text:
    9634.
    Washington Exchange Bank v. Smith.
    Decided January 29, 1920.
    Complaint ;from Wilkes superior court—Judge Walker. November 20, 1917.

      Colley & Colley, Little, Powell, Smith & Goldstein, for plaintiff.

      I. T. Irvin Jr., Samuel H. Sibley, for defendant.
   Broyles, C. J.

The Supreme Court on January 13, 1920 (149 Ga. 650, 101 S. E. 769), having reversed the judgment of this court rendered in this case on February 1, 1919 (23 Ga. App. 356, 98 S. E. 418), that judgment is hereby vacated, and the judgment of the trial court is

Reversed.

Luke and Bloodioorth, JJ., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    9746.
    Central of Georgia Railway Co. v. Dean.
    Decided January 29, 1920.
    Certiorari; from Eultou superior court—Judge Bell. March 26, 1918.

      Moise & Riddell, for plaintiff in error.

      John W. Crenshaw, R. W. Crenshaw, contra.
   Luke, J.

1. "Where a passenger purchases a through ticket over a line of railroads, having a coupon attached for each road, and checks his baggage through to his destination, if upon his arrival it is found to be lost, he may hold the last road of the line responsible therefor, whether the last road actually received the baggage or not. Savannah, Florida & Western Ry. v. McIntosh, 73 Ga. 532.”

2. In response to a question certified by this court, the Supreme Court, in rendering the decision set out above (149 Ga. 650, 101 S. E. 769), reviewed and reaffirmed the ruling announced in Savannah, Florida & Western Ry. v. McIntosh, supra; and that decision being controlling in this case, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Broyles, O. J.

text:
    10190.
    Lang, solicitor-general, v. Hitt. Lang, solicitor-general, v. Denman et al.

    10203.
    Decided January 29, 1920.
    Condemnation) from Whitfield superior court—Judge Tarver. October 9, 1918.

      Joseph M. Lang, solicitor-general for plaintiff.

      F. K. McCut.chen, Maddox, McOamy & Shumate, for defendant.
   Broyles, O. J.

1. “In a proceeding under section 20 of the prohibition act approved March 28, 1917 (Ga. L., Ex. Sess. 1917, pp. 7, 16), to condemn a vehicle or conveyance used in transporting any liquors or beverages the sale or possession of which is prohibited by law, the burden is upon the State, the condemnor, to show that such vehicle or conveyance was used in conveying the prohibited liquors or beverages with the knowledge of the owner or ‘lessee.’ ”

2. “Knowledge of the owner or lessee that prohibited liquors were being transported in the automobile is a question of fact, to be determined under the pertinent rules of evidence, as a prerequisite to the right to condemn the automobile in a proceeding instituted for that purpose against the owner or lessee thereof. Such knowledge may be shown by circumstantial as well as direct evidence. \!(a) Whether such knowledge will be presumed as a matter of fact, upon proof of the use of the car by the agent of the owner or lessee for the purpose of transporting prohibited liquors or beverages, is a matter not involved under the question as certified by the Court of Appeals. (6) Knowledge of the agent or servant of the owner or lessee employed to use an automobile for a specified legal purpose only, that prohibited liquors were being conveyed in the automobile, will not be imputed as a matter of law to the owner or lessee thereof.”

3. “Technically, the word ‘lessee’ denotes the holder of a contract for the possession and profits of lands and tenements for a fixed term, for life, or at will (Civil Code, § 3690). By the term ‘lessee,’ as used in section 20 of the above-mentioned act, is meant one who has some property in the vehicle or. conveyance which itself may be the subject of condemnation, as distinguished from a mere ‘bailee’ with a special property in the vehicle or conveyance entrusted to him. (Civil Code, § 3468). The term ‘lessee’ is not to be construed as having the same meaning as the word ‘bailee.’ ”

4. “One who is merely engaged by the owner to drive an automobile, either for a stipulated wage or part of the earnings of the car, is not a ‘lessee’ within the meaning of section 20 of the above-mentioned act.”

5*The above rulings were made by the Supreme Court (149 Ga. 667, 101 S. E. 795) in answer to certain questions certified by this court, and, under them and the facts of the instant eases, the trial judge did not err in directing verdicts for the claimants and against the condemnation of the automobiles.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    10278.
    Gates v. State of Georgia.
    Decided January 29, 1920.
    Condemnation; from city court of LaGrange—Judge Moon. December 11, 1918.

      Jones & Greer, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Luke, J.

1. “A draft animal with its harness, hitched to and being used to draw a buggy in which liquors are being conveyed, constitutes a part of the conveyance, so as to subject the animal and harness to seizure and condemnation under section 20 of the act of the General Assembly approved March 28, 1917 (Acts Ex. Sess. 1917, pp. 7, 16), providing for the seizure and condemnation of vehicles and conveyances conveying prohibited liquors.” 149 Ga. 472 (101 S. E. 769).

(a) In response to a question certified by this court the Supreme Court rendered the foregoing decision, which was transmitted to this court on January 26, 1920.

2. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    10814.
    CAISON, guardian, v. GROOVER.
    Trover not being maintainable by one without title to the property, or the right of possession, and it not appearing in this case that either title or the right of possession was in the plaintiff, who, as guardian of her minor son, sought to recover an automobile sold by him to another, which she testified she had bought for him and for which he gave his notes indorsed by her, a verdict for the defendant was- proper.
    Decided January 29, 1920.
    'Trover; from city court of Hinesville—Judge W. C. Hodges. July 8, 1919.

      O. L. Cowart, for plaintiff. Ben A. Way, for defendant.
   Bloodworth, J.

Mrs. Caison qualified as natural guardian of her son Ivy Caison, a minor. Ivy purchased an automobile, and gave his notes therefor, which were indorsed by his mother. He sold the car, and his mother, as his guardian, brought trover to recover it. On the trial the mother swore: I bought the automobile for Ivy and let him have it, and he generally drove it, but he did not have any right to sell it or dispose of it in any way. When we bought the ear Ivy gave his_ notes for it, and I indorsed them and have had them to pay. Of course it was Ivy’s ear. . . As to whether it is my car or Ivy’s, I will say that Ivy gave his notes for it and I have had them to pay, but I have always considered it Ivy’s car.” So far as the evidence shows, the plaintiff had never had title, possession, or right of possession of the automobile. “To maintain an action of trover, the plaintiff must show title in himself, or the right of possession wrongfully withheld from him by the defendant.” Dudley v. Isler, 21 Ga. App. 615 (3) (94 S. E. 827), and cit. The jury properly found a verdict for the defendant, and the court did not err in refusing to set the verdict aside on a motion for a new trial, based on the general grounds only.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Smith, J.

text:
    10216, 10217.
    Central of Georgia Railway Company v. Moore; and vice versa.

    Decided February 7, 1920.
    Action for damages; from city court of Blakely—Judge Sheffield. October 21, 1918.

      Pottle & Hofmayer, A. II. Gray, L. M. Bambo, for the railway company.

      Glessner <& Collins, contra.
   Smith, J.

1. “Where a, person driving a motor-truck on a public highway over a railroad crossing is struck by a passenger-train and injured, the mere fact that the vehicle has not been registered in the office of the secretary of State, and a license obtained, and a license fee paid as required under Georgia Laws, Ex. Sess. 1915, p. 107, will not render the person so injured a trespasser, and bar his right of recovery against the railroad company for negligence.” Central of Georgia Railway Co. v. Moore, 149 Ga. 581 (101 S. E. 668). This ruling was made by the Supreme Court in answer to a question certified to that court by this court, and overrules the holding in Knight v. Savannah Electric Co., 20 Ga. App. 314 (93 S. E. 17).

2. Those grounds of the amendment to the motion for a new trial which are not specifically abandoned disclose no reversible error; and, there being evidence to support the verdict, the trial judge did not err in overruling the motion for a new trial.

Judgment on main hill of exceptions affirmed; oross-hill dismissed.

Jenlcins, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    10302.
    Standard Coal Company v. Eclipse Coal Company.
    Decided February 7, 1920.
    Adhered to on rehearing, February 23, 1920.
    Complaint; from Fulton superior court—Judge Pendleton. December 10, 1918.
    Application for certiorari was denied by the Supreme Court.

      C. L. Pettigrew, for plaintiff in error.

      Douglas & Douglas, contra.
   Stephens, J.

1. Where a seller agrees to deliver to a purchaser commodities in specified quantities weekly and at designated prices payable on the first of each month after delivery, a failure by the latter to meet payments when due relieves the former of any obligation to make further deliveries.

2. Although the seller may have delayed deliveries and failed to make them on time as contracted for, the purchaser cannot, after accepting such delayed deliveries and also subsequent deliveries, and failing to make payment due therefor under the contract, hold the seller liable for a failure to continue making any further deliveries contracted for. The ease of Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635.

(101 S. E. 588), is not in conflict with this ruling. The decision in that case holds that by the acceptance of a delayed delivery the purchaser does not ipso facto waive his right to damages for any delay which is in violation of the contract.

3. ‘Where, under the terms of such contract, the seller may make deliveries in weekly installments ranging from a minimum to a maximum number, he complies with the contract by delivering the minimum number specified.

4. “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given'the'other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.” Civil Code (1910), § 4227.

5. The jury having determined the issues of fact, the evidence supporting the verdict, and the above principles of law having been properly applied, there was no error in the charge of the court, or in the failure to charge as requested.

6. It not being plainly apparent that the writ of error was prosecuted for delay only, the motion of the defendant in error for damages is denied.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10305.
    Ellis v. Floyd County.
   Stephens, J.

1. A county is not liable to suit unless so made by law, expressly or by necessary implication. Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577).

2. Under the provisions of code-section 748, which provides that “in every ease the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities,” the county was not liable for such damages as set out in the petition, as the same were not caused by reason of any defective bridge within the meaning of this section, but caused by reason of an alleged defective drainway or passage under such bridge.

Decided February 7, 1920.

Action for damages; from Floyd superior court—Judge Wright. January 7, 1919.

W. B. Mebane, for plaintiff.

Graham Wright, for defendant.

3. The word “bridge,” in the statute of this State giving a right o'f action against a county for defective construction, means a bridge used as an instrumentality for travel along a highway and for crossing streams or ravines. In this sense a bridge does not include a drain or opening under the bridge, although a part of the structure.

4. A county is not liable for damage to the crops or temporary use of the land, caused from water backing up and injuring an adjacent landowner by reason of a failure upon the part of the county to so construct the drain under the bridge as to prevent an accumulation of water or debris from the stream.

5. The petition in this case as amended shows an action for damages against the county, not for an injury to plaintiff’s land by reason of the erection of the bridge, and the consequent diminution in the value of his land, but for an alleged non-feasance of the county authorities in the maintenance of the excavation under the bridge, and a consequent nuisance maintained, viz., that in the winter and spring of 1917 the county negligently and carelessly permitted the space under the bridge to become filled up with debris which prevented the passage of water under the bridge and caused it to back, and overflow the plaintiff’s fields, damaging his crops and preventing him from cultivating part of his land during that year, and that the sole reason of such injury and damage1 was the damming up of the water and causing it to overflow his land. There is no element of damage to the land, or depreciation in its value, or the taking of private property for public use without compensation. See, in this connection, Barfield v. Macon County, 109 Ga. 388 (34 S. E. 596); Howard v. Bibb County, 127 Ga. 291 (56 S. E. 418).

6. There being no authority, either express or implied, for the bringing of such a ease against a county as is set out in the plaintiff’s petition, the general demurrer thereto was properly sustained.

Judgment affirmed.

Jenlcins, P. J., and Smith, J., concur.


text:
    10311.
    McIntosh Land & Timber Company v. Middleton.
   Stephens, J.

1. A written agreement between two persons, which provides that, in consideration of a certain sum having been paid by the promisee to the promisor, the latter obligates himself to perform certain promises and undertakings stipulated therein, constitutes a valid contract, provided such promises and undertakings are sufficiently certain and definite to render them capable of performance.

2. Where such a contract, dated 25th day of January, 1917, and entered into anu executed by both parties, provides that the promisee, called therein the party of the first part, is to furnish timber from certain lands described as “The Thicket,” to the promisor, called therein the party of the second part, and that “the party of the second part is to cut all timber into lumber and load on cars” at a certain stipulated price per thousand, and of certain dimensions, that “the party of the second part also agrees to cut and furnish to the party of the first part 10,000 cross-ties” by a certain date mentioned, and of certain dimensions specifically set out, and for which “the party o'f the first part agrees to pay to the said party of the second part 25e. per tie,” that for “all ties cut on other lands the party of the first part agrees to to pay the market price to the said party of the second part,” that “all ties cut from the party of the first part is to be loaded” at a certain named price per tie, that “all ties cut on lands not belonging to the party of the first part is to be loaded on cars at the market price delivered in Brunswick,” and that “the party of the second part agrees to have a mill in operation to cut said timber not later than 20 days from the date of the contract,” and “to cut not less than 100,000 feet of lumber per month from date of said contract,” such contract sets out promises and undertakings of the party of the second part sufficiently certain and definite to be capable of enforcement. A description of the lands from which is to be furnished the timber which that party agrees to cut into lumber, by designating them as “The Thicket,” is sufficiently definite and certain by way of identification of the timber. While the contract is indefinite as to the amount of timber to be thus furnished, this is not material to the definiteness of the promises and undertakings on the part of the second part. The promise and undertaking to cut not less than a certain number of feet of lumber per month from the timber upon such definitely ascertained premises, and also to furnish by a certain time a stipulated number of cross-ties, whether from such timber furnished by the party of the first part, or from timber obtained by the other party from other lands, constitute promises and undertakings sufficiently certain and definite to be capable of ascertainment and enforcement.

3. In a suit upon such a contract by the promisee against the promisor, the petition alleging that the lands of the former, from which the promisee was to furnish lumber, contained approximately two million feet of timber, which fact the defendant knew, and from which timber the defendant could have cut and furnished to the plaintiff lumber under the terms of the contract, and that the defendant failed to cut and furnish to petitioner the cross-ties contracted for, that the plaintiff performed all of its obligations under the contract, and that, by reason of the breaches by the defendant as set out, the latter damaged the plaintiff in a certain sum prayed for, a cause of action was set out, and the petition was good against the general and special demurrers interposed.

Decided February 7, 1920.

Action on contract; from city court of Darien—Judge Tyson. December 9, 1918.

Edwin A. Cohen, for plaintiff in error.

W. B. Stubbs, contra.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10338, 10339.
    Gilstrap v. Leith; and vice versa.

   Stephens, J.

1. While, in an action of tort against two defendants, based upon an alleged conspiracy to slander the plaintiff, a joint verdict finding both defendants liable in the same amount must stand or fall in its entirety as to both of them, an order setting the verdict aside as to one defendant only is, nevertheless, a valid order to that extent. It therefore follows that, having been set aside as to one defendant, the verdict must, on motion of the other defendant, be also set aside as to him. See, in this connection, Hunter v. Wakefield, 97 Ga. 543 (25 S. E. 347, 54 Am. St. R. 438); McCalla v. Shaw, 72 Ga. 458; Simpson v. Perry, 9 Ga. 509.

2. In such a case, where a defendant filed a plea of justification, admitting the use of the alleged slanderous language charged by the plaintiff, but alleging in justification thereof the truth of such charge, the burden is upon the defendant to sustain the plea by a preponderance of the evidence. A charge of the court that in order to sustain such plea the defendant must prove the plaintiff “actually” guilty, while standing alone and disconnected from the entire charge, is subject to the criticism that by the use of the word “actually” the court placed too heavy a burden upon the defendant, yet when taken in connection with the entire charge, where the jury were clearly instructed that it was only necessary to sustain the plea of justification by a preponderance of the evidence, such charge was not error.

3. Where the trial judge in his charge called the attention of the jury to several methods of impeaching witnesses, it was not error, in the absence of a special request, to fail to instruct the jury as to the rules governing the weight to be given to testimony; nor was it error, in the absence of such a request, to fail to instruct them as to other methods of impeachment of witnesses, where there was no evidence which would authorize such instruction.

4. The trial judge having given in charge to the jury substantially the provisions of the Civil Code (1910), § 5884, respecting the impeachment of witnesses, there was no error in the charge complained of in the 9th and 10th grounds of the amendment to the motion for new trial.

Action for slander; from city court of Hall county—Judge Wheeler. December 14, 1918. Mrs. Leith sued Carter and Mrs. Gilstrap* alleging that they conspired together to slander the plaintiff. A verdict was rendered against both defendants. Their motion for a new trial was sustained as to Carter, upon the ground that one of the jurors was disqualified; but it was overruled as to Mrs. Gilstrap, and on January 11, 1919, within the time allowed by law, she excepted to the order overruling the motion as to her, and in her bill of exceptions named Mrs. Leith as defendant in error. Mrs. Leith, on January 47, 1919, more than 30 days after the date of the order overruling the motion for new trial, filed a cross-bill of exceptions, complaining only of the grant of a new trial to Carter, and naming him and Mrs. Gilstrap as defendants in error. Carter moved to dismiss the cross-bill of exceptions, on the ground that, as he was not a party to the main bill of exceptions, a cross-bill of exceptions .could not be maintained as to him.

C. B. Faulhner, Oscar Brown, W. H. Oliver, W. A. Charters, for Mrs. Gilstrap.

Sloan & Sloan, contra.

5. In charging the law upon the subject of conspiracy, an opinion that the objects of the alleged conspirators were unlawful was not expressed by the use of the following language: “In order to show a conspiracy it will not be necessary to show that the parties met together or entered into any specific or formal agreement, or that by words or writings they formulated their unlawful objects.” “To declare the law applicable to a given state of facts is not an expression or intimation of an opinion as to whether any of the facts referred to do or do not exist in the ease on trial.” Yarborough v. State, 86 Ga. 396 (12 S. E. 650).

6. The rulings complained of in the remaining assignments of error, not abandoned, were either harmless or are not likely to occur on another trial of the case.

7. The cross-bill of exceptions filed by the defendant in error does not assign any error x’especting any issue between the defendant in error and the plaintiff in error, but assigns error respecting only an issue between the defendant in error and one not a party to the main bill of exceptions. For this reason it cannot be maintained as a cross-bill of expections; and, not having presented within the statutory period, it cannot be entertained as a main bill of exceptions. Whether considered as a main bill of exceptions or as a cross-bill, the alleged cx-oss-bill of exceptions must he dismissed. McMullen v. Butler, 117 Ga. 845 (45 S. E. 258).

Judgment reversed on the main bill of exceptions. Gross-bill dismissed.

Jenhins, P. J., and Smith, J., concur.


text:
    10434.
    USRY v. AUGUSTA SOUTHERN RAILROAD CO.
    1, 2. Declarations of the defendant company’s foreman in charge of the work in which the plaintiff was engaged when injured, to the effect that ,the injury was due to the breaking of a certain chain, and that he “had been after the company” for a year to furnish new chains and it would not do so, were not admissible in favor of the plaintiff as a part of the res gestee, or as admissions made by an alter ego of the defendant.
    3. The statement of the foreman, as to his request to the company to furnish new chains and the failure to do so, was not admissible on the ground that it was a part of a conversation brought out on cross-examination by the defendant’s counsel. It was disconnected from the part of the conversation thus elicited.
    4. Testimony that, after the injury, supporting pillars were put under the car whicn had fallen and injured the plaintiff was properly rejected.
    5. Under the evidence in this case it can not be held, as a matter of law, that the dangers incident to the work in which the plaintiff was engaged when injured and which he had been ordered to do by the defendant’s foreman, who knew that he was an inexperienced laborer, were so obvious as to preclude a recovery by him. Whether the car under which the plaintiff was shoveling dirt when it fell and injured him was negligently propped up, and whether the giving of the order by the foreman constituted negligence, were questions for the jury; and the court erred in granting a nonsuit.
    Decided February 7, 1920.
    Action for damages; from Glascock superior court—Judge Walker. February 20, 1919.

      L. D. McGregor, Hill & Adams, for plaintiff.

      Barrett & Hull, B. B. Rogers, for defendant.
   Smith, J.

Where one who was engaged in work underneath a flat-car was injured by reason of the car falling upon him, and afterwards was removed some six or eight feet from the car, in a suit by him against the railroad company it was not error to refuse to allow him to testify that about an hour or half an hour after his injury he had a conversation with the foreman in charge of the work as to where he would rather be carried for treatment, and at that time and in that conversation the foreman told him the injury was due to the breaking of the chain, and “that he [the foreman] had been after the company for a year to furnish him with new chains, and they would not do it.” This was not admissible as a part of the res gestae. At the most the statements of the foreman, made an hour or half an hour after the plaintiff’s injury, were a mere narrative of a past occurrence, coupled with a declaration as to requests made by him to the company during the past year. The statements were made deliberately. It cannot be said that they were exclamatory and proceeded from him as a part and parcel of the catastrophe. Moreover, the foreman had not been hurt; he was suffering no pain, and no shock had deadened his reflective faculties so as to make his utterances spontaneous and unreflecting. Generally, “whether statements claimed to be a part of the res geste are really such is a question of law to be determined by the court” (Southern Ry. Co. v. Brown, 126 Ga. 1 (5) (54 S. E. 911); and “it is well settled that there can be no definite and fixed limit of time, but that each case must depend upon its own circumstances; ‘for what is the res geste of a given transaction must depend upon its own peculiarities of charactei and circumstances. Courts must be allowed some latitude in this matter.' Mitchum v. State, 11 Ga. 615, 623.” Standard Oil Co. v. Reagan, 15 Ga. App. 571, 580 (84 S. E. 69, 73). Under these circumstances we are constrained to sustain the ruling of the trial judge in rejecting the proffered testimony above referred to. See, in this connection, Civil Code (1910), § 5766; Southern Railway Co. v. Sewell, 18 Ga. App. 544 (4) (90 S. E. 94); Carswell v. State, 10 Ga. App. 32 (72 S. E. 602); White v. Southern Ry. Co., 123 Ga. 353, and cases cited on page 358 (51 S. E. 411, 414); Western & Atlantic R. Co. v. Beason, 112 Ga. 553, 557 (37 S. E. 863), and eit.

The foregoing ruling that the statements of the foreman were not a part of the res geste disposes of the contention that they were admissible as admissions made by him as the alter ego of the defendant company concerning the business which he was employed to look after, and while he was engaged in the performance of his duties, since, “under the rule governing in this State, the sayings of an agent are admissible against the principal only upon the theory that they are a part of the res geste.” Atlantic Coast Line R. Co. v. Williams, 21 Ga. App. 453, 455 (94 S. E. 584, 585). “The declarations or admissions of an agent, unless part of the res geste, do not bind the principal, and in a suit against the principal have no probative value.” Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (2) (57 S. E. 1076). See also Civil Code (1910), § 3606.

Neither was the statement of the foreman that “he had been after the company for a year to furnish him with new chains, and they would not do it,” admissible on the ground that it was part of the same conversation between the plaintiff and his foreman which had been brought out on cross-examination by defendant’s counsel, as this statement was disconnected from that part of the conversation elicited, which was as follows: “After I was hurt Mr. Phillips [the foreman] offered to bring me to Gibson to some physician, or to Avera. He said it was not far from train time. I said ‘I want to go home; if I have to go to a doctor I want Dr. Kelly.’ Mr. Phillips wanted to help me all he could. I was treated by Dr. Kelly, who is my family physician.” It is true that “where one litigant offers in evidence an admission, in a conversation or document, of a fact disadvantageous to the other, he thereby makes admissible all such other parts of the conversation or document as may tend to explain or qualify the part first introduced in evidence.” but “matters in such conversations or documents otherwise irrelevant, and wholly disconnected with the part first offered, are not thereby made admissible.” Brown v. State, 119 Ga. 572 (4, 5) (46 S. E. 833). “Matters wholly disconnected from the admission first offered are not admissible, even though they may be a part of such conversation.” Crawford v. Citizens & Southern Bank, 20 Ga. App. 576 (2) (96 S. E. 173).

Testimony to the effect that supporting pillars were put under the derailed car when it was again jacked up after plaintiff was injured was incompetent and was properly rejected by the trial judge. “Evidence in behalf of the plaintiff, that, after the collapse of a scaffold, resulting in the death of her son, the defendant took additional precaution in the rebuilding of the scaffold, to prevent others from being likewise injured, was properly rejected, although offered in rebuttal of the contention that the defendant had provided him with a scaffold ‘equal to those in general use and reasonably safe.’ Such evidence cannot logically be considered as in effect an admission that the defendant was negligent in not sooner observing such precautions.” Mitchell v. Schofield’s Sons Co., 19 Ga. App. 201 (2) (91 S. E. 275). See also Georgia Southern & Florida Ry. Co. v. Cartledge, 116 Ga. 164 (42 S.E. 405, 51 L. R. A. 118); Central Ry. Co. v. Price, 121 Ga. 651, 658 (49 S. E. 683).

“A servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and does not involve a violation of the law, and if the act required is one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes an act of negligence, but the servant, acting under the duty and obligation thus resting upon him, proceeds to execute the .command, and is injured as a consequence, the master is liable in damages to the servant for the injuries so sustained.” Whiters v. Mallory S. S. Co., 33 Ga. App. 47 (97 S. E. 453). See also Moore v. Dublin Cotton Mills, 127 Ga. 609, 616 (56 S. E. 839, 10 L. R. A. (N. S.) 772; Holsey v. Macon, D. & S. Railroad Co., 6 Ga. App. 637, 641 (65 S. E. 690), and cases there cited; Grant v. Royster Guano Co., 15 Ga. App. 758 (2) (84 S. E. 161). (a) It appearing from the petition and the evidence that the plaintiff was known to the alter ego of the defendant as an inexperienced laborer at the time he was employed to assist in re-railing a derailed flat-car, the weight of which was resting upon two jacks only, one on each side thereof, and that he was nevertheless ordered by the alter ego in charge of the work to go under the car for the purpose of shoveling out dirt, and while so engaged the ear fell off the jacks and injured him, it cannot be held, as a matter of law, that the dangers incident to the work were so obvious to an inexperienced man as to preclude a recovery. Whether or not the car was negligently propped or jacked up, and whether or not the giving of the order constituted an act of negligence, were, under the evidence, questions for determination by the jury; and the court erred in granting a nonsuit.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10446.
    Marietta Ice & Coal Company v. Western & Atlantic Railroad Company.
   Stephens, J.

1. A bailee who is entitled to the possession of the property bailed has such a special interest therein as entitles him to maintain in his own name a suit against a third party for the loss or destruction of the property. Such recovery, however, is for the use or benefit of the owner. Schley v. Lyon, 6 Ga. 530 (5), 537, 538, and cases there cited; 6 C. J. 1194; VanZile on Bailments (2d ed.), § 57; Schouler on Bailments (1st ed.), 151-2; United States v. Atlantic Coast Line R. Co., 206 Fed. 190, 202-3. The fact that the bailee has paid the bailor the value of the property destroyed does not affect the right of action against the tort feasor. Cornell Steamboat Co. v. The Jersey City, 51 Fed. 527 (2 C. C. A. 365).

Decided February 7, 1920.

Action for damages; from Cobb superior court—Judge Morris. March 10, 1919.

J. Z. Foster, for plaintiff.

Tye, Peeples <&■ Tye, D. W. Blair, for defendant.

2. A bailee may maintain a right of action for loss or damage resulting from injury to his right of possession or other special property right in the property bailed.

3. A bailee of a mule for hire, who has the possession of the animal under the contract of bailment from day to day, but returns it every night to the owner for keeping over night, has such a special interest in the bailment as entitles him to maintain a suit against a third party for the animal’s death. In such a suit the bailee may recover the full value of the animal for the use of the owner, and also, for his own use, any damage to his right of possession or to his special property right, including expenses incurred by him for medical treatment to the animal made necessary by the injuries resulting from the tortious act of the defendant.

4. The above rulings are not in conflict with Lockhart v. W. & A. R. Co., 73 Ga. 472. In that case it was held that the plaintiff was a mera depositary or borrower and had no right of possession or special interest in the property, and for that reason could not maintain an action for its loss.

5. .In view of the above rulings, it is not necessary to pass upon the assignment of error as to the exclusion of the amendment offered by the plaintiff. The petition, without the amendment, set out a cause of action. The demurrer therefore was improperly sustained.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


author: Jenkins, P. J.

text:
    10496, 10497.
    National Union Fire Insurance Co. v. Macon Hardwood Lumber Co.; and vice versa.

   Jenkins, P. J.

The question in this case is whether the policy of fire insurance sued on remained of force, at the time of the fire, or whether it had been cancelled by virtue of the company’s notice to that effect given to White as plaintiff’s agent, and the acceptance by him of such notice of cancellation. Under the evidence in the case it was a disputed question of fact as to whether White, as the broker of the plaintiff, had been authorized merely to procure insurance for the owner (in which event the notice of cancellation given to such an agent would be ineffective and the defendant would be liable under the policy), or whether the owner had constituted White as his continuing agent not only to insure but to keep the property insured, with power to select the insurer (in which event the notice of cancellation given to such an agent would bind the owner). 14 R. O. L. 1010, § 189; McGraw Woodenware Co. v. German Fire Ins. Co., 126 La. 32 (52 So. 183, 20 Am. Cas. 1229, 38 L. R. A. (N. S.) 614, 623) Since, under the evidence of the plaintiff on the one hand and the course of dealings which it was sought to set up by the evidence submitted for the defendant on the other hand, the nature and character of the agency was thus made a disputed issue of fact, the judge erred in directing a verdict in favor of the plaintiff.

Decided February 7, 1920.

Action on insurance policy; from Bibb superior court—Judge Matbews. March 11, 1919.

King & Spalding, Miller & Jones, Daniel MacDougald, for the insurance company. •

L. D. Moore, contra.

2. In view of the ruling made in the foregoing paragraph, the assignment of error in the cross-bill of exceptions, to the effect that the judge erred in not also entering up judgment for attorney’s fees and damages, is under the present status of the case necessarily without merit. The cross-bill of exceptions also assigns error upon the admission in evidence of certain conversations had between certain agents of the defendant company and White, with reference to the cancellation of the policy used on. If, however, the continuing agency of White should, under the evidence, be taken as having been established by virtue of the proved circumstances, the apparent relations, and the conduct of the owner in reference to his course of dealings with White as such agent, then the evidence objected to could not properly be' accounted irrelevant, and for this reason the exception taken to its admission is without merit. Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108). The other exceptions taken in the cross-bill, not being argued by counsel, will be treated as abandoned.

Judgment on main bill of exceptions reversed; on the cross-bill affirmed.

Stephens and Smith, JJ., concur.


text:
    10501.
    Holbert v. Allred.
   Jenkins, P. J.

The action was for money alleged to have been paid by the plaintiff’s husband from her separate estate in settlement of a debt owing by him to the defendant. The plaintiff and the defendant settled the suit without trial, and the case was thereafter prosecuted by the plaintiff’s attorneys for the purpose of recovering from the defendant the attorney’s fees which the plaintiff had contracted to pay them. The question involved was whether the money paid by the plaintiff to the defendant in settlement of her husband’s debt was her money, or that of her husband; the plaintiff contending that the money belonged to her, and the defendant contending that it was the husband’s money, and that she and her husband had entered into a conspiracy or mutual scheme to defraud the defendant, by which she was to take the money which in fact belonged to her husband, pay it over to the defendant as a part of the purchase-price of certain land purchased from the defendant by her husband, thereby securing possession of the land, and, after cutting a large amount of timber from the laird and committing other specified acts of waste, for her then to sue for and recover' the money as having been her own and not that of her husband. On the trial the defendant offered an amendment to his plea, to which the plaintiff demurred, and, the court having overruled the demurrer, the plaintiff excepted. The jury returned a verdict in favor of the defendant, and the plaintiff made a motion for a new trial, to the overruling of which the plaintiff éxcepted. Held:

1. “All parties, whether plaintiffs or defendants, in the superior or other courts, whether in law or in equity, may at any stage of the cause [italics ours], as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by. The defendant after the first term can not set up new matter by way of amendment, except as provided in section- 5640.” Civil Code (1910), § 5681. Thus, where the defendant is present at the trial, the court can not permit a plea setting up new facts to be filed without requiring an affidavit that the original plea did not omit such facts for the purpose of delay, and that the amendment is not now offered for delay (Bass Co. v. Granite City Co., 119 Ga. 124 (4), 45 S. E. 980), unless it be that no such objection is made to its allowance at the time the amendment is offered; the plaintiff’s failure at that time to enter his objection being taken as a waiver in the trial court; and such objection can not be raised for the first time on writ of error. Edwards v. Boyd Co., 136 Ga. 723 (72 S. E. 34). The amendment was not subject to the demurrer attacking .it upon the ground that it failed to allege sufficient facta to show a scheme to defraud the defendant.

2. Fraud may be established by circumstances, as well as by positive proof, and much latitude is allowed in introducing evidence for such purpose. Causey v. Wiley, 27 Ga. 444. Fraud being of a peculiarly subtle nature, slight circumstances may be sufficient to establish it. Civil Code (1910), § 4626; Ridgeway v. Ridgeway, 84 Ga. 25 (10 S. E. 495); Higginbotham v. Campbell, 85 Ga. 638 (11 S. E. 1027). This rule is particularly applicable where fraud is charged in family transactions. Woodruff v. Wilkinson, 73 Ga. 115. Thus, where two or more persons are charged with conspiring or entering into a mutual scheme to defraud, such a conspiracy or scheme may be shown by proof of facts evincing a concurrent knowledge and approbation in the persons conspiring, of each other’s acts, and by proof of the separate acts of the several persons concentrating in the same purpose or particular object. Dixon v. State, 116 Ga. 186 (42 S. E. 357); Woodruff v. Hughes, 2 Ga. App. 361 (58 S. E. 551); 5 R. C. L. 1103, § 53. The evidence in this case disclosed sufficient facts and circumstances to authorize the jury to find that the plaintiff and her husband had entered into the conspiracy or mutual scheme to defraud the defendant, as alleged, despite their positive testimony to the contrary. Detwiler v. Cox, 120 Ga. 638 (48 S. E. 142). The court therefore did not err in admitting the evidence complained of in the first, second, and third special grounds of the motion for a new trial, since where once the conspiracy or mutual scheme to. defraud has been established, the act or declaration of one of the parties in the prosecution of the enterprise is considered me act or declaration of all. Slaughter v. State, 113 Ga. 284 (38 S. E. 854, 84 Am. St. R. 242); Cowart v. Fender, 137 Ga. 586 (73 S. E. 822, Ann. Cas. 1913A, 932); 5 R. C. L. 1103, § 53.

Decided February 7, 1920.

Action for money had and received; from Pickens superior court —Judge Morris. March 10, 1919.

Eoscoe. Piclcett, W. T. Townsend, for plaintiff.

George D. Anderson, John 8. Wood, William Butt, for defendant.

3. The request to charge set out in the fourth special ground of the motion for a new trial was sufficiently covered by the general instructions given, and therefore the failure to charge in the precise language requested is not cause for a new trial. Atlanta & W. P. R. Co. v. Miller, 23 Ga. App. 347 (5) (98 S. E. 248). Nor is the excerpt from the charge of the court complained of in the fifth special ground of the motion for a new trial erroneous for any of the reasons assigned.

4. While it is true that where a defendant settles with the plaintiff without the consent of the plaintiff’s attorney, the attorney may continue the action for the purpose of asserting his lien and recovering his fees, still, before the attorney can get a recovery in such a case, he must introduce such proof' as would be required if the action were proceeding for the benefit of his client. The mere fact that the defendant pays less than the full amount, after suit is instituted, is at most an admission _in the nature of a compromise, and would not prove that any liability in fact existed. Atlanta Ry. & Power Co. v. Owens, 119 Ga. 833 (47 S. E. 213); Collier v. Hecht-Brittingham Co., 7 Ga. App. 178, 179 (66 S. E. 400).

5. There was sufficient evidence to authorize the verdict, which has the approval of the trial judge, and no reason appears why it should be set aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10519.
    Smith v. Fisher.
   Jenkins, P. J.

To an action upon an ordinary promissory note which recited that it was “for purchase-money of one mule, name Tobe and more fully described in a mortgage this day executed to secure the payment of this note,” the defendant interposed a plea setting up a partial failure of consideration by reason of the breach of a contemporaneous parol warranty of the plaintiff as to the soundness of the mule. The defendant moved to strike the plea, upon the grounds, (1) that it set forth no defense, and .(2) that it affirmatively appeared that the suit was upon a contract in writing, and the defense set up was an alleged parol agreement made contemporaneously therewith; that, the contract being in writing and appearing to be complete and certain, it will be presumed that it contains the whole agreement of the parties, and no facts are set forth in the defense to take the same out of the presumption above set forth. The court sustained this motion, dismissed the defendant’s plea, and entered up judgment for the plaintiff for the full amount sued for, and to these rulings the defendant excepted. Held:

Decided February 7, 1920.

Complaint; from city court of Floyd county—Judge Nunnally. March 6, 1919.

M. B. Bubanlcs, for plaintiff in error. Maddox & Boyal, contra.

Since the decision of the Supreme Court in Pryor v. Ludden & Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267), it has become settled that the maker of a promissory note which recites that its consideration is the purchase-price of described personal property, but does not purport to integrate the sale contract, may, in defense to a suit on the note by the seller, plead as failure of consideration a breach of a contemporaneous oral warranty. See also Anthony v. Cody, 135 Ga. 329 (69 S. E. 491); International Harvester Co. v. Morgan, 19 Ga. App. 716; Rheney v. Anderson, 22 Ga. App. 417, 418 (96 S. E. 217). It is only where such a written contract appears to be complete within itself that it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the whole of the agreement between the parties, and parol evidence of prior or contemporaneous conversations, representations, or statements will not be received for the purpose of adding to or varying the written instrument. Thus, if such writing contains a warranty of some kind or to some extent, parol evidence will not ordinarily be admitted to extend, enlarge, or modify that which the writing specifies. Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063). While the note sued on in the instant case recites that its consideration is the purchase-price of described personal property, it does not purport to integrate the sale contract, nor does it purport to contain or exclude a warranty of any kind. The court therefore erred in striking the plea, on motion, and in thereafter entering up judgment for the plaintiff.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10524.
    Planters Gin & Warehouse Co. v. Pitts Banking Co.
    Decided February 7, 1920.
   Smith, J.

1. “When an agent makes a contract for his principal but conceals the fact that he is an agent, contracting as if he were principal, the principal may at any time appear in his true character, and claim all the benefits of the contract from the other contracting party, so far as he can do so without injury to that other by the substitution of himself for his agent.” Woodruff v. McGehee, 30 Ga. 158. See also Spain v. Beach, 52 Ga. 494; Watertown Steam Engine Co. v. Palmer, 84 Ga. 368 (10 S. E. 969, 20 Am. St. R. 368); Dodd Grocery Co. v. Postal Tel. Co., 112 Ga. 685, 688 (37 S. E. 981).

2. Where a warehouseman delivers to a purchaser several warehouse receipts which stipulate that certain cotton bought is subject to fixed and specified charges for ginning, bagging and ties, a ginner, who at the request of the owners stored such cotton, attaching to each bale a tag showing the charges due him, with the warehouseman, who is the agent of the ginner to collect these charges, may assert, in an effort to collect such charges from the purchaser, that it was the universal custom in that particular community for the owner of the cotton so stored, or the holder of the warehouse receipt, to pay the charges, due thereon at the time the cotton was sold or removed from the warehouse. See, in this connection, Rochelle Gin & Cotton Co. v. Fisher, 13 Ga. App. 621 (79 S. E. 584); Farmers Ginnery &c. Co. v. Thrasher, 144 Ga. 598 (2) (87 S. E. 804).

3. Where a ginner delivers to a warehouseman, alleged to be his duly constituted and appointed agent to collect certain ginner’s charges, a number of bales of cotton, the property of various persons, and attached to each bale is a tag showing the charges due him, and the warehouseman, without first collecting the charges, delivers to a purchaser the cotton, together with a warehouse receipt containing a statement of these charges, and it is alleged that there was in that particular community a universal custom for the owner of the cotton so stored in • a warehouse, or the holder of a warehouse receipt for such cotton, to pay the ginning charges when the cotton was sold or removed from the warehouse, which custom was well known to the purchaser at the time of becoming the owner of the cotton, and that the purchaser was fully aware that these charges had not been paid and the purchaser was bound to pay the same, but refused to do so after demand, although the purchaser had deducted and retained from the purchase-price of the cotton a sum sufficient to cover these charges, .«id not only recognized the ginner’s claim but actually promised before receiving the cotton from the warehouse to pay the same, a petition against the purchaser, alleging the above facts in three separate and distinct counts and asking a recovery of the ginner’s charges, set out a cause of action, and the trial judge erred in dismissing the suit on general demurrer.

Judgment reversed.

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

Complaint; from Wilcox superior court—Judge Gower. March 29, 1919.

Application for certiorari was denied by the Supreme Court.

M. B. Cannon, for plaintiff. Sal Lawson, for defendant.


text:
    10533.
    NATIONAL SURETY COMPANY v. CITY OF ATLANTA.
    1. An instrument in writing purporting to be a bilateral contract, 'as set out in the first count of the petition, wherein only one of the parties promises to perform, there being no obligation on the part of the other party, lacks mutuality and 'is a nudum pactum.
    2. The promise, however, may be regarded as an offer to contract, and when accepted before withdrawal, as set out in the second count of the petition, it becomes a binding contract, and a failure afterwards to perform the promise is a breach of the contract.
    3. Where at the time of the execution of such am instrument a bond referring to it as a “contract” and guaranteeing performance of the promise of the first party is executed, and at a subsequent time the offer of the promisor is accepted by the other party, the bond should be construed as guaranteeing the performance of the contract completed by such acceptance, and a subsequent failure to perform would constitute a breach of the bond.
    4. In a suit by a municipal corporation to recover for a breach of a bond guaranteeing the performance by a third party of a contract with the municipality, it is not necessary for the petition to allege a compliance by the city with the constitutional provision governing the creation of an indebtedness by counties and municipalities, contained in article 7, section 7, paragraph 1, of the constitution of Georgia.
    5. The present case being an action against the surety on such a bond, and it appearing that a cause of action was set out in the second count of the petition, the court did not err in overruling the demurrer.
    Decided February 7, 1920.
    Adhered to on Rehearing, February 23, 1920.
    (Certiorari was granted by the Supreme Court.)
    Action on bond; from city court of Atlanta—Judge Reid. March 29, 1919.
    The City of Atlanta brought suit against the National Surety Company, alleging a breach by the defendant of a bond guaranteeing to the plaintiff the performance of certain obligations assumed by the Tennessee & Southeastern Coal Company under an alleged contract between the coal company and the City of Atlanta, whereby the coal company promised to furnish and deliver coal to the city in certain carload quantities at certain intervals during a period of 12 months. The alleged contract provided that the coal company would furnish the coal upon orders of a designated officer of the city, and contained a provision as follows: “After a verbal or written notice to suspend deliveries under this contract, a further notice may be served in writing to suspend deliveries of coal, and the city will be at liberty to refuse to accept any coal delivered after forty-eight hours from date of such written notice.” The petition set out the bond and the alleged contract between the coal company and the city, executed by both parties, and alleged a failure the defendant breached the bond sued on, to the damage and undertakings there contained, and that by reason of such failure, the defendant breached the bond sued on, to the damage of the plaintiff. The petition contained two counts. The first count alleged the existence of a contract between the coal company and the City of Atlanta by the terms of which the coal company was obligated to furnish coal to the city as above stated, and alleged a breach of the same by reason of failure of the coal company to perform the contract, to the damage of the city, thereby constituting a breach of the bond. The second count alleged written communications from the city to the coal company from time to time throughout the year, ordering coal in pieemeal lots, in accordance with the promises and obligations of the coal company as contained in the alleged contract, and also the refusal and failure of the coal company to furnish coal in compliance with such orders, to the damage of the city, thereby constituting a breach of the bond. The defendant demurred to the petition, upon the ground that the alleged contract attached thereto was void for want of consideration, that it was lacking in mutuality and fixed no binding obligation upon the city, and, there being no contract to be performed, there appeared no breach of the bond, which had been given to secure the performance of a contract which did not exist, and that the petition failed generally to set out a cause of action. The court overruled the demurrer, and the defendant excepted.

      Little, Powell, Smith & Goldstein, for plaintiff in error.

      J. L. Mayson, S. D. Hewlett, contra.
   Stephens, J.

(After stating the foregoing facts.)

Was there a contract between the parties as set out in either count of the petition? If there was no contract, there was no breach of the bond given to guarantee the performance of the contract.

The alleged contract which was attached to the petition contained promises and obligations on the part of the coal company, but did not contain any executed consideration or promise or undertaking on the part of the city. It purported to be a bilateral contract, i. e. a contract executory on both sides. The city not being obligated to the performance of any promise, and there being no mutual promises as a consideration for each other, the alleged contract is lacking in mutuality and therefore void. After reciting that the City of Atlanta had accepted a bid pf the coal company to furnish coal to the city, which bid was attached to the instrument as an exhibit, and contained promises by the coal company only and the terms upon which the coal company would for a period of one year furnish coal to the City of Atlanta, the instrument provided: “that for and in consideration of the premises and the acceptance of the bid of said contractor by said city, as above set out, and in consideration of the promise on the part of the said city to pay said contractor the sum of $2.50 per ton, said Tennessee & Southeastern Coal Company, contractor aforesaid, hereby agrees as follows.” There is then set out the promises of the Tennessee & Southeastern Coal Company and the terms and conditions under ■ which it will furnish coal to the City of Atlanta, subject to certain directions as to quantities and times of delivery by the city. Nowhere therein does the city obligate itself to take the coal or any part thereof. The past acceptance of the bid by the city, and the promise on the part of the city to pay for the coal at so much per ton, recited as a consideration for the promise of the coal company, cannot be regarded as a consideration. A past consideration or existing contractual obligation between the parties generally does not support a promise. The stipulation that the city agrees to pay so much per ton for the coal which it orders does not obligate the city to take any coal or to pay for any coal except that which it does order. The city not being bound to order or accept any coal, both parties were not bound, and there was no contract as set out in the first count of the petition.

The promises and undertakings of the coal company must therefore be considered as amounting only to an offer by the coal company to contract with the city, which promises and undertakings would become binding as a contract between the parties only upon acceptance by the city. There being, as a part and condition of the offer, a provision allowing the city to suspend deliveries of coal, the action of the city in ordering coal under the terms of the offer in installments from time to time, without at once in the beginning obligating itself to make further orders, amounted to an acceptance of the offer of the coal company, which action by the city created a binding contract with the coal company respecting the coal actually ordered by the city. The "right of the city to suspend deliveries of coal did not apply to any order for coal made by the city when delivered by the coal company before the expiration of 48 hours from the date of notice by the city to the coal company to suspend deliveries. The city therefore became bound for all coal which it actually ordered under the terms of the offer, and could not relieve itself of such obligation by any notice to the coal company to suspend the delivery of the coal so ordered unless the coal company delayed the delivery until after 48 hours from the date of notice to it by the city to suspend the delivery. Both parties therefore became bound as respects orders actually made by the city, the coal company being bound to make, and the city being bound to accept, deliveries. There was therefore a contract as set out in the second count of the petition, and it follows that the failure of the coal company to make deliveries of coal actually ordered by the city constituted a breach of this contract, for which the coal company was liable to the city in damages.

Properly construed, the bond executed by the coal company with the defendant, the National Surety Company, as surety, guaranteeing to the city the faithful performance of the so-called "contract” by the coal company, also guaranteed the performance of whatever contract arose out of the instrument executed between the coal company and the city. This is true whether such contract arose immediately upon the instant of the execution of the instrument by both parties, or upon an acceptance afterwards by the city of the promises and undertakings of the coal company, considered as an offer. There was no necessity for any notice to the guarantor of acceptance by the city of the offer of the coal company, or of the failure of the coal company to perform. See Peck v. Precision Machine Co., 20 Ga. App. 429 (93 S. E. 106); Sheffield v. Whitfield, 6 Ga. App. 762 (65 S. E. 807); Sanders v. Etcherson, 36 Ga. 405, 409.

This being a suit by a municipal corporation to recover for the breach of a bond guaranteeing the performance by a third party of a contract with the municipality, and not being a suit against a county or municipal corporation to recover for an indebtedness due by a county or municipal corporation, it is not necessary for the petition to allege a compliance by the city with the constitutional provisions governing the creation of an indebtedness by counties and municipalities, contained in article 7, section 7, paragraph 1 of the constitution of Georgia (Civil Code (1910), § 6563).

A cause of action for a breach of the bond was set out in the second count of the petition. The trial judge therefore properly overruled defendant's demurrer.

Judgment affirmed.

Smith, J., concurs. Jenkins, P. J., concurs in the judgment.


text:
    10539.
    Commercial Bank of Jasper v. Dasher.
    Decided February 7, 1920.
    Levy and claim; from city court of Yaldosta—Judge Cranford. March 21, 1919.

      Dan R. Bruce, E. X. Wilcox, for plaintiff in error.

      Whitaker & Dukes, contra.
   Jenkins, P. J.

Instructions not authorized by the pleadings or evidence, even though presenting correct principles of law, should not be given; and if by the instructions the jury might reasonably be drawn away from the true issues in dispute to the prejudice of parties, the giving in charge of such inapplicable principles would be reversible error (Long v. Gilbert, 133 Ga. 691, 69, 66 S. E. 894; Lazenby v. Citizens Bank, 20 Ga. App. 53, 59 (5), 72 S. E. 391); but where, as in this case, the irrelevant charge could not reasonably be said to have possibly prejudiced the rights, of the complaining party, and could not have misled the jury from the true issue involved, and where too the evidence demanded a finding that the property in dispute belonged to the claimant, the mere fact that the judge gave instructions as to what would be the legal effect, in case the jury should believe the property was owned by the claimant and the defendant in fi. fa. jointly and as partners, would not authorize setting aside the verdict as demanded in favor of the claimant. See cases cited in 7 Ency. Dig. Ga. Rep. 656 (c).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10543.
    Malsby & Company v. Widincamp.
   Stephens, J.

1. A vendor of personal property impliedly warrants the title thereto, and a bona fide purchaser thereof for value, without notice of any-infirmity in the vendor’s title, will be protected against loss on account of the same.

2. “If one with notice sell to one without notice, the latter is protected; or if one without notice sells to one with notice, the latter is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” Civil Code (1910), § 4535.

3. Where, in a suit against the purchaser of personal property, instituted by a third party for the purpose of enforcing a lien against the property arising prior to the sale, the purchaser vouched the seller into court to defend the title, by notifying the latter’s attorney of the pendency of the suit, if the attorney so notified did not at the time represent the seller, and the seller was not, by the notice served upon such attorney, properly vouched into court, yet if the attorney did, with authority from the seller, appear and defend against the attempt to establish the lien, and, though apparently representing the purchaser, the nominal party to the suit, the attorney was in fact representing the seller, the action of the seller in thus appearing and defending the title may be considered as a ratification by the seller of the act of the attorney in receiving and accepting the original notice from the purchaser, and the seller will be considered as haying been vouched into court by the purchaser and called on by him to defend the title.

4. The instant case being a suit by the original seller against the purchaser to recover the purchase price of the personal property in question, as evidenced by a promissox-y note, the purchaser will, after having so vouched his vendor into court, be entitled to set off against the balance due on the purchase price the amount of such judgment establishing the liens which the purchaser may have paid off.

5. While the declarations of an agent are incompetent to prove agency, yet, where there is testimony otherwise to establish this fact, such declarations may be admitted as corroborative of such testimony. Where there is evidence to the effect that such attorney represented the seller at the time when the former was notified by the purchaser of the pendency of the suit to establish a lien upon the property, and that such attorney, when appearing in such suit for the purpose of resisting the effort to establish such lien, was acting for and under authority of the seller, it was not Srror to admit in evidence declarations made by such attorney as to the fact of agency, or as to the other matters relative thereto, made at the time of such notice or during the pendency of the litigation.

6. The defendant in his evidence having particularly described certain items of expense incurred by him, it was not error to fail to exclude from evidence certain written memoranda containing the amounts of these items, upon the ground that in such memoranda these items were not particularly described.

7. Evidence that the plaintiff made an offer to the defendant to credit against the purchase-money the amount which the defendant may have paid on the judgments obtained by the lienors, upon condition that the defendant would pay the balance then due on the purchase-money with interest, amounted to an offer to compromise by the plaintiff, and was therefore prejudicial to plaintiff’s case and inadmissible. Georgia Railway & Electric Co. v. Wallace, 122 Ga. 547 (1) (50 S. E. 478).

Decided February 7, 1920.

Complaint; from Tattnall superior court—Judge Sheppard. March 22, 1919.

W. T. Burlchalter, A. M. Brand, for plaintiffs in error.

H. G. Beasley, James K. Hines, contra.

8. The charge of the court was calculated to confuse the jury as to the law applicable to the case, and for this reason was error, as set out in the 11th and 12th grounds of the amendment to the motion for new trial.

9. The determination of the case having depended upon issues of fact, and the trial judge having admitted certain testimony prejudicial to the plaintiff in error, and having erred in his charge respecting matters material to the issues, a new trial must be granted.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10550.
    Buckeye Cotton Oil Company v. Everett.
   Stephens, J.

1. A person employed as a superintendent or foreman, having authority to supervise the master’s business and to employ and discharge employees and direct them in their work, is the vice-principal or alter ego of the master, and his negligence in the discharge of such duties may be imputed to the master.

2. “The master is negligent and responsible to the servant for injuries resulting proximately therefrom if by his order he caused the servant to do an act which exposed him to danger known to the master but unknown to the servant.” Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259 (58 S. E. 249).

(a) From the petition in this case it appears that the plaintiff was employed by the defendant company to do general utility and repair work in its mill, and that it was his duty to carry out the instructions and commands of a named foreman or superintendent, who was the alter ego of the defendant; that the defendant, through the foreman or superintendent, directed the plaintiff to assist another servant in repairing a certain attachment belonging to a piece of machinery, and, in order to carry out the instruction, it became necessary for him to detach this attachment from the machinery and carry it aside, which the master through such foreman or alter ego ordered him to do, and while in the performance of this latter duty, which was done with the assistance of such foreman, the attachment, on account of its excessive weight and the consequent inability of the foreman or superintendent to guide it, swerved and fell upon the plaintiff and injured him; that the attachment was deceptive in appearance as to its weight, weighing considerably more than, from its peculiar structure, it appeared to an inexperienced eye to weigh, and was entirely too heavy to he lifted with reasonable safety by two persons, and that its excessive weight and the consequent danger which attended lifting and carrying it with only one assistant were known to the master and unknown to the plaintiff. Under these allegations the proximate cause of the injury may be regarded as the wrongful act of the master, through the superintendent or foreman as alter ego, causing the servant to do an act which exposed him to a danger known to the master but unknown to the servant, and which the latter did not have equal means with the master of knowing, and' could not have known by the exercise of ordinary care. The fact that the foreman may be regarded as a fellow servant while assisting the injured servant will not affect the above ruling, even though his negligence as a fellow servant may in some degree have contributed to the injury, although not the proximate cause thereof. Beard v. Georgian Mfg. Co., 8 Ga. App. 618 (70 S. E. 57).

Decided February 7, 1920.

Action for damages; from Bibb superior court—Judge Mathews. April 21, 1919.

Miller & Jones, for plaintiff in error.

Sibley & Sibley, Hall & Grice, contra.

3. The trial judge did not err in overruling defendant’s motion to dismiss the petition, upon the ground that it failed to set out a cause of action.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10555.
    Hodges v. Murkison.
   Jenkins, P. J.

1. A servant is bound to obey a command, when given as such by the master, if it pertains to the duties of the servant’s employment and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes negligence, but the servant, acting under the duty and obligation thus resting upon him,, proceeds to execute the command, and is injured as a consequence, the master is liable in damages for the injuries so sustained. Whiters v. Mallory Steamship Co., 23 Ga. App. (97 S. E. 453), and cit. And while ordinarily the law reads into contracts of employment an agreement on the servant’s part to assume the known risks of the employment, so far as’he has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied contract to the contrary. Thus, if the servant complains to the master that the instrumentality with which, or the place where, he is required to perforin his duties appears to be dangerous, and thereupon the master commands him to proceed with the work and assures him there is no danger, then, unless the danger be so obvious and manifest that no prudent man would expose himself to it, the law implies a quasi new agreement whereby the master relieves the servant from his former assumption of risk, and places upon the master responsibility for resulting injuries. International Cotton Mills v. Webb, 22 Ga. App. 309 (3) (96 S. E. 16), and eit.

Decided February 7, 1920.

Action for damages; from city court of Bainbridge—Judge Spooner. April 14, 1919.

The petition alleges, that the plaintiff was a locomotive engineer on a log-train operated by the defendant; that he hauled the log-train from the defendant’s mill to the woods, and back to the mill and to the log ramp (describing it), where logs were unloaded from the train, remaining on his engine while the logs were unloaded; that the skids composing the log ramp were about eight or’ten feet'apart, and the logs hauled on the train ranged in length from thirty to sixty feet; that he had never worked at or on a log ramp, and had no experience in loading or unloading logs, and knew nothing of the dangers incident to such work; that on a certain day, because of the absence of one of the hands regularly employed to unload the logs from the train to the log ramp, the defendant ordered him to help unload the logs from the train, and he replied that he knew nothing about unloading logs, that he had noticed that some of the skids were out, and was afraid that the skidway was not safe, and that he was afraid he would be hurt if he attempted to comply with the order; that the defendant then told the plaintiff that he knew the condition of the skidway and knew that it was safe, and said, “Just fasten your cant-hook in the log, jump off, turn loose when the log starts, and duck your head, and the log will pass over and not hurt you; there is no danger; now run on and unload the logs quick, the skidway is perfectly safe;” that in compliance with this order, and acting on the assurance of the defendant that there was no danger, the plaintiff went ahead to assist the laborers in unloading the logs, and acted exactly as ordered by the defendant; that in unloading one of the logs he was at their butt end, and that the butt end, being larger than the other end, rolled faster; that as soon as the log started rolling he attempted to get out of the way, and he would have done so but for the fact that the log rolled onto a place where one of the skids had been broken, and, reaching that place, became overbalanced and fell overboard on him, causing personal injuries described. The petition further alleges, that on the day of the injury one of the skids composing the skidway had rotted and been broken out, and that the plaintiff was injured at the place where the skid had rotted out; that while he knew the skid had rotted out of the ramp, he did not know the number of skids that were necessary to sustain the logs, and did not know, and by the exercise of ordinary care could not have known, of the dangers of the skidway, and could not by the exercise of ordinary care have avoided the injury; that the defendant was familiar with the condition of the log ramp, had been unloading logs on the ramp in the condition in which it was for quite a time, and knew the dangers of the skidway. The petition charges the defendant with negligence in the following particulars: (a) in not furnishing petitioner a safe place to work; (b) in taking him from his position on the locomotive and ordering him to unload the logs with the assistance of two negroes; (c) in assuring him that the place where he was assigned to unload logs was safe and not dangerous, and that he would not be injured; (J) in ordering him to perform the work of unloading the logs after he had protested and stated to the defendant that he did not consider the skidway safe, and in assuring him that the skidway was safe and that he would not be injured; (e) in taking a man inexperienced in unloading logs, not employed for that purpose, and ordering him to unload the logs, and assuring him that it was safe to unload them in the manner and at the place stated by the defendant, when in fact it was not a safe place to work and the assurance of the defendant was untrue. The defendant demurred generally and specially, the court overruled the demurrer, and the defendant excepted.

2. Applying to the petition in this case the rulings announced above, the questions as to whether the order as given to the plaintiff by the defendant was a negligent one, and whether the act required, under the assurance given, was one which of itself was so obviously dangerous that no person of ordinary prudence could be expected to perform it, are questions of fact to be determined by the jury from the evidence adduced on the trial of the ease. The petition, therefore, set out a cause of action, and the court did not err in overruling the general demurrer, since questions as to diligence and negligence, including contributory negligence, are questions peculiarly for the jury, and the court will decline to solve them by decision on demurrer, except in plain and indisputable eases. Such of the special grounds of the demurrer as were meritorious were properly met by an appropriate amendment.

Judgment affirmed.

Stephens and, Smith, JJ., eoneur.

Hartsfield & Conger, for plaintiff in error.

D. B. Bryan, T. S. Hawes, contra.


text:
    10556.
    Southern Express Company v. Bass.
    Decided February 7, 1920.
    Complaint; from city court of Carrollton—Judge Beall. April 7, 1919.

      Robert C. & Philip H. Alston, 8. Holderness, for plaintiff In error.

      Boylcin & Boylcin, H. C. Strickland, contra.
   Stephens, J.

Where in a suit by a shipper against a common carrier for loss or damage to goods in transit it appears from the evidence that some of the goods were not totally damaged or destroyed, but were of some value, and the evidence fails to furnish sufficient data from which a jury might infer the value of the damaged articles, the verdict is without evidence to support it.

(a) Plaintiff brought suit against the defendant, a common carrier, for failure to deliver in good condition a shipment of eggs, alleging a total destruction of a part of the shipment; and it appearing from the evidence that some of the eggs, for the value of which the suit was brought, were totally destroyed, and others partially destroyed but retaining some value, and the evidence failing to show how many were totally destroyed or how many partially destroyed, and failing further to show the value of such partially damaged eggs, which should be credited against plaintiff’s claim for a total damage, the evidence is insufficient to support a verdict covering damages for eggs both totally and partially destroyed.

2. It was error on the part of the trial judge to instruct the jury that the burden was upon the defendant carrier to prove the value of the eggs partially destroyed.

3. Failure or inability on the part of .the shipper to convert into money such partially damaged eggs would not affect the defendant’s right to have credit for their value.

4. Properly construed, the suit was one in tort, and a verdict for interest on the amount found was contrary to law. Western & Atlantic Railroad Co. v. McCauley, 68 Ga. 818.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10613.
    FISHER et al. v. SHANDS et al.

    1. Any act of the creditor which increases the risk of the surety or exposes him to greater liability will discharge the latter, whether the act be done with intent to defraud him or not. The jury having found by their verdict that the notes sued on were not altered, as alleged by the surety, and therefore that the surety’s risk was not increased and he was not exposed to greater liability, the charge that an alteration which increases the risk of the surety must be made with intent to defraud, if error, was immaterial and harmless.
    2. The defendants, having in their pleas admitted that the plaintiffs had complied with all the requirements- of the statute in regard to giving 10-days notice of intention to bring suit and claim 10 per cent attorney’s fees upon the notes sued upon, cannot afterwards be heard to complain that the notice served upon them failed to properly describe the notes, by incorrectly reciting the rate of interest called for therein; or that the trial judge erroneously charged the jury to find a verdict for such attorney’s fees.
    3. Where the defendant admits a prima facie ease and sets up an affirmative defense, it is not error upon the part of the trial judge to charge the jury that the defendant must prove his defense by a preponderance of the evidence.

      i. Where certain evidence which could not in any way affect the result of the trial was admitted, it is unnecessary for this court to pass upon an assignment of error objecting to the admissibility of such evidence upon the ground that it was secondary and that the foundation for its introduction had not been laid.
    5. Where the trial judge properly charged the jury the law relative to all substantial issues made by the pleadings and the evidence, it - was not error to fail to charge on other phases of the case, in the absence of a timely request properly made.
    6. There being an issue of fact whether or not the notes sued upon had been altered after execution by the maker and the indorser, and the jury having found against such contention, and there being evidence otherwise to support the verdict, and no error of law appearing, the verdict will be sustained. There being, however, clearly a miscalculation as to the interest and attorney’s fees, the judgment is affirmed with direction that the verdict be corrected.
    Decided February 7, 1920.
    Complaint; from Liberty superior court—-Judge Sheppard. April 9, 1919.

      Melville Price, Edwin A. Oohen, for plaintiffs in error.

      Oliver & Oliver, contra.
   Stephens, J.

This was a suit upon several promisory notes, by the payees thereof, against the maker and the indorser. Both defendants in their pleas alleged that the notes as originally made and executed called for interest at the rate of 10 per cent, per annum, and, after having been so executed, were altered by the plaintiff so as to call for interest at the rate of 8 per cent, per annum. Both defendants contended that as the notes originally called for 10 per cent, interest per annum, they constituted an usurious contract, and that they operated as a contract drawing interest at the rate of H per cent, per annum. The maker alleged that such alteration was material and was made by the plaintiffs, who claimed a benefit thereunder, with intent to defraud him, and that the notes sued upon did not constitute the same contract originally entered into by him with the plaintiffs, and that he was not liable thereon. The indorser alleged that he was a mere surety upon the notes, and that such alteration had been afterwards made by the plaintiffs without his consent and with intent to defraud him, that his risk as surety was thereby increased, and that this act upon the part of the plaintiffs operated to release him from his contract of surety-ship. There was evidence on these issues. The jury found for the plaintiffs against both defendants for the principal sum sued for with interest at the rate of “8%” per annum.

The judge having charged the jury that if the notes had been altered so as to call for 8 per cent, subsequent to their execution by the maker and indorser, they should be regarded as drawing interest at the rate of H per cent, and, the jury having found a verdict finding the interest at the rate of 8 per cent, and finding the surety liable, they necessarily concluded that the notes had not been altered and that the surety’s risk had not been increased, but that the notes when originally made and executed both by the maker and indorser, called for interest at the rate of 8 per cent. If the jury had found that an alteration had been made, even though without intent to defraud, they would not have found, under the charge of the court, a verdict for interest at the rate of 8 per cent., but would have found a verdict for interest at 7 per cent. The jury having found that the notes were not altered and that the surety’s risk was not increased, and that he was not exposed to greater liability, an instruction to the jury that in order to discharge the surfety by an alteration which increased his risk, it must have been made with intent to defraud, was harmless. There being a miscalculation as to the interest and attorney’s fees, the same being excessive, direction is given that the verdict be corrected so as to read for the true amounts, viz., $710.93 interest, and $333.75 attorney’s fees.

Judgment affirmed, with direction.

Jenkins, P. J., and Smith, J., concur.


text:
    10620.
    Atlanta Journal Company v. Knowles.
    Decided February 7, 1920.
    Complaint; from city court of Floyd county—Judge Nunnally. March 18,1919.

      W. B. Mebane, Maddox & Doyal, for plaintiff.

      Dean & Dean, L. E. Covington, for defendant.
   Smith, J.

1. The complaint that the court erred in excluding the testimony of the witness George T. Johnson that “the account sued on is just, true, due, and unpaid, to the best of my knowledge,” is without merit, since it appears from the testimony of this witness that he had no knowledge of the account other than that obtained from duplicate orders sent to him by another. “The correctness of an account cannot be lawfully proved by the testimony of a witness that the same is ‘a correct copy of the charges made on the books’ kept by her when the witness further testified that ‘she knew nothing of her own knowledge’ with respect to the account and ‘only copied in the book entries given to her by [another] on slips.’ ” Dougan v. Dunham, 115 Ga. 1012 (1) (42 S. E. 390).

2. There was no error in excluding the testimony of the witness Coyle as to admissions made by J. L. Davenport, as follows: “When I went to Mr. Davenport about this account which I have sued him on here, he said the account was correct, due, and unpaid.” This witness further testified: “This conversation took place after Davenport was dismissed as our agent.” The admission of Davenport, the principal, was not admissible in the suit against the surety W. A. Knowles, the admissions having been made after the principal had been dismissed as the plaintiff’s agent. “The admissions of a principal are prima facie evidence against his sureties, if made pending the relationship and concerning the transaction as to which the suretyship exists.” Chicago Portrait Co. v. O’Neal, 6 Ga. App. 425 (65 S. E. 161). See also Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680); Dobbs v. Justices, 17 Ga. 625).

3. The exception that the court erred in excluding as evidence contents of a book referred to by the witness Johnson “as the book of original entries containing a statement of the account of J. L. Davenport and W. A. Knowles, security,” cannot be considered by this court, inasmuch as nowhere in the bill of exceptions does it appear what evidence was contained in the book.

4. Under the above rulings, the court did not err in granting a nonsuit.

Judgment affirmed.

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


text:
    10628.
    Bailey v. Miller County.
    Decided February 7, 1920.
    Complaint; from Miller superior court—Judge Worrill. April 30, 1919.

      N. L. Stapleton, for plaintiff. P. D. Rich, for defendant.
   Stephens, J.

1. It is within the legitimate powers of a county to rent a farm for the purposes of maintaining and working paupers chargeable against the county, and to furnish live stock and food products necessary to maintain such farm and carry out such purposes. Civil Code (1910), § 542.

2. Where a county, in the exercise of such powers and for such purposes, and acting through the proper authorities, obtains possession of land, with crops growing thereon belonging to another, under a contract of purchase which is void for the reason that it is an attempt to create a debt beyond the constitutional power of the county, the county is nevertheless liable to the owner of the land for its rental value for the time during which the land was actually occupied and used by the county, and for the value of the crops thereon consumed for the maintenance of such farm and the live stock of the county necessary for the purposes above mentioned or other legitimate county purposes. Butts County v. Jackson Banking Co., 129 Ga. 801, 807 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244); Harris County v. Brady, 115 Ga. 767 (1) (42 S. E. 71).

3. The petition shows, that, under a resolution of the board of county commissioners authorizing the purchase of a “farm for the paupers of said county and to furnish food products to the convidts of said county as well as the live stock used in building roads -in said county,” the County of Miller purchased from petitioner certain land-“to be used as a county farm,” and went into .possession of the same, placing thereon a caretaker and a large number of cattle and hogs which consumed the crops on the place which had belonged to the petitioner. A “county farm” purchased under a resolution authorizing its purchase for a legitimate county purpose is presumably purchased for such purpose; and the maintenance of the live stock by a county is presumably for a legitimate county purpose. The petition as amended set out a cause of action against the county, and the trial judge erred in sustaining the general demurrer thereto.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10647.
    Southern States Life Insurance Co. v. Morris.
   Smith, J.

1. Where an applicant for life-insurance covenants in his application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance and form the basis of the contract, any variation in any of them which is material, whereby the nature or extent or character of the risk is changed, will void the policy, whether the statements are made in good faith or fraudulently. Civil Code (1910), § 2479; Ætna Life Insurance Co. v. Conway, 11 Ga. App. 562 (75 S. E. 915); Supreme Conclave v. Wood, 120 Ga. 328 (47 S. E. 940); Empire Life Ins. Co. v. Jones, 14 Ga. App. 647 (1) (82 S. E. 62).

(a) Generally the question of whether any such variation is material or whether the nature or extent or character of the risk is changed, is a question of fact to be determined by the jury. Empire Life Ins. Co. v. Jones, supra (3).

(f>) Irrespective of whether an osteopath who attended and treated the insured about a year prior to his death was a physician under the statute law of* Georgia, the materiality and truth of the negative answers of the insured to the questions in his application for insurance, (1) “Have you consulted a physician within the past five years?” and (2) “Have you now or have you ever had epilepsy?” were, under the facts in this case, questions for determination by the jury, since the evidence was in sharp conflict both as to whether the insured in fact had ever had epilepsy, and as to whether he knew the osteopath treated him for epilepsy rather than for some slight temporary ailment which the law doe's not consider in determining what constitutes attendance by or consultation of a physician. Empire Life Ins. Co. v. Jones, supra.

2. The excerpt from the charge complained of in the first ground of the amendment to the motion for a new trial is error in the use of the following language: “If you believe from the evidence in the case that within five years prior to May 10th, 1917, the date of the medical examiner’s report, that Eugene Morris had consulted an osteopath or other physician, and had failed to disclose such information to the company, such information was material to have in passing upon the application for lile insurance. Upon his failure to do that it would prevent a recovery upon the policy.” The question, as already ruled above, as to whether the information was material or not, is generally an issue for the jury, but the plaintiff in error will not be heard to complain of this excerpt, as it was in his favor.

3. There is no merit in the complaint that the court erred in its charge, taken as a whole, in that nowhere in the charge did the court outline to the jury the specific issues of fact raised by the pleadings, or instruct them as to tvhat were the points qf actual controversy between the parties as they were defined by the pleadings. With the exception of the excerpt set out above, the charge of the court substantially and fully submitted to the jury all the issues in the case, and if any criticism of the charge could be made it would be that it was more favorable to the plaintiff in error than to the defendant in error.

4. Although there is conflict in the evidence, there was evidence to support the finding of the jury as to the liability of the insurance company; but, from a careful review of the evidence in the case, this court is of the opinion that there was no evidence to support the verdict finding damages and attorney’s fees. The judgment of the court below is therefore affirmed upon the condition that'at the time the remittitur is entered as q, jjiflgment of the trial court, the defendant in error will write off from the verdict the amount given as damages and attorney’s f&es; ©thervyise, thg judgment is reversed.

Decided February 7, 1920.

Action on insurance policy; from Colquitt superior court-judge Thomas. May 17, 1919.

A. J. Orme, Shipp & Kline, Donald P. Siarr, for plaintiff in error.

J. J. Mill, Parker & Gibson, contra.

Judgment affirmed, on condition.

Jenlcins, P. J., concurs. Stephens, J., disqualified.


text:
    10588.
    Seaboard Air-Line Railway Company v. Pruitt.
   Stephens, J.

1. In a suit by a shipper against a carrier to recover damages for failure to deliver a shipment of live stock promptly and in good order, the trial judge, in compliance with a request by the carrier, instructed the jury that a special contract of shipment, which relieves the carrier of all damage resulting from the carrier’s negligence other than gross negligence, was binding on the shipper unless the shipper showed that the carrier was guilty of negligence. The carrier, having made such request to charge, is estopped from excepting to the charge upon the ground that the judge failed to charge that the carrier would not be liable under such special contract unless the-carrier was guilty of gross negligence.

2. A shipper of live stock under a special contract may recover from the carrier any damages sustained by him as a result of any extra expense which he may have incurred in feeding and caring for such live stock by reason of any unreasonable delay caused by the gross negligence of the carrier in failing to transport and deliver the shipment at the point of destination.

3. “Where a carrier fails to deliver .goods in a reasonable time, the measure of damage is the difference between the market value at the time and place they should have been delivered and the time of actual delivery” (Civil Code (1910), § 2773); and a common carrier cannot by special contract relieve itself-from this measure of damage, where the goods are damaged by reason of its negligence.

4. The first ground of the amendment to the motion for new trial, wherein the admission of certain evidence is excepted to, failing to show upon what ground objection was urged to such testimony, cannot be considered.

5. The evidence authorized the inference that the plaintiff’s loss was due to the negligence of the defendant company in failing to deliver promptly the shipment of live stock, rather than to any negligence upon the part of the plaintiff to properly feed and care for the live stock while in transit.

6. There being neither in the bill of exceptions nor in this court before argument begun any assignment of error upon the exceptions pendente lite, the latter will not be considered. A bare recital in the bill of exceptions that exceptions pendente lite were taken, without more, does not amount to an assignment of error upon the exceptions pendente lite.

Decided February 9, 1920.

Action for damages; from city court of Americus—Judge Harper. April 30, 1919.

W. W. Dykes, R. T. Hawkins, for plaintiff in error.

Shipp & Sheppard, contra.

7. The evidence authorized the verdict, and no error of law was committed. Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


author: Stephens, J. Smith, J.,

text:
    10643.
    THOMAS N. BAKER LUMBER COMPANY v. ATLANTIC MILL & LUMBER COMPANY.
    Decided February 9, 1920.
    Complaint; from city court of Albany—Judge Clayton Jones. May 13, 1919.

      Guy 0. Buckner, Peacock & Gardner, for plaintiff.

      Milner & Parkas, for defendant.
   Stephens, J.

1. Although, in a suit upon indebitatus assumpsit, a non-suit is proper where it appears from the plaintiff’s evidence that there was a written contract between the parties which defined their rights and obligations touching the subject-matter of the suit (Blue v. Word, 12 Ga. 45), yet where in such a suit for the price of goods sold the only evidence of a written contract between the parties was that the goods were sold on various written orders of the defendant and written acceptances of the plaintiff, that the obligations on the part of the plaintiff were performed, and that the goods ordered and accepted were not paid for, it was error to grant a nonsuit. See Southern Printers’ Supply Co. v. Felker, 125 Ga. 148 (54 S. E. 193).

2. While it is true that in this case the written orders and acceptances were not introduced in evidence and were shown only by oral testimony, this testimony was unexeepted to when offered, and no motion was made to rule it out. “If secondary evidence . . is admitted without objection, it is to be considered as evidence, and a charge or verdict may be based upon it; and such verdict will not be set aside as being unsupported by the evidence.” Munroe v. Baldwin, 145 Ga. 215 (88 S. E. 947). As the evidence admitted made a prima facie case for the plaintiff, it was error for the trial judge to grant a nonsuit.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

Smith, J.,

dissenting. I cannot agree with the decision of the majority of the court, for, under my view of the law, if a suit is brought upon an account, and the defendant files a general denial, and upon the trial of the case the plaintiff’s evidence shows that the account consists of a number of items and balances on different bills for merchandise, all growing out of written orders and acceptances, the burden is upon the plaintiff to introduce in evidence these written contracts and show a compliance with them, and upon his failure to make such proof a nonsuit is proper. “In a complaint founded on an account, it was proven by the plaintiff’s witness, on the trial, that there was a written contract between the parties, touching the subject-matter of the account: Held, that the plaintiff could not proceed, and that the defendant was entitled to a nonsuit.” Blue v. Ford, 12 Ga. 45. There is in my opinion a clear distinction between the case at bar an<| the cases cited in the majority decision. See Southern Cotton Oil Co. v. Farkas, 23 Ga. App. 413 (98 S. E. 411). It clearly appears from the Ford and Farhas cases, supra, that when the plaintiff’s own testimony showed that the account was based upon a written contract, the burden was upon him to produce and introduce such contract, and then prove to the satisfaction of the court and jury that he had complied with his contract and that nothing remained to be done except the payment of the money.