text:
    9738.
    MEANS, guardian, v. AMERICAN BONDING COMPANY OF BALTIMORE.
    Decided February 18, 1919.
    Under the section, of the code which provides that “the surety of any guardian on his bond . . may at any time make complaint to the * ordinary of any misconduct of his principal in the discharge of his trust, or for any other reason show his desire to be relieved as surety; . . and upon hearing the parties and their evidence, the ordinary may, at his discretion, pass an order discharging such surety from all future liability,” etc. (Civil Code of 1910, § 3052), the discharge of the surety in this case was authorized, it appearing that the guardian used funds of the ward in paying for land bought by the guardian for herself and the title to which she took in her own name, although she executed a promissory note, payable to herself as guardian, for the amount so used and seven per cent, interest thereon, and, to secure its payment, mortgaged to herself as guardian land sufficient for that purpose.
    The judge of the superior court, on appeal, did-not err in overruling the demurrer to the petition, or in failing to instruct the jury as requested by counsel for the defendant, or in directing a verdict in favor of the petitioner.
    Appeal; from Houston superior court—Judge Grabam presiding. April 3, 1918.
    The American Bonding Company presented a petition to the court of ordinary of Houston county, alleging: “That heretofore, to wit, on the 9th day of November, 1912, [the petitioner] became surety upon a bond in the penal sum of ten thousand dollars, given by Lilia Mae Means, as guardian of the estate of Sallie Mae Means, a minor, and conditioned as .required by law for the faithful pe-rformanee of her duties as guardian. And whereas your said petitioner desires to be released from further liability by reason of having executed the above-mentioned bond, as it is advised that the said guardian -has personally borrowed the funds of the estate, and, although the said guardian has offered to secure said loan by executing a real-estate mortgage, your said petitioner does not believe this is -a proper investment for trust funds.” The petition was amended as follows: “That said Mrs. Lilla Mae Means used her' ward’s money in paying the purchase-price of certain lands, the title to which she took in her own name, and'not in the name of her said ward, and that' said Lilla Mae Means appropriated to her own use the funds of her said ward.” To this petition the defendant demurred, on the following grounds: “Because said petition does not allege any misconduct of respondent as guardian in the dis- • charge of her duties, nor.set forth any other reason which.in law entitles petitioner to be relieved as surety on respondent’s bond as guardian.” “Because it is not alleged that respondent has mismanaged or wasted the estate of her said ward, nor is it alleged that respondent is not amply solvent, nor is it alleged that the estate of said ward is in jeopardy or at all liable to be wasted, depreciated, or diminished by any act or conduct on the part of respondent.”
    ' While the case was pending in the superior court on appeal, the presiding judge overruled the demurrer to the petition.
    The answer of the defendant contained the following: “Respondent admits that she has personally borrowed the funds of the estate of her said ward and has secured the payment of said loan by executing to herself as guardian a promissory note secured by a mortgage on real estate situated in said county, of market value sufficient to amply secure said loan, and she says that under all the circumstances said investment is safe and to the best interest of her said ward. For further answer respondent says: that the estate of her said ward-was in cash money, and by depositing the same in a savings bank, or making a time deposit thereof in a bank on a ■certificate of deposit, she was unable to earn for her said ward more than four per cent, per annum, and that very little, if any, more than such per cent, could be obtained for said'money when invested in bonds specified in the Code of Georgia for investment of trust funds. . . Respondent is- a widow, and her .said ward is her only child and sole heir at law. Respondent owns in her own right 698 acres of farm lands in said Houston county, Georgia, of the fair market value of fifteen or twenty thousand dollars; she likewise owns two houses and lots in, Elko, said county,- of the 'value of $3,000, and a store-house and lot in Elko of the value of $500, and six town lots in the town of-Elko of the value of $150; . . . respondent owns personal property of greater value than all of her debts aijd liabilities, except her debt and liability to her said ward. . . . There was a balance due of $5,000 on the purchase-price of her farm lands, and it was greatly to her interest and to the interest of her ward, as her sole heir at law, that she keep and-hold said farm lands, which have greatly increased in value since she purchased them, and which lands will continue to increase in value, in respondent’s judgment and belief. Respondent deemed it to the best interest of her said ward, considering the estate of the ward only, and also considering the interest of her said ward as respondent’s sole heir at law, to use her ward’s money in payment of the balance of the purchase-price of said farm lands, and she did use the same for said purpose, and thereby became indebted and liable to her said ward for said money, for the use of which respondent has paid to said ward interest at the rate of seven per cent, per annum, thereby greatly increasing the income of her said ward and preserving an estate in realty of large value for the benefit of said ward as respondent’s sole heir at law. Although respondent is amply solvent, owning realty of the value of at least twenty thous- and dollars, respondent as an individual has executed to herself as guardian of her said ward a mortgage on a lot of land containing two hundred and seven and one-tenth acres, being part of the lands in said Houston co.unty, to secure the estate of her said ward; said lands so mortgaged being of greater value than the estate of her said ward. Save and except the mortgage to secure the estate of her said ward as aforesaid, respondent’s individual estate in the lands and tenemefits aforesaid is absolutely free and unincumbered. Respondent further, says: that she has not been guilty of any misconduct in the discharge of her duties as guardian, that she has not wasted nor mismanaged the estate of her ward, has kept and is now keeping and will keep the estate of her ward safely and account for’ the same according to law and as in duty bound, and that there is no lawful reason authorizing her surety- to desire to be relieved, or authorizing her surety to be relieved as surety on her bond as guardian.”

      The bill of exceptions shows that on the trial of the case "the plaintiff put in evidence the defendant’s answer to said petition which said answer is a part of the record in said case, and then and there admitted in judicio in open court the truth of all of the facts set forth in the defendant’s said answer, and waived proof of the facts alleged by the defendant in her said answer, and said ease was submitted to the court and jury on the pleadings and the admission in judicio aforesaid. Thereupon the plaintiff moved the court to direct a verdict in. its behalf, and the defendant submitted to the court in writing certain requests to charge the jury as hereinafter set out.” The judge refused to submit the case to the jury and refused to charge as requested by the defendant, and directed a verdict finding for the plaintiff and that the plaintiff be released and discharged as surety on the bond of the defendant, and requiring her to give a new bond as guardian. The defendant excepted.

      John P. Ross, M. Kunz, for plaintiff in error, cited:
    Civil Code (1910), § 3052; Act 1805, Cobb’s Dig. 314; Act 1810, Cobb’s Dig. 317; Girardey v. Dougherty, 18 Ga. 259; National Surety Co. v. Morris, 111 Ga. 307 (1); Ray v. Justices, 6 Ga. -303 (2), 307; Dupont v. Mayo, 56 Ga. 304 (1), 306; Moses v. Moses, 50 Ga. 9; Brown v. Wiley, 107 Ga. 85 (1); 4 Bac. Abr. 562; Doster v. Arnold, 60 Ga. 316 (2), 318; Bennett v. Bird, 139 Ga. 28; Fidelity & Deposit Co. v. Butler, 130 Ga. 225; Civil Code (1910), §§ 3763, 3753; Perkins v. Dyer, 6 Ga. 401 (1); Brown v. Wright, 39 Ga. 96 (1, 2), 101; Jepson v. Patrick, 39 Ga. 569; Westbrook v. Davis, 48 Ga. 471 (4); Rogers v. Dickey, 117 Ga. 819 (1, 3,4); Civil Code (1910), §§ 3071, 4063; Royston v. Royston, 29 Ga. 82; Brown v. McWilliams, 29 Ga. 194; Cartledge v. Cutliff, 29 Ga. 758 (3), 769; Griffin v. Collins, 125 Ga. 159 (6); Walker v. Walker, 42 Ga. 135; Jones v. Nolan, 120 Ga. 588 (3, 4); Alien v. Hardee, 30 Ga. 463; Collins v. Dixon, 72 Ga. 475; Civil Code (1910), §§ 3764, 4077 (1), 4078; Slauter v. Favorite, 57 Am. R. 106,114; Lovell v. Minot, 32 Am. Dec. 206; Harvard College v. Amory, 9 Pick. 461; Abrams v. U. S. Fidelity &c. Co., 5 L. R. A. (N. S.) 575, and note; Jones’ Appeal, 42 Am. Dec. 282; Beach v. Moser, 46 Pac. 202; Devine v. Griffin, 25 L. C. Jnr. 249; Cosby v. Weaver, 107 Ga. 761 (1) ; 18 Cyc. 160 (b), note 64; McFayden v. Council, 81 N. C. 195; Sparrow’s Succession, 39 La. Ann. 696 (2 So. 501); Witherspoon v. Watts, 18 S. 0. 396.

      Hardeman Jones, Park & Johnston, Richard Curd, contra, cited:
    Park’s Ann. Code, §§ 3053, 3090, 3763, 3764, 3765, 4011, 4008, 3064; National Surety Co. v. Morris, 111 Ga. 307; Crawford v. Tribble, 69 Ga. 519; Rogers v. Dickey, 117 Ga. 819 (3); Venable v. Howard, 68 Ga. 167 (3); Pom. Eq. Jur. (3d ed.), §§ 1076, 1077; Hutson v. Jenson, 110 Wis. 36 (85 N. W. 689, 694); Fidelity & Deposit Co. v. Freud, 115 Md. 39 (80 Atl. 603, 605).
   Bloodworth, J.

(After stating the facts). The court did not err either in overruling the demurrer or in failing to submit the case to the jury and give the instructions to them requested by counsel for the defendant, or in directing a verdict for the plaintiff. Section 3053 of the Civil Code (1910), is in part as follows: “The surety of any guardian on his bond, or, if dead, his representative, may at any time make complaint to the ordinary of any misconduct of his principal in the discharge of his trust, or for any other reason show his desire to be relieved as surety; thereupon the ordinary shall cite the guardian to appear at a regular term of the court, and show cause why such surety shall not be discharged; and upon hearing the parties and their evidence, the ordinary may, at his discretion, pass an order discharging such surety from all future liability, and requiring such guardian to give new and sufficient security or be discharged from his trust; such new sureties shall be liable for past as well as future waste or misconduct of the guardian. And such discharged surety shall be relieved only from the time the new security shall be given.” Under this statute, it will be seen, a surety on a guardian’s bond can obtain relief in two distinct contingencies; first, in ease of misconduct of the guardian in the discharge of his trust; second, when for any other reason the surety desires to be relieved. In National Surety Co. v. Morris, 111 Ga. 308 (36 S. E. 690), Presiding Justice Samuel Lumpkin said: “The words, ‘any misconduct of his principal in the discharge of his trust,’ are obviously exhaustive of all acts, whether of commission or omission, which pertain to the guardian’s mismanagement of the estate, or the non-performance of any of the duties devolving upon him in his office. It follows that the words, ‘any other reason,’ which the surety may allege as constituting the basis of ‘his desire to be relieved’ from the bond, must relate to some other ground or grounds of relief not ejusdem generis with those which arise from the guardian’s official misconduct. "Want of personal integrity, lack of business capacity, extravagant or reckless living, indulgence in vicious or immoral habits, criminality, and scores of other things which might be suggested, would certainly afford good reasons for a desire to be relieved as surety.’ ” Granting that the estate of her ward had not suffered by her conduct in its management, still we think her conduct as shown by the record was embraced in the “scores of other things” which Presiding Justice Lumpkin says “would certainly afford good reasons for a desire to be relieved as surety.” In Rogers v. Dickey, 117 Ga. 819 (45 S. E. 71), the 3d headnote is as follows: “Even for the benefit of the.beneficiaries a fiduciary can not hazard the trust fund in speculation, business, or any form of investment not authorized by the deed of trust, the statute, or an order of a court of competent jurisdiction.” See also Venable v. Howard, 68 Ga. 167; Crawford v. Tribble, 69 Ga. 519.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    9799.
    LOTT v. PETERSON, executrix.
    Decided February 18, 1919.
    1. Where a lender requires, as a condition precedent to the making of a loan upon which the maximum legal rate of interest has been charged, that the borrower discharge and pay off certain obligations due by the borrower to the lender together with usurious interest thereon, the transaction is usurious. If one who owes to another a debt infected with usury obtains from him a loan of money at a lawful rate of interest, and out of the proceeds thereof actually and bona fide pays off the old debt with usurious interest, whether at the time of obtaining the new loan or afterwards, the new loan is not thereby usurious. If, however, the new transaction as a whole be merely- colorable and used and designed as a cloak to cover up usury, the new loan is usurious.
    2. The surety on a promissory note secretly infected with usury, of which he had no knowledge, is discharged from liability if the note contains a waiver of homestead. In a suit against the surety the burden is on the plaintiff, after proof of the usury, to show that the surety signed the note with knowledge of the usury.
    3. There was enough in the evidence in the present ease to authorize the jury to infer that the notes sued on were infected with usury, and it was therefore error for the trial judge to direct a verdict in favor of the plaintiff.
    Complaint; from Coffee superior court—Judge Summerall. March 16, 1918.

      W. C. Lankford, for plaintiff in-error.

      Dickerson, Kelley & Roberts, F. Willis Dart, contra.
   Stephens, J.

Mrs. Vicey Peterson, as executrix of the estate of B. Peterson, deceased, brought suit upon two promissory notes against J. S. Lott, as indorser. The defendant by way of defense set up the plea that the notes sued on were secretly infected, with usury, and that thereby the waivers of homestead' contained therein were void, thus increasing the liability of the surety and releasing him from his obligation. In support of this plea the maker of the notes, W. C. Lankford, testified, so'far as is material to our purpose here, as follows: “The consideration of this note was made up as follows: $500 cash actually advanced by Mr. Peterson to me; $1,000 was added in to settle a previous item claimed by Mr. Peterson against me. There was $500 of this thousand-dollar item that was charged out that I had agreed to pay Mr. Peterson as bonus for a previous loan of $2,500, which I had obtained from him. The other half of this thousand-dollar item charged out was for money actually previously advanced. The balance of this small note was money I was due him as interest at 12% per annum on the $2,-500 I had borrowed from him or on another loan, I don’t remember which one now. . . As to the second note for $4,218.24, my best recollection is that the amount I actually got out of that was $2,300; it might have run to $2,500; the balance of that note was for money I was due him, which he claimed against me as interest on $10,000 and other money I had borrowed from him. At least three-fifths of the balance charged out was for interest he had charged against me at the rate of $12 per $1,000 per month, on. money I had pre.viously borrowed from him, and the balance pf the amount, or at least two-fifths of the amount charged out, was for interest charged against me at the rate of 12%. I don’t remember whether he gave me checks for the full amount of these notes and I gave him checks back or not. . . I know I was only to.get and only got $500 cash out of the little note, and not over $2,500 out of the big 'note. . . I gave Mr. Peterson back checks for the money. . . I think Mr. Peterson gave me a check for the whole amount of the smaller note, and of the small note I gave back the amounts I bave heretofore mentioned. . . These checks were given to Mr. Peterson right at the time. . . I don’t know whether Mr. Peterson gave me a check or not for the full amount of the notes. . . I don’t remember whether ^Mr. Peterson gave me checks for the whole amount and I gave my checks back to him, or whether he gave me cheeks for the difference. . . I do know that there were checks passed back on the larger note. I got the full amount, but ■in that same transaction it was agreed that that note should cover all the other items. I simply paid part of those other debts to Mr. Peterson at the same time. The balance was paid to me in cash. I got $2,300 in actual cash on the big note and the balance went on what I owed on interest. I didn’t get that amount on the big note or small note so that I could take it and carry it away and do what I pleased with it. I got that amount turned over to me with the ■distinct understanding that I give those cheeks back to Mr. Peterson. .. . It was agreed between us that I was to pay it back to him; it was a part and parcel of the same transaction. He gave me the check and I gave him the check back. I owed him other amounts; he calculated the interest at 12% on the other amounts. Mr. Lott had nothing to do with what I did with this amount; he didn’t know I was paying this excessive interest. That was 12% on the other indebtedness I paid Mr. Peterson.” It was in evidence that the defendant Lott at the time of the signing of said notes was ignorant of the fact that Lankford, the maker, was paying usurious interest. The defendant Lott knew nothing of the usurious transactions. The notes sued on, each containing a waiver of homestead and drawing interest at 8%, were introduced in evidence. The trial judge directed a verdict for the plaintiff against the defendant for the full amount sued for. This judgment was excepted to and brought here for review.

The sole question to be determined is, was there enough in the evidence from which the jury could infer that the making of either one of the notes was a part of a usurious contract, or whether the circumstances surrounding the transaction would authorize the inference that it was a scheme or cloak to cover up usury. The Supreme Court of this State held in the case of Bishop v. Exchange Bank, 114 Ga. 962 (2) (41 S. E. 43), that “where a lender requires, as a condition' precedent to making a loan upon which the full legal rate of interest is expressly charged, that the borrower shall assume and pay off a promissory note held by the lender against one who is known by the lender to be insolvent, and whose debt the borrower is under no obligation to pay, the transaction is usurious.” Our first headnote is paraphrased from that ease and the ease of Bates v. Harris, 112 Ga. 32 (37 S. E. 105). In the former case the condition precedent to the making of the loan and a part of the consideration therefor was that the borrower should pay off the debt of another, while in the case here under consideration .there is evidence to the effect that a condition precedent to, and a consideration for, the making of the loan was that the, borrower should pay off his own usurious debts to the lender. This distinction makes-no difference in the principle of law applicable. .The principle is the same. The decision in the Bishop case was based upon the principle that the borrower in making the loan contracted to pay more than the maximum rate of interest which the lender was allowed by law to charge, and thus assumed a burden and obligation to pay, in addition to the highest lawful rate of interest, an amount in excess of that which he was legally under obligation to pay. If the borrower contracted and promised, or the lender reserved, charged, or took more than the lender was legally permitted to exact for the use of his money, the transaction was usurious. It is immaterial whether the borrower, in order to obtain the loan, agreed to pay to the lender a debt due the latter' by a third person, or whether the borrower agreed to pay his own. usurious debts to. the lender with usurious interest thereon. In either ease the borrower would obligate himself to pay that which he was under no obligation to pay, and thus would increase his obligation to the lender, which, if it amounted to more than the. highest rate of interest which the lender was allowed by law to. charge for the use of the money, would constitute usury-.. In the. case of Siesel v. Hams, 48 Ga. 652, it was held, that where money was loaned at a usurious rate of interest and a mortgage given by the borrower to secure the payment of the principal and usurious interest, and where such mortgage was given up and foreclosure abandoned upon partial payment of the debt with usury .by the borrower and the giving of new notes, for the balance, the new notes; were infected with usury.

The witness Lankford, the maker of the notes, testified: “It was agreed between us that I was to pay it back to him; it was a part and parcel of the same transaction.” In Archer v. McCray, 59 Ga. 546 (2), it was held that “where the original transaction was usurious, the usury infects all the securities given in renewal for the same debt, however varied in form and. amount, and the law applies all payments made on the debt to the principal and legal interest.” This ease was-cited with approval in Lockwood v. Muhlberg, 134 Ga. 660 (3) (53 S. E. 93), where it was held that “a renewal thereof does not divest a usurious contract of the taint, although the illegal interest thereon to the date of renewal be then fully paid.” See also Hammond v. Buys, 1 Ga. 416. Webb, in his work on Usury, § 308, says: “If a transaction is usurious in its inception, it remáins usurious until purged by a new contract; and all future transactions connected with or growing out of the original are usurious and without valid consideration. An original taint of usury attaches to the whole family of consecutive obligations and securities growing out of the original vicious transaction; and none of the descendant obligations, however remote, can be free of the taint it the descent can be fairly traced.” Judge Bleckley, in his opinion in the case of McGee v. Long, 83 Ga. 156 (9 S. E. 1107), says: “If there was usury in the original loan which was not purged out when these notes were given, and if that usury is in them, they are contaminated just as the original contract was.”

The original indebtedness which was paid off with'usury when the. notes sued on were executed was clearly usurious. Was this original taint of usury purged upon the execution- of the new notes or were the new notes given as a part- of a transaction that was colorable and designed as a cloak to cover up the .usury in the original transaction? These are questions of fact to be determined from all of the circumstances surrounding tire execution of the new notes. The new transaction, being confused with the original usurious indebtedness and making provisions for its extinguishment, is at least subject to the inference that it is colorable and tainted with usury. We fully recognize the doctrine that a borrower may obtain money at a legal rate of interest and use it to pay off usurious debts to the lender without thereby rendering the new loan usurious. If, however, the new loan was made with the distinct understanding and condition that the borrower would use the money to pay off the old loan with usury, even though the borrower received the full amount of the principal of the new loan and afterwards repaid the old loan with usury to the lender, the new transaction would be tainted with usury. Bates v. Hams, supra.

Whether or not, as a condition precedent to the making of the loans sued upon, the borrower agreed to pay up the original indebtedness with usurious interest, or whether the new transaction was bona fide or free from any usurious taint or a mere cloak to cover up usury, were questions of fact for a jury to determine. The law goes to the substance of the matter and seeks for the real truth. “No disguise of language can avail for covering up usury, or glossing over an usurious contract. The theory that a contract will be usurious or not according to the kind of paper-bag it is put up in, or according to the moré or less ingenious phrases made use of in negotiating it, is altogether erroneous. The law intends that a search for usury shall penetrate to the substance.” Judge Bleckley, in Pope v. Marshall,78 Ga. 635, 640 (4 S. E. 118). “The usury stalks like a pestilence through every form of contract, and poisons all it touches.” Judge Bleckley in Tribble v. Anderson, 63 Ga. 56.

2. It is well settled that where a promissory note is infected with usury of which the surety had no knowledge, he is released from liability if the note contains a waiver of homestead. The waiver is void by reason of the usury; and for that reason, if the surety be ignorant of the usury, his risk is increásed. The notes sued on were the so-called waiver notes, drawing interest at the maximum legal rate of eight per cent, per annum. The evidence is undisputed that the surety, plaintiff in error Lott, was ignorant of the usurious taint, if any, of the transaction surrounding the execution of the notes which he endorsed. Besides, the burden would be on the plaintiff, upon proof of usury, to show affirmatively that the surety had knowledge of the usury when he signed the notes. Bank of Omega v. Ford, 20 Ga. App. 496 (93 S. E. 106).

3. Whether or not the notes sued on were infected with usury was, under all the circumstances in this case, a question of fact to be submitted to the jury, and the court erred in directing a verdict for the plaintiff. '

Judgment reversed.

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


author: Bloodworth, J.

text:
    9817, 9821.
    McCorkel v. First National Bank of Statesboro et al.; and vice versa.

   Bloodworth, J.

1. None of the excerpts from the charge, when considered . in the light of the evidence and the entire ch’arge, are erroneous for any of the reasons assigned.

Decided February 18, 1919.

Rehearing denied February 27, 1919.

Complaint; from city court of Statesboro—Judge Proctor. May 13, 1918.

Johnston & Cone, for McCorkel.

Brannen & Booth, Anderson & Jones, Dead & Renfroe, Hunter & Jones, contra.

2. The ground of the motion for a new trial which excepts to the failure of the court‘to give certain specific instructions to the jury is without merit. The charge given covered the particular issue, and if more specific instructions were desired thereon, a proper and timely written request therefor should have been made.

3. The verdict was authorized by the evidence.

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

Broyles, P. J., and Stephens, J., concur.


text:
    9822.
    Hall v. Hillside Cotton Mills et al.

    Decided February 18, 1919.
    Action for damages; from city court of LaGrange—Judge Moon. April 6,1918.
    Hall sued the Hillside Cotton Mills and the Columbus Power Company, alleging, in brief, that he was employed by the. mills; that the said power company furnished electric current to the mills by wires which entered a transformer house at the mills and were connected with a switch-board and a meter in the transformer house; that one of these wires in the transformer house had been spliced or mended by some person unknown to him and was not at the time of the splicing or mending insulated or protected, but was left entirely exposed and naked; that it was his duty to go io the transformer house on Sunday and read the meter, and on Sunday, October 22, 1917, he did this; that on the next day he returned to the transformer house to get a rule that ho had inadvertently left there; that he picked up the rule and started to go out of the house, and, when he was át a point several feet from the wires and from the frame on which was fixed the meter and the switch-board, he was shocked and stunned by electricity which threw him back and rend'ered him unconscious, and'caused described injuries. He alleged that the defendants were negligent in allowing 'the wire to remain where it was, in an uninsulated and unprotected condition, in not informing him as to its condition and warning him of the danger, and in not furnishing him with a safe place in which to perform his duty; that he did not know, and in the exercise of ordinary care could not have known, of the dangerous condition described, and that he was in the exercise of due care and did not contribute to the injury.
   Stephens, J.

The plaintiff’s petition, failing to show that the negligence of the defendants, as charged therein, was the cause of the injury sued for, set forth no cause of action and was properly dismissed on-demurrer.

Judgment affirmed.

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

The defendants demurred on the ground that no cause of action was set out, and on numerous other grounds, and contended that no connection between the alleged negligence and the injury was shown in the petition. The court allowed the plaintiff an opportunity to amend in order to'meet this objection, but no amendment was offered, and the court sustained the demurrers and dismissed the suit. In the brief of counsel for the plaintiff it is said that “while it is not alleged how or in what manner the current of electricity reached the plaintiff from the wires, it is because the method of the passage is unknown to even experts;” that “the whole case comes under the doctrine of res ipsa loquitur, and is based on the law laid down in Chenall v. Palmer Bride Co., 117 Ga. 106, cited and followed in City of Thomasville v. Jones, 17 Ga. App. 625; Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762; Sinkovitz v. Peters Land Co., 5 Ga. App. 788.” On this point counsel for defendants cited: Codirell v. Langley Mfg. Co., 5 Ga. App. 322; Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695; Parks Arm. Code, § 5743, and citations under “Res ipsa loquitur.”

E. A. Jones, for plaintiff. Hatton Lovejoy, Frank U. Garrard,, A. S. Bradley, A. H. Thompson, for defendant.


author: Bloodworth, J. Broyles, P. J.,

text:
    9834.
    MYERS v. McLENDON.
    As against the defendant Myers, from whom, together with the owner of a certain building and another person, the plaintiff sought to réeover for injuries alleged to have been received in falling through a hole or trap in the floor of the building, when making measurements for “the purpose of furnishing an estimate of the cost of certain desired improvements at the request of Myers, who had been employed to make alterations in the building, no cause of action was set out in thé petition. The" court erred in overruling his demurrer to the petition.
    Decided February 18, 1919.
    Action for damages; from Fulton superior court—Judge Bell. May 3, 1918.
    McLendon sued Myers, Pierce, • and Healey Real ^Estate & Improvement Company for damages on account of personal injuries from falling through a hole in the floor of a building owned by the Healey Real Estate & Improvement Company. The petition alleges, that certain repairs were being made on the building by the owner at the instance of Pierce, who was to become a tenant therein, and that the owner employed Myers “to make certain alterations in said building;” that thereupon Myers “began work upon said building,' sending his agents and employees there to work, and himself going there many times each day to superintend the work being done.'” Paragraph 8 of the petition is as follows: “That the defendant Healey Real Estate and Improvement Company did not surrender, but retained, possession, custody, and control of said premises, and had said premises in its possession, custody, and control at the time plaintiff sustained his injuries as hereinafter set forth, and prior thereto.” In paragraph 12 it is alleged that on or about March 25, 1917, Pierce and Myers “each severally requested petitioner to go to said premises and there to make an estimate of the cost of installing therein a complete system of electric lights, fans, etc., through the entire building.” It is further alleged, that on or about the 27th of March the petitioner went to the said building for the purpose of making an estimate of the cost of the work desired; that it was necessary for him to inspect all the parts of the first floor of the 'building, and to get the measurements of its walls, and other parts of the building, and while engaged in these measurements he fell through a hole or trap in the floor, which was obscured by plank, dirt, and rubbish, and which he was not aware of and could not have discovered by the exercise of ordinary care. It is alleged that the defendants were negligent in failing to construct around the said hole or trap a barrier sufficient to keep- a person from falling therein, in failing to place a light that would give warning of the presence of the hole, in allowing plank, rubbish, and refuse to become accumulated' around and over the said hole - or trap, and in inviting the petitioner to go into the said building, without giving him warning of the presence of thé said hole or trap. The defendant Myers filed general and special demurrers to the petition, the general demurrer was overruled, and he excepted.

      Dodd & Dodd, for plaintiff in error.

      Madison Richardson, contra.
   Bloodworth, J.

(After stating the foregoing facts.) We think the court erred in overruling the demurrer. There is in the petition nothing to show what repairs were being made by Myers, or that the repairs or the making thereof had any connection whatever with the hole through which the plaintiff fell. Paragraph 8 of the petition, quoted above, distinctly negatives any possession, custody, or control of the premises by Myers at the time of the injury or prior thereto. Before damages for personal injuries, such as are sued for in this case, can be recovered, it must appear that the person against whom damages are sought owed some legal duty to plaintiff, and that the failure, or negligent performance, of that duty resulted in the damages. Under the pleadings in this case, what duty did Myers owe to McLendon ? Certainly not to have the-hole through which the plaintiff fell protected by placing around it barriers, lights, or other things to warn him of the presence of the hole, for Myers had no possession, custody, or control of the building. There is no allegation that Myers was present at the building at the time the plaintiff received the injury, and no allegation that he knew that the measurements necessary to make the estimates would carry the plaintiff to the immediate locality of the hole through which he fell. Surely it can not be seriously insisted that the mere fact that Myers and Pierce “each severally requested petitioner to go to said premises and there make an estimate of the cost of installing a complete set of electric lights, fans, etc., through the entire building,” without more, and, so far as the petition shows, without any suggestion from the plaintiff that 'he would comply with the request, and without any knowledge on the part of Myers, that the plaintiff was complying therewith and making measurements of the building, would impose ripon Myers the duty of giving to the plaintiff any warning as to the hole through which he fell. The petition, failing to show the breach of any duty which Myers owed the plaintiff, does not set out a cause of action against Myers, and his demurrer should have been sustained.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.

Broyles, P. J.,

concurring specially.

I think that the petition failed to set out a cause of action against the defendant Myers. Even if it could be held, that the petition showed that Myers was negligent in some of the particulars charged therein, it clearly appears from the petition as a whole that the proximate and preponderating negligence that caused the plaintiff’s injuries was the failure to warn him of the hidden danger—the hole in the floor— after he had entered the building and while he was engaged in measuring the right wall thereof. As to this negligence, the petition shows that Pierce, one of the defendants, was present and saw the plaintiff when he entered the building, and knew for what purpose he had come, and yet, although Pierce was aware of the existence of the partially hidden hole, he failed to warn the plaintiff of his danger; and that while the plaintiff was measuring this wall he fell into the hole and was injured. The petition does not allege that Myers was present on this occasion. On the contrary, construing the petition, as we must, most strongly against the plaintiff, it shows that Myers was not there. The petition further shows that this negligence of Pierce was that of an intervening independent agency. In my opinion, therefore, the petition clearly shows that even if Myers were guilty of some antecedent negligence, the controlling and proximate cause of the injury sued for was the negligence of Pierce, for which Myers was not accountable. This being true, Myers’s general demurrer to the petition should have been sustained.


text:
    9149.
    ATLANTIC COAST LINE RAILROAD COMPANY v. NEVES, administrator.
    Decided February 20, 1919.
    The motion to reinstate the motion for a new trial was properly overruled, as it showed no legal or equitable ground which would authorize the court to set aside the judgment dismissing the motion for a new trial
    Motion for a new trial; from city court of Blakely—Judge Sheffield. May 16, 1917.

      Pope & Bennet, A. PL. Gray, for plaintiff in error.

      Glessner & Collins, contra.
   Bloodworth, J.

This case was before this court at the March term, 1917, on exceptions to a judgment in the city court of Blakely sustaining a demurrer to the petition, which judgment.was reversed. See 19 Ga. App. 536 (91 S. E. 1047), where the substance of the petition is set forth. Upon the trial of the main case there was a verdict for the plaintiff for $500. The defendant made a motion for a new trial, which was set for hearing on June 18, 1917. On June 16, 1917, John D. Pope, a member of the firm of Pope & Bennet, division counsel for the railroad, received from the court reporter a transcript of the record of the trial of the case. When the motion for new trial was called on June 18th there was no appearance for movant, and the motion for new trial was dismissed. On the first day of the next term of the city court a motion to reinstate the motion for a new trial was filed, in which it was alleged that John D. Pope, of counsel for the railroad, had entire control for the movant of the motion for a new trial; that at the time said motion for new trial was set for a hearing his partner, Bennet, was engaged in the Supreme Court, and that the local counsel, Gray, had then no connection with the case; and alleging further that because of certain reasons stated in the petition, and which need not be repeated here, the said Pope was in great distress of mind and his mental and physical efficiency was impaired, which neither Pope nor his partner realized, and on account of which his client was entitled to a continuance of the hearing of the motion for a new trial; and that "by reason of the foregoing facts, and by reason of the great distress of mind under which he was suffering, the said Pope entirely overlooked the fact that said hearing was to be had on said 18th day of June, and therefore overlooked the fact that he should make a showing before the court and ask for a continuance of said hearing until he could complete said brief of evidence.” The petition was demurred to on the grounds: (a) The city court of Blakely was without jurisdiction to set aside the judgment. (5) The motion to reinstate set forth no legal or equitable grounds authorizing the court to set aside the judgment, (c) The attorneys for the railroad were chargeable with lack of diligence in not prosecutiing said motion for new trial at the June term of court, and in not then .and there pressing their grounds for a continuance of the hearing of the motion. The demurrer was sustained and the petitioner, excepted to this ruling.

Granting that the motion to set aside the judgment dismissing the motion for a new trial was made in time, and that the city court of Blakely had jurisdiction to entertain it, we think the demurrer to the motion to reinstate was properly sustained on the second ground thereof, which alleges: “Said motion to reinstate does not set forth any grounds, legal or equitable, authorizing the court to set aside its said judgment of dismissal, and to reinstate said motion for a. new trial.” The most that can be said of the allegations in the petition is that because of the “distress of mind and impaired physical condition of said Pope” he forgot, “overlooked,” the fact that the motion for a new trial was to be heard on the 18th of June, and “overlooked the fact that he should make a showing before the court and ask for a continuance of said hearing until he could complete said brief of evidence.” (Italics ours.) There is no suggestion that at that time Pope was either mentally or physically unable to complete the brief of evidence; and if able to do this, was he not able to preparé his motion for contiuuance? On Saturday, the 16th, Pope received from the court reporter the transcript of the evidence in the ease; and was not this enough to have reminded him of the hearing set for the 18th? - There is no evidence that his partner, Bennet, was not at home then, and no evidence of any sudden change in the mental or physical condition of Pope between Saturday and Monday. It is true that the petition alleges that “said distress of mind and impaired physical condition on the part of said Pope continued throughout said day on which said .hearing was set to be had,” and that, “by reason of the foregoing circumstances existing on the day when said hearing was set to be had, said Pope’s condition'of mind had become’such that he. was not at himself or in condition to attend to business and remember business engagements, though neither he nor his partner realized this fact.” But according to the petition -this condition of Pope had existed for sometime, the two partners had discussed the troubles, of Pope, and Bennet had insisted that Pope should go on with his work and thus keep his mind on business affairs, “so as- to keep it as much ’as possible from being distracted by thought of his son’s circumstances, the- said Bennet having no reason to suspect that said Pope’s efficiency had been impaired to any extent by his said troubles.” If Bennet, consulting with his said partner, did not discover or suspect that Pope’s “efficiency had been impaired,” then how could this be shown on a motion to reinstate the hearing of the motion for new trial? There is no suggestion in the record that Pope’s condition was known to any other person, or that his condition could be proved in any way. The fact that Pope “overlooked” the engagement was not enough to show that he was not in such a condition mentally or physically that he could not have looked after the case.

“Error will not entitle a plaintiff in error to the reversal of an adverse judgment unless, he also shows that he was injured by it.” There is not even an allegation in the petition that the motion for a new trial was a meritorious one. This ease seems to be one in which the attorney simply forgot his engagement, and we have often heard it said that “there is no law against forgetting.” To reinstate this case on the showing made would be for the court to “make a law in favor of forgetting.”

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Bloodworth, J. Stephens, J. Broyles, P. J.,

text:
    9473.
    INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. EUBANKS.
    Decided February 20, 1919.
    The -verdict not being demanded by the evidence, the grant of a first new trial will not. be disturbed.
    Certiorari; from Fulton superior court—Judge Pendleton. November 30, 1917.

      Dorsey, Shelton & Dorsey, for plaintiff in error.

      Moore & Branch, contra.

   Bloodworth, J.

This ease comes to this court upon exceptions to the first grant of a new trial. In Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (33 S. E. 471), the Supreme Court said: “It may be now considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence, or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one Rendered could possibly have been returned under the law and facts 'of the ease. Unless the ease can be brought within the exception just stated, it is useless for parties to bring before this- court the judgment of a trial judgé granting a first new trial." See also Ellis v. Spell, 20 Ga. App. 347 (93 S. E; 49); Southern Fertilizer & Chemical Co. v. Peacock, 19 Ga. App. 592 (91 S. E. 928), and eases cited. The judge of the superior court, in the exercise of his discretion, thought best to send the case back to the municipal court for a new trial; and this court will not interfere.

Judgment affirmed.

Stephens, J., concurs. Broyles, P. J., dissents.

Stephens, J.

This being the first grant of a new trial and the verdict not being demanded by the law and the evidence, I concur in the judgment of affirmance. There was evidence from which it might be inferred that the agent of the insurance company, by virtue of his previous dealings in similar transactions, with the company’s consent or ratification, had authority to waive a written stipulation in the policy. Western Assurance Co. v. Williams, 94 Ga. 128 (21 S. E. 370).

Broyles, P. J.,

dissenting.

In my opinion the evidence ■ demanded the verdict directed by the trial judge, and the judge of the superior court erred in sustaining the certiorari.


text:
    9709.
    United States Printing & Lithographing Company v. Stovall-Jones Company.
   Bloodworth, J.

1. Without authority to do so", the manager of a corporation engaged in the. wholesale grocery business, who is “the purchasing agent for the company” and secretary and treasurer thereof, can not bind the corporation by signing notes for stock in another corporation. ' Where 'Such a note was signed and given in the name of a corporation by its manager, and a plea of non est factum was filed, and it was not shown either that there was a course of dealing from which authority to sign.the notes could be implied, or that the seal of the corporation was affixed to the note, or that the act was ratified by the corporation, or that express authority to sign the note was given to the manager, but on the contrary he testified that “this transaction was not discussed with our directors; I have never advised them anything of it. . . I do not hold anything at all representing the stock we got from the Lewis Bear Drug Company at the time this note was executed,” the note was properly rejected as evidence, upon' objection that the execution thereof was not proved and that it was not shown that the manager had authority to' sign it. While slight evidence is ' sufficient to lay the foundation for the admission of a note the execution of which is denied by a plea of non est factum, still the sufficiency of this evidence is for determination by the court. Patton v. Bank of LaFayette, 124 Ga. 965 (5) (53 S. E. 664).

Decided February 20, 1919.

Complaint; from Ben Hill superior court—Judge Crum, March 4, 1918.

Bldridge Cutts, McDonald & Bennett, for plaintiff.

Wall & Grantham, Otis H. Elkins, for defendant.

2. The note sued on having been rejected as above stated, and the plaintiff offering no further evidence, the court did not err in granting a nonsuit.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    9736.
    Hinson et al. v. Haynes, receiver.
    Decided February 20, 1919.
    Action on bond; from city court of Hazlehurst—Judge Knox. April 22, 1918.

      J. C. Bennett, S. D. Dell, for plaintiffs in error.

      Newton Gaskins, contra.
   Stephens, J.

1. The evidence with all reasonable deductions therefrom demanded a verdict for the plaintiff, and the court did not err in so directing.

2. The court committed no error as allegel in the first and sixth grounds of the amendment to the motion for new trial,

3. The other special assignments of error do not properly raise any question for consideration by this court.

4. The motion of defendant in error that he be allowed damages against the plaintiff in error for prosecuting the case in this court is denied.

Judgment affirmed.

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


text:
    9831.
    9832.
    McNEAL v. SEABOARD AIR-LINE RAILWAY. WEATHERS v. SEABOARD AIR-LINE RAILWAY..
    Decided February 20, 1919.
    There can be no recovery of damages because of mental pain and anguish alone which resulted from mere negligence, when there was no physical tort resulting in injury to person or purse.
    Action for damages; from Fulton superior court—Judge Bell. April 15,1918.

      Paul Donehoo, for plaintiff.

      Brown, Randolph & Parker, for defendant.
   Bloodworth, J.

Miss Gensie McNeal and Mrs. Annie M. Weathers were daughters of J. M. McNeal. Both sued the Seaboard Air-Line Railway, the petition of Miss McNeal alleging, in part, that on or about August 26, 1917, the defendant received and accepted for shipment the corpse of her father at the Atlanta Terminal Station, Atlanta, Georgia, to be transported to Luxomni, Georgia; that full fare was paid for the transportation; that the plaintiff and the funeral party boarded a train of the defendant, due to leave thh said terminal station about 6:45 a. m., on which the corpse of her f ather&hould have been carried; that when the funeral party reached Luxomni it was learned that the corpse was not aboard the train; that owing to the failure of the defendant to transport the body as agreed, the funeral had to be postponed from 11 a. m. until about 3:30 in the afternoon, necessitating the plaintiff’s remaining in Luxomni an additional 'space of time, under a terrible strain; that the failure of the defendant tó have the body at Luxomni when the funeral party arrived inflicted upon the plaintiff a severe mental and nervous shock, resulting in a spell of illness from which 'she did not recover for several days; that the failure of the defendant to ship the corpse, was due to the negligence of the agent in charge of the terminal station in Atlanta, and was in reckless and wanton disregard of its duty as a common carrier, and of the rights, feelings, and sensibilities of the plaintiff. She prayed for judgment for $3,000. The petition of Mrs. Weathers was the same as that of Miss McNeal, except that instead of alleging that the severe mental and nervous shock resulted “in a spell of illness from which petitioner did not recover for several days,” the petition of Mrs. Weathers alleged: “by reason of which she remained in an unstrung condition for several days.” The petition of Miss McNeal contained the additional allegation that “petitioner was the youngest daughter of her father, the only child remaining at home at the 'time of his death, and the only constant companion of her father.” A demurrer to each petition was filed, containing both general and special grounds; the general demurrer in each case was sustained and the case dismissed, and the plaintiffs excepted.

' These two eases are almost identical, and both are controlled by the principle announced in a number of cases decided by the Supreme Court of our. State, among them Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 3.0 Am. St. R. 183); Giddens v. Western Union Telegraph Co., 111 Ga. 824 (35 S. E. 638) ; Sappington v. Atlanta & West Point Railroad Co., 127 Ga. 179 (2) (56 S. E. 311); Seifert v. Western Union Telegraph Co., 129 Ga. 181 (58 E. 699, 11 L. R. A. (N. S.) 1149, 121 Aim St. E. 210); Southern Bell Telephone &c. Co. v. Reynolds, 139 Ga. 385 (77 S. E. 388); Southern Bell Telephone &c. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136); Central of Georgia-Ry. Co. v. Wallace, 141 Ga. 51 (2), 53 (80 S. E. 282, 49 L. R. A. (N. S.) 429, Ann. Cas. 1915A, 1076. See also Southern Express Co. v. Byers, 240 U. S. 612 (36 Sup. Ct. 410, 60 L. ed. 825, L. E. A. 1917A, 197). In the Chapman case, supra, Mr. Justice Samuel Lumpkin said: “The law protects the person and the purse. The person includes the reputation. Johnson v. Bradstreet Co., 87 Ga. 79 [13 S. E. 250]. The body, .reputation and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But outside these protected spheres, the law does not yet attempt to. guard the peace of mind, the feelings or the'happiness of every one, by giving recovery of damages for mental anguish produced by mere negligence. There is no right, capable of enforce- • ment by process of law, to possess or maintain without disturbance any particular condition of feeling. The law leaves feeling to be helped and vindicated by the tremendous force of sympathy. The temperaments of .individuals aTe various and variable, and the imagination exerts a powerful and incalculable influence in injuries of this kind. There are many moral- obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation. Perhaps the feelings find as full protection as it is possible to give, in moral law and a responsive public opinion." The civil law is a practical business system, dealing with what is tangible, and does, not undertake to redress psychological injuries.”

We are not -unmindful of-the fact that this court has said, “while mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those cases • where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.” Dunn v. Western Union Telegraph Co., 2 Ga. App. 846 (3) (59 S. E. 189). The Dunn case is easily differentiated from the one now under consideration. While the negligence of the railroad company in the instant case was alleged to be “in reckless and wanton disregard of its duty as a common carrier, and of the rights, feelings, and sensibilities of your petitioner,” this is but a conclusion of the pleader.' The recital of facts upon which plaintiffs base, their claims for damages makes a case of negligent omission only. “If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received.”

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Broyles, P. J. Broyles, P. J. Stephens, J.,

text:
    9643.
    SOUTHERN COTTON OIL COMPANY v. SHIELDS.
    Decided February 21, 1919.
    Rehearing denied March 1, 1919.
    While a master may be liable for an injury to his servant resulting from the master’s negligence, although the master, in the exercise of ordinary care, could not have foreseen that his negligence would result in an injury of the particular kind produced, or in the particular servant being injured, yet he can not be held liable unless the injury sued for was the natural and probable result of his negligence. He is not liable unless, by the exercise of ordinary care and diligence, he could have reasonably apprehended that his negligence would or might result in injury to some one of his servants. Mitchell v. Schofield’s Sons Co., 16 Ga. App. 686 (85 S. E. 978).
    Action for damages; from Warren superior court—Judge Walker. March 2, 1918.

      M. L. Felts, for plaintiff in error. L. D. McGregor, contra.
   Broyles, P. J.

This was a suit against a master' for personal injuries sustained by his servant, and was based upon the alleged negligence of the master in not providing a safe place of work for the servant. In the plaintiff’s petition the only' reason given why the place was not safe was that it contained a defective machine. The undisputed evidence clearly showed, that the defect in the machine was a very slight one and not dangerous in itself, nor apparently dangerous in conjunction with any other instrumentality in the place; that the defect did not directly cause the plaintiff’s injury, but that it was only the indirect and remote cause thereof; and that the master could not, by the exercise of ordinary care, have reasonably anticipated that such an injury, or that any injury at all, would or might result from the defect. The master is not an insurer. He is not required to provide an absolutely safe place for his servants to work in, but only a reasonably safe place. In this case there is not in the record any evidence authorizing a finding that the place provided by the master was not a reasonably safe one for the plaintiff and the other servants to work in, or that the master, by the exercise of ordinary care and diligence, could have foreseen or reasonably apprehended that the defect in the machine would probably cause such an injury as that sued for, or any injury at all, either to the particular servant injured or to any other of his servants. It follows that the plaintiff was not entitled to a recovery, that the verdict in his favor was contrary to law and the evidence, and that the court erred in overruling the general grounds of the defendant’s motion for a new trial.

The foregoing ruling being controlling in the case, it is unnecessary to consider the special grounds of the motion for a new trial.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., concurs dubitante.

ON MOTION EOR REHEARING.

Broyles, P. J.

In, deciding that under the evidence adduced upon tire trial now under review the plaintiff was not entitled to recover, this court did not overlook its former ruling in the same case (20 Ga. App. 549, 93 S. E. 169), that the plaintiff’s petition was not subject to demurrer. That ruling, of course, became the law of the case, and, as such, is binding upon this court. However, the evidence'upon the subsequent trial did not affirmatively establish all the material allegations of fact set forth in the petition. The petition and the proof showed that the plaintiff’s injuries were caused by a lever being knocked over upon his arm on September 6, 1915; and paragraph 7 of the petition is as follows: "(7) Petitioner further avers that on or about the 4th day of September, 1915, the said Southern Cotton Oil Company placed a new lever into the 'cake-former’ which controlled the steam, and that petitioner stated to the superintendent or vice-principal that said lever was too long, whereupon the superintendent who was vice-principal of the Southern Cotton Oil Company [said] to petitioner that [he] knew said lever was too long, that he would have it cut off, and commanded petitioner to work with said lever until it was cut, but that the said lever was not cut off, and the same being so long made it easily touched and knocked up, thereby turning on the steam into the 'cake-former;’ this being the lever which was knocked up by the 'charger’ which caused the above injury in the manner and form •alleged.” Upon the trial the only evidence tending to support the allegations of this paragraph of the petition was the following testimony of the plaintiff: “I did hear Mr. Creason [the superintendent of the defendant company] say he was going to have the lever cut off, because it was too long.” It is obvious that this testimony did not sustain all of the material averments in .the paragraph. Nor was there any evidence that tended to show that a new lever had been installed, or that the superintendent or vice-principal had ordered the pla.int.iff to work with the lever until it was cut off, or that the length of the lever contributed to the injury sued for. The present ruling, therefore, is not in conflict with the former ruling (20 Ga. App., supra.) Moreover, the only witness presented to prove the case as laid was the plaintiff himself, and his testimony was so self-contradictory, vague, equivocal, and in some material respects so improbable, as to require that it be construed in the light most unfavorable to him; and, there being no other evidence tending to establish his right to recover, arid the version of his testimony most unfavorable to his cause showing that the verdict should be against him, and the evidence for the defendant, which was perfectly consistent' with this version, establishing a complete defense, the verdict for the plaintiff was unauthorized. Western & Atlantic R. Co. v. Evans, 96 Ga. 481 (23 S. E. 494); City of Thomasville v. Crowell, 22 Ga. App. 383 (96 S. E. 335), and cases there cited.

Rehearing denied.

Bloodworth, J., concurs.

Stephens, J.,

dissenting.

In the judgment of reversal I concurred dubitante. On motion for rehearing the cases of Ga. Ry. & M. Co. v. Norris, 135 Ga. 838 (70 S. E, 793), A. & W. P. R, Co. v. Hudson, 123 Ga. 108 (51 S. E. 29), Loveless v. Standard Gold Mining Co., 116 Ga. 427 (42 S. E. 741, 59 L. R. A. 596), and Mitchell y. Schofield’s Sons Co., supra, were brought to my attention. After a consideration of the same I am of the opinion that the questions of negligence were, under the evidence, matters entirely for the jury. I think a rehearing should be granted, and that the judgment should be affirmed instead of reversed.


text:
    9628.
    Cole v. Western Union Telegraph Company.
    Decided February 26, 1919.
    Action for damages; from Fulton superior court—Judge Pendleton. December 7, 1917.

      Payne & Jones, for plaintiff.

      Brewster, Rowell & Reyman, Marie-Bolding, for defendant.
   Stephens, J.

1. Where a bill of exceptions, duly certified as true by the presiding judge, recites that it was tendered within the time allowed by law, and there is nothing in the bill of exceptions or the certificate of the trial judge in denial of such averment, this court must conclude that the bill of exceptions was tendered and presented within the time allowed by law, although the date on which it purports to have been certified was beyond the statutory period allowed by law for tendering and present-, ing a bill of exceptions. Civil Code (1910), § 6187; Jones v. State, 100 Ga. 579 (28 S. E. 396) ; Pennington v. Sparta, 15 Ga. App. 287 (82 S. E. 826). In this case it also affirmatively appeal's, from the certificate of the presiding judge to the bill of exceptions, that the failure on his part to sign and certify the same-within the time prescribed by law was*not caused by any act of plaintiff in error or her counsel.

2. A telegraph company is not liable in damages for mental pain and suffering caused by negligent failure to deliver a telegraphic message, in the absence of any physical damage or pecuniary loss.

3. The only reasonable legal construction of the allegations set forth in the petition of the plaintiff is that the damages complained of resulted from a grossly negligent failure on the part of the defendant’s servants in the performance of their ordinary public duties owing to plaintiff. There is nothing in the petition which will authorize a recovery for punitive or exemplary damages growing out of “wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the' presumption of a conscious indifference to consequences.” Southern Railway Co. v. O’Bryan, 119 Ga. 147 (45 S. E. 1000).

4. The petition sets forth no grounds to warrant a recovery of special damages. It sets forth, however, a breach of public duty owing by the defendant company to the plaintiff; and since the plaintiff therein prays for nominal damages, it was error to dismiss the action on general demurrer. Civil Code, § 4397; Gurr v. Western Union Telegraph Co., 8 Ga. App. 556 (69 S. E. 1085); Glenn v. Western Union Telegraph Co., 8 Ga. App. 821 .(58 S. E. 83).

Judgment reversed.

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


text:
    9803.
    Ward v. Johnson.
   Stephens, J.

‘1. “The husband is bound to support and maintain his '■ ' wife, and his consent shall be presumed to her agency in all purchases of necessaries suitable to her condition and habits Of life, made for the use of herself and the family. This presumption may be rebutted by proof.” Civil Code, § 2996. “The husband is bound for necessaries furnished to the wife when separated from him, subject to the limitations hereinbefore -provided. If the wife be living in adultery with another man, the husband is not liable; but notice by the husband shall not relieve him from liability, if his wife is separated from him by reason of his own misconduct; if she voluntarily abandons him without sufficient provocation, notice by the husband shall relieve him of all liability for necessaries furnished to her.” Civil Code, § 2997.

Decided February 26, 1919.

Complaint; from city court of Quitman—Judge W. H. Long. April 8, 1918.

Bennett & Harrell, for plaintiff. Branch & Snow, for defendant.

2. Upon the trial of a suit against a husband for medical services rendered by plaintiff to defendant’s wife, evidence that before the date of the rendition of the services by plaintiff, defendant left the state as a fugitive from justice, carried his wife with him, and that she later returned to the former community and lived upon land belonging to the husband, the husband still remaining away, does not necessarily demaná the inference that the parties were living in a state of separation as husband and wife under such circumstances that the husband would not be liable for necessaries such as medical services furnished by plaintiff to the wife.

3. The assignment of error complaining of the court’s Refusal to allow plaintiff, while on the witness stand, to testify along certain lines set out in the assignment, is too indefinite and defective to raise any question for the consideration of this court, it not being shown therein that any pertinent question -was asked and that the answer was ruled out, or that the court was informed at the time what the answer would be, or that the testimony would have benefitted the plaintiff in error. Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); McKee v. Hurst, 21 Ga. App. 571 (94 S. E. 886), and cases there cited.

4. Whether credit was extended to the husband or to the wife, and whether the parties were living in a state of separation as husband and wife under such circumstances as would make him liable for necessaries furnished her, were questions for the jury.

5. The court erred in granting a nonsuit.

Judgment reversed.

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


text:
    9882.
    CORLEY v. THE STATE.
    1. Under the present prohibition laws of this State there is no independent crime of keeping for sale intoxicating liquors, distinct from the crime of having, controlling, and possessing such liquors.
    2. “Articles taken from the person or premises of the accused, tending to establish his guilt of the offense of which he is charged, are admissible in evidence against him, notwithstanding the articles were discovered by an unlawful search and seizure.”
    Decided February 26, 1919.
    Indictment for violation of prohibition law; from Crawford superior court—Judge Mathews. May 4,1918.

      John R. Cooper, for plaintiff in error.

      John P. Boss, solicitor-general, contra;
   Bloodworth, J.

1. The indictment contained two counts. The charge of the court restricted the jury to the consideration of the first count, which alleged that the defendant did “have, control, and possess intoxicating liquors,” and of that portion of the second count which alleged that he did “keep for sale alcoholic liquors.” Section 1 of the 'act of the General Assembly passed at the extraordinary session in 1917 (Act Ex. Sess. 1917, p. 8) names the following liquors: “any spirituous, vinous, malted, fermented, or intoxicating liquors, or any of the prohibited liquors or beverages, as are defined in the act approved November 17, 1915, being ‘an Act to make Clearer and more certain the prohibition laws of this State, etc., or any alcoholic compound or malt or liquors whether intended for beverage purposes or not, but which can be diluted, and when so diluted may be used as a beverage and will produce intoxication,” and then provides that “It shall be unlawful for any corporation, firm, person or individual . . to have, control or possess in this State any of said enumerated liquors or beverages whether intended for personal use or otherwise.” The words, “whether intended for personal use or otherwise,” are exclusive, and, no matter for what purpose intended, it is unlawful for any person to “have, control, or possess” any of the liquors enumerated in that section; and where an indictment charges that such liquors were kept for sale! the words “for sale may be stricken as immaterial, as they are not “descriptive of the identity of that which is legally essential to the claim or charge.” This being true, the two counts of the indictment were practically the same. Under the present prohibition laws of this State there is no independent crime of keeping for sale intoxicating liquors, separate and distinct from the crime of having, controlling, and possessing such liquors. From the above it will be seen that the two counts under which the defendant was tried charged the commission of one offense in two different ways. Section 1 of the act of 1917, supra, making it a misdemeanor to have, control, or possess intoxicating liquors, is so general in its terms that it embraces the crime of keeping for sale, as provided by section 3 of the act passed at the extraordinary session of 1915. (See Acts Ex. Sess. 1915, p. 80, see. 3.) Although the judge told the jury that the charge in one of these counts embraced the charge in the other, he also told them that they could convict on both counts of the indictment, and they returned a general verdict of guilty; and while the judge imposed only one sentence, in imposing it he may have taken into consideration the fact that the verdict was on both counts and made the sentence heavier for that reason. Though convicted on two counts, the defendant was convicted of but one . crime. He made no statement, and the evidence for the State absolutely demanded a verdict of guilty of “having, possessing, and controlling intoxicating liquors.” It is therefore ordered that the judgment be affirmed, with the direction that the trial judge may in his discretion resentence the defendant, as having been convicted under only the first count of the indictment.

3. The court did not err in allowing evidence as to the whisky found at the home of the defendant, the objections to its introduction being that the same “was the fruits of an illegal search and seizure,” and that the witness “had not seen the defendant commit any crime in his presence, and he had no search warrant to search his home, and it is in contravention of both the State and Federal constitutions.” “Articles taken from the person or premises of the accused, tending to establish his guilt of the offense of which he is charged, are admissible in evidence against him, notwithstanding the articles were discovered by an unlawful search and seizure; and this rule of evidence is not violative of the constitutional prohibition of unreasonable searches and seizures. The ruling in the case of Williams V. State, 100 Ga. 511 [38 S. E. 634, 39 L. R. A. 369] does not conflict with that of Evans v. State, 106 Ga. 519 [33 S. E. 659], as is clearly pointed out in Duren v. Thomasville, 135 Ga. 1 [53 S. E. 814].” Calhoun v. State, 144 Ga. 679 (3) (87 S'. E. -893). See also Galhoun v. State, 17 Ga. App. 705 (88 S. E. 586) ; Smith V. State, 17 Ga. App. 693 (88 S. E. 42).

Judgment affirmed, with direction.

Broyles, P. J., and Stephens, J., concur.


author: Broyles, P. J.

text:
    9654.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. MACON RAILWAY & LIGHT COMPANY.
    Decided February 27, 1919.
    Under the decision of this court in a former action between the parties to this case, in which a judgment of nonsuit was affirmed (9 Get. App. 628, 71 S. E. 1076), the award of a nonsuit on the trial now under review was not error, the cases on each trial being in all material respects substantially the same, both in the petitions and in the evidence.
    Action for damages; from Bibb superior court—Judge Mathews. February 26, 1918.

      R. S. Jordan, for plaintiff.

      John R. L. Smith, Hatcher & Smith, for defendant.
   Broyles, P. J.

In .a former action between the parties to this case, in which the cause of action alleged was the same as in the action now under consideration, this court affirmed a judgment of nonsuit. Central of Georgia Ry. Co. v. Macon Railway & Light Co., 9 Ga. App. 628 (71 S. E. 1073). That decision became the. law of the case, so far as concerned the case laid and the case made upon the trial then under review. - Hpon the trial now under review a nonsuit was again awarded. If the petition and the evidence upon the latter trial were in all material respects substantially the same as the petition and the evidence on the former trial, a judgment of nonsuit was the only legal one possible. We have carefully compared the two petitions and the evidence adduced upon both trials. We find that upon the first trial the evidence was stronger in favor of a recovery by the plaintiff than it was upon the last trial. As to the two petitions, both charged the defendant not only with negative negligence, but with positive acts of negligence, and the petitions are substantially the same in all material respects, except that the last petition contains an additional allegation of an act of positive negligence by the defendant which was not in the first petition. This does not help the plaintiff, however, or change the relative circumstances between the two petitions and the evidence adduced in their support, since the evidence upon the last trial failed to sustain this averment of the petition. On the contrary the evidence clearly showed that when the electric apparatus was installed it was in a safe condition, and that the. damage was not the result of any positive act of negligence'on the part of the defendant, but resulted from the passive joint negligence of both the defendant and the plaintiff in failing to properly inspect the apparatus and to maintain it in a safe condition.

This ruling is not in conflict with the decision of the Supreme Court in this case (Central of Georgia Ry. Co. v. Macon Ry. & Light Co., 140 Ga. 309 78 S. E. 931). That decision held, in substance, that although, “as a general rule, on'e of two or more joint tort-feasors has no right of action over against those connected with him in the tort, for either contribution or indemnity, where he alone has been compelled to satisfy the damages resulting from the tort,” yet the facts alleged in the petition were sufficient to shovf an exception to the general rule, viz., that “in some cases one who is .liable as a tort-feasor because he has failed to exercise due diligence to discover a defect or danger in machinery, appliances, or places where the injured person is required to work, and has been compelled to pay damages for injuries growing out of the tort, may have a right to recover over against another whose negligence produced or brought about the defect or dangerous condition in the machinery, appliances or place, which defect was the proximate cause of the injury.” In other words, the Supreme Court held merely that the facts as alleged in the petition made a case within the exception to the general rule. Upon the last trial, however, the evidence failed to sustain these allegations of fact in the petition, but, on the contrary, showed a case within the general rule. In our opinion the judgment of nonsuit was proper.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.