order, at its office, No. 66 Broadway, New York, two hundred thirteen and 24/100 dollars, with interest at-. This note is given on account of the premium due November 15th, 1914, on policy No. 175120 issued by said company, and if it is not paid at maturity, said policy shall be void. In case of the death of the insured before this note falls due, the above amount, with interest, shall be deducted from the amount of said, policy.
(Signed) “C.‘ S. Smith.”

On the back of the note appears the following: “Pay to the order of M. B. Young. [Signed] Manhattan Life Insurance Co., M. DeMott, Secty.”

Neither of these notes was paid by the insured, although it appears that the first-mentioned note, covering the period of term insurance under the policy, was paid to the company by the local or State agent. The insured, after failing to pay the second or “pink” note, was killed on June 18, 1915, and this action was brought by Selman, his administrator.

The evidence shows that the complete contract between the parties in this case embraced two forms and two periods of insurance on the life of the'deceased: one in the nature of term insurance, which covered the period from May 5, 1914, to November 15, 1914, the premium upon which was represented by the first note, for $19.54 (and whether or not this particular note was ever paid by the insured is not now material), which branch of the contract was fully performed by the insurance company, and its obligations upon this branch of the contract automatically terminated on November 15, 1914; while the second and main feature of the contract, by the specific terms thereof and by the terms of the “pink note” (to be construed together), did not operate or become effective until the payment, at or before the maturity, of that note, which was given for the first full year advance premium due on November 15, 1914, at which time, if the said note was paid, the policy became a valid contract between the parties for the ten-payment, ten-year endowment policy of insurance upon the life of the insured, and which is the policy sued upon. The insured having failed to pay the “pink note,” or otherwise arrange the amount of the advance premium for the first full year of the insurance by the date stipulated, the proposed contract for the endowment insurance was never in fact completed, and the policy was ipso facto void.

The contention of the plaintiff, that the company waived the failure to pay promptly the “pink note,” that this note was not given in payment of the first premium, and that the policy was in force at the time of the death of .the insured, is without merit. Treating this note as given’for the first premium, the regular ten-year policy, without payment of the note by November 15 (the date when due), or unless there was an extension0 of the time of payment thereof, was not binding on the company. The policy provides for the payment of premiums in advance, and the note expressly states in its face that if it is not paid at maturity, the policy shall be void. See Stephenson v. Manhattan Life Ins. Co., 139 Ga. 83 (76 S. E. 592); National Life Asso. v. Brown, 103 Ga. 382 (29 S. E. 927); Sullivan v. Conn. Indemnity Association, 101 Ga. 849 (29 S. E. 41). Conceding that the “pink note” was not given for the first premium, and that as to this note the insured was entitled to the thirty-one days grace provided in the policy for all premiums except the first, this grace expired in December, 1914, several months before the death of the insured.

Several letters passed between Mr. Young, manager for Georgia, and the deceased. Granting that the effect of this correspondence was an extension of the 'time of payment of the note, the most liberal construction that could be put upon it would extend the time to January 1, 1915, only, and the insured died several months later. The letter from the manager dated December -17,-1914, offered to accept part payment in cash and carry the balance in two notes at six per cent, interest, one to be made due March 1st, the other May 15th, 1915. It was expressly stated that this offer must be accepted in six days, but the plaintiff did not accept the offer. In his letter-of December 15, 1914, the insured asked Manager Young to wait on him until January 1, 1915. The man-, ager replied as follows:

“Atlanta, Ga., December 17, 1914.
“Mr. C. S. Smith, Gore, Ga., E. No. 3.
“Dear Sir: Your letter of the 15th just to hand and contents noted, and in reply to same will say that we are glad to give you the assistance that you ask, and we are making notes accordingly, except, in making $66 payable January 1st, we are making it $69.54, so that it will cover both notes. Send us the check and notes, and if possible make the check payable by December 25th, as I will have to send-my check to the home office on that date to cover this insurance. If,-however, it is impossible for you to make it on the 26th, send me check and date it January 1st, 1915, and sign the two notes as per your request, payable March 1, and May 15th. We will hold your cheek up to the time for which it is dated before we deposit it, but it will be necessary for you to sign these notes and send them in together with the check not later than the 22d inst., in order for us to keep things straight with the home office.
“Yours very truly, M. B. Young, Manager.”

It will be noted that the time limit fixed by this letter was December 22, 1914, for the return of the check and the notes. This proposition was not accepted by the insured. Even prior to the time a policy of insurance lapses, a proposition of this kind must be accepted by the insured before it is binding. This principle is clearly stated in the following headnote from the case of Ætna Life Insurance Company v. Ragsdale, 95 Va. 579 (29 S. E. 328) : “A letter from an insurance company in reply to a request from the assured, agreeing to grant an extension of time of payment of the premium on a policy upon the execution and return, before the'policy lapsed, of an extension note inclosed in the letter, is not of itself a completed contract binding the company to grant the extension without the execution and return of the note. In the case at bar the insured has not been misled to his injury by the insurer. The insured forfeited his policy by his own negligence, and the forfeiture has not been waived by the company.”

If the time for paying the premium on a life-insurance policy is extended, the premium must be paid within the extended period. Ætna Life Ins. Co. v. Sanford, 200 Ill. 126 (65 N. E. 661); Homer v. Guardian Life Ins. Co., 67 N. Y. 478; Lantz v. Vermont Life Ins. Co., 139 Pa. 546 (21 Atl. 80, 10 L. R. A. 577, 23 Am. St. R. 202); Bank of Commerce v. New York Life Insurance Co., 125 Ga. 552 (54 S. E. 643). Hnder the contract in this ease, the failure by the insured to pay the “pink note” on or before its maturity worked a forfeiture of the policy, even though the company, through its agent, made an effort to collect the note and failed to do so. National Life Asso. v. Brown, Sullivan v. Conn. Indemnity Asso., and Stephenson v. Empire Life Insurance Co., supra. In addition to the above, the evidence shows that the “pink note” was returned to the home office of the company in New York in December, 1914, and was there cancelled on the regular note records of the company, and the policy itself was can-celled on the books of the company on January 2, 1915. After the cancellation was entered on the books of the company, it wrote to the insured in reference to a reinstatement of the 'policy, and on January 12, 1915, he replied to this letter as follows:

“Gore, Ga., January 12, 1915.
“Manhattan Life Insurance Co., New York, N. Y.
“Dear Sirs: Yours of the 5th to hand and contents noted. I am not able' to pay my premium note today, but by paying on it from time to time I can pay it off within the next six months. I can pay $30 on it to-day, and in sixty days hence I will be able to make another payment, of $40.00, and by the 15th of May or the first of June I can make the balance of the payments and pay up in full. Having land payments to make, and all out of six-cent cotton, until I can not make my full payment on my policy just now. I have $30 to-day and shall send it in just as soon as I can hear from you about the matter. Please answer immediately.
“Yours truly, Collins Smith.”

The company replied as follows:

“New York, N. Y., Jan. 19, 1915.
“Mr. C. S. Smith, Gore, Ga.
“Dear Sir: We are in receipt of your favor of the 12th inst., relative to policy Nq. 175120 on your life, and in reply beg to state that- we would be pleased to consider reinstatement on the above-mentioned policy, providing you will furnish us with a full satisfactory medical examination by Dr. W. T. Brant, of Summer-ville, Ga., so that it will pass our medical department, using the enclosed blank. We enclose herewith two temporary premium notes which you will please sign and return to us together with New York draft or post-office money-order for $30.00 at the time you send us the reinstatement certificate.”

This letter of the company seems to have closed the correspondence. The term policy was in force from May 5, 1914, to November 15, 1914, for which period the insured paid nothing. The company extended to him every reasonable opportunity to protect his ten-year policy before it was cancelled on the company’s records, and, even after this, offered to reinstate the policy on practically his own terms. If the insured had accepted either of the propositions, full waiver on the part of the company would have resulted and the company would have been bound. Neal v. Gray, 124 Ga. 510 (1), 514 (52 S. E. 622).

It was insisted, that the court erred in excluding from the jury a. certain letter of M. .B. Young, the defendant’s manager for Georgia, dated December 16, 1914, which was offered as evidence for the plaintiff. Even if this letter was admissible as against the objections raised, excluding it was not harmful to defendant. National Life Asso. v. Brown, and Sullivan v. Conn. Indemnity Asso., supra.

Error is alleged in the admission of certain evidence of John E. Boche. This evidence was objected to as a whole. Parts of it were clearly admissible. Other parts were covered by evidence already admitted. There was, therefore, no error harmful to defendant in admitting the evidence of witness Boche as complained of.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Broyles, P. J., and Jenkins, J., concur. .


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8396.
    MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY v. BOSWELL.
    1. The petition as amended was not subject to general demurrer or to any of the special demurrers interposed.
    2. Under a proper construction of the contract 'of insurance, an actual delivery of the policy of insurance was not stipulated for, and it was not necessary for the plaintiff to allege or prove an actual delivery.
    3. Under a proper construction of the contract of insurance, there is no requirement that the insured, at the time of the approval of his application and of the issuance of a policy of insurance thereon, and at the time of the delivery of the policy, shall be in the same condition of health that he was in when he signed the application. The only requirement as to health is that tlie applicant fo'r insurance shall be_in the same condition of health when the payment of the first premium on the policy is made that he was in when he made the application.
    . 4. Under the facts of the case, if the policy of insurance was not delivered, within the meaning of the law, to the applicant or his agent, on June 16, 1911, when the insurance company .approved the application, issued the policy, and placed it in the mails at its home office in Springfield, Massachusetts, addressed to its agent at Savannah, Georgia, to be ultimately delivered to the applicant by another of its agents at Thomasville, Georgia, it was certainly so delivered when, during the lifetime of the insured, it reached the hands of the company’s agent at Thomasville, Georgia; the first, premium on the policy having previously been paid on the date on which the application was made, and nothing remaining to be done by the insured before he was entitled to the possession of the policy.

      5. It is not shown that any Material error occurred upon the trial, and the evidence authorized the verdict.
    Decided June 29, 1917.
    Action on insurance policy; from Thomas superior court—Judge Thomas. June 3, 1916.
    O’Byrne, Hartridge & Wright, Theodore Titus, for plaintiff in error. Pope & Bennet, Boscoe Luke, contra.
   Broyles, P. J.

Mrs. Boswell brought suit against the Massa’chusetts Mutual Life Insurance Company on a policy of insurance on the life of her husband, William H. Boswell, in which she was named as the beneficiary.. The salient facts in the case appear to be as follows: William H. Boswell, a resident of Meigs, Georgia, on June 8, 1911, made application to the defendant insurance company for a policy of insurance upon his life for the sum of eight thousand dollars. The application was taken by A. Bennett, the local agent of the 'Company residing at Thomasville, Georgia, and was sent by Bennett to W. J. Harty, general manager of the company for south Georgia, residing in Savannah, Georgia, who in turn forwarded the application to the company at its home office in Springfield, Massachusetts. On June 16, 1911, the company approved the application and issued a policy of insurance thereon, and placed it in the mails in Springfield, Mass., directed to their agent, William J. Harty, at Savannah, Georgia. The policy was received by Harty at Savannah on June 19, 1911. Harty mailed the policy to A. Bennett, the company’s agent at Thomasville, Georgia, who received it on the morning of June 20, 1911. The insured, William H. Boswell, died between 7 and 8 o’clock upon.the evening of June 20, 1911. He was taken sick about June 12, 1911, and never recovered. Sent with the policy, and folded therein, was a receipt for the first premium, signed by the secretary of the company, which stated that the receipt was not valid unless countersigned by William J. Harty, manager. This receipt was countersigned by Harty, who in turn stamped thereon the following indorsement “Not valid unless countersigned by A. Bennett.” This receipt, so countersigned,' was sent by Harty along with the policy to Bennett at Thomasville. The receipt was never countersigned by Bennett or delivered by him to the applicant. The policy of insurance was not delivered to the applicant or to any one for him by Bennett, but was returned (together with the receipt) by Bennett to Harty at Savannah, who forwarded both documents to the company at its home office. Prior to the trial Bennett, the local agent of the company, died. The contract of. insurance was entirely prepared by the insurance company. The policy provided that the insurance began June 8, 1911, and that the next annual premium would be due on June 8, 1912. On June 22, 1911, the son-in-law of the deceased applicant wrote a letter to the defendant company in which he stated .that “the premium on this policy was in hand ready to be paid, on delivery of the same.” By amendment to the petition it was alleged that “at the time of making said application for life insurance the said IV. EE. Boswell did pay to A. Bennett, the agent of the defendant, the sum of $526.64 by executing and delivering to the said Bennett, as agent of the defendant, at Meigs, Georgia, a promissory note for that amount, with interest; the exact due date thereof plaintiff is unable to aver, for the reason that that was known only to said Boswell and the said defendant, and said Boswell is now dead, and the knowledge rests peculiarly with the defendant, but plaintiff avers that said note was duly accepted by said defendant, acting through said Bennett, as cash, and said insured was then and there in the same condition of health as when said application was given.” The defendant was notified to produce this note, and answered that it did not have the note.

It is argued by counsel for the plaintiff ini error that the general demurrer to the petition should have been sustained because, first, the petition showed that no actual delivery of the policy was ever made to the insured or his agent, and that the contract of insurance contemplated and required such a delivery; and, second, that the petition failed to allege that the insured, when the policy was delivered (if it was ever delivered, in contemplation of law), was in the same condition of health that he was in when he made the application for the insurance, and that under the contract of insurance such an allegation was necessary. Both of these questions involve a consideration of the terms of the contract of insurance, which we will discuss a little later.

Under our view of the case there are three controlling questions therein,—-two of law and one of fact, to wit: First, did the contract of insurance provide for an actual delivery of the policy of insurance? Second, did it stipulate that the insured, at the time when his application for insurance was approved by the company and a policy of insurance was issued thereon, and at the time of the delivery (whether actual or constructive) of the policy, should be in the same condition of health that he was in when he signed the application ? Or w_as the provision as to health merely that at the time of the payment of the first premium on the policy he should be in the same condition of health that he was in when he signed the application? And, third, was the first premium on the policy paid when the application was signed? (There was no contention that it was paid at any other time.) The application contained the following stipulation: “I agree that the insurance hereby applied for shall not be in force until the aeceptanee and approval of this application by the company at its home office, the delivery of the policy to me or my agent, and the payment of the first premium as required therein during my present condition of health; and that upon such delivery said policy shall be considered as having become effective upon the date stipulated in the policy as the date on which the insurance begins.” It will be seen that this stipulation does not require an “actual” delivery of the policy, and, therefore, under the ruling in New York Life Insurance Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134), such a delivery was not necessary. Under that decision, even if there was not a delivery of the policy, in contemplation, of law, when the insurance company approved Boswell’s application, issued a policy of insurance thereon, and placed it in the mails addressed to its agent at Savannah, Georgia, to be ultimately delivered by another of its agents at Thomasville, Georgia, there was in our opinion such a constructive delivery when the policy reached the hands of the latter agent, during the lifetime of the insured; the first premium on the policy having been paid on the same day that the application was made, and nothing remaining for the insured to do before he was entitled to the possession of the policy.

This ruling is not affected by the fact that there was enclosed with the policy a receipt by the company for the payment of the first premium, which receipt was not valid until countersigned by the agent at Thomasville, and by the further fact that this agent did not countersign it, but returned it and the policy to the company. As was said by the Supreme Court in the Babcock case, supra, “If the delivery was not completed when the policy was mailed, it certainly became so when it reached the hands of the local agent during the lifetime of the applicant, and while he was in good health. Construing this act of the company in transmitting the policy to the agent, in the light of this contract, it necessarily follows, in the absence of any proof to the contrary, that the agent received the policy charged with no other duty except to hand it unconditionally to the applicant. If this be true, the possession of the agent was the possession of the applicant, and while in the hands of the agent, the policy was simply held by him on deposit or in trust for its real owner. This owner had a right to demand possession of it. Upon refusal he could have recovered it by an action of trover. Conceding this right, we can not see, how death can rob the beneficiary of her rights under the contract.” It will be noted that the insurance contract in the Babcock ease required that the delivery of the policy should be made while the insured was in good health, while in the instant case, as we shall hereafter show, there was no such requirement. When the policy was received by the agent of the company at Thomasville, the insured having already paid the first premium thereon, and there remaining nothing more for him to do before he was entitled to the possession of the policy, and the contract of insurance not requiring that at the time of the delivery of the policy he should be in good health, or in the same condition of health that he was in when he made the application, he was entitled to the immediate possession of the policy, and it was the duty of the agent at Thomasville to immediately countersign the receipt for the premium, and to deliver the policy; and the fact that he failed to perform this duty can not inure to the benefit of the defendant company nor injuriously affect the rights of the insured. In Alston v. Greenwich Insurance Co., 100 Ga. 282 (29 S. E. 266), it was said by Chief Justice Simmons: “The contract had been made and agreed upon between it [the insurance company] and Alston who paid the consideration therefor; it was therefore a good contract, a valid policy, whether it was delivered to Alston or was still in the hands of the agent. Civil Code, § 2089 [Park’s Ann. Code, § 2470]. Alston was therefore entitled to the policy and the agent had no right in law to withhold it. The knowledge on his part that Alston had violated one of the conditions of the policy by increasing the risk of the company would not have authorized him to refuse to deliver it upon Alston’s demand. It was his duty to deliver it.” In addition to these authorities, see also Civil Code, §§ 2470, 2499; Fireman’s Fund Insurance Co. v. Pekor, 106 Ga. 1 (31 S. E. 779); Cooke on Life Insurance, 43; 1 Joyee on Insurance, §§ 91, 95, and the other authorities cited in the Babcock case.

As to the second question: It is clear to us that whén properly construed the above-quoted stipulation in the application means, so far as the health of the applicant is concerned, merely that at'the time of paying the first premium on the policy he must be in the same state of health that he was in when he signed the application. The stipulation, as will be noticed, is contained in a single sentence, comprising four clauses. The first three clauses are set apart by- commas, and the last clause by a semicolon. The words, “during my present condition of health,” apply to and modify the other words of the clause only in which they appear, to wit: “and the payment of the first premium as required therein during my present condition of health.” Considering the way the sentence is written and punctuated, the correct grammatical construction would seem to be that the words, “during my present condition of health,” apply to and modify only the other words of the clause in which they appear, to wit: “and the payment of the premium as required therein.” It is true that the insurance policy states that the first premium “is payable upon delivery of this policy,” but it is also true that under another provision of the policy, premiums can be paid, under certain conditions, on or before the date on which they are due. And this ambiguity in the policy, under the well-settled rule of law, must be construed in favor of the insured. However, if, notwithstanding the arrangement and punctuation of the clauses’in the sentence, the words, “during iny present condition of health,”, could be construed as applying to and modifying the other clauses in the sentence, such a construction could not be adopted, for it would be construing an ambiguous stipulation in an insurance contract most favorably for the insurer and most unfavorably against the insured, which is exactly the reverse of the law. This proposition is so well settled that we deem it superfluous to cite authorities upon it. It will be remembered that in this case the record discloses that the contract of insurance was prepared entirely by the insurance company. We are not unmindful that a different construction has been given this same stipulation by the Supreme Court of Alabama, in Massachusetts Mutual Life Insurance Co. v. Crenshaw, 186 Ala. 460 (65 So. 65); and while it is with some diffidence that we venture to disagree with a court of such high standing, the well-settled rule of law as to the construction of insurance contracts forces us to do so.

The remaining controlling question is: Was the first premium on the policy paid when the application for the insurance was made? If not paid then, it was not paid at all. Upon the trial the plaintiff introduced two witnesses whose evidence tended to show that upon the same day that Boswell signed the application for insurance he gave the local agent of the defendant company at Thomasville, who had procured the application, a note for the full amount of the first premium on the policy. This evidence, while vague and indefinite, and not altogether satisfactory, we are not prepared to say had no probative value whatever, as is insisted by counsel for the plaintiff in error. While these witnesses did not read the note, and did not know who was the payee named therein, or the time the note was to run, they testified positively and without contradiction, in substance, that on or about the day Boswell signed the application, the insured and the agent of the defendant company were in a store discussing the subject of insurance, that the insured sat down and wrote on a paper,' that he handed this paper to the agent,- saying “Here is the note for the full amount of the first premium,” and that the agent placed this paper in a folder and put it in his pocket. This evidence, with the legal deductions and inferences arising therefrom, was in our opinion sufficient to authorize the jury to find that on the day on which Boswell signed the application for insurance he paid the first premium thereon, by giving to the agent of .the insurance company a valid negotiable promissory note, signed by him, and payable either to the agent or the insurance company, for the full amount of the first premium on the policy of insurance. Under such circumstances, the jury were authorized to find also, in the absence of any evidence to the contrary, that the agent had authority to receive this note as the payment for the first premium on the policy, especially since the policy did not require that this premium should be paid in cash, and provided that “premiums are payable in. advance, on or before the date when dne, at the home office, or to the agent or cashier holding the company’s official receipt therefor signed by the president, or a vice president, or the secretary, which receipt shall not be valid unless countersigned by said agent or cashier.”

Under the view we have of the case, no material error occurred upon the trial. The admission of the testimony complained of was not erroneous for any reason assigned. While it was weak and vague, it had some probative value, and was admissible for what it was worth. The "charge of the judge fully and fairly presented the law of the ease and the contentions of the parties, and in one particular was more favorable to the defendant than the law allowed, as he erroneously instructed the jury that before the plaintiff could recover, it must appear that the policy was delivered to the insured or his agent during the condition of health which he enjoyed when he made the application for insurance. There is no material error in any of the excerpts from the charge excepted to. The evidence as a whole authorized the verdict. It is true that there was some evidence contradicting the statements of the insured in his application, as to his condition of health, especially by physicians who testified that the applicant had previously had heart and liver troubles. The evidence, however, did not disclose that the applicant himself knew that he had been so affected, or that he had knowingly or intentionally made any material misrepresentations in his application about the condition of his health. The evidence on the question as to whether the first premium had ever been paid possibly authorized, a finding that it had not, but it also authorized a finding that it had; and, as the jury’s finding upon that point has been approved by the trial judge, that question has been finally determined.

Judgment affirmed.

Jenlcins and Bloodworth, //., concur.


author: Broyees, P. J.

text:
    8424.
    Boyd v. Southern States Life Insurance Co.
   Broyees, P. J.

The policy of life insurance sued upon, a copy of which was attached to the petition, contained the following stipulation: “The policy shall not take effect until the first premium shall have been actually paid while the insured is in good health” (italics ours). The petition failed to allege'that the first premium had ever been actually paid, the only allegation upon this point being as follows: “that, upon the filing of the application for said policy of life insurance, through W. M. Connor, agent for said company, the said Jerry Boyd [the applicant] made an agreement with the said W. M. Connor that upon delivery of said policy of life insurance the first premium on said policy would be paid, or arranged for, satisfactory to said W. M. Connor and to the said Southern States Life Insurance Company, to which said agreement the said W. M. Connor readily agreed.” Seld, that the petition set forth no cause of action against the defendant, and the court did not err in sustaining the general demurrer and dismissing the suit.

Decided July 5, 1917.

Action on insurance policy; from city court of Nashville—Judge Christian. January 8, 1917.

J. D. Lovett, for plaintiff.

Hendricks, Mills & Hendricks, for defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Wade, C. J.

text:
    8265.
    GEORGIA RAILWAY & POWER CO. v. BELOTE.
    1. The instruction to the jury that the plaintiff charged that the defendant company was negligent because “it had no headlight” on its electric-car, where the plaintiff’s petition alleged that the headlight on the car was not lighted, and there was testimony that there was no light on the car, was not a material error. It could not have misled the jury; and it was authorized by testimony, admitted without objection, which tended to show the absence of any light (including a headlight).
    -2. There was no error in instructing the jury, by way of illustration, is the effect that if the plaintiff was otherwise entitled to recover, and it appeared that one third of the negligence which produced the injury was attributable to her, and the remaining two thirds was' attributable to the defendant, the amount of the plaintiff’s recovery should be diminished by one third. Where the negligence of the plaintiff equals or exceeds that of the defendant, there can be no recovery; but if the negligence of- the plaintiff is less than that of the defendant, and the plaintiff is otherwise entitled, under the pleadings and the testimony, to recover against the defendant, the total amount of damages in dollars and cents should .be diminished in proportion to the amount of default attributable to the plaintiff.
    3. The remaining grounds of the motion for a new trial are without substantial merit.
    Decided July 5, 1917.
    Action for damages; from Fulton superior court—Judge Pendleton. June 23, 1916.

      Colquitt & Conyers, for plaintiff in error.

      Westmoreland & Westmoreland, F. A. Hooper, contra.
   Wade, C. J.

It is conceded in the brief of counsel for the plaintiff in error that the plaintiff “introduced- some testimony to substantiate her case;” and it appears from an examination of the brief of evidence that this admission was not improvidently made. The general grounds of the motion for a new trial are therefore without merit.

The first ground of the amendment to the motion for a new trial is that the court instructed the jury that the plaintiff “charges that the defendant company was negligent in three particulars: First, it was negligent because it had no headlight. Second, it was negligent because no notice was given, by the ringing of the gong or otherwise, of the approach of the car. Third, that the headlight was not fully illuminated.” It is insisted that this charge was error because it submitted an issue not made by the pleadings, in that the absence of a headlight was not therein alleged as an act of negligence. The petition (paragraph 6) asserts that “it was after seven o’clock and was growing dark, the headlight of said car was not lighted, and this negligence practically kept the employees of defendant company from seeing your petitioner, and the failure of defendant from having said headlight lighted permitted the car to come up unawares on your petitioner; whereas, had the flash of the headlight been present, petitioner would have had time to jump back and thereby avoid the injury, even though the car-was being operated at a high rate of speed.” This was an allegation that at the' time of the injury there was no headlight in operation on the car, and was equivalent in this case to an allegation that there was no headlight apparatus attached to the car at all. It would of course be immaterial whether a headlight was on the car or not, if it was unlighted and was thus performing in no degree .whatever the usual and proper functions of such an attachment. If the apparatus was actually attached to the car, but was furnishing absolutely no light whatever, or was, as stated, “not lighted,’-’ so far as the plaintiff was concerned,—that is, was not illuminating the surrounding darkness and thus enabling the motorman to discover more readily her presence and danger, or not furnishing such a brilliant and flashing beam of light as might attract her attention, even upon a well-lighted street, and thus warn her of the approach of danger, there was in effect no headlight on the car. The precise practical meaning of the language in the petition that the headlight was not lighted, and in the instruction of the court that negligence was predicated upon the absence of a headlight, would be the same under the allegations in this petition and also under the proof submitted. There was testimony to sustain the allegation that the headlight of the car was not lighted, though apparently there was none intended to.show the entire absence of the apparatus generally employed to furnish such a light. The substantial issue raised by the pleadings, and supported by some proof, was whether or not the car was actually supplied with a light at the end which struck the plaintiff, so that the driver could have seen her with the help of its rays, and she could also have been warned thereby, and thus by the combined efforts of both the motorman and the plaintiff, or by the efforts of one of them only, after the imminence of the danger had been disclosed to the one or brought to the attention of the other, the collision could have been avoided.

In the testimony of the plaintiff appears this statement: “When I saw the car there, there wasn’t any light at all in the front of the car; no headlight; I. am very sure of .that.” Likewise, the sister of the plaintiff testified as follows: “As my sister and I started across there, I didn’t see any light at all on the car that struck me and my sister.” And again, she said, “I didn’t notice any light on the front of the car. . . There .was no light on the front of the car.” It may be assumed that it was not the intention of the plaintiff to allege in her petition the absence of the apparatus usually employed to furnish a light in front of a moving electric-car and commonly called a “headlight,” but that she intended to allege merely what she did allege,—that “the headlight of said car was not lighted, . . and the failure of the defendant from having said headlight lighted permitted the car to come up unawares on your petitioner,” etc. So, too, the language of the trial judge, instructing the jury that one of the grounds upon which the plaintiff alleged' negligence was that the defendant company “had no headlight” on its car, was undoubtedly intended to convey to the jury the same idea that there was no light or lighted headlight on the front of the car. If, however, this excerpt be subjected to the meticulous criticism suggested by this ground of the motion for a new trial, it is enough to say that the testimony of the plaintiff and her sister above quoted, if taken in its literal sense, authorized the precise charge of the court, since they both testified that there was no light (which would include a headlight), and the plaintiff even said no “headlight,” on the front of the car; and this evidence was admitted without objection. “Where evidence is admitted 'without objection, although there be no allegation in the declaration authorizing it, the court may properly charge the jury as to its legal effect; and where a party permits evidence to go to the jury without objection, and the jury find on such evidence, the losing party is not entitled to a new trial on the ground that the evidence does not correspond with the declaration, if the declaration could, by amendment, have been made to cover the evidence. Georgia Railroad v. Lawrence, 74 Ga. 534; Central Ry. Co. v. Attaway, 90 Ga. 656, 659 [16 S. E. 956]. ‘Although the pleadings may not present the whole issue, yet if it be fully made by the evidence without objection, it is too late, after-verdict for the losing party, to make that the ground of a motion for a new trial/ Howard v. Barrett, 52 Ga. 15. See also Seabrook v. Brady, 47 Ga. 651, 659; Savannah, Florida & Western Ry. Co. v. Grogan, 117 Ga. 461 (43 S. E. 701); Haiman v. Moses, 39 Ga. 708; Field v. Martin, 49 Ga. 268, 271; M. F. Church v. Dudley Co., 137 Ga. 68 (6), 69 (72 S. E. 480); Artope v. Goodall, 53 Ga. 318, 323. These rulings are based upon the principle that if objection were made to the testimony upon the ground that it was not authorized by the pleadings, the pleadings might have been so amended as to authorize the introduction of the testimony.” Gainesville &c. Railroad Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093). There is therefore no substantial merit in this ground of the motion; and this is likewise true of the 10th ground, which complains that the court erred in submitting to the jury, as an allegation of negligence upon which a verdict for the plaintiff could have been predicated, “the allegation that the defendant was negligent because it had no headlight.”

The 11th ground of the amendment to the motion for a new trial assigns'error upon that portion of the excerpt from the charge above quoted which submitted to the jury, as an allegation of negligence upon which a verdict for the plaintiff could be based, “the allegation that the defendant was negligent because the headlight was not fully illuminated;” the objection being that there, was no testimony in the record to authorize this instruction. Paragraph 9 of the plaintiff’s petition alleged that “ defendant was further negligent in operating the said street-ear without having the headlight fully illuminated, it being past the time when all other street lights had beconrn illuminated, and the said headlight being absolutely necessary for the safety of pedestrians and your petitioner.” The court amply instructed thé jury as to the contentions raised by the plaintiff, and there was no error in submitting for their consideration such contentions as were clearly presented by the pleadings or were authorized by testimony admitted without objection.

The 2d ground of the amendment to the motion for a new trial alleges that the court erred in the following charge to the jury; “If the evidence shows that the plaintiff was injured by the running of a car of the defendant company, as she charges she was injured, she would have the right to recover for the injuries received, for which she sues in her petition in this case, unless the defendant company shows you that its agents and servants in charge of said ■ear exercised all ordinary and reasonable care and diligence in connection with those things which are charged to be negligence in the plaintiff’s petition.” It is contended that this charge was erroneous because proof of injury would not authorize a recovery “in the absence merely of proof that the agents of defendant exercised ordinary care,” for the reason “that the presumption goes only to the extent of presuming negligence, and not to the extent of authorizing recovery.” The Civil Code (1910), § 2780, declares that “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” By reference to the excerpt from the charge which is complained of in this ground of the motion, it will be seen that the court instructed the jury that the plaintiff “would have the right to recover for the injuries received for which she sues in her petition in this case,” and. section 2780, supra, declares “that a railroad company shall be liable for any damage done to persons, . . by the running of the . . cars or other machinery of the company.” It is obvious that the effect of the language used by the judge as to the right of the plaintiff to recover was identical with that of the language employed in the, statute touching the liability of the railroad company to the plaintiff. The qualification fixed by the statute, that a railroad company shall thus be liable “unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence,” was annexed by the court to the instruction that the plaintiff “would have the right to recover for the injuries received,” and for which she sued, by the added words “unless the defendant company shows you that its agents and servants in charge of said car exercised all ordinary and reasonable care and diligence in connection with those things which are charged to be negligence in the plaintiff’s petition.” Immediately following this instruction the court further said: “The presumption would be that the defendant was negligent, but that presumption can be rebutted by any evidence in the case. It is what is termed a rebuttable presumption; and you may look and determine whether or not the presumption of negligence has been rebutted in the ease.” The statute (§ 2780, supra) provides that “the presumption in all cases” shall be against the railroad company. The presumption referred to is of course that the agents of the company have not in fact exercised all ordinary and reasonable care and diligence; and the burden is upon the defendant company to rebut that presumption by showing that in fact its agents had exercised all ordinary and reasonable care and diligence. The statute plainly declares that a railroad company “shall be liable for any damage done to persons,” etc., by the running of its locomotives or cars or other machinery; and the court simply gave this section to the jury by charging the converse of'what is therein stated, namely that the person injured might “recover,” etc. There can not in legal effect be any difference •between informing the jury that under certain circumstances or upon certain proof being made the defendant would be liable to the plaintiff, and in informing the jury that under the same circumstances the plaintiff might recover from the defendant, unless, in each case, certain other facts appeared.

We come now to the precise criticism urged against this excerpt from the charge, that it was erroneous because “proof of injury does not authorize recovery in the absence merely of proof that the agents of - defendant exercised ordinary care,” since “the presumption goes only to the extent of presuming negligence, and not to the extent of authorizing recovery.” By reference to the excerpt as above quoted, it -will be observed that a recovery was not thereby authorized “in the absence merely of proof that the agents of defendant exercised ordinary care,” but was authorized only in the event “the evidence shows that the plaintiff was injured by the running of a car of the defendant company, as she charges she was injui ed” (italics ours). That is to say, the court instructed the jury that the plaintiff could only recover in the event she was injured by the running of the cars of the defendant in the particular way or manner she charged or alleged in her petition that she had been injured. She alleged that she was injured while “she was in the exercise of ordinary care,” and (considering the petition as a whole) without fault on her part, solely through certain acts of negligence on the part of the defendant. The jury were therefore instructed in this excerpt that the plaintiff would have the right to recover only in case they found from the evidence that the injury resulted, as charged in the plaintiffs petition, solely through the fault of the agents of the defendant, and clearly were not instructed that the presumption of negligence created, by law would authorize a recovery, unless the plaintiff was injured in the manner she charged in her petition that she had been injured, which excluded any failure to exercise ordinary care' on her part or any negligence contributed by her to bring about the injury. The court elsewhere fully instructed the jury as to the duty resting upon the plaintiff to exercise ordinary care, and as to the effect of a failure on her part to exercise such care, and advised them that the plaintiff could not recover if injured on account of her own negligence, or if injured by the negligence of the plaintiff as alleged by her, if by the exercise of ordinary care she could have avoided the consequences to herself of that negligence. Considering, therefore, this ground of the motion in connection with the entire charge of the court, there is no merit therein.

In the light of the entire charge, and in the absence of any denial that the court elsewhere gave proper instruction on that point, the 3d ground of the amendment to the motion, complaining that the “proof of the facts hypothetically stated” in an excerpt from the charge complained of would not authorize a recovery, because "the additional fact must be proved of the injury to plaintiff by the negligence of the defendant,” is without any substantial merit. Neither is this excerpt subject to the further criticism that it contained an expression of an opinion on the part of the court "as to the fact of damage to plaintiff.”

The 4th ground of the amendment to the motion for a new trial assigns error upon the following charge to the jury: “If you believe that the defendant’s agents were guilty of two thirds of the negligence, and that the plaintiff was guilty of one third of the' negligence, and you believe, under the evidence and the instructions which I give you, that the plaintiff would be entitled, otherwise than according to this rule, to a certain sum of money, that would be diminished one third, according to the one third negligence attributable to her.” It is contended that this charge was erroneous because “it authorized the plaintiff, in case the jury believed that she was guilty of contributory negligence, to recover a greater proportion of the amount of damage sustained by her than is authorized by the law.” It is further insisted that the “illustration given in said charge is a misleading illustration, and that the true law is that plaintiff, under the facts assumed in said illustration, could not under the law recover more than one third of the full amount of her damage, if so much, instead of two thirds, as stated in said-illustration.” The rule laid down in Atkinson v. Bullard, 14 Ga. App. 69, 71 (80 S. E. 220), that “under the State law the plaintiff could not recover if the negligence of the decedent was equal to or greater than that of the railroad company,” is well-settled law in this State; and it was held in Georgia Southern & Florida Ry. Co. v. Overstreet, 17 Ga. App. 629 (46) (87 S. E. 909), that it was error to Tefuse a request to charge as follows: “I charge you that if you believe the defend■ant was negligent, and the deceased was equally negligent, then the plaintiff could not recover at all.” In Central Railroad &c. Co. v. Newman, 94 Ga. 560 (21 S. E. 219), the court held that "there can-be no recovery unless the servant was less in fault than the defendant.” See also Southern Ry. Co. v. Watson, 104 Ga. 243 (30 S. E. 818). In the case of Brunswick &c. Railroad Co. v. Wiggins, 113 Ga. 842 (39 S. E. 551, 61 L. R. A. 513), the rule is discussed and several cases collected in which it is clearly recognized. There was apparently no request to instruct the jury as to this well-settled rule in this particular ease, nor is there any exception because the court did not give this rule to the jury in so many words, and it is referred to at such length only in view of the Contention of counsel for the plaintiff in error, which they insist is supported thereby or by logical deductions to be drawn therefrom.

It is suggested in the brief of counsel for the plaintiff in error that the illustration used by the court instructed the jury “that a contribution by the plaintiff of one third the total negligence would authorize a reduction of only one third the total damage sustained.” And it is contended by them in their brief that if “a contribution of one half of the total negligence takes away all the damages, then a contribution of one third of the total negligence takes away a great deal more than one third the total damages.” In the instruction given, the court distinctly recognized the rule above referred to, that if the negligence, of the plaintiff was equal to or exceeded that of the defendant, the plaintiff could not recover; for in the illustration presented the learned judge said, “If jmu believe that the defendant’s agents were guilty of two thirds of the negligence and the plaintiff was guilty of one third [a degree or amount less than one half] of the negligence, and you believe, under the evidence and the instructions which I give you, that the plaintiff would be entitled, otherwise than according to this rule, to a certain sum of money, that would be diminished, one third, according to the one third negligence attributable to her.”

Under the rule above referred to, if the negligence of the plaintiff equals or exceeds .that of the defendant, or, in other words, if one half or more of the negligence which produces the injury is attributable to the plaintiff and the other one half or remainder to the defendant, there can be no recovery. That is to say, if the negligence of the defendant company was not greater than that' of the plaintiff, there could be no recovery. If, however, the jury should find, under testimony sufficient to authorize such a finding, that the negligence of the defendant exceeded that of the plaintiff, a recovery -for the full amount of the damage sustained would be authorized, subject only to the reduction provided for by section 2781. That section distinctly and plainly declares that in eases where the plaintiff is entitled to recover at all (where, for instance, the negligence of the plaintiff does not exceed the negligence of the defendant), the plaintiff' may recover notwithstanding the plaintiff is partly at fault, but the amount of damages to be assessed by the jury shall be diminished in proportion “to the amount of default attributable to the plaintiff.” So it is clear that this section, when taken in connection with the rule so well settled by the decisions of the Supreme Court and this court that no recovery can be had where.the negligence of the plaintiff equals that of the defendant, must be construed to mean that where the jury find that the negligence of the plaintiff does not equal or exceed the •negligence of the defendant, a recovery may be had in favor of the plaintiff, notwithstanding the fault attributable to him, but the jury shall diminish the total amount of damages shown in pi-oportion to the amount of default found against him. Thus, if the injury resulted from negligence, two thirds of which was chargeable to the defendant and only one third to the plaintiff, the jury should find, in the. event a recovery was otherwise authorized, a verdict in favor of the plaintiff for the full amount of the damage shown by the evidence to have been inflicted upon him, less an amount deducted therefrom which shall be “in proportion' to the amount of default attributable to him.” In the illustration used by the court the entire default, or the entire negligence which produced the injury complained of, would be three thirds; and if the plaintiff furnished one third only of the negligence which brought about the result for which she sued, her recovery (if otherwise authorized) should undoubtedly be diminished by one third of that amount which the jury found expressed the total amount of the damage sustained by her, when measured in dollars and cents, for this deduction would clearly be in proportion to the plaintiff’s negligence. If the injury was caused by certain negligence, one third of which was attributable to the fault of the plaintiff and two thirds to the fault of the defendant, the plaintiff should not be allowed to recover from the defendant for that portion of the negligence which the plaintiff contributed, but only for that portion of the total negligence contributed by the defendant. The rule allowing no recovery where the negligence of the one equals' that of the other is clearly founded upon reason; but where the negligence of the defendant exceeds that of the plaintiff, and liability is thus shown on the part of the defendant to the plaintiff, it then merely becomes a matter of calculation for the jury to determine how much fault could be attributable to the plaintiff (less than one half of the total negligence), and to deduct that amount from the total damage suffered by the plaintiff, and return a verdict for the balance. As we see it, section 2781 can only thus be rationally interpreted in connection with the general rule preventing- any recovery unless the fault attributable to the plaintiff be less than that attributable to the defendant; and we do not think there is any merit in this ground of the motion for a new trial.

The 5th ground of the amendment to the motion for a new trial takes exception to an excerpt from the charge of the court, which referred to the allegations in the petition of the plaintiff as to the permanency of her injuries; and it is urged that there was no evidence to authorize the submission to the jury of the question of permanent injuries or of permanent pain and suffering from injuries. Not only does the plaintiff’s petition allege permanent injuries, but she testified: “It was about a year afterwards before I could wear any shoe. I have trouble with that limb now; sometimes it is weak now, I can hardly stand up on it and bear my weight on it; it hurts me a good deal!” Again she said: “I am nervous all the time since this happened. Yes, sir, Mr. Conyers [of counsel for defendant] made me nervous just awhile ago on the cross-examination.” The sister of the plaintiff testified: “I have been with her [the plaintiff] since then.' She is very nervous now.” The physician who attended the plaintiff likewise testified as to the nature of her injuries immediately after the collision with the street-car, and said that she was apparently suffering at the time; that he had visited her twice a day for a month or more thereafter, and she was in bed all of the time, “was suffering from her bruises, and she was unable to bear her weight on her feet, and she had a little fever. The sciatic nerve seemed to be bruised, or was bruised. . . The effect of a bruise or injury of the sciatic nerve extends to the whole nervous system; causes such intense agony that the whole system will respond to it.” He likewise said that some time after the injury he found the right limb of the plaintiff “somewhat shrunken up; it was not as large at that time as the other limb. That would indicate from my standpoint that there was a reflex of the condition of that nerve—from the effect on that nerve.” The'trial was had on the 13th day of April, 1916, and this physician further testified that he found the plaintiff in the condition last mentioned in October preceding said trial, and “that she suffered pain; there was reason for her to suffer pain, but not so much as she had before. At the time that I examined her last October, I would say that standing on that limb a great deal, or walking a great deal on it, would cause her to feel it considerably, and it would affect her sleeping at night just in proportion as she would exercise or put strain' upon it. '. . I examined her one day last week . . and found the limb improved. . . There wasn’t as much of that dead, numb feeling as there was before; there had been a numbness or deadened feeling in the limb before,'in the sensitiveness to touch, as compared with the other one.” He further testified that it was impossible, from his experience, to know whether the trouble would return or not, but “it is possible for it to return at any time. I don’t know whether the injury is permanent or not. I don’t know but what it might return at any time; it may be permanent or it may not.” From all of the above it is evident that there was testimony sufficient to authorize a charge touching permanent injuries, and, as. already stated, the plaintiff’s petition clearly alleged that her injuries were permanent.

There is no merit in any of the remaining grounds of the motion for a new trial. Ground 6, which complains that an excerpt from the charge is “obscure and misleading, and had a tendency to induce the jury to find permanent injury to plaintiff without legal-evidence upon which to base such finding,” is without merit. Ground 7 complains that the court erred in excluding the question, “Did Mr. Turner [meaning the motorman of the car] stop that car slow or quick when these young ladies stepped on the track?” and the answer of the witness, “Quick.” This testimony was objected to on the ground that it amounted merely to a conclusion of the witness; and it was excluded for that reason. This witness testified that the plaintiff was within “about three or four feet, I reckon, of my car when I discovered them [the plaintiff and her sister], and I threw on my brake as quick as I could [italics ours] to keep from hitting them. . •. My ear ran something like two or three feet, in my judgment, after that happened. . . Yes, I had my ear under thorough control, and I stopped it as quick as the brakes would apply to the wheels. . . I stopped the car as quick as I could when I saw them right at the crossing.” It is apparent that, aside from the question whether the testimony rejected by the court was admissible or not, the defendant succeeded in getting before the jury, from .the same witness, the identical testimony which this question would have elicited from him. It would seem, where a witness is able to give a more precise and definite statement (as was the witness in this case) as to the length of. time that was required to do a particular thing, that the court should exact from the witness precise statements, rather than mere conclusions expressed in terms that are purely relative and indefinite, vague, and uncertain, depending altogether upon the opinion of the person using them as to their correctness, such as “quick” or “slow.” See Civil Code (1910), § 5874. At all events it does not appear that there was possible harm to the defendant from the exclusion of this testimony.

The court did not err in declining to give to the jury the following, charge requested in writing: “If th§ plaintiff’s injury was the result of an accident, the jury should find for the defendant.” The theory of accident was not involved under the pleadings or the evidence, for. the plaintiff contended that the injury resulted from the negligence of the defendant, and the defendant insisted that it arose from the negligence of the plaintiff; and these contentions formed-the issue submitted to the jury by the court. Again, the brief instruction requested, without the addition of some further instruction, as to what might in law constitute an “accident” that would relieve the defendant from liability, tended to mislead or confuse the jury, since, to the mind of the average man not learned in the law, the term “accident” includes all occurrences not the result of intention; the charge- of the court sufficiently presented the issues in the case to the jury, and therefore the court did not err in declining this request.

In view of the full and fair charge given by the court as to the effect of failure on the part of the plaintiff to exercise ordinary care, and the general instructions touching all the issues of the ease, ’ so amply covered by the charge as delivered, there was no error in declining to instruct the jury, as requested, that “the precise thing which every person is bound to do before stepping upon a railroad track is 'that which every prudent man would do under like circumstances.”

The case appears to have been fairly tried under the recognized rules of law, and there was sufficient evidence to sustain the verdict; and, the verdict having been approved by the trial judge, no reason exists why this court should set it aside.

Judgment affirmed.

George and Luke, JJ., concur.


author: Jenkins, J.

text:
    7746.
    Southern Express Company v. Oliver.
    Decided July 5, 1917.
    Certiorari; from Grady superior court—Judge Cox. July 3, 1916.

      W. J. Willie, Robert G. & Philip H. Alston, for plaintiff in error.

      L. W. Rigsby, contra.
   Jenkins, J.

1. Where an action against an express company was based on an interstate shipment, the validity of the stipulation embraced in the receipt issued by the company, limiting to a period of one year the time within which action might be brought for loss, damage, or detention of th.e shipment, must be determined under the rulings made by the Federal courts. Under such rulings, the consignor is bound by such reasonable stipulations. Lynch v. Southern Express Co., 18 Ga. App. 761 (90 S. E. 655); Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. (N. S.) 257). See also Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 769 (92 S. E. 527), in which the case of Adams Express Co. v. Mellichamp, 138 Ga. 442 (75 S. E. 596, Ann. Cas. 1913D, 976), is referred to.

2. In order to prevent the provisions of such a contractual limitation' from attaching, where such a suit is not brought within the period designated by the agreement, such actual fraud on the part of the company must be shown as would relieve the shipper from a compliance with spch requirement; and the mere fact that the company neither paid nor declined payment of the claim, when properly made, within such period of limitation, would not of itself suffice to do so. Cherokee Sawmill Co. v. Nashville, C. & St. L. Ry., 19 Ga. App. 475 (91 S. E. 790).

Judgment reversed.

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


text:
    7872.
    HINTON v. BURNS et al.

    H. K. Burns made a security deed to his land to Gantt, and afterwards sold the land to Wheeler, subject to Gantt’s lien, taking purchase-money notes and executing a bond for title to the purchaser, and sold the purchase-money notes, but did not also convey title to the land. The purchaser of the notes, J. K. Burns, sued Wheeler as principal and H. K. Burns as indorser thereon, and obtained a common-law judgment against them. Wheeler, while holding the land under the bond for titles, made a security deed to Hinton, and Hinton obtained a judgment against Wheeler, in which a special lien on the land was established. The land was sold under an execution in favor of Gantt, and on a money rule the surplus, after payment of Gantt’s execution, was claimed by J. K. Burns under his judgment on the purchase-money notes. Hinton filed an intervention, contending that the surplus should be applied first to his judgment. The intervention of Hinton was dismissed, and the surplus fund awarded to J. K. Burns. Held, that there was no error in thus awarding the fund.
    Decided July 5, 1917.
    Money rule; from city court of Macon—Judge Guerry. September 30, 1916.

      Hardeman, Jones, Parle & Johnston, for plaintiff in error.

      Martin & Martin, Hall & Grice, McMillan & Erwin, O. J. Bloch, contra.
   Jenkins, J.

No question arises concerning the priority of the claim of Gantt. The controversy arises solely over the surplus fund arising from the sale of the land originally owned by H. K. Burns. It will be seen that J. K. Burns claims by virtue of his judgment against Wheeler as principal and H. K. Burns as indorser on the purchase-money notes given by Wheeler to H. K. Burns, the original owner, and indorsed'by the latter to him; and Hinton claims under his judgment setting up a special lien on the land, on a note and deed given by Wheeler while holding under his bond for title and while the purchase-money notes which are the basis of the judgment in favor of J. K. Burns were unpaid. J. K. Burns’s motion to dismiss the intervention of Hinton is more specifically based upon the ground that the funds arose from the sale of property belonging to H. K. Burns, against whom Hinton had no judgment, while the judgment of J. K. Burns is against both Wheeler and H. K. Burns, and that, since the funds to be distributed did not arise from the sale of the property of a debtor common to H. K. Burns and J. C. Hinton, the intervention could not properly lie. In support of this contention counsel for defendants in error cite Burns v. Long, 79 Ga. 530 (4 S. E. 877). The headnote in that case is as follows: “Where two firms, as creditors of different debtors, each held a mortgage given by the debtors respectively upon the same personal property, and one of the firms foreclosed their mortgage against their debtor, and caused the property to be sold thereunder, and thereupon the other firm, who had also foreclosed their mortgage against their debtor, sought to claim the fund arising frpm the sale, there was no error in refusing to allow them to intervene for that purpose. The foreclosure of the mortgage against one debtor constituted no lien upon the fund arising from the sale of the property as that of the other debtor; and if the property did not belong to the debtor as whose it was sold, but to the other debtor, the sale could not affect the lien of the mortgage against the-latter.” The principle held in that.case does not seem to us, however, to be just applicable to the facts here. The basis of that decision was that when a fund arises from the sale of mortgaged property as belonging to one person, an intervention will not lie in favor of one claiming the fund by virtue of a mortgage executed by another; that one claiming a fund under an intervention can not support such a claim by showing that the title to the property sold was in some person other than .defendant in execution. This principle has often been held. Crawford County Bank v. Britt-Hightower Co., 17 Ga. App. 804 (88 S. E. 691). In the case before us, however, there are not two titles involved. H. K. Burns sold his title, under a bond, to Wheeler, and the question is: Can WTheeler, or his transferee, without paying the purchase price of the land, claim the benefit thereof, by receiving the surplus fund arising from the -sale thereof, to the exclusion of one claiming under a judgment based on the purchase-money notes given by Wheeler therefor?

A money rule is an equitable proceeding, and the court must, upon proper pleading, award the money in the hands of the officer to the person equitably entitled to it. Bradshaw v. Gormerly, 54 Ga. 557 (4); Coleman v. Slade, 75 Ga. 61 (15); Shumate v. McLendon, 120 Ga. 396 (48 S. E. 10); O’Connor v. Georgia Railroad Bank, 121 Ga. 88 (48 S. E. 716); Ragan v. Coley, 4 Ga. App. 421 (4, 5) (61 S. E. 862); Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034); Black v. Weaver, 7 Ga. App. 507 (3) (67 S. E. 389). In the case of Fulcher v. Felker, 28 Ga. 252, the headnote is as follows : “A sells to B a tract of land at full valuation, incumbered with a judgment lien, to satisfy which the land is sold by the sheriff, leaving a surplus, after satisfying the principal, interest, and cost of fi. fa. Upon a rule against the sheriff, and at the instance of A, held that B, the purchaser, and not A, was entitled to this balance.” In that case tbe court said: “Can there be any doubt that Cloud, by going into a court of equity, would be decreed to retain the balance of the money for which the land was sold after satisfying the principal, interest, and cost of the fi. fa.? We apprehend not. The same principle should govern then in the decision of this motion. Cloud bought and paid Fulcher, the defendant in execution, for the land. He went into possession. But it was incumbered by the older lien of the judgment. This he was obliged to discharge. Having done this, was he not entitled to. hold on to the surplus of the sale? What claim had Fulcher to it ? He had sold and conveyed to Cloud and received the full value of his property.” See also Crawford v. Williams, 76 Ga. 792 (8). In the present ease the purchase price of the land had not been paid, and it does not seem the vendee or his transferee should claim the surplus fund arising from the sale thereof, as against one claiming under a judgment based on notes which were in fact for the purchase price. Civil Code (1910), § 3330; Bush v. Bank of Thomasville, 111 Ga. 664 (36 S. E. 900); Green v. Hill, 101 Ga. 258 (88 S. E. 692); Browder v. Blake, 135 Ga. 71 (68 S. E. 837); First National Bank of Cornelia v. Burruss, 144 Ga. 857 (88 S. E. 190); Smith v. Bowne, 60 Ga. 485.

We therefore think the court was right in dismissing the intervention and awarding the surplus fund to J. K. Burns.

Judgment affirmed.

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


text:
    8044.
    Sikes v. Bradley.
   Jenkins, J.

1. Where the verdict can be supported under any proper view or theory of the evidence, it will not be set aside as being contrary thereto.

2. A wife’s sale and conveyance of her property to her husband, not authorized by order of the superior court of her domicile, is void. . Civil Code (1910), § 3009. But where'a wife, for a valuable consideration, conveys an interest in land to the husband, without such approval being obtained, and the husband, in the name of the wife and himself,sells the timber thereon to another, taking purchase-money notes therefor in his own name, and the purchaser, with the knowledge and consent of the wife, enters upon the land and takes possession of the timber, the fact that the wife afterwards objects to the removal of a remaining portion of the timber by the purchaser, on the ground that he has breached the terms of his contract of purchase, can not be held to be a repudiation by her of the sale of the timber to him, nor a repudiation of the sale of her interest in the land to her husband. She, having ratified and consented to the sale of the timber under the contract made by the husband, is bound thereby. Buchannon v. James, 135 Ga. 392 (69 S. E. 543). There is, therefore, no merit in the fifth and sixth grounds of the motion for a new trial.

Decided July 5, 1917.

Complaint; from Evans superior court—Judge Sheppard. October 9, 1916.

Way & Burlchalter, for plaintiff in error.

P. M. Anderson, contra.

3. The complaint that a juror in such a ease was related by marriage, within the fourth degree, to the wife of the plaintiff will not, when made after verdict, be sufficient ground to set aside the verdict on the theory that the wife was interested in the suit, where it appears that the defendant was, prior to the trial, aware of such interest of the wife.

4. While equity has jurisdiction to reform written instruments, where there has been a mistake on the part of one of the parties, accompanied by fraud on the part of the other party, just as in cases where there is a mutual mistake, there was no error, in view of the evidence in the case, in the failure to charge this principle of law on the theory of the erroneous understanding of the contract by the defendant, known to the plaintiff at the time of its execution.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    8157.
    MADISON SUPPLY & HARDWARE CO. v. SIDWELL.
    1. Where an execution, which had been transferred in writing by the ■ plaintiff as collateral security for a debt to a bank, was delivered back on payment of the secured debt, but not transferred in writing to.the plaintiff, the equitable title to the execution was in the plaintiff; and where the plaintiff afterwards filed a petition in the plaintiff’s own name, for a rule against a constable who, it was alleged, had the execution for collection and had failed to make the money thereon, it was error to refuse to allow the plaintiff to amend the petition so as to proceed “for the use” of the bank.
    2. Under the provisions of the code (Civil Code of 1910, § 6042), the taking of a forthcoming bond would not excuse the officer for failing to make the money on the execution; the bond could not affect the rights of the plaintiff in execution, and the court erred in admitting in evidence such a bond and the record of a suit thereon.
    Decided July 5, 1917.
    Money rule; from Morgan superior court—Judge Park, March 10, 1916.

      M. Q. Few, for plaintiff. Williford & Lambert, for defendant.
   Bloodworth, J.

Madison Supply & Hardware Company filed a petition for a rule against J. T. Sidwell, alleging: that said Sidwell was a legal constable; that a justice court fi. fa. was placed in his hands for. collection; that he levied it on sufficient property of the defendant in fi. fa. to make the money thereon, and that although the fi. fa. remained in his hands a sufficient time for him to make the money thereOn and pay it over to the plaintiff, he failed to do so. Defendant • filed an answer of several paragraphs, to portions of which plaintiff filed a demurrer. The demurrer was overruled, and thereupon the plaintiff filed a traverse to the answer of the defendant. On the trial of the issue -raised by this traverse it was shown that the execution had been transferred in writing to the First National Bank, of Madison, was held by it as collateral security, and was turned over by the bank to the attorney for plaintiff in fi. fa. for collection; that when the levy was made by Sidwell the bank had not been paid, but subsequently the plaintiff in fi. fa. paid the bank in full; that at the time of the trial the hardware company owed the bank nothing, and that the execution had never been “transferred back to the company, but delivered” to it. After the evidence was in, the court announced the following ruling: “I hold that the evidence shows, at the time the levy was made in November, 1915, that it appears from the fi. fa. introduced in evidence in this case that it was transferred in writing to the First National Bank, of Madison, Ga., as shown by the indorsement and the oral evidence in the case; that if any one was damaged by the failure of the officer to make the money from the levy of November, 1915, it was the First National Bank, of Madison, and not the Madison Supply & Hardware Company; and therefore the Madison Supply & Hardware Company, under the law, would not be entitled to recover in this case as the papers now stand.” After this ruling the plaintiff offered to amend, so that the case would proceed in the name of the plaintiff “for the use of the First National Bank.” This motion was overruled and a verdict directed for the defendant. To the rilling on this ground the court attached the following note: “I refused to allow the amendment to sue for the use of the National Bank for the reason: 1st. It was not allowable. And, 2d, the evidence shows nothing was due the bank. 3d. The evidence showed that the execution was transferred to said bank, and therefore the Madison Supply & Hardware Company had no right to bring the rule.”

While at the date of the trial the bank had no interest in the execution, yet it was error to refuse the amendment offered so that the cause could proceed “for the use of the First National Bank.” Under our law, judgments and executions “are negotiable by indorsement or written assignment in the same manner as bills of exchange and promissory notes.” Civil Code (1910), § 4274; Price v. Bradford, 5 Ga. 364. The payment by the hardware company of all indebtedness to the bank, and the delivery of the fi. fa., placed the equitable title to the fi. fa. in the hardware company. “An assignment of a judgment should be in writing, in order to vest the legal title in the assignee; and if transferred by delivery merely, the assignee takes an equitable interest, and may use the name of the plaintiff for the purpose of enforcing his rights.” Robinson v. Schly, 6 Ga. 515 (5). “In a suit upon a chose in action by the holder of the equitable title thereto, the plaintiff may amend his declaration by adding the name of the person who holds the legal title, suing for his use.” Germania Bank v. Collins, 113 Ga. 1010 (39 S. E. 421); Estes v. Thompson, 90 Ga. 698 (17 S. E. 98) ; Wheeler v. Stapleton, 99 Ga. 731 (27 S. E. 724); Cross v. Johnson, 65 Ga. 717; Hayne v. Perry, 25 Ga. 400; Civil Code (1910), § 5689.

The court did not err in overruling the first and second grounds of the plaintiff’s demurrer to the plea, but the third and fourth grounds should have been sustained. The Civil Code (1910), § 6042, provides that forthcoming bonds shall not “in any ease prejudice or affect the rights of plaintiffs in execution, but shall relate to and have effect alone between the officer to whom it is given and the defendant in execution; and such officer shall in no ease excuse himself for not having made the money on an execution by having taken such bond, but shall be liable to be ruled as now prescribed by law.” Under this code-section the admission in evidence of the forthcoming bond, the record of the trial in the city court of Madison, the suit on the forthcoming bond, and all evidence as to the advertisement of the property after taking the bond, was erroneous.

On account of the direction given this case it is‘unnecessary to consider the other assignments or error.

Judgment reversed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8177.
    Moore v. Garrett.
    Decided July 5, 1917.
    Money rule; from Macon superior court—Judge Littlejohn. June 38, 1916.

      John B. Querry, J. J. Bull & Son, for plaintiff in error.

      Jule Felton, contra.
   Jenkins, J.

1. Where a person employs an attorney to bring suit on a note secured by a deed to land, and, in order to pay off an outstanding claim against the land, turns over to his attorney money for that purpose, but, owing to subsequent developments pertaining to the outstanding lien, directs his attorney not to make the payment indicated, and afterwards demands the return of the money, the attorney, on withholding the money, is subject to rule under the provisions of the Civil Code (1910), § 4954.

2. Where the petition for the rule admits liability of the movant to the attorney in a named amount, and asks only that the attorney be required to pay over the difference between that amount and' the sum so withheld, and where the attorney in his answer to the rule sets up other and larger sums claimed by him to be due him by the movant, on which pleading an issue is made, and a verdict is returned by> the jury in favor of the movant, and judgment thereon is entered according to law, the judgment will not be disturbed, where it appears that under the evidence the jury could have found in accordance with the verdict.

Judgment affirmed.

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


text:
    8226.
    CONSOLIDATED PHOSPHATE COMPANY v. STURTEVANT COMPANY.
    1. “Mere notice by a third party of his claim that an article purchased infringes, a patent owned by him is not of itself an eviction of the purchaser, so as to show a breach of the seller’s implied warranty of a right to use.”
    2. “The current profits of a going manufacturing concern are, as a general rule, too uncertain to form the basis of an award of damages for breach of contract affecting the operation of the plant.”
    3. No error is committed in admitting evidence offered and objected to as a whole, where parts of it are clearly admissible.
    4. Where the charge correctly submits to the jury all the issues in a cáse, if any fuller charge is desired it should be invoked by a timely written request.
    5. While a plea of total failure of consideration includes a plea of partial failure of consideration, yet when, as in this case, the jury are not given any data from which they could reduce the full amount of the. contract price, a charge' on partial failure of consideration would be unauthorized.
    Decided July 5, 1917.
    Complaint; from Laurens superior court—Judge Kent. February. 16, 1916.

      Edmund H. Parry, J. S. Adams, for plaintiff in error.

      Larsen & Crockett, contra.
   Bloodworth, J.

B. F. Sturtevant Company brought suit against the Consolidated Phosphate Company for $650, on open account, for one No. 9 Begulus Metal Exhauster. Defendant filed a plea, and at different times filed three amendments thereto. For convenience, we will designate these amendments in the order of their dates, as pleas 2, 3, and 4. The original plea denied the paragraphs of plaintiff’s petition in which it was alleged that the defendant was indebted to plaintiff, and, in .addition, there was a paragraph as follows: “That it is in no wise indebted to the plaintiff in any sum whatever.” The fourth plea was an itemized statement of certain amounts which defendant alleged “It was necessary to expend in installing said exhauster, and which- amount they have lost in consequence of the imperfect manufacture of said exhauster.” There was no demurrer or other objection to the original or to the fourth plea. All of the second plea was stricken on demurrer. On motion of the plaintiff paragraphs 10 and 11 of the third plea were stricken. The case then proceeded to trial, and resulted in a verdict for plaintiff for $650 principal and $227.50 interest. Defendant made a motion for a new trial, which was overruled, and the case is here on exceptions to .this ruling.

By the second plea the defendant sought to avoid liability because the contract entered into between plaintiff and defendant had in it the following clause: “The seller guarantees to us that the items covered in this purchase order do not constitute an infringement of any patent rights not owned or controlled by him; and the seller further agrees, that if any suit, action, or the like, for alleged infringement, is instituted by any third party against us on account of any items included in this order, that it will defend any and all such suits, etc., and protect us and save us harmless against any and all damages or expense on account of or incident to any litigation that may be instituted in connection with the purchase by us of any items included in this order. Unless otherwise agreed by us iu writing, the terms, conditions, etc., named in this order covering items purchased, will govern in settlement for same. In this plea it was alleged, that, “after said machine had been delivered by the plaintiff at the plant of the defendant, it (the defendant) received notice in writing from the Pratt Engineering & Machine Company, a corporation, of Atlanta, Georgia, advising the defendant that the said machine delivered at its plant by the plaintiff, as aforementioned, is an infringement of a patent owned and controlled by said Pratt Engineering & Machine Company;” and it was alleged that the defendant was misled and deceived by plaintiff, and that “the plaintiff has .placed the defendant in the position of having hereafter to defend a suit for infringement for use by the defendant of the machine delivered to it by the plaintiff.” This plea nowhere alleged that any suit had been begun or was threatened against defendant by the Pratt Engineering & Machine Company, or that the plaintiff was insolvent and not able to protect it under the special guaranty contract above quoted. The fact that Pratt Engineering & Machine Company had brought suit against plaintiff, and had notified defendant of. that fact, would be no defense to the action in the instant case. There must be eviction of the purchaser, or what is equivalent thereto, to defeat the claim of the seller. “Mere notice by a third party of his claim that an article purchased infringes a patent owned by him is not of itself an eviction of the purchaser, so as to show a breach of the seller’s implied warranty of a right to use.” The Electron, 74 Fed. 689 (5) (21 C. C. A. 12).

In paragraphs 10 and 11 of the third plea the defendant alleged that by reason of an explosion it was forced to shut down its mill for ten days; and it asked to be allowed to recover by way of recoupment $100 per day, which it alleged “was the net profit being earned up until the time of the wreckage of said machine, and . . was the net profit which it did earn immediately upon the installation of the machine which it was necessary to install to take the place of the inferior machine which was destroyed and which was purchased from plaintiff.” These paragraphs were properly stricken. “The current profits of a going manufacturing concern are, as a general rule, too uncertain to form the basis of an award of damages for breach of contract affecting the operation of the plant.” Harper Furniture Co., v. Southern Express Co., 148 N. C. 87 (62 S. E. 145, 30 L. R. A. (N. S.) 483, 128 Am. St. R. 588). In Thornton v. Cordell, 8 Ga. App. 588 (70 S. E. 17), it was held: * “The proper measure of damages chargeable to one who failed to comply with a contract to repair a boiler, by reason of which the owner of the boiler was prevented in whole or in part from operating his ginnery, is the rental value of the ginnery as a whole, or the rental value of such portion of the machinery as the defendant’s breach of contract put' out of operation. An estimate of probable receipts from the ginnery, based upon the actual receipts for the previous years and .the usual charge per bale for ginning, though admissible because illustrative, does not constitute a proper measure, because it does not take into consideration the necessary expense. And damages thus estimated are too remote for recovery, not only because subject to contingencies in the operation of the plant, which can not be foreseen, but also because neither the character of the crop nor the number of bales which may be carried to the particular gin in question can be foreseen, or naturally be supposed to be within the contemplation of the parties when entering the contract.” See also Hall v. Case Threshing Machine Co., 11 Ga. App. 840 (76 S. E. 597). Damages on account of loss of profits in such cases as this are recoverable only where they, “can be proved to be directly due to the breach, entirely dependent upon it, and the amount is absolutely fixed and certain, and the damages sought were within the contemplation of the parties.” In an action for breach of contract, “the party committing the breach is liable only for such losses as would naturally and probably be in the contemplation of the parties at the time of making the contract.” Tompkins Co. v. Monticello Oil Co., 153 Fed. 817.

It occurs to us that the striking of these two paragraphs from the plea is amply authorized by sections 4394 and 4395 of the Civil Code of 1910.

3. There was no error in admitting the letter referred to in the first paragraph of the amendment to the motion for a new trial. It was offered as a whole, and parts of it were clearly admissibl'1 Desverges v. Marchant, 18 Ga. App. 249 (2) (89 S. E. 221); Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (20 S. E. 437).

The second ground of the amendment to the motion for a new trial complains in a general way of the charge of the court, but does, not point out the alleged errors therein with sufficient definiteness. The charge, according to the statement in this ground, covered, “in a general way, the contentions of the defendant.” If more specific instructions were desired, they should have been embodied in a proper written request and presented to the judge before the jury retired. Mills v. Sanders, 16 Ga. App. 298 (2) (85 S. E. 207); Moultrie Compress Co. v. Byrom Cotton Company, 13 Ga. App. 617 (79 S. E. 589); Smith v. Bibb Mfg. Co., 112 Ga. 680 (37 S. E. 861); Odum v. Rutledge, 16 Ga. App. 350 (3) (85 S. E. 361).

The third ground of the amendment to the motion for a new trial complains that the court failed to charge the jury as to the law relating to partial failure of consideration, alleging that “the jury, under the evidence, was authorized to .consider the value of the property which was not shipped away, in connection with the plea of total failure of consideration.” It is well settled that “a plea of total failure of consideration includes within its terms the defense of partial failure of consideration, but the defendant can have no abatement from the purchase-price on account of a partial failure of consideration, unless he furnishes to the jury sufficient data to enable them to estimate with reasonable certainty the amount of the abatement.” Crouch v. Spooner, 9 Ga. App. 695 (72 S. E. 61); Central of Georgia Ry. Co. v. Borland, 12 Ga. App. 729 (78 S. E. 352); Hornsby v. Butts, 85 Ga. 694 (11 S. E. 846); Morgan v. Printup, 72 Ga. 66 (2); Grier v. Enterprise Stone Co., 126 Ga. 17 (54 S. E. 806). “The rule is, however, that a defendant may plead total failure of consideration, and under it submit proof of partial failure; but if the proof does not establish a total failure, the defendant must then introduce enough proof to show how far the consideration has failed and how much loss has been occasioned by the failure, to justify the jury in fixing upon some definite amount, before there can be any reduction in the 'verdict from the full sum stated in the note. We do not mean to say that this proof must establish the damage with arithmetical accuracy, but there must be such proof as to furnish a reasonable basis for the action of the jury when it comes to the question of abating the purchase.” Pidcock v. Crouch, 7 Ga. App. 302 (66 S. E. 271). In the case of Myers v. Philip Carey Co., 17 Ga. App. 535 (87 S. E. 825), it is said: “While a plea of total failure of consideration includes a plea of partial failure of consideration, yet when, as in this case, the jury are not given any data from which they could reduce the full amount of the contract price, a verdict allowing the defendant the benefit of a partial failure of consideration would be unauthorized.” Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (73 S. E. 412); Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558 (54 S. E. 538); Hinkle v. Burt, 94 Ga. 506 (19 S. E. 828).

To. support the plea of total failure of consideration in this suit it would be necessary for the defendant to show that the “Regulus Metal Exhauster” was entirely worthless; and the court would not be authorized to charge partial failure of consideration, in the absence of any data showing that the exhauster, as such, was of some value. 'After the machinery was torn to pieces, evidence as to the value of a part thereof would not authorize the charge of partial failure of consideration of the entire machine. There is no proof that this exhauster was worth less than the contract price. There was some evidence as to the value of detached parts of it, in the testimony of the president of the Consolidated Phosphate Company, as follows: “This piece that they are claiming was not shipped back was just a stool like which it stood on. It was worth between $25 and $50 I suppose, not over that anyway. I was instructed by the Sturtevant people to return it after the machine was broken.” There was some testimony of M. S. Leonard in reference to the value of “the sub-base, pedestal, bearings, pulleys and shafts, and the value of regulus metal,” but nothing to indicate that these articles were left in the possession of the Consolidated Phosphate Company. Indeed C. E. Lafrage, who was superintendent of the phosphate plant, testified: “Mr. Bashinski instructed me to pick these parts up and ship the whole business back to the company. I don’t remember that we kept any part of it. I think we shipped the whole thing back. I picked up all the parts of it that I could find.”

It will thus be seen that there is no sufficient data from which a reduction could be made from the contract price of the exhauster; and there was, therefore, no error in failing to charge on partial failure of consideration.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.