text:
    8417.
    JOHNSON v. GEORGIA FERTILIZER & OIL CO.
    1. In order that one who has signed a promissory note apparently as principal may, prior to judgment, prove that he was merely a surety, the plea setting up that fact and praying that the judgment be molded accordingly must also show that previous notice had been given the principal of the surety’s intention to make such proof. Civil -Code (1910), § 3556; Carlton v. White, 99 Ga. 384 (27 S. E. 704).
    2. A promissory note reciting, “I promise to pay,” and signed by two or more persons, is a joint and several obligation, irrespective of whether one or more of the signers may in' fact be sureties. Booth v. Huff, 116 Ga. 8 (42 S.' E. 381, 94 Am. St. R. 98).
    3. The holder of a joint and several note may sue the obligors jointly or severally, or sue any one of the signers alone.. On such an obligation he may sue the principal and the surety jointly, or at his option he may sue either the principal or the surety alone. Civil Code (1910), §§ 3553, 3559; Reid v. Flippen, 47 Ga. 273, 275; McMillan v. Heard National Bank, 19 Ga. App. 148, 151 (91 S. E. 235).. A judgment against one of two joint and several obligors which has never been satisfied is no bar to a suit against the other (Booth v. Huff, supra) ; and in a suit against both of the signers, on a joint and several promise to pay, a judgment by default against one does not terminate the suit against the other, where the latter, by his silence, consented to a severance. Merritt v. Bagwell, 70 Ga. 578.
    4. In a suit against two signers ^of a promissory note, where one of the defendants makes no defense, and judgment as to him is taken by default, a plea by that defendant setting up a discharge in bankruptcy, filed at a subsequent term of the court during the pendency of the litigation as to the other defendant, is a mere nullity, and the direction of a verdict against such other defendant does not affect the liability of the former under the original judgment obtained against him, nor does it affect any rights which he may in fact have under such a subsequent discharge.
    5. The discretion which belonged to the court in determining whether or not the plaintiff in this case should be required to file pleading in the nature of a replication, in order to meet the averments made by defendant’s amended plea (Park’s Ann. Code, § 5633), will not be disturbed.
    6. The court erred in sustaining plaintiff’s demurrer to the amended plea.
    Decided January 21, 1918.
    Complaint; from city court of Thomasville — Judge W. H. Hammond. December 22, 1916.
    The Georgia Fertilizer & Oil Company filed suit to the June term, 1915, of the city court of Thomasville against J. N. Butler and L. D. Johnson on a promissory note reciting “I promise to pay,” signed by each of the defendants apparently as principals. At the appearance term no defense of any sort was made by Butler, and judgment by default was entered as to him. At that term Johnson, the codefendant, made answer denying the statutory notice alleged to have been given in regard to the attorney’s fees claimed, and setting up that he was in fact only a surety on the note. He prayed that whatever judgment might be rendered in the case should be entered against Butler as principal and himself ~ as surety. Johnson did not show by his plea, however, that notice had been given the alleged principal of his intention to make such proof. Johnson at the same time filed a demurrer setting out a defect in the plaintiff’s petition. The court sustained this demurrer, and upon the suit being dismissed as to Johnson, the .plaintiff excepted. The judgment sustaining Johnson’s demurrer was affirmed by this court, subject, however,, to the right of plaintiff to curé the defect by amendment,. See Georgia Fertilizer & Oil Go. v. Johnson, 18 Ga. App. 281 (89 S. E. 344). The petition was accordingly amended, and Johnson’s original plea was then amended by setting up two grounds of defense, to wit: (a) that the judgment by default against Butler terminated the action against him; (6) that when the plaintiff sued out the writ of error to review the judgment of dismissal as to Johnson, Butler was not made a party defendant thereto, and that when a motion was made in this court to dismiss the writ of error on that ground, the plaintiff’s counsel, with authority of the plaintiff, obtained Butler’s consent to be made a party defendant to the writ of error, under an agreement that Butler should be released from all liability on the note sued on. The amended plea set out that the further prosecution in the city court of the suit against Johnson amounted to á ratification by the plaintiff of the release thus made by its counsel; that such release of Butler increased the risk and liability of the defendant Johnson, and, being made without his knowledge or consent, entitled him to a full discharge from the note sued on, irrespective of whether his relation to the note was that of surety, according to the actual facts,-or whether he be considered as a coprincipal. Johnson presented also at this time a motion asking the' court to require the plaintiff to file a replication answering the new matter set up by the amended plea. Also at this time the defendant Butler, against whom judgment by default had been rendered at the appearance term, filed an answer setting up that by order dated October 28, 1916, he had been discharged in bankruptcy from the obligation sued on, and praying that he be discharged from said suit. To the amended plea of Johnson the plaintiff demurred generally and specially. The court sustained this demurrer, overruled the motion to require replication on the part of the plaintiff, and, after having stricken Johnson’s plea as amended, proceeded, on motion of the plaintiff, to direct a verdict against Johnson for the amount of principal and interest due on the note. No account was taken of the plea of discharge filed by Butler.

      Clifford E. Hay, for plaintiff in error.

      Titus, Delete & Hoplcins, contra.
   Jenkins, J.

(After stating the foregoing facts.)

It is only the ruling stated in the 6th headnote that seems to require elaboration. While -counsel for plaintiff in the court below deny in their brief the allegations made by Johnson’s amended plea relative to the agreement alleged to have been entered into by them, they do not, of course, question the fact that the court below and this court, so far as the purposes of the demurrer are concerned, are bound to take as true each and every allegation therein set forth. Plaintiff’s counsel insist .that since the note sued on contains within itself no reference to any suretyship on the part of Johnson, and since neither the original plea nor the amendment shows that Johnson had given notice to Butler that he would seek to have the judgment framed so as to show that he, Johnson, was a surety only, and that since Butler is not in any way made a party to the defense set up by the amended answer claiming Johnson’s discharge by reason of the agreement releasing Butler, the court below was obliged to sustain its demurrer to the amended plea. We think, however, that the defense set up in the amendment to Johnson’s plea does not depend for its validity upon his relationship of surety on the note sued on, but that even if no such claim were made, and it could be shown that the plaintiff executed a valid release to Butler, Johnson, 'even though he were a joint principal, would thereby become discharged. See Campbell v. Brown, 20 Ga. 415; Powell v. Davis, 60 Ga. 70. Plaintiff also contends that inasmuch as the release set forth in the amended plea appears not to have been in writing, it was unenforceable as between the parties thereto, and. consequently can not operate as a release in favor of the other obligor, Johnson. We think, however, that an agreement of counsel authorized by his client, as is here alleged, even though not in writing, becomes binding when fully executed. Bradshaw v. Gormerly, 54 Ga. 557 (3); Wimberly v. Adams, 51 Ga. 433. It is also insisted that the amended plea is defective in that it does not show that the plaintiff itself ever had knowledge of the agreement alleged to have been entered into by its counsel, and th? t therefore, under the rule of law that knowledge is essential to ratification, the release is'not binding upon the plaintiff, and consequently does not bind Butler. But since the amended plea states specifically that the agreement was made by counsel with full authority from the plaintiff, we do not think the doctrine here invoked is applicable, which is to the effect that the unauthorized act of an agent becomes binding when with full knowledge of the facts it is ratified by the principal. Lamplcin v. First National Bank, 96 Ga. 487 (33 S. E. 390). The point involving the greatest difficulty to the writer has been to determine whether or not the alleged release set forth in the amended plea was, under the averments as therein made, founded upon a consideration. That a consideration must exist in order to make valid such a release has been decided many times by the-Supreme Court and also by this court. Bruton v. Wooten, 15 Ga. 570; Stamper v. Hayes, 35 Ga. 546; Molyneaux v. Collier, 30 Ga. 731; Fowler v. Coker, 107 Ga. 817 (33 S. E. 661); Williams-Thompson Co. v. Williams, 10 Ga. App. 351 (73 S. E. 409). If, for the lack of consideration, the alleged release is not binding upon either of the parties thereto, it would not afford the basis of a discharge in favor of Johnson, the other obligor. We fully agree with counsel for plaintiff in their, contention that the failure to make Butler a party defendant in the former writ of error did not render that bill of exceptions subject to dismissal, and therefore we do not think any benefit whatever inured to the plaintiff by reason of the fact that Butler consented to be made a party defendant to it. See Wyche v. Greene, 16 Ga. 47; McGaughey v. Latham, 63 Ga. 67 (3); Fining v. Georgia By. & El. Co., 133 Ga. 458, 463 (66 S. E. 337); Bank of Covington v. Cannon, 133 Ga. 779 (67 S. E. 83). The definition of a consideration in section 4343 of the Civil Code (1910) is as follows: “A consideration is valid if any benefit accrues to «him who makes the promise, or any injury to him who receives the promise.” So while it is thus true that no possible benefit accrued to the plaintiff by reason of Butler consenting to bepome a party defendant to the former writ of error, still, if it be true that by reason of the execution of.such alleged agreement any injury resulted to Butler, such injury to him would afford a consideration for the agreement, just as sufficient as would a benefit flowing to plaintiff. If Butler, upon the agreement made for his release, consented to be made a party defendant to the former writ of error, as set forth by the amended plea, he thereby subjected himself to liability for the cost of the writ of error, and by assuming that risk he in law became injured through the consummation of the alleged agreement. While this contention is set forth by the defendant in the brief of his counsel, it is true that it is not thus stated in the amended plea; hut, since this result necessarily follows as a matter of law from the statement of facts therein set forth, no necessity existed for outlining in the plea the reason why a valid consideration existed, where, from the statement of facts, it necessarily follows as a legal consequence. It is for this reason that we think the plea as amended shows that the alleged agreement was based upon a legal consideration, and not because of any possible benefit flowing to plaintiff therefrom.

Judgment reversed.

Wade, G. J., and Harwell, J., concur. Harwell, J., was designated to preside instead of Lulce, J., who was disqualified.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8496.
    McBRYANT v. SOUTHERN COTTON OIL COMPANY.
    The evidence tended to establish the ease alleged in the plaintiff’s petition, and the questions as to negligence were for the jury. It was therefore error to grant a nonsuit.
    Decided January 21, 1918.
    Action for damages; from city court of Savannah — Judge Davis Freeman. January 34, 1917.

      Osborne, Lawrence & Abrahams, for plaintiff.

      George W. Owens, O’Byrne, Hartridge & Wright, for defendant.
   Luke, J.

The only question raised in this case is whether or not the court erred in granting a nonsuit. Inasmuch as we have after a careful examination of the evidence decided that the judgment of nonsuit was improper, it might work injury to the parties to discuss the evidence. Suffice it to say that the evidence tends to establish the case as pleaded by the plaintiff, and the questions as to alleged negligence were, under the evidence in the case, purely jury questions. The court erred in granting the nonsuit.

Judgment reversed.

Wade, G. J., and Jenlcins, J., concur.


text:
    8504.
    Southern Railway Company v. Irwin.
    Decided January 21, 1918.
    Action for damages; from city court of Baxley — Judge Sellers. December 2, 1916.

      J. B. Moore, Bennet, Twitty & Reese, for plaintiff in error.

      W. W. Bennett, contra.
   Luke, J.

The petition was not subject to the demurrers interposed. Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Petty v. Atlantic & Birmingham Air-Line Railway Co., 132 Ga. 153 (63 S. E. 817). The motion for a new trial was based on the general grounds only, and there was evidence to authorize the verdict, which has the approval of the trial judge. It was not error to overrule the motion for a n«w trial.

Judgment affirmed.

Wade, C. J., and Jenlcins, J., concur.


author: Jenkins, J.

text:
    8603.
    Scott & Company v. Ward.
   Jenkins, J.

1. Where a case is submitted to the trial judge under an agreement that he shall direct a verdict for one side or the other, and the bill of exceptions itself distinctly shows that there was no controversy about the facts, but that the 'question submitted was purely one of law, an assignment of error that, “Within thirty days from the direction of said verdict [plaintiffs in error] excepts to the same, and alleges that the court erred in directing said verdict and signing up said judgment, and assigns error on the same, and alleges that said judgment and verdict was error,” is sufficient, as it necessarily means that the judgment of the court is excepted to as being contrary to law. Patterson v. Beck, 133 Ga. 701, 707 (66 S. E. 911); Ocilla Southern Railroad Co. v. Morton, 17 Ga. App. 703 (87 S. E. 1088); Savannah Trust Co. v. Rational Bank, 16 Ga. App. 706, 718 (86 S. E. 49). The ' motion to dismiss the bill of exceptions is therefore overruled.

2. A landlord’s special lien on crops of his tenant arises by operation of law, and is superior to all other liens, except liens for taxes. Civil Code (1910), § 3340; Colclough v. Mathis, 79 Ga. 394 (3) (4 S. E. 702); Saulsbury v. McKellar, 59 Ga. 302 (3); Cochran v. Waits, 127 Ga. 93 (2) (56 S. E. 241).

Decided January 21, 1918.

Money rule; from^Troup superior court — Judge Terrell. February 13, 1917’.

E. T. Moon, B. J. Mayer, for plaintiffs in error.

Franlc Harwell, contra.

3. Eiens which are created by statute not merely declaratory of the common law, and which are not dependent for their existence on the possession of the property to which they attach, are generally assignable. 19 Am. & Eng. Enc. Law (2d ed.), 25; Ritter v. Stevenson, 7 Cal. 388; Duncan v. Hawn, 104 Cal. 10 (37 Pac. 626); Sinton v. Steamboat R. R. Roberts, 46 Ind. 476; Tuttle v. Howe, 14 Min. 145 (100 Am. D. 205); Herr v. Moore, 54 Miss. 286.

4. Such a lien may be assigned by the landlord in writing, and not otherwise, and under such assignment the assignee shall have all the rights of the landlord (Civil Code, § 3372) ; and this is true whether the rent contract between the landlord and tenant be in writing or not, if the relation of landlord and tenant exists at the time of the execution of the written assignment by the landlord.

5. The defendant in error having foreclosed his landlord’s lien by distress warrant, his claim on the funds was superior to that of the plaintiffs in error, who foreclosed a mortgage on the crops of the tenant and placed the mortgage fi. fa. in the hands of the sheriff. The court did not err, therefore, in directing a verdict for the defendant in error, upon the trial of the money rule against the sheriff.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


text:
    8604.
    Barrett v. Exchange Bank
   Luke, J.

. 1. An assignment of error upon, the admission of testimony must disclose that objection was made at time of trial, and must also disclose the ground of objection made at the time. Winder v. State, 18 Ga. App. 67 (88 S. E. 1003); Commercial City Bank v. Sullivan, 18 Ga. App. 608 (90 S. E. 173).

2. The court did not err in overruling the objection made as to the admissibility of- tlie evidence offered by the plaintiff, complaint of which is made in grounds 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the amendment to the motion for a new trial.

3. The motion for a new trial complains of the following charge of the court: “The true question in this case is, whether the debt sued-on is in whole or in part the debt of Mrs. Barrett. Even if it was the debt of Mrs. Barrett, she would not be liable for any portion of it that was the debt of Mi\ Barrett. The reason for this is, a married woman can not be surety for the debt of her husband or any one else, nor can she assume the debt, or promise to pay the debt of her husband. But a married woman is liable for her own debt, and can contract to pay her own debt, and will be controlled by the facts of the transaction. You will look to the substance; and if the debt is the debt of the wife in truth, she is liable. If it is the debt of the husband, the wife is not liable.” This charge is not subject to the exception that it is not full or fair, or is limited or prejudicial. The charge of the court is more full than in Ginsberg v. Peoples Bank of Savannah, 145 Ga. 815 (89 S. E. 1086). If more full and explicit instructions were desired, proper request should have been made. City of Atlanta v. Glenn, 17 Ga. App. 619 (4) (87 S. E. 910). The contentions of both parties, upon a reading of the entire charge, were fully and fairly presented. Gooley v. Bergstrom, 3 Ga. App. 496 (5) (60 S. E. 220).

Decided January 21, 1918.

Complaint from Baldwin superior court — Judge H. C. Hammond presiding. March 5, 1917.

Allen & Pottle, Burwell & Fleming, for plaintiff in error.

Hines & Vinson, Hardeman, Jones, Park & Johnston, Harry 8. Strozier, contra.

4. The evidence authorized the verdict, which has the approval of the trial judge. Eor none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Duke, J.

text:
    8620.
    Putnam v. Taylor.
   Duke, J.

1. Where a widow sues for the homicide of her husband, and the defendant admits the killing and seeks to justify it by pleading the debauchery of his daughter by the deceased, but fails to set up facts or circumstances showing such an urgent and pressing danger of a new act of adultery as to make the killing absolutely necessary in order to prevent the new act, it is not error to strike the plea, on demurrer thereto by the plaintiff. Mays v. State, 88 Ga. 399 (14 S. E. 560); Jackson v. State, 91 Ga. 271 (18 S. E. 298, 44 Am. St. R. 22); Farmer v. State, 91 Ga. 720 (18 S. E. 987); Perry v. State, 102 Ga. 365 (9) (30 S. E. 903); Channell v. State, 109 Ga. 150 (2) (34 S. E. 353).

2. Where in such a case the defendant was permitted to plead such matter in mitigation (as to which plea no question is here presented for decision), and the daughter was sworn and examined as a witness for the defendant without being interrogated as to her illicit relations with the deceased, and the defendant testified that prior to the killing his daughter persistently denied her guilt, and that she admitted it only after the defendant had been placed in jail under a charge of murder, on account of such killing, it was not error for the court to deny to the defendant the privilege of recalling the daughter as a witness for the purpose of proving by her that the alleged illicit relations had in fact existed.

3. The plaintiff proved her case as laid in her petition. The defendant’s answer and testimony demanded a finding by the jury that he had feloniously killed the plaintiff’s husband. It was therefore proper for the court to instruct the jury that the sole issue for their determination was the value of the life of the deceased, following such direction with instructions as to the method of arriving at the amount of plaintiff’s recovery. Civil Code (1910), § 4424.

Action for damages; from Gordon superior court — Judge Tarver. March 3, 1917.

G. A. Coffee, Maddox, McCamy & Shumate¡ for plaintiff in error.

M. B. Eubanks, J. G. B. Erwin, Jr., T. W. Shelly, contra.

Judgment affirmed.

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


text:
    8625.
    Middleton v. Parker.
    Decided January 21.
    — Rehearing denied January 31, 1918.
    Action for damages; from Camden superior court — Judge High-smith. February 16, 1917.

      H. Boy Lang, S. C. Townsend,, C. B. Conyers, for plaintiff.

      James B. Thomas, David S. Arlcinson, for defendant.'
   Luke, J.

1. All motions for continuances are addressed to the sound discretion of the court. Leathers v. Leathers, 132 Ga. 211 (63 S. E. 1118). On hearing evidence upon the motion to continue, the court did not abuse its discretion in overruling and denying the motion.

2. In view of the note of the trial judge in approving the grounds of the motion for a new trial, the rulings upon the admissibility of evidence were not error.

3. The charge of the court was full and fair, and the evidence authorized the verdict, which has the approval of the trial judge. The court did not err in overruling the motion for a new trial upon any of the grounds of error assigned; neither did the court err in overruling the demurrer of the plaintiff.

Judgment affirmed.

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


text:
    8631.
    Western and Atlantic Railroad Company v. Smith.
   Luke, J.

Upon the first trial of this ease, a writ of error was taken to the Supreme Court; See Western & Atlantic B. Co. v. Smith, 145 Ga. 276 (88 S. E. 983). That decision is the law of this ease upon every question then decided, and the present writ of error presents no substantial new question for decision. The evidence amply supports the verdict, and tlie trial judge did not err in overruling the motion for a new trial.

Decided January 21, 1918.

Action for damages; from Whitfield superior court — Judge Fite. November 26, 1916.

Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error. Lipscomb & Willingham, Nathan Harris, Geo.rge G. Glenn, contra.

Judgment affirmed.

1Wade, G. J.,'and Jenkins, J., concur.


text:
    8636.
    RAY et al. v. CRUCE.
    If a certiorari, after being sanctioned by the judge of the superior court, be dismissed on the hearing before him for the reason that it does not properly appear that the cost has been paid, the judgment of dismissal is equivalent to holding that the proceeding is void; and, there being no legal writ before the court, it is without jurisdiction to entertain the proceeding, for the purpose of rendering its own final decision in the case, including judgment against the surety on the certiorari bond. But since a judgment is thus rendered upon the question of the validity of the certiorari, the surety is liable together with his principal for the cost of that proceeding.
    Decided January 21, 1918.
    Motion to set aside judgement; from Jackson superior court — ■ Judge Brand. November 17, 1916.

      Bay & Bay, Thomas J. Shackelford, for plaintiffs in error.

      J. S. Ayers, contra.
   Jenkins, J.

The difficulty in the point raised in the present case lies in thevproper interpretation of section 5205 of the Civil Code which provides as follows: “If the certiorari shall be dismissed, and a final decision made in the cause by the superior court, the defendant in certiorari may sign up judgment in said superior court against the plaintiff and his security for the sum recovered by him, together with the costs in said superior court; and if said case be sent back to the court below, and there be a judgment in said case in favor of said defendant in the court below, the security on the certiorari bond shall then be included as in case of security on appeal.” If the meaning of this section is as broad as the literal import of the words might seem to imply, to wit, that notwithstanding the summary dismissal of a hertiorari for any cause by the judge of the superior court, he has jurisdiction to entertain it for the purpose of rendering a final decision as of that court and on the certiorari, in favor of the defendant in certiorari, then the judge did not err in also rendering judgment against the surety on the certiorari bond, since no objection as to its validity as such was made or shown. But if the word "dismissed” as used in the code section quoted should be taken as synonymous with "overruled” whenever "a final decision [is] made in the cause by the superior court,” then this section would not be authority for the rendition of a final judgment against the defendant and his surety on a bond given in a void certiorari proceeding which the superior court is without jurisdiction to entertain. It would seem that the word "dismiss” is in fact used in a sense synonymous with "overrule” throughout the sections of the code dealing with the subject of certioraries (see § 5301). Even the language of section 5305 itself is that “If the certiorari shall be dismissed, and a final decision made in the cause by the superior court, the defendant in certiorari may sign up judgment”, etc.; which language is susceptible of what seems to us the more reasonable interpretation that if the certiorari is dismissed in the sense that it is overr ruled, and consequently a final decision can properly be entered in the case (see Pittman v. Alexander, 19 Ga. App. 475, 91 S. E. 910), then such a judgment can also be taken against the surety on the certiorari bond. In the ease of Dykes v. Twiggs County, 115 Ga. 698 (43 S. E. 36), the Supreme Court quoted approvingly from a former decision the following language: "As there was no legal' writ of certiorari, there was really no case at all lawfully before the superior court.” And while in such a case the legal effect of a summary dismissal is to allow the judgment of the court below to proceed, it is altogether a different thing for the superior court itself to render a final judgment in the cause, as of that court and on the certiorari. If the superior court upon such a dismissal has no authority to render its own final judgment in the case, it manifestly has none to render judgment against the surety on the bond. Planters’ Panic v. Hudgins, 84 Ga. 108 (10 S. E. 501); Scott v. Walton, 11 Ga. App. 473 (87 S. E. 708). When a certiorari fails to properly show that the cost has been paid, the-superior court is without jurisdiction to consider it, since the proceeding is wholly void; and it does not seem that upon its being thus summarily dismissed without a hearing upon its merits, the court could nevertheless entertain it for the purpose of rendering its own final decision in the ease, including judgment against the surety on the bond given in a proceeding thus summarily dismissed as being absolutely void.

It is a well-recognized principle of law that when a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position. Haber-Blum-Block Eat Co. v. Friesleben, 5 Ga. App. 123 (62 S. E. 712); Vaughn v. Strickland, 108 Ga. 659, 660 (34 S. E. 192); Luther v. Clay, 100 Ga. 236, 241 (28 S. E. 46); Central Ry. Co. v. Waldo, 9 Ga. App. 182. (70 S. E. 1021); Parson v. Planters Warehouse Co., 20 Ga. App. 267 (92 S. E. 1023). Thus, if the defendant in certiorari takes the position that the proceeding is altogether void, and that the superior court is therefore without jurisdiction to entertain it, and on its motion the proceeding is summarily dismissed without the merits of the case being passed upon, it would seem to be a contravention of the rule of law just stated to permit such a defendant thereupon to take the contrary position that a case did exist before the court, and to insist, not that it simply allow the judgment of the court below to proceed, but that it render its own final decision in the cause and therein include judgment against the surety on the bond given in a proceeding thus summarily dismissed as being wholly void. Under our view of the law, while the entering of final judgment in the case as of the superior court against the plaintiff in certiorari was harmless error, yet such a judgment so entered against his surety was reversible error. We think, however, that the surety, together with his principal, should be held liable for the cost of the proceeding, since an adjudication was had against his principal upon the validity of -the appeal as such, even though the merits of the case itself were in no. wise passed upon.

Judgment reversed in part, and affirmed in part.

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


author: Wade, C. J.

text:
    8638.
    Collins v. Strickland Brothers et al.
   Wade, C. J.

1. While the distress warrant was predicated upon the implied obligation to pay rent, arising from occupation of the premises by the defendant after entry under a tenant of the plaintiffs (and therefore under the plaintiffs), no issue as to the title to the premises was raised or presented in any manner by the pleadings or at the trial, but to the contrary the counter-affidavit interposed by the defendant, though denying the existence of the relation of landlord and tenant between the plaintiffs and the defendant, expressly admitted that the goods levied upon were stored in the building described in the affidavit which formed the basis for the distress warrant, and that the defendant was liable to the plaintiffs in a reasonable amount for storage of the goods from a date named therein, -which admission practically conceded that the ownership of the realty was vested in the plaintiffs. There was, therefore, no harmful error in allowing a witness for the plaintiffs to testify that they were joint owners of the premises for the rent of which the distress warrant was proceeding.

2. Under the admission in the counter-affidavit, referred to above, and in the light of the entire record, no harm resulted to the defendant from the refusal of the court to exclude, on motion, testimony from the agent in charge of the property, to the effect that the keys to the store-house had been turned over to him by a certain person acting “as agent” for the defendant, who at the same time paid him an amount of money to cover the rent of the premises, from the time the distress warrant was levied until the time the goods of the defendant were removed therefrom, at the rate contracted to be paid by the original tenant whom the defendant succeeded in possession, notwithstanding the witness was unable to say that the person who clid this was in fact the agent of the defendant, and there was no other testimony to show the existence of that relation. . Whether that person was in fact the agent of the defendant or not was wholly immaterial, since the amount then paid by him was not involved in the suit, and since the previous exclusive occupancy of the building by the defendant was an admitted fact, irrespective of whether the person in possession of the keys surrendered them to the plaintiffs by his direction or authority.

3. The ground of the motion for a new trial which assigns error upon the refusal by the court to award a nonsuit will not be considered, since the motion includes the usual general grounds complaining that the verdict for the plaintiffs was not supported by evidence. See Atlantic Coast Line R. Co. v. Blalock, 8 Ga. App. 44 (2) (68 S. E. 743); Duncan v. Redd, 14 Ga. App. 306 (80 S. E. 726); Henderson v. Maysville Guano Co., 15 Ga. App. 69 (82 S. E. 588); Shiflett v. John W. Kelly & Co., 16 Ga. App. 91 (84 S. E. 606); Smith v. Southern Spring Bed Co., 16 Ga. App. 449 (2) (85 S. E. 612); Southern Railway Co. v. Puckett, 16 Ga. App. 551 (5) (85 S. E. 809); Lamb v. Elkin, 16 Ga. App. 770 (2) (86 S. E. 413); Western & Atlantic R. Co. v. Peacock, 16 Ga. App. 772 (86 S. E. 389); Elbert County v. Brown, 16 Ga. App. 834 (2) (86 S. E. 651); Dundee Woolen Mills v. Edison, 17 Ga. App. 245 (86 S. E. 414); McDonald v. Ellis, 17 Ga. App. 471 (2) (87 S. E. 711); Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702 (2) (87 S. E. 1093; Central of Ga. Ry. Co. v. Brinson, 18 Ga. App. 113 (88 S. E. 1003; Taylor v. Johnson, 18 Ga. App. 161 (7) (89 S. E. 77); Sind v. Drake, 18 Ga. App. 174 (88 S. E. 992); Seaboard AirLine By. V. Barrow, 18 Ga. App. 261 (89 S. E. 383); Seaboard Air-Line Ry. v. Lyon, 18 Ga. App. 266 (89 S. E. 384); Moon v. Gulf Fish Co., 18 Ga. App. 267 (3) (89 S. E. 374) ; Seaboard Air-Line Ry. v. Devlin, 18 Ga. App. 271 (89 S. E. 378); Central of Ga. Ry. Co. v. DeLoach, 18 Ga. App. 362 (3) (89 S. E. 433); Parker v. Webb, 18 Ga. App. 479 (2) (89 S. E. 606); Southern Ry. Co. v. Waxelbaum Produce Co., 19 Ga. App. 64 (5) (90 S. E. 987).

4. The assignments of error as to excerpts from the charge of the court, are without substantial merit, when viewed in the light of the entire charge and of the record as a whole; nor-was there error in the failure to give certain instructions, as complained of in the 9th ground of the motion for a new trial, in the absence of a timely written request therefor.

5. The bill of exceptions recites that the court ordered the grant of a new trial “unless within 10 days plaintiff shall write off from principal recovered the sum of $90, and write off from the interest recovered the sum of $2.10, so that said verdict shall read, ‘$160 principal, and $3.73 interest.’ If plaintiff should write off said amounts as herein directed within 10 days, said motion shall stand overruled.” It is further recited that the plaintiffs accepted the terms of this order, and within the period of 10 days did write off the amounts required thereby, and that the new trial was thereby refused. This order is excepted to upon the ground that the court should have^ granted a new trial unconditionally upon each and every ground of the motion for a new trial. “A judgment of the trial court, the effect of which is to refuse the defendant’s motion for a new trial, on the condition, complied with by the plaintiff, that a specified sum be written off by the plaintiff from the amount of the verdict against the defendant, will be reversed, on exception of the defendant, where the basis of the judgment, as to the amount to be written off, can not be ascertained from the record, and the evidence is in conflict as to what amount, if any, the plaintiff is entitled to recover.” Lee v. Bagwell, 14 Ga. App. 699 (82 S. E. 49). See also Central Railway Co. v. Perkerson, 112 Ga. 923 (38 S. E. 365, 53 L. R. A. 210). The true rule in such cases is that a trial judge may order that a certain amount of the verdict be written off in some cases, as being excessive under the evidence, but this right can only be exercised when the amount is certain from the evidence or by the admissions of the parties; and so long as the. exact amount is a matter of dispute this can not be done. In this ease the verdict returned was for an amount larger than was authorized by the evidence, and, assuming that the court deducted rent for the period prior to July, 1915, it can not be said that the amount ordered to be written off was fixed with certainty by the testimony showing that $50 per month was the price contracted to be paid as rent by the original tenant, or by other testimony as to the value of the property for rent.

Decided January 21, 1918.

Distraint; from Sumter superior court — Judge Graham presiding. October 30, 1916.

Wallis & Fort, for plaintiff in error.

Judgment reversed.

Jenhins and Luke, JJ., eoneur.


text:
    8640.
    Hattaway & Rambo v. Sanderlin.
    Decided January 21, 1918.
    Action for breach of contract; from Clay superior court — JudgeWorrill. December 3, 1916.

      Zach Arnold, E. B. Eing,.L: M. Bambo, for plaintiffs in error.

      Ben M. Turnipseed, contra. ■
   Luke, J.

1. The court did not err in sustaining the objections to testimony, as complained of in the fourth, fifth, and sixth grounds of the ■ motion for a new trial.

2. The charge of the court, when read as a whole, fully and fairly submitted the issue's raised by the pleadings. There was evidence au- . thorizing the verdict; and the verdict having the approval of the trial judge, it was not error, for any of the reasons assigned, to overrule the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    8644.
    Graves et al. v. Thompson.
    Decided January 21, 1918.
   Luke, J.

1. Where a person dies intestate owing a promissory note and leaving five heirs at law, and four of them convey all of the intestate’s estate to the fifth heir by a deed wherein it is recited that a “further consideration moving to this conveyance [is] the payment by [the grantee] of all the indebtedness of” the intestate, bhe payee of the note, not being a party to the deed, sustains no contractual relation to the grantee therein; and, whatever his rights against the estate may he, he can not maintain against the grantee an action upon the note. In such a case, only the grantors in the deed could maintain an action to recover the recited consideration. Williams v. Moody, 95 Ga. 10 (22 S. E. 30).

2. The court did not err in sustaining the general demurrer and dismissing the suit.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.

Complaint from Lee superior court — Judge Littlejohn. November 24, 1916.

Alexander & Charles Aherman, for plaintiffs.

Wallis & Fort, for defendant.


text:
    8655.
    Zurline et al. v. Porter.
    Decided January 21, 1918.
    Action for breach of contract;'from Fulton superior court— Judge Ellis. October 28, 1916. ' '

      James L. Anderson, for plaintiffs.

      L. Z. Rosser, Clifford L. Anderson, for defendant.
   Luke, J.

1. The excerpts from the charge of the court, when read in connection with the entire charge and as adapted to the pleadings and contentions of the parties, are not erroneous.

2. The evidence authorized the verdict, and it was not error, for any of the reasons assigned, to overrule the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    8660, 8661.
    Latch et al. v. Latch; and vice versa.

    Decided January 21, 1918.
    Appeal; from Murray superior court — Judge Fite. December 20, 1916. (See 147 Ga. 432, 94 S. E. 556.)

      C. N. King, for plaintiffs in error in main bill.
   Luke, J.

1. A widow is entitled to a year’s support out of the estate of her deceased husband, notwithstanding the fact that he left a will giving to her a life-estate in all his property, real and personal. Kinard v. Clay, 138 Ga. 544 (75 S. E. 636).

2. The charge of the court when read in its entirety was full and fair and not subject to the criticisms urged. The evidence authorized the verdict, and it was not error to overrule the motion for a new trial.

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

Wade, G. J., and Jenhins, J., concur.


text:
    8664.
    Farmers & Merchants Bank, for use, etc., v. Alford, receiver, et al.

    Decided December 28, 1916.
    Money rule; from Hart superior court — Judge Worley. December 28, 1916.

      W. L. Hodges for plaintiff in error.

      James H. & Parlce Shelton, contra.
   Jenkins, J.

1. A judgment by default, entered by the superior court as on an unconditional contract in writing, wherein the amounts for principal, interest, and attorney’s fees are separately stated, will be . held good as to the items for principal and interest, and void as to attorney’s fees. Clark v. Lunsford, 143 Ga. 513 (85 S. E. 708); Thompson v. Bobo, 144 Ga. 713 (87 S. E. 1056); Glennville Bank v. Deal, 146 Ga. 127 (90 S. E. 958); Valdosta do. R. Co. v. Citizens Bank, 14 Ga. App. 329 (80 S. E. 913).

2. The contention that the judgment for attorney’s fees thus obtained in the year 1909 should be sustained upon a presumption of- its validity, for the reason that it does not appear from the agreed statement of facts whether the note sued' on was executed before or after the act of 1891 (Ga. L. 1890-1, p. 221), pertaining to the collection of attorney’s fees, is not sound, since the agreed statement, by showing that the statutory notice required by the present law had been given and that no denial thereof had been made, clearly indicates that the note wa.s executed subsequently to the act of 1891, and that the case was tried in the court below on that basis. Moreover, a judgment rendered on a note executed prior to that act would, under the agreed facts, be itself void on its face as to attorney’s fees, since the judgment recites that no defense was filed and that the case was in default. See Civil Code of 1895, § 3667; Head v. Bridges, 67 Ga. 227; Parish v. Parish, 32 Ga. 653; Franklin County v. Crow, 128 Ga. 459 (57 S. E. 784).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


text:
    8666.
    McCurry et al. v. Cunningham.
   Wade, C. J.

1. Under the showing made, it does not appear that the judge abused his discretion in overruling the motion for a continuance, based upon the absence of one of the parties, who was also of counsel for the defendants and would testify in their behalf.

[(«,) Counsel failing to state in their place that they could not go safely to trial without the presence of the absent party, his absence as a party did not constitute a sufficient cause for continuance. Civil Code of 1910, § 5717.

[(&)' It did not appeqr from the affidavit of the absent witness or otherwise that he was physically unable to attend the court and testify that a fee of $500 would be reasonable for the services rendered by his firm, —the only evidence which he apparently could furnish. He was not subpoenaed in behalf of his co-defendant, and voluntarily absented himself with full knowledge of the value which might attach to his testimony in his own behalf and in behalf of his codefendant. Clearly the court was not required to continue the case on account of his absence as a witness, under these circumstances.

Decided January 21, 1918.

Money rule; from Hart superior court — Judge Worley. December 28, 1916.

A. G. & Julian McGurry, W. L. Hodges, A. 8. Shelton, for plaintiffs in error.

Green, Tilson & McKinney, J. H. & Parhe Shelton, contra.

(c) So far as the motion for a continuance was predicated upon the ground that the firm of lawyers of which the absent party was the senior member were of counsel for themselves, and that he was physically unable, on account of illness, to endure the strain of a trial by participating therein, it likewise does not appear that the discretion of the judge was abused in refusing a continuance.' It was disclosed by the showing for a continuance that the absent attorney had been in bad health for some months prior to the date of the trial, and the physician attending him during that period testified that his condition on the morning of the trial was about the same as for some time previous, and said, “I think he might assist in the court-room, but I do not think he is able to stand the strain of a trial and participate in the same.” It further appeared that he had been in attendance on the court on the two days immediately preceding the call of his case for trial, during all of which time the presiding judge had an opportunity to observe and consider his physical condition (see, in this connection, Rowland v. State, 125 Ga. 792 (54 S. E. 694); Rawlins v. State, 124 Ga. 31 (18), (52 S. E. 1)) ; and that the junior member of the firm was present in court when the case was called for trial, and was or should have been prepared to conduct the same (see in this connection, Cooper v. Jones, 24 Ga. 473 (4)), as the matter out of which the pending case arose had been especially, if not altogether, under his care and management.

2. There is no substantial merit in any of the remaining special grounds of the motion for a trial, and there was evidence to support the verdict.

Judgment affirmed.

Jenloins and Lulce, JJ.f concur.


text:
    8688.
    PELHAM PHOSPHATE COMPANY v. DANIELS.
    1. The petition alleged a permanent injury to the freehold of the plaintiff, for which damages were sought, and the court did not err in overruling the general demurrer.

      2. The special demurrers, not being argued in the brief of counsel for the plaintiff in error, will not be considered.
    3. There was evidence to sustain the verdict, and the general grounds of the motion for a new trial are therefore without merit.
    4-16. The special grounds of the motion for a new trial are without any substantial merit.
    Decided January 21, 1918.
    Action for damages; from city court of Camilla — Judge Bush. March 33, 1917. •

      Pope & Bennet, for plaintiff in error.

      J. J. Hill, Peacock & Gardner, W. H. Haggard, contra.
   Wade, C. J.

1. - The plaintiff alleged that there was permanent injury to her freehold, on account of the pollution of a natural stream of water running through her lands, caused by the presence in it of various injurious poisonous chemicals and other refuse matter, produced by and coming from a fertilizer plant erected by the defendant at the head or beginning of this stream, at an alleged cost of about $3,000,000, and with a capacity of 30,000 tons of fertilizer per annum, and consisting of two large buildings, each “being from two to four hundred feet in length and from one [to] one hundred and fifty feet wide, built of wood, brick, and cement,” and of three large reservoirs or ponds connected therewith, each covering an area of about two acres, and all filled with contaminated water and waste material containing certain acids and other poisonous substances. The only reasonable construction to be placed upon the allegations of the petition is that the injuries therein complained of will continue as long as the producing cause remains; and, under all the allegations above quoted and referred to, the inference is authorized that a fertilizer plant so largely capitalized, and constructed on such a stable and generous plan, was intended to be and was (so far. as could be said of any human enterprise) a fixed and permanent institution, which would be perpetually operated and would therefore continue indefinitely to pollute the stream flowing through the lands of the plaintiff. The court did not, therefore, err in holding that the petition alleged a permanent injury, and in overruling the general demurrer thereto.

.3. The various grounds of special demurrer not entirely removed by the amendments to the petition, not being covered by the brief or argument of counsel for the plaintiff in error, must be’ treated as abandoned. The following is the only reference thereto in'the brief of counsel: “We earnestly ask the consideration of the exceptions to the overruling of the demurrer. We feel that so far as the special demurrer is concerned, no citation of authority is necessary.” “Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit.” Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710). See also White Sewing Machine Co. v. Sortean, 17 Ga. App. 48 (7) (86 S. E. 257); Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222); Jefferson v. City of Perry, 18 Ga. App. 690 (90 S. E. 366); James v. Boyett, 19 Ga. App. 157 (91 S. E. 219); Rounsaville v. Camp, 19 Ga. App. 336 (4) (91 S. E. 446); Mason v. State, 19 Ga. App. 623 (91 S. E. 922); Mills v. State, 19 Ga. App. 623 (91 S. E. 918); Norwich Union Ins. Co. v. Bainbridge Grocery Co., 19 Ga. App. 171 (9 S. E. 235); S. A. L. Ry. v. Vaughn, 19 Ga. App. 397 (91 S. E. 516); Central Ry. Co. v. Larsen, 19 Ga. App. 424 (91 S. E. 517); Farkas v. Cohn, 19 Ga. App. 472 (2) (91 S. E. 892); Haley v. Covington, 19 Ga. App. 783 (5) (92 S. E. 297).

It has been held that a statement in the brief of counsel that “we insist upon the 4th, 5th, and 6th grounds of the amended motion for a new trial, upon each and all the grounds therein stated,” amounts to no argument in support of the grounds referred to, since it affords no assistance to the court in considering them, and the failure to make any further statement in regard to them amounts to an abandonment thereof. Rounsaville v. Camp, supra.

3. The general grounds of the motion for a new trial do not appear to be insisted upon in the brief of counsel for the plaintiff in error, except for the contention that the evidence does not disclose any permanent injury. There was evidence to sustain the allegations of the petition and to authorize the verdict returned.

4. A question at issue being whether the pollution of the stream of water was permanent, proof that a horse belonging to the plaintiff drank water therefrom on the plaintiff’s premises» some time after the institution of the suit, and in consequence soon thereafter died, was relevant, as tending to show the continuing nature of the injury. No recovery was sought for the value of this horse, and the evidence was likewise admissable to sustain the contention of the plaintiff that the polluted water was injurious'to animal life and would prevent the use of the stream in supplying water to hogs, cattle, and other animals raised or pastured on the lands of the plaintiff.

5. The act complained of in this ease being a positive tortuous act committed by the defendant in allowing injurious and poisonous chemicals to pollute the water of a stream flowing through the lands of the plaintiff and thereby to produce a'continuous adulteration of the plaintiff’s water, and not resulting merely from negligence, the plaintiff was not bound to do anything to avoid the consequences arising from the invasion of her right to enjoy her property to its fullest extent. Civil Code, § 4398; Athens Mfg. Co. v. Rucker, 80 Ga. 391 (4 S. E. 885); Satterfield v. Rowan, 83 Ga. 187 (9 S. E. 677); Price v. High Shoals Mfg. Co., 133 Ga. 346 (64 S. E. 87, 33 L. R. A. (N. S.) 684). There is therefore no merit in the 5th ground of the motion for a new trial, in which error is assigned upon the refusal of the court to permit a witness for the plaintiff to answer, on cross-examination by the defendant, the question “whether the owner of plaintiff’s premises could not procure a pure water supply for said farm and premises by boring a deep well, at an expense of $300;” the defendant’s counsel stating that they expected the answer to be in the affirmative. Aside; however, from the question whether the injury complained of was such a positive illegal invasion of her property rights as relieved the plaintiff from any legal obligation to avoid or lessen the resulting damages by the exercise of ordinary care, the suit was predicated upon the destruction (for all practical purposes) of a natural stream of water; and testimony tending to show how an artificial supply might be obtained in lieu thereof could not furnish a proper measure of damages, especially since the question rejected by the court did not include any stipulátion as to the cost of maintaining the apparatus or machinery to make such an artificial supply as permanently available as that which had been so long naturally maintained without any expense whatever. Again, the polluted body or stream of water .on the lands of the plaintiff would remain a menace to animal life and would continue to destroy the fertility of the particular soil which it overflowed at certain times, even though a pure supply of water for the use of man and beast should be obtained elsewhere on said lands by artificial means; and the question as propounded took no account of the land rendered unproductive by the pollution of the stream, or of the expense necessary to erect a sufficient barrier to prevent domestic animals, pastured or confined upon the lands of the plaintiff, from drinking the contaminated water of the stream or from coming in contact therewith. However, in addition to what is said above, it appears from the record that the president of the defendant company testified, without objection, that water could be obtained by sinking or boring a well at the cost of two or three hundred dollars; a gasolene engine could be purchased for forty or fifty dollars, and a pump for six or eight dollars; and that the gasolene and oil necessary to run the engine and pump, and to thus procure, a supply of fresh water on the plaintiff’s fárm would cost from ten to twelve dollars per year. Apparently the defendant received from this testimony all' the benefit which could have been derived from an affirmative answer to the question rejected by the court; since no evidence was introduced to contradict what was stated by the president of the defendant company, and presumably he made the estimate as reasonable as the facts and his knowledge of the situation would permit him conscientiously to do. It might be further said, that conceding that the corporation- -would live out its chartered expectancy of twenty years (without renewal), the cost, under this testimony, of boring the. well, purchasing the engine and pump, and paying for gasolene and oil would actually exceed the verdict- of $445 returned by the jury for injury to the freehold; and this without taking into consideration the further fact that the engine and pump would naturally deteriorate and would have to be repaired or even replaced at intervals, and also without including the cost of the labor necessary to run such engine and pump during that period.

6. The court did not err in rejecting testimony from the president of the defendant company to the effect that since the construction and operation of the fertilizer plant alleged to have caused the damage sued for, the market value of the plajntiff’s land had been enhanced. The defendant was a private corporation, not invested with the right of eminent domain, and did not come within the operation of the rule, applicable where a recovery is sought against a municipal corporation for damages resulting from the construction or alteration of bridges -and streets, that no damages are recoverable “if the market value of such lot, after the completion of the work and on account thereof, independently of all other causes [italics ours], was as much as, or more than, it was before the work was done,” Hurt v. Atlanta, 100 Ga. 274 (3) (28 S. E. 65). Besides, in this case the testimony rejected did not definitely assert that the increase in the market value of the plaintiff’s land resulted from the erection of the defendant’s fertilizer plant “independently of all other causes.” The maxim sic utere tuo ut alienum non Icedas applies, and one may not invade the property rights of another by the commission of a private tort and plead in defense to an action therefor a benefit accruing to the plaintiff as an indirect result of sixch invasion.

7. There was no error in excluding evidence as to the relative value of the swamp land actually touched and affected by the pol- • luted water, and the high lands which constituted the remainder of the plaintiff’s farm, since the alleged injury was to the entire tract, and was not solely the loss of the swamp lands, in that the reduction in value of the entire property for stock raising ánd for general farming purposes constituted the principal cause of action. “The property [in the stream], therefore, consists, not in the water itself, but in the added value which the stream gives to the land through which it flows.” Hodges v. Pine Products Go., 135 Ga. 134, 136 (68 S. E. 1107, 33 L. R. A. (N. S.) 74, 21 Am. Cas. 1052). The loss of the stream in this case was alleged to be and was under some testimony a loss to the entire tract.

8. The 8th ground of the motion for a new trial assigns error because a witness, who was asked by the defendant what in his best judgment was the value of the plaintiff’s land, and answered “some years back Mr. Eli Adams and I were called upon to appraise it,” “was proceeding to state the value they appraised it,” when the plaintiff objected to the said evidence and the court ruled it out, no ground of objection being stated. It does not appear, from this ground of the motion for a new trial, what the witness would have testified as to the value fixed by himself and Adams upon the property of the plaintiff when they appraised it, or what evidence was expected on this subject from the witness. “Grounds of a motion for a new trial complaining of the refusal of the court to allow a witness to answer a certain question of counsel must be complete and must of themselves disclose the expected answer and that the judge was informed of it.” Western & Atlantic R. Co. v. Waldrip, 18 Ga. App. 263, 264 (89 S. E. 346). See also Atlantic Coast Line R. Co. v. Henderson Elevator Co., 18 Ga. App. 279 (2) (88 S. E. 101); Spiller-Beall Co. v. Hirsch, 18 Ga. App. 450 (10) (89 S. E. 587); Hope v. Hedgerose Heights Co., 19 Ga. App. 10 (2) (90 S. E. 731); Central Ga. Transmission Co. v. Storer, 17 Ga. App. 55 (3) (85 S. E. 498); Riggins v. State, 17 Ga. App. 331 (2) (86 S. E. 736). It does not appear that the exclusion of the testimony was harmful to the defendant. Besides, it does not appear when or under what circumstances “the appraisement” made “some years back” was made; and testimony of this witness as to the conclusion reached by his associate, Adams, in regard to the value of the property would have been plainly hearsay, and he was undertaking to testify not as to his own valuation of the property, hut only as to the joint valuation fixed upon it by himself and Adams. Elsewhere he testified to his own opinion touching the market value of the plaintiff’s land both before and after the alleged injury.

9. There is no substantial merit in the ground relating to the following instruction to-the jury: “The plaintiff claims and alleges that the defendant company has permanently damaged her by lessening or destroying the market value of her land, because of the poisoning and contaminating or polluting of the water in said stream and in her well of water and fish-pond.” It is contended that this was error (a) because there was' no evidence to sustain a charge as to permanent injury, and (&) because there was no contention on the part of the plaintiff that the defendant had destroyed the market value of her land. • It is insisted that while the death of the timber on the lands of the plaintiff, if resulting from the pollution of the stream, might be considered a permanent injury, the charge that “plaintiff claims that defendant has permanently damaged her . . because of the poisoning and contaminating or polluting of the water” was not authorized, inasmuch as there was no testimony tending to show that the pollution was permanent. Conceding that the continued pollution of the stream must depend upon the continued operation of the plant, the evidence disclosing that the defendant corporation had invested $200,000 (though less than the two million alleged) in the construction of said plant, which had a capacity, of from 20,000 to 25,000 or possibly 30,000 tons per annum, would authorize an inference on the part of the jury that'-the business was intended to be-permanent, and that the plant would be, “humanly speaking,” permanently .operated, with the resulting continuous pollution of the plaintiff’s stream and permanent injury to her freehold. The evidence disclosed that the fish in the plaintiff’s pond had been killed, the water in her well rendered unfit to drink, and many trees destroyed along the banks of the stream or where touched by its waters; that one horse and two cows had died from-drinking the polluted water; that the galvanized wire-fencing erected across the stream had been eaten up by the acids therein, the grass in her pasture killed wherever the water touched it, and her husband and tenants on her farm made sick by drinking the water. See, in this connection, Central Georgia Power Co. v. Stubbs, 141 Ga. 172, 185 (80 S. E. 636).

The use of the word “destroying” by the trial judge, in the expression, “by lessening or destroying the market value of her land,” will not require 'a reversal. When considered in connection with the entire charge, the jury could not have been misled thereby, but must have understood that a recovery was sought for injuries to the freehold which lessened its value, and not for the literal destruction of its entire value.

10. ■ Neither will the charge of the court complained of in the 10th ground, that the plaintiff claims and alleges that the condition produced by the defendant “has thereby lessened or absolutely destroyed the market value of plaintiff’s premises and entire lands,” require a reversal. The court properly instructed the jury as to the measure of damages in such cases, to wit, the difference between the market value of the plaintiff’s land prior to the erection and operation of the defendant’s plant and the market value thereof after the erection and operation of said plant; and, in the light of the entire charge (as was said with reference to the 9th ground -of the motion), the jury could not have been misled. Besides, it is apparent that the jury were not in fact misled, since a verdict was returned for $445 for injury to the lands, whereas if they had found that the market value of the land had been destroyed, a verdict for a far greater amount must necessarily have resulted, under the testimony submitted.

11. The undisputed evidence showed that certain vegetation in and near the stream of water had been killed by its pollution, and that no vegetation would flourish near the stream, and also that certain wiré fencing had been destroyed by the acids in the water. The defendant in its answer admitted the presence of chemicals in the stream flowing through the plaintiff’s property* but alleged that “the presence of said refuse could hardly be detected at all.” It therefore appears that while not absolutely justified by the answer of the defendant, there was no such harmful error in the instruction that “the defendant denies this and alleges that the plaintiff has not been damaged at all, or in a very small amount,” as to require a reversal, especially in the light of the undisputed evidence as to certain elements of damage, such as .the destruction of the fertility of the adjacent land, of fencing, and of trees and other vegetation, and the loss of certain live stock, caused by the poisoned water. Even though the defendant did not in fact “allege” that the plaintiff had been damaged (if at all) “in a very small amount,’’.there was an admission as to the presence of refuse in the water which might have been reasonably so construed; and at all events the evidence as a whole showed some permanent damage, without contradiction, and no harm could have resulted from this inaccurate statement.

12. The instruction that “where a non-navigable stream flows upon, through, and over the land of several persons, all of whom own land adjacent thereto, they all have equal rights in and to the waters which flow or are contained in said stream, to such a stream,” was not error for the reason assigned by the plaintiff in error, — that the evidence showed that the body of water contaminated by the defendant was not a “stream,” but mere surface water withorxt' any well-defined banks. There was testimony from the president of the defendant company that the “stream was flowing” not exceeding nine months in the year, as it was a stagnant “stream” that flowed very slowly, and there was testimony from other witnesses to the effect that the “stream” flowed for at least nine months in the year, and when not flowing there were various holes along its bed or course that contained water. There was also testimony as to the existence of well-defined banks and a channel. As was said in O’Connell v. East Tenn. &c Ry. Co., 87 Ga. 246, 247 (13 S. E. 489, 13 L. R. A. 394, 27 Am. St. R. 246), “a stream may be wholly dry at times without losing the character of a watercourse.” It was said in Ribordy v. Murray, 177 Ill. 134 (52 N. E. 325) : “A fixed course over which surface water from adjoining land is uniformly discharged at a definite point is a watercourse within the rule prohibiting one from filling up the watercourse so as to impede the flow from the adjoining land, though the course has no well-defined banks and beds.” And it was held in Parizek v. Hinek 144 Iowa, 563 (123 N. W. 180): “A swale or depression over which surface-water runs according to the laws of nature is a watercourse though it has no defined banks.” Likewise, in Vandalia E. Co. v. Yeager, 60 Ind. App. 188 (110 N. E. 230), it is said that where water, after heavy rains and melting snow, is regularly discharged through a well-defined channel which the force of the water has made for itself, the channel is an ancient natural watercourse. See also Town of Bois D’Arc v. Convery, 255 Ill. 511 (90 S. E. 666). Our Supreme Court said in Stoner v. Patten, 132 Ga. 178, 180 (63 S. E. 897): “A stream of water has a defined channel; it has banks, and is very distinct from the percolations of subsurface water, which oozes in veins or filters through the earth’s strata.” In that ease the plaintiff sought to enjoin the defendant from interfering with his alleged riparian rights by diverting a subterranean stream which ran in a well-defined channel to a point where it disappeared under •ground, and from thence in a well-defined underground channel to a point on the plaintiff’s land, and the question involved was whether the stream which the defendant diverted ran in a well-defined underground channel by an exact course which could be traced to the point where it was alleged to have made its reappearance on the plaintiff’s land, or whether the branch or stream on the plaintiff’s land was supplied by subsurface percolating water. In this case the injury to the plaintiff would have been just as great if the water polluted by the defendant at its fertilizer plant had gradually oozed through the adjacent soil until it reached the land of the plaintiff and was there contaminated and destroyed, the usefulness of a standing body of fresh water being as great for watering stock arid supplying fish-ponds, and kindred purposes, as if it flowed through an open, well-defined surface channel. However, under some testimony disclosing that there was a stream with well-defined banks, between which the waters flowed during a considerable portion of each year, the court did not inaccurately refer to the body of water on the lands of the plaintiff as a “stream.”

13. What is said as to the 12th ground of the motion applies also to the 13th ground, which complains that the court erred in charging that “it is not necessary that the water should flow through said watercourse at all times; it is sufficient if it be a watercourse and natural drainage.” There was evidence to authorize this charge, and it was not erroneous. See O'Connell v. East Tenn. Ry. Co., supra.

14. There is no such merit in the 14th, 15th, 16th, 17th, 18th, 19th, and 20th grounds of the motion for a new trial as to require a reversal, though there are some slight verbal inaccuracies in the instructions complained of therein. Viewed in the light of the entire charge and in connection with the record as a whole, no harm could have resulted to the defendant from the alleged errors; and the various points raised by these special exceptions are not of such importance or of so novel a character as to require any more specific reference thereto;

15. The court did not err in declining to charge that “where a party seeks to prove in court any facts by circumstantial evidence, the circumstances must be such as to exclude every other reasonable hypothesis' than the one contended for by such party, by a preponderance of the evidence.” Contentions may be proved as well by circumstances as by direct testimony, and in a civil case the plaintiff is only required to establish his contentions by a preponderance of the testimony, and he is not required, even where relying only upon circumstantial'evidence, to establish them to the exclusion of every other reasonable hypothesis. The court fully charged the law as to preponderance of evidence, and how the jury might determine upon which side the preponderance was, and likewise charged that the “circumstances must show to an appreciable degree” that the conclusions claimed by the plaintiff were correct.

16. The remaining grounds of the motion for a new trial are without merit, and require no more specific ruling.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8692.
    Muscogee Manufacturing Company v. Butts.
    Decided January 21, 1918.
    Action for daúiages; from city coirt of Columbus — Judge Tigner. March 10, 1917. ,

      Slade & Swift for plaintiff in error.

      T. T. Miller, Hatcher & Hatcher, contra.
   Luke, J.

1. A servant who is over 14 years of age is presumptively chargeable with the same degree of diligence for his own safety as an adult engaged in the same work. Civil Code (1910), § 3474; Central R. Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952) ; Evans v. Josephine Mills, 119 Ga. 448 (6) (46 S. E. 674).

2. The plaintiff’s petition shows that he was 15 years old and was employed by the defendant to operate a “twisting machine” in a cotton mill, one of his duties being to keep the machine clean and free from accumulations of lint. The defendant’s alleged negligence, though variously stated, consisted solely of its failure to warn the plaintiff of the latent dangers incident to the employment. The plaintiff further alleges that he was inexperienced at such work and unfamiliar with the dangers incident thereto. After he had worked at such employment for six weeks, repeatedly performing the same task, he attempted to clean the machinery while it was in motion, removing the protecting parts from the rapidly- revolving wheels and gearing, in order to remove accumulations of lint therefrom, doing so with full knowledge that “if he put his fingers in the revolving machinery and cogs, they would be mashed or cut off'.” Under such circumstances, the plaintiff used a rag instead of his fingers, holding it in his hand to use it, and this rag, being caught by the revolving machinery, drew his hand into contact with the cogs, thereby producing the injury for which he sues. Reid: The petition set forth no cause of action, but showed that plaintiff’s injury was the result of his own lack of care rather than of defendant’s alleged negligence. Civil Code (1910), § 3131; Crown Cotton Mills v. McNally, 127 Ga. 404 (56 S. E. 452) ; Crown Cotton Mills v. McNally, 123 Ga. 35 (51 S. E. 13).

S. The court erred in overruling the defendant’s general -demurrer.

Judgment reversed.

Wade, C. J., and Jenlcins, J., concur.


author: Harwell, J.

text:
    7296, 7297.
    LEE v. CENTRAL OF GEORGIA RAILWAY COMPANY et al.; and vice versa.

    '1. It being held by the Supreme Court that “an employee of a railway' company engaged in interstate commerce can not maintain a joint action against the company and its engineer under the ‘Federal'employer’s liability act’ of 1908, where concurring negligence of the interstate carrier and its engineer m the course of interstate commerce is alleged as the cause of the injury to the plaintiff,” and that “this true irrespective of any allegation as to a violation of the ‘safety-appliance act’ of Congress,” the trial judge erred in overruling those portions of the defendant’s demurrers which set up a misjoinder of parties defendant and a misjoinder of causes of action. Eor the same reason the court erred in disallowing paragraphs 7 and 8 of the amendments of the defendants to their answers, setting up a misjoinder of parties defendant and a misjoinder of causes of action.
    2. Under the ruling of the Supreme Court as stated'in the preceding headnote, a new trial necessarily results, and it is not necessary to consider the exceptions in the main bill of exceptions to the second grant of a new trial by the trial judge. All other exceptions in the cross-bill of exceptions, except those arising on the questions of misjoinder of parties defendant and misjoinder of causes of action, not being discussed in the brief, will be treated as abandoned.
    Decided January 21, 1918.
    Action for damages; from city court of Savannah — Judge Freeman. February 14, 1916.
    Osborne, Lawrence & Abrahams, for plaintiff.

      Lawton & Cunningham, H. W. Johnson, for defendant.
   Harwell, J.

Lee brought suit against the Central of Georgia Bailway Company and O’Donnell, its engineer, for personal injuries alleged to have been sustained by him while coupling cars. The petition originally contained two counts, the first count being based upon the Federal "employer’s liability act,” and the second count upon the Georgia statute, the first count alleging that the injury occurred while the plaintiff was employed in interstate commerce, and the other alleging that it occurred while he was employed in intrastate commerce. It was also alleged in each count that the railway company was guilty of a violation of the "safety-appliance act” of Congress in respect to the coupling apparatus. The defendants admitted in their amended answers that the plaintiff was injured while employed by the railway company in interstate commerce. Thereupon the plaintiff expressly abandoned the seeopd count of the petition and the case proceeded to trial solely upon the first count, which was founded upon the Federal "employer’s liability act.” The first verdict and judgment in favor of the plaintiff were set aside by the court and a new trial granted. A second verdict against both defendants jointly, upon which a joint judgment was rendered against them, was likewise set aside and a new trial granted upon the defendant’s motion. The trial judge, in his order upon the second motion-for new trial, said: “This leaves for consideration the second ground of the motion. Involved in this is the question of the constitutionality of that portion of the 5th section of the act approved August 13, 1915, entitled “An Act to alter, amend, and revise ,the several laws relating to the city court of Savannah,” which reads as follows: No second new trial shall be granted in any case except for errors of law where there is no evidence to support the verdict/ . . I think that the portion of the act referred to is unconstitutional, and that I am at liberty to consider the second ground of the motion.” The court thereupon granted a new trial upon the second ground of the motion, which was based upon the ground that the verdict is decidly and strongly against the- weight of the evidence. The plaintiff excepts to this second grant of a new trial. The defendants filed demurrers upon the ground that there was a misjoinder of parties defendant, and upon the further ground that there was a misjoinder of causes of action. The demurrer' to the first count of the petition is based upon the ground that there is no authority of law to join as defendants a railway company and one of its employees, as an individual defendant, in a suit under the Federal “employer’s liability act.” The demurrer to the first count of the petition also attacks it upon the ground that the plaintiff sets up a cause of action against a railway company, arising under the Federal “employer’s liability act,” and in the same count sets up a cause of action against its engineer, the defendant O’Donnell, under the laws of the State of Georgia. The defendants demurred also upon other grounds, which it is not necessary to recite. The defendants further amended their answers, in paragraph 7 and 8 substantially raising the same question of misjoinder of parties defendant and misjoinder of causes of action upon the ground stated in the demurrers. The court overruled all of the demurrers of the defendants, and also refused to allow paragraphs 7 and 8 of the amendments to the answers. The defendants filed exceptions pendente lite to the order of the court overruling the demurrers and disallowing these amendments, and in a cross-bill of exceptions bring these questions to this court for decision. This statement of facts is all that is necessary to an understanding of the decision of the court.

The following questions in the instant case were certified to the Supreme Court by this court, namely:

“1. In a case tried in the city court of Savannah a second new trial was granted the same party upon the sole ground that the evidence strongly preponderated in his favor, and in the order granting the new trial the judge of that court declared unconstitutional so much cf the act approved August 13, 1915, relating to the city court of Savannah (Acts 1915, p. 123, section 5), as provides: 'No second new trial shall be granted in any case except for errors of law, or where there is no evidence to support the verdict.’ This ruling was made upon oral argument only of counsel for the movant, there being no pleadings in which the constitutionality of the act in question was attacked. The losing party excepts to the grant of the second new trial. Conceding that the evidence supports the verdict and that no error of law appears, has the Court of Appeals jurisdiction to hear and determine this case, or does it 'involve the construction of the constitution of the State,’ •or is it a case 'in which the constitutionality of any law of the State of Georgia . . is drawn in question,’ in contemplation of the amendment to the constitution, ratified November 7, 1916, relating to the jurisdiction of the Supreme Court?
“2. May an employee of a railway company engaged in interstate commerce maintain a joint action against the company and its engineer, under the Federal 'employer’s liability act’ of 1908, where concurring negligence of the interstate carrier and its engineer in the course of interstate commerce is alleged as the cause of the injury to the plaintiff, and where also a violation of the 'safety-appliance act’ of Congress is charged against the carrier?”

The Supreme Court answered as follows (147 Ga. 428):

1. “The Court of Appeals has jurisdiction to hear and determine this ease. It does not 'involve the construction of the constitution of the State,’ nor is it a case 'in which the constitutionality of any law of the State of Georgia . . is drawn in question,’ in contemplation of the amendment to the constitution,.ratified November 7, 1916, relating to the jurisdiction of the Supreme Court.
“The record of the case, together with the query propounded by the Court of Appeals, shows that the trial judge, in rendering the judgment granting a new trial, declared a part of a statute of the General Assembly 'unconstitutional’ without indicating whether it .offended against the State or the Federal constitution, and without pointing out what portion of either constitution it offended. The question propounded assumes that the ruling has reference to the constitution of Georgia. Even with this qualification the ruling is not sufficiently specific to afford a review of the same. A reviewing court can not ascertain what section or paragraph of the constitution the trial judge had in mind; and it is an unvarying rule that this court will not search through and consider the entire constitution,'State or Federal, to determiné whether the act offends in some particular, where none is specified. Griggs v. State, 130 Ga. 16 (60 S. E. 103); Anderson v. State, 2 Ga. App. 1 (58 S. E. 401). The judgment, therefore, in this .case should be treated without reference to the constitutionality of the act, since this has not been drawn in question.
“2. The second question is answered in the negative. An employee of a railway company engaged in interstate commerce can not maintain a joint action against the company and its engineer under the ‘Federal employer’s liability act’ of 1908, where concurring negligence of the interstate carrier and its engineer in the course of interstate commerce is alleged as the causé of the injury to the plaintiff. And this is true irrespective of any allegation as to a violation of the ‘safety-appliance act’ of Congress.
“The Federal employer’s liability act imposes a duty upon the carrier, and this law is exclusive. All State laws which were applicable to such a case prior to the above enactment are suspended. Landrum v. W. & A. R. Co., 146 Ga. 88 (90 S. E. 710); N. Y. Central R. Co. v. Winfield, 37 Sup. Ct. 546, 61 L. ed. 1045, Am. Cas. 1917D, 1139); N. Y. Central &c. R. Co. v. Tonsellito, 244 U. S. 360 (37 Sup. Ct. 620, 61 L. ed. 1194).
“This law, however, does not apply to the engineer. It is statutory, and -its applicability is limited by its own terms to interstate common carriers. ‘As only common carriers are liable under the act, an individual or a corporation not a common carrier can not be made a joint defendant. Nor can an employee of a defendant railroad company be joined with it as a defendant:’ Richey, Fed. Em. L. Act (2d ed.), § 128, and authorities cited. See also Taylor v. Southern Ry. Co., 178 Fed. 380. In the case of Western & Atlantic R. Co. v. Smith, 144 Ga. 737 (87 S. E. 1082), this court decided that in a suit under the State law an employee of a railroad company could not join as defendants, in the same action, the employer company and another railroad company not sustaining the relation of employer. In such a ease the rules of law applicable to the several defendants are not the same. To join defendants in one suit they must owe the same duty. 38 Cyc. 483. Where there is no joint duty there can be no joinder. 29 Cyc. 565, note 71. In a suit where the laws of this State are applicable to both the engineer and the carrier, they may' be jointly sued for an injury caused by concurring negligence of the two. Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191).
“A conclusion contrary to the one stated above, even if it could be reconciled with the Federal statute, would lead to confusion and injustice. Under our Civil Code, § 4513, 'if judgment is entered jointly against several trespassers and is paid off by one, the others shall be liable to him for contribution.’ If the carrier and its engineer were jointly liable under the conditions stated in the second question, a joint judgment would result’ against them, and they would be equally bound, regardless of the fact that the duties imposed upon them are not the same. The jury would have no power in such a case to specify the particular damages to be recovered of each, since Civil Code § 4512 is not applicable to personal torts. McCalla v. Shaw, 72 Ga. 458; Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870).”

Main hill of exceptions dismissed. Judgment on cross-hill reversed.

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


author: Bloodworth, J.

text:
    8390.
    Walker v. O’Neal et al.

    Decided January 21, 1918.
   Bloodworth, J.

1. No error was committed in overruling the demurrer to the petition.

2. This suit was not on a quantum meruit, but on an express contract for commissions for a fixed amount, to wit, $250; hence it was error, warranting the grant of a new trial, for the court, over proper and timely objections, to allow evidence that the services of the plaintiffs in procuring a purchaser for the" property were “reasonably worth the sum of $100, and that the usual commission allowed real-estate agents was five per cent.”

Judgment reversed.

Broyles, P. J., and Luhe, J., concur. Luhe, J., was designated in place of Harwell, J., who was disqualified.

Complaint; from city court of LaGrange — Judge Harwell. December 21, 1917.

M. U. Mooty, for plaintiff in error.

Dulce Davis, Hatton Lovejoy, contra. '


text:
    8586.
    ADAIR v. ATLANTIC COAST LINE RAILROAD CO.
    Where there is an interstate shipment of goods and they are damaged in transit, the superior court of the county of the destination of the shipment has jurisdiction of a suit for damages therefor against the initial non-resident carrier.
    Decided January 21, 1918.
    Attachment; from Jasper superior court — Judge Park. February 21, 1917.

      Franlc A. Hooper, for plaintiff.

      Robert 0. & Philip H. Alston, E. H. Barnett, for defendant.
   Bloodworth, J.

W. L. Adair brought suit by attachment in the superior court of Jasper county against the’Atlantic Coast Line Railroad Company, and in his declaration alleged that he delivered to the defendant at Orlando, Florida, certain pianos to be transported over the defendant’s railway from that place to Albany, Georgia, and from Albany over the Central of Georgia Railway Company to Monticello, Georgia, and that when the pianos reached their destination at Monticello, Georgia, they had been damaged by the carelessness of the defendant or. its connecting line. The Atlantic Coast Line Railway Company filed a demurrer to the petition, the first ground of which was as follows: “This honorable court has no jurisdiction of the cause of action asserted in this case, but the jurisdiction is in the superior. court of Dougherty county, Georgia, or in the city court of Albany.” The judge presiding sustained this ground of demurrer, and dismissed the petition. We think this was error. In all questions relative to interstate shipment of freight the Federal law controls. In the decision in the case of Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U. S. 185, 196 (31 Sup. Ct. 164, 55 L. ed. 167, 31 L. R. A. (N. S.) 7), we find the following: “The indisputable effect of the Carmack amendment is to hold the initial carrier engaged in interstate commerce and receiving property for transportation from a point in one State to a point in another State’ as having contracted for through carriage to the point of destination, using the lines of connecting carriers as its agents.” See also G. H. & S. A. Ry. Co. v. Wallace, 223 U. S. A. 481 (32 Sup. Ct. 205, 56 L. ed. 516). In the ease of Burns T. Louisville & Nashville Railroad Co., 6 Ga. App. 614 (65 S. E. 582), Judge Bussell, speaking for this court, said: “Where a carrier fails to deliver the goods at destination, or delivers them in bad order, o section 2334 of the Civil Code [of 1895] confers jurisdiction of an action for the resulting damages on the courts of the county where the failure to deliver occurred (i. e., the county of the destination of the shipment), whether the action be ex contractu or ex delicto. If the action proceed ex delicto, the carrier does not defeat the jurisdiction by showing that, physically considered, the loss or damage did not occur in the county where the delivery in good order should have been made. The failure to deliver at destination in good order is a breach of the contract of carriage, and also a breach of the carrier’s public duty (the latter a tort), both theoretically located at the place of performance— the destination. Brooke v. Nashville etc. Ry. Co., 5 Ga. App. 253 (62 S. E. 1002), distinguishing and affirming Brooke v. L. & N. R. Co., 3 Ga. App. 492 (60 S. E. 218); L. & N. R. Co. v. Warfield, 129 Ga. 473 (59 S. E. 234); Lytle v. Southern R. Co., 3 Ga. App. 222 (59 S. E. 595).” See also L. & N. R. Co. v. Burns, 9 Ga. App. 242 (70 S. E. 1112); Park’s Ann. Code, § 2798.

From the above it will appear that the superior court of Jasper county had jurisdiction in this case, and the court erred in sustaining the demurrer, on the ground that it had no jurisdiction.

Judgment reversed.

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


text:
    8729.
    CALLAWAY et al. v. PEARSON.
    1. “A ground of a motion for a new trial containing an extract from the charge of the court and alleging that the court erred in so charging, but which fails to point out wherein the excerpt quoted is erroneous, or why it should hot have been given, or why different instructions should have been given, presents nothing for the consideration of a reviewing court.” Mauldin v. Gainey, 15 Ga. App. 353 (8) (83 S. E. 276).
    2. There was no error in admitting the testimony complained of in ■ the 3d ground of the amendment to the motion for a new trial, for either of the reasons alleged; besides, C. testified himself that Y. received the $250.
    3. The evidence complained of in the 4th ground of the amendment to the motion for a new trial was properly admitted.
    4. “There being evidence to sustain the verdict, this court can not disturb the finding of the jury by overruling the refusal of the trial judge to grant a new trial upon the ground that the verdict was contrary to evidence or without evidence to support it. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209) ; Stricklin v. Orawley, 1 Ga. App. 139 (58 S. E. 215) ; Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 2J8) ; Daughtry v. Savannah By. Co., 1 Ga. App. 393 (58 S. E. 230); Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).” McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).
    Decided January 21, 1918.
    Complaint; from Tattnall superior court — Judge Sheppard. May 20, 1916.

      Hines & Jordan, Collins & Stanfield, for plaintiffs in error.

      Travis & Travis, contra.
   Bloodworth, J.

The original ease between these parties was carried to the Supreme Court, and is reported in 139 Ga. 540. The facts as stated in the decision of that court are as follows: “A partnership composed of C. and Y. sold their business and property to a partnership composed of C. and P., the trade being effected by the partner who was the1 common member of both firms. In part the consideration of the sale was that the purchasing firm assumed all the debts of the selling firm, and that the purchasing firm was to give its note to partner Y. of the'selling firm, for a stated amount. The transaction was consummated by the execution of a deed. Subsequently the purchasing firm paid certain items of indebtedness of the selling firm, which were not disclosed to P. at the time of the sale; and partner Y., of the selling firm, collected certain accounts, which Trad been sold to the purchasing firm, and appropriated the proceeds to his own use. The note contracted to be given to Y. by the firm of C. & P. was executed by C. in behalf of the firm of C. & P., and was for a larger sum than that agreed on, and the note was transferred, before due, to an innocent holder, who sued upon it to judgment, which judgment was paid by P. Two years after the sale P. brought suit against C. and Y., alleging the foregoing facts, and 'that there are no debts owing by the said firm of [C. & P.], and no credits of said firm, and were hone when this suit was filed/ praying for an accounting from C. and Y. as individuals, and for judgment for a stated sum representing the excess of the note given by C. & P. to T. over that agreed upon, and one half of the other several amounts referred to above.” The Supreme Court held that the only right of action P. had was for the tort. On the second trial the pleadings were amended to conform to the ruling of the Supreme Court, and the plaintiff proceeded for the tort only, and a verdict was rendered in his favor. The defendants made a motion for a new trial, which was overruled, and they excepted.

It is not necessary to add anything further to what is ruled in the headnotes.

Judgment affirmed.

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