text:
    8419.
    GUNTER v. THE STATE.
    ]. Section 513 of the Penal Code of 1910 may be violated by wrecking or attempting to wreck a street-car or coach when used for the purpose of travel or transportation on any -railroad-track, where the motive power is supplied by electricity.
    2. Where, without objection on the part of the defendant, the trial judge sets aside a juror because of facts elicited by questions propounded by the court, the defendant is estopped from complaining of the verdict on the ground .that the court erred in setting aside the juror.
    3. On .the trial of one indicted under section 513 of the Penal Code, testimony of passengers on the car alleged to have been wrecked by the use of dynamite, as to injuries resulting to them from an explosion which affected the car, .was admissible to aid in determining whether the purpose of the defendant was to wreck the cal', or only to obstruct or injure the track, and also to throw light upon the issue whether the ear was wrecked by the use of dynamite or otherwise.

      4. There was no error in admitting testimony that on the night of the alleged wrecking of the street-car, three sticks of dynamite were found at another point on the track of the same railroad company, the defendant having admitted that he placed it at that point, and it being clearly inferable from the evidence that it -was placed there in pursuance of a general scheme or plan by the defendant to wreck the cars of the street-railroad company.
    5. Evidence as to admissions of guilt involving the defendant, made by a coconspirator after the termination of the conspiracy, was admissible, where it appeared that they were made in the presence of the defendant himself and were then freely and voluntarily declared by the defendant to be true.
    6. When considered in the light of the entire charge of the court, there was no error in the charge relative to confessions; and the instruction that the jury must look to the “evidence,” to ascertain if the confession was freely and voluntarily made, did not prevent consideration of the defendant’s statement to the jury t'o the contrary, where the court fully and properly instructed the jury as to the weight and value they might accord to the defendant’s statement.
    7. The evidence amply authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.
    Decided April 24, 1917.
    Indictment for wrecking car; from" Fulton superior court—■ Judge Hill. December 23, 1916.

      0. P. & Ernest G. Bentley, F. A. Hooper, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Wade, C. J.

1. The accused was tried under an indictment drawn under section 513 of the Penal Code, which provides that “Any person who shall, by any device whatever, wreck, or attempt to wreck, a railroad train, locomotive, car, coach, or vehicle of any kind, when used or run on any railroad-track for the purpose of travel or transportation, or assist or advise it to be done, shall be punished with confinement in the penitentiary for life,” etc. Though electric-cars may not have been in operation in this State at the time of the passage of the act from which this section of the code was taken, it is nevertheless broad enough to include by its terms any cars, coaches, or vehicles “when .used or run on any railroad-track for the purpose of travel or transportation,” regardless of the motive power employed to impel them along such track. As was said in Savannah &e. Railway v. Williams, 117 Ga. 414, 419 (43 S. E. 751, 61 L. R. A. 249): “The constitution, statutes, and decisions of this State recognize that the word ‘railroad’ is generic, and includes street-railroads, narrow-gauge roads, horse-power companies, dummy-lines, and street-railroads operated by electricity.” See also Georgia Railway & El. Co. v. Joiner, 120 Ga. 905, 907 (48 S. E. 336). The rational rule to be observed in considering this statute is that suggested by the holding in Barker v. State, 118 Ga. 35, 40 (44 S. E. 874), that “Laws broad enough in their terms may embrace instrumentalities and methods after-wards coming into existence, although unknown at the time the laws were enacted.” Measured by this'rule, it is clearly apparent that the statute in question is broad enough to embrace wrecking or attempting to wreck a street-car or coach, when used or run for the purpose of travel or transportation on any railroad-track, where the motive power is supplied by electricity, notwithstanding electric-ears may not have been in operation in the State at the time this law was enacted. For a fuller discussion of the question involved, see Wilson v. State, ante, 759.

2. No objection being urged by the defendant at the time, there is no merit in the ground of his motion for a new trial complaining that the court erred in setting aside, of its own accord, one of the venire men as disqualified to sit as a juror, because of the fact, elicited by a question propounded by the court, that he was a member of a labor union, which was then on a strike and of which the defendant was a member, and did not propound to the juror the statutory questions on the voir dire to test his qualifications under the laws as an impartial juror. The defendant, by failing to make timely objection, and by thus agreeing in eifect to take his chances of acquittal with this juror stricken from the panel put upon him, waived his right to complain thereafter on this ground.

3. The 6th and 7th grounds of the amendment to the motion for a new trial, which complain of the admission by the court, over objection by the defendant’s counsel, of testimony from persons on the car at the time it was wrecked, that they had been injured by the alleged explosion, and as to the nature and extent of such injuries, upon the ground that this evidence was “irrelevant and illegal” and tended strongly to arouse the indignation of the jury against the defendant and prejudice his cause before them, are without any substantial merit. The defendant was charged with wrecking and attempting to wreck, “by the device, use, and employment of dynamite,” a street-car and coach then being used and run upon the railroad-tracks of a certain corporation in Fulton county, Georgia, for the purpose of travel and transportation. An inspection of the record-shows that the defendant, by questions propounded by his counsel to the State’s witnesses, on cross-examination, attempted to raise the issue, or to suggest a doubt, as to whether the car had been wrecked-by the use of dynamite, as alleged in the indictment, or simply by the breaking of a rail from other causes. A confession by the defendant that he had used dynamite in wrecking and attempting to wreck this car was in evidence, and testimony as to the nature and character of- the injuries to the car itself and to the passengers therein was relevant not only as a part of the res gestas, but also as tending to establish that the purpose of the defendant was to wreck the coach or car (in violation of section 513 of the Penal Code), rather than to destroy, injure, or obstruct the railroad-track (punishable under section 522 of the Penal Code). This question whether the defendant intended to wreck the car, or only to obstruct or injure the railroad-track, was for the jury, and therefore testimony tending to elucidate his intention was proper. So, also, the testimony as to the grave character of the injuries inflicted upon the passengers in the car at the time of the explosion was relevant, because it tended to show the nature and power of the explosive employed and to corroborate the statément in the confession of the defendant that dynamite was in fact the explosive used, as alleged in the indictment. In the opinion of the writer, even the length of time the injury resulting to one passenger persisted in its effects might tend in some slight degree to illustrate the force and power of the explosion which produced it, and therefore the character of the explosive used and the intent and purpose of the defendant to wreck the ear by its use. • At any rate, it can not be said that the evidence objected to was inadmissible because wholly “irrelevant and illegal.”

4. The 8th ground of the amendment to the motion for a new trial alleges error in the admission of testimony, over the objection that it was irrelevant and illegal, that on the night of the alleged wrecking of the street-car, three sticks of dynamite were found at another point on a track of the same street-railroad company. It appears, by a note of the presiding judge, that the “defendant admitted this act;” and in a written confession of the defendant, which was in evidence, he admitted that he placed the dynamite on the track at the place referred to in this testimony. The evidence was clearly relevant and admissible to corroborate the confession of the accused, and also because it tended to show one systematic plan or scheme on the part of the defendant to wreck the cars of the street-railroad company, consummated by the wrecking of one car, and his intention to wreck such cars rather than to obstruct or injure the tracks by placing dynamite at the point where a car was in fact wrecked.

5. There was no error in admitting testimony that one Wilson, who was indicted jointly with the defendant Gunter, made- certain statements to the witness as to the presence of Gunter with Wilson in an automobile discovered by the witness soon after the commission of the alleged crime, which statenients tended to connect Gunter therewith. The witness testified that Wilson made this statement to him in the presence of Gunter, and not only does it appear from the note of the trial judge to this ground of the motion that “Gunter was present and also admitted the same fact,” but an inspection of the record discloses that Gunter agreed at the time to the statement made by Wilson, and also himself then precisely admitted the same facts.

6. The last ground of the amendment to the motion for a new trial complains that the court erred in charging the jury as follows: “A confession induced by the slightest hope of benefit or the remotest fear of injury is not evidence at all, and if the evidence should show that it was so induced, and if there is any evidence in this case that this confession, introduced by the State, was induced to be made by this man now on trial, by the slightest hope of benefit accruing to him, made by any one having authority io make it, or the remotest fear of injury to him, the hope of benefit or fear of injury induced it, the jury would not be authorized to consider it at all. But if the evidence discloses it was freely and voluntarily made, and was not indu'ced by the slightest hope of benefit or the remotest fear of injury,” etc.

It is objected that this charge was error because it instructed the jury that they must look-to the “evidence” to ascertain if the confession was freely and voluntarily made, whereas the defense relied entirely upon the statement of the defendant to show that it was not in fact freely and voluntarily made. It is further insisted that the harmful effect of this -charge was augmented by the further instruction: “You have heard the statement of the defendant; it is not evidence strictly speaking, but the jury have the right,” etc. It is insisted that the effect of this language was to “make the jury unable to disregard the confession.” The court fully charged the jury in this immediate connection that they had the right to believe the statement of the defendant in preference to the sworn evidence, if they saw proper to do so, and they were clearly authorized by the charge as a whole to accept, as against all the sworn evidence to the contrary, the statement of the defendant, which was unsupported by any testimony whatever, to the effect that his confession was induced by promises of immunity from punishment. The omission to include in the excerpt complained of a reference to the statement of the defendant, as well as to the evidence, constitutes no reversible error. In principle this question is controlled by the ruling in Early v. State, 14 Ga. App. 467 (2) (81 S. E. 385), and cases therein cited (p. 470).

The remaining objection to this excerpt from the charge, that the court erred by limiting the jury to the consideration of only that hope of benefit which might have been excited or created by “any one having authority” to make promises of immunity, is without merit. - All the witnesses who testified in the case deny absolutely that any promise or threat had been made to the defendant, and his entire statement to the jury was as follows: “Well, the.way that came about, they got us up there and I was scared, and was scared; we didn’t know what we were doing; I don’t. I don’t know about the others. And they just-told us that they was going to prove a whole lot of this on us. They just said they were going to send us up for 20 years or lifetime if we didn’t go on and sign these papers, and of course I didn’t know what to do. . I didn’t know what to do only just go ahead and sign them, all I knowed to do. They were going to turn us loose and let us go right on off just as soon as we signed these papers. That is all they wanted, get some man higher up; Pollard and Teat ivere the men they were after; and they told us just to sign these papers, they would turn us loose and let us go. I think that is all.” In this statement it is nowhere suggested that the slightest hope of benefit or remotest fear of injury to the defendant was held out or aroused by any person not “having authority,” and therefore it is enough to say that no possible harm appears to have resulted to the defendant by the qualification in the charge of the court which is complained of. We need not consider whether this limitation would be in some other case improper or even inapt, though it is self-evident that proof of a promise or threat, made by some person utterly without any power or authority, actual or apparent, to confer a benefit or inflict punishment upon one accused of crime, could have but little weight in destroying the effect upon a jury of a plenary confession, supported by clear and positive evidence that it was freely and voluntarily made. It is sufficient to say that it nowhere appears that “they,” referred to in the statement of the defendant as making promises and threats, were lacking in power or authority to hold out some hope of reward to the accused, and therefore it does not a]:>pear that any harm resulted to the defendant from this instruction.

Furthermore, the court elsewhere and in this connection fully instructed the jury that-confessions are not favored in law, and must be received with great caution and scanned with great care, and that a confession can only be considered “if the evidence discloses that it was freely and voluntarily made and was not induced by the slightest hope of benefit or the remotest fear of injury,” and instructed the jury that they might accept the statement of the defendant in preference to the sworn testimony in the case, without in any way limiting the source of the hope of benefit or fear of injury therein referred to. It may be said, in passing,-that not only did the defendant in his statement to the jury fail to deny his guilt of the serious charge against him, or dispute the correctness of any single detail set forth in his alleged confession, but he contented himself with simply asserting that he Avas “scared,” and therefore made the confession of guilt, induced by the hope of benefit to him and fear of injury,' excited by the promises and threats of persons not named..

7. No recital of the eA'idenee adduced at this trial is necessary. It is sufficient to say that the plenary confession of the accused was corroborated not only by proof of the corpus delicti, which therefore authorized his conviction, but before making his full confession he ratified the assertion, made by another, that he Avas present near the scene of the crime at the time of its commission, and himself asserted this fact, and also the further fact that a search of the vehicle in which the defendant then Avas would have revealed the presence of dynamite and explosive caps—the latter in the pocket of the- defendant himself. No comment on the enormity of the crime, when measured by the possible results to innocent passengers on the car of the street-railroad company, who were in no sense connected with or involved in the controversy betAveen the railroad corporation'and the defendant and other former employees of the corporation, is requisite, since this court js concerned only with the question whether the defendant had a fair trial, free from harmful errors; and nothing in the record presented to us suggests anything to the contrary.

Judgment affirmed.

George, and Lulce, JJ., concur.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    8571.
    BOWEN v. THE STATE.
    1. The act of 1915 (Acts.of 1915, Extraordinary Session, p. 101) made it a penal offense for one to have in his possession prohibited liquors in bottles or receptacles of a capacity of less than one quart, or to have less than a quart of such liquors in more than one receptacle or bottle.
    2. The evidence was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
    Decided April 24, 1917.
    Accusation of misdemeanor; from city court of Carrollton— Judge Beall. February 27,. 1917.

      Buford Boylcin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Wade, C. J.

1. Section 18 of the act of 1915 (Acts of 1915, Extraordinary Session, p. 101) provides that “when more than one quart of the liquors mentioned in section 1 of this act [spirituous, vinous, malted, fermented, or other intoxicating liquors of of any kind] or prohibited liquors is received or had in possession, it must be in bottles or receptacles of a capacity of not less than one quart, and when a quart or less is so received or possessed, further declares that: “Failure to observe the provisions [of this it must be contained in one receptacle or bottle.” That section section] or either of them shall constitute prima facie evidence that said liquors áre kept or had in possession for sale or other unlawful disposition; and it shall be unlawful to receive or possess the liquors in quantities mentioned in receptacles or bottles that do not conform to the above, requirements;- but this section shall not apply to malted or similar fermented liquors such as beer, lager beer, or porter or ale.” It is obvious that the section quoted above not only makes proof of the possession of certain intoxicating liquors, in receptacles of smaller capacity than that fixed thereby, prima facie evidence, in a criminal proceeding, that such liquors are kept or had in possession for sale or other unlawful disposition, but also expressly declares that “it shall be unlawful to receive or possess the liquors in quantities mentioned in receptacles or bottles that do not conform to the above requirements,” and thus makes the fact that one is in possession of the prohibited liquors, in receptacles or bottles of smaller size than allowed by this section, itself a violation of law. Section 29 of the same act declares that the violation of any provision of the act shall be punished as for a misdemeanor.

It is clear, therefore, that under the provisions of section 18 of this act an accusation which charges that one “did unlawfully have in his possession one and one half pints of whisky in receptacles of less than one quart, to wit, in two pint bottles, contrary to the laws of said State, the good order, peace, and dignity thereof,” set forth a distinct offense under the laws of Georgia, punishable as a misdemeanor, and that proof, whether direct or circumstantial, from which a jury, under the usual rules of evidence, would be authorized to infer that the defendant so charged had actually in his possession within the period of limitation and since the enactment of this law a quantity of liquor, in bottles or receptacles of a capacity of less than one quart each would warrant a conviction.

2. It was contended that the evidence in this case did not authorize the conclusion that the accused had in his possession any whisky at all, and therefore that his conviction was contrary to larv. The testimony in behalf of the State showed that a police officer in the town of Temple, in Carroll county, saw the defendant, on the night of November 11, 1916, approach the defendant’s house and “bend over right at his door-step. . . He went to his door-step, . . just went there and was fumbling around the steps like he was hiding something, stooped down,” and then entered his house, and when the officer approached and investigated he found a pint and a half of whisky under the steps of the house at the point where the defendant had. been seen stooping over and “fumbling.” The officer testified, on cross-examination, that he did not mean to swear that he saw the defendant put the. whisky there, but he found it under the defendant’s house, and this was about all he knew about, the matter—“two bottles there, one pint bottle and one half pint;” and he further testified that he knew the defendant lived in this house, together with his' wife and brother. The testimony of one Eobertson was practically identical with that of the police officer. The defendant in his statement admitted that he had stooped clown at his door on the night in question, but said that he did so in order to get his door-key, and that was all he did, that he had not seen any whisky, and had had none in his possession; that he and his wife livecb in this house, and his brother boarded there with him and worked at the oil mill. The witness Eobertson, being recalled, testified that he went into the defendant’s house on the night in question and found the defendant and his wife there, but the wife was not with the defendant at the time he saw him go to the house and saw him stoop doAvn at the steps before entering. The evidence of the police officer further showed that on the night next preceding the night when the whisky was found under the door-step of the defendant’s house, the witness saw him apparently place something under the steps, but upon search nothing was discovered at that time. It likewise appeared that the defendant was in the' town “lock up” on November 11, up to a short time before he was seen to approach his home and stoop over and “fumble” under the door-step, just before the whisky was found. It is true the whisky was found at the very entrance of the defendant’s house, but it was found in a place which was apparently accessible to any person, and where it might have been temporarily secreted by any passer-by or by the wife or brother-in-law of the defendant (who occupied the house with him) without the knowledge of the defendant and altogether for the convenience of the person placing it there. The fact that the defendant’s wife was actually in the house at the time he was seen to stoop over the steps and fumble for some object thereunder does not discredit his explanation that he was looking for his' house-key with which to effect an entry; for the testimony does not disclose that the house was apparently lighted up when the defendant approached it, so that the presence of some person therein would have been indicated to him and the futility of looking for the key under the steps would have been suggested; and since the defendant had been in the town “lock up” all day and up to nine o’clock on the night of November 11, he may have had no opportunity otherwise to learn that his wife was at home and could open the door for him and save him from the necessity of finding the key and unlocking the door.

There was no direct evidence that the defendant was in posséssion of any prohibited liquors, and the circumstance that he had been seen to stoop over his door-step on the night of November 11, when approaching his house, and to fumble under the steps before entering the house, where he,1 his wife, and his brother resided, was insufficient to support the hypothesis of his guilt to the exclusion of every other reasonable hypothesis, notwithstanding that immediately after the defendant then entered his house one pint and one half-pint bottle of whisky were found under his doorstep. The testimony that the defendant was also seen to stoop over his door-step on the night of November 10, immediately before entering his house, and that no whisky could then be found under the step, rather tends to corroborate his very reasonable explanation that he was only looking under the step for his house-key both on the night of the 10th and on the night of the 11th, and did not have or deposit any whisky there on either occasion.

There were no other circumstances in proof to arouse suspicion against the defendant, and not only was his explanation that he stooped over and fumbled under the step to find his house-key as reasonable as the supposition that he was depositing whisky, which he then and there had in his possession in receptacles of forbidden size, but, as also above suggested, the further reasonable hypothesis could well be indulged that one. of the other two occupants of the house, or some person, without his knowledge or consent, deposited the bottles of whisky there solely for the convenience of the person depositing it, or that perhaps some designing enemy may have thus sought to entangle the defendant in the meshes of the law.

Though the evidence may have naturally created a suspicion of the defendant’s guilt, yet his conviction being based altogether upon circumstantial evidence, which was insufficient under the requirements prescribed by section 1010 of the Penal Code, the trial judge erred in overruling the motion for a new trial.

Judgment reversed,.

George and Lulce, JJ., concur.


author: .Broyles, P. J.

text:
    7865.
    Haley v. Covington.
   .Broyles, P. J.

1. The reserving of interest in advance at- the highest legal rate on a loan, whether it be a short or a long term loan, is usurious. Loganville Banking Co. v. Forrester, 143 Ga. 302 (84 S. E. 961, L. R. A. 1915D, 1195) ; Reese v. Bloodworth, 146 Ga. 355 (91 S. E. 120). Where, however, interest on the actual sum loaned is calculated at 8 per cent, from the date,of the loan to its maturity, and the lender then adds the amount of this interest to the sum lent, and places the total amount in the promissory note signed by the borrower as the sum which is to be repaid, and it is stipulated therein that this sum shall bear interest at 8 per cent, from maturity until paid, the interest has not been reserved in advance, and the contract is not infected with usury. In such a transaction the borrower receives the entire amount of the loan, and the lender has not received or reserved anything in advance, and when the note is paid at its maturity he receives the sum actually lent only, plus the legal interest thereon. It is not unlawful to agree to pay interest on interest which is lawfully past due. Pinckard v. Ponder, 6 Ga. 253; Scott v. Saffold, 37 Ga. 384, 391; Tribble v. Anderson, 63 Ga. 31 (5) ; Merck v. American Freehold Land Mortgage Co., 79 Ga. 213 (7 S. E. 265) ; Ellard v. Scottish-American Mortgage Co., 97 Ga. 329 (22 S. E. 893) ; Green v. Equitable Mortgage Co., 107 Ga. 536 (33 S. E. 869) ; Almand v. Equitable Mortgage Co., 113 Ga. 983, 987 (39 S. E. 421); Stewart v. Slocumb, 120 Ga. 762 (48 S. E. 311).

2. Under the facts of the case it was for the jury to say whether the contract sued upon was infected with usury. The defendant’s evidence, if true, showed that it was so infected, while the- plaintiff’s evidence authorized a finding to the contrary. The jury’s verdict finally settled this question.

Decided April 24, 1917.

Complaint; from city court of Cartersville—Judge Moon. July 27, 1916.

William T. Townsend, for plaintiff in error.

L. II. Covington, Dean & Dean, contra.

3. That part of the verdict and judgment which set up a special lien in the plaintiff’s favor was illegal, but this error was cured by the order of the court amending the verdict and judgment by striking therefrom this illegal part.

4. The admission of the testimony complained of in the 5th and 6th grounds respectively of the amendment to the motion for a new trial was not error.

5. The remaining grounds of the amendment to the motion for a new trial, not having been referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

G. The verdict as amended was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Bboyles, P. J.

text:
    8078.
    Manly v. Oliver.
    Decided April 24, 1917.
    Foreclosure of lieu; from Habersham superior court—Judge J. B. Jones. January 31, 1916.

      J. C. Edwards & Sons, for plaintiff in error.

      C. B. Faulhner, W. N. Oliver, contra.
   Bboyles, P. J.

1. The portion of the charge excepted to does not contain any expression or intimation of opinion as to what had been proved in the case or that the defendant could not recover, and, while subject to some slight criticism, does not require a new trial, when considered in connection with its context.

2. There was some evidence authorizing the verdict, and, it having been approved by the trial judge, and no error of law appearing, this court has no authority to reverse the judgment overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: .Wade, 0. J.

text:
    7795.
    WILLIAMSON et al. v. MAYOR &c. OF SAVANNAH.
    1. While it is a prerequisite to suit against a municipal corporation in this^ State for injury to person or property that a “claim for money damages” be presented in writing to the governing authority of the municipality for adjustment, “stating the time, place, and extent of the injury, as near as practicable, and the negligence which caused the same,” and a notice which fails to specify any amount of money as damages falls short of this requirement, it is not essential that the amounts claimed in both the notice and the suit should be identical.
    2. Where a change is made by a municipality in the grade of a street, and the market value of real property abutting thereon is thereby decreased, the owner has a cause.of action against the municipality, and the measure of damages is the difference between the market value of the property before and after the change of the grade.

      (a) The cost of filling in lots, to raise them to the level of the street, may be proved, not as an independent item of special damages, but only as a fact or circumstance throwing light upon the general question of diminution of the market value.
    3. There being no testimony from which it could be clearly inferred that the market value of the entire tract of land belonging to the plaintiffs, abutting the street, the grade of which had been changed by the municipality, had been decreased by reason of such change, the burden of establishing this fact, which rested upon the plaintiffs, was not successfully carried, and the trial judge did not err in awarding a non-suit.
    4. In view of the ruling last stated, it is not 'necessary to pas upon the remaining exceptions.
    Decided April 25, 1917.
    Action for damages; from city court of Savannah—Judge Freeman. June 20, 1916.

      Osborne, Lawrence & Abrahams, Raiford Falligant, for plaintiffs. Robert J. Travis, D. S. Atkinson, for defendant.
   .Wade, 0. J.

1. It was held by this court in the case of Mayor &c. of Macon v. String field, 16 Ga. App. 480 (85 S. E. 684), that since section 910 of the Political Code of 1910 provides that any person, firm, or corporation having a “claim for money damages” against a municipality of this State on account of injury to personal property-must, as a prerequisite to bringing a suit to enforce such demand, first’ present in writing such claim to the governing authority of the municipality for adjustment, “stating the time, place, and extent” of the alleged injury as near as practicable, and the negligence which caused the same, the paper required to be presented must state the amount of money claimed, as otherwise there would be no compliance with the requirement that the “extent” of the injury must be alleged. No discussion of the purpose of this legislation or of the object to be accomplished by the notice required is necessary, since the purpose and object thereof were considered and discussed by this court in that case. It may be said, however, that where the notice served upon the governing authority of a municipality makes a claim for an amount less than that for which suit is thereafter instituted, the purpose of the law has evidently not been defeated, since the city has been thereby afforded an opportunity to adjust the claim for an amount less than that demanded in the suit, and it could not be rationally inferred, where the city declined to pay the smaller amount claimed in the prerequisite notice, that it would nevertheless have paid the larger amount thereafter claimed in the suit, and that therefore, by suing for an amount greater than that set forth in the notice, the city was denied an opportunity to adjust the claim without incurring the expense of suit. Again, where the notice served upon the governing authority claims a large or even exorbitant amount for the injury alleged, and the municipality declines to pay the amount claimed, and it does not apjpear that the municipality offered to pay any less amount than that demanded in the notice, it can not reasonably be held that the -municipality was denied an opportunity to adjust the claim, if thereafter the pfiaintiff should bring suit for an amount less than that named in the prerequisite notice. The refusal of the city to pay an amount which it might regard as exorbitant or unreasonable, without making any counter proposition or proposing to pay any less amount than that so demanded, must be considered as a denial on the part of the plaintiff of all liability on account of the alleged injury to person or property, and as a refusal to pay not only the excessive demand made by the plaintiff, but any amount whatever, and would therefore leave the way open to the plaintiff to institute his action for any amount of damages he might see fit to allege, without putting himself in opposition to the provisions of section 910, supra, requiring him to give notice as to the “extent” of his demand. So too, where the notice claims damages in a sum named and suit is brought for that identical sum, but the suit is thereafter amended so as to decrease the amount of damages therein alleged, such an amendment will not make inadmissible as evidence the original notice served upon the municipality prior to the bringing of the suit.

It is unnecessary to refer to tlie great latitude allowed as to amendment, under our system of practice, and no sufficient reason appears why the general rules applicable to the amendment of other suits would not apply to suits against municipalities for injury to person or property. It is true that in Mayor &c. of Macon v. Stringfield, supra, it was said, by way of illustrating the necessity for claiming, in the notice prerequisite to a suit against a municipal corporation.for injury to person or property, some particular amount of money, in order to comply with the requirement of the law that the “extent” of the injury must be-set forth, that “if the injured person claimed an exorbitant amount . . . the city officials would not be willing to effect a settlement on the terms named by him, whereas if he named a reasonable and moderate amount an immediate settlement might be accomplished or negotiations begun which would result in a settlement;” but the actual and only holding in that case is that “a notice which fails to specify any amount of money as damages is not a compliance” with section 910 of the Political Code; and that “the word ‘extent/ as used in this section of the code, bearing in mind the object to be accomplished by the notice, must include.not only the nature and character of the injury for which" payment is demanded, but also the amount of the damage, measured in the only terms by which the city could adjust the same, to wit, in dollars and cents.”

It was held in the case of Langley v. Augusta, 118 Ga. 590, 600 (45 S. E. 486, 98 Am. St. R. 133), that the notice required by the section under discussion need not be drawn with all the technical nicety essential in framing the petition in a suit, but it is well settled that there should be no material variance between the claim for damages furnished the officials o£ the municipal corporation prior to the suit and the action for damages itself. Smith v. Ellerton, 5 Ga. App. 286 (63 S. E. 48). “If the notice and the petition correspond in all substantial respects as to matters information of which is required to be given, the variance is immaterial.” Langley v. Augusta, supra. “The purpose of the law was simply to give to the municipality notice that the citizen or property owner has a grievance against it. It is necessary only that the city shall be put on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The act recognizes, by the use of the words ‘as near as practicable/ that absolute exactness need not be had. A substantial compliance with the act is all that is required; and when the notice describes the time, place, and extent of the injury with reasonable certainty, it will be sufficient. . . The petition need not exactly follow the notice, and an immaterial variance between the two as to time, place, or extent of injury will not amount to a fatal variance.” Id. 600, 601. We think that “extent of injury,” as used in the last sentence above quoted, includes more than the extent of the alleged injury measured in dollars and cents. For instance, where the claim served upon the municipality alleges injury of a nature and character described, and claims a certain amount as money damages therefor, the “extent” of the injury for which compensation is sought, whether temporary or permanent, should be likewise set forth, and, under the ruling quoted, if a material difference occurs between the allegations in the claim and in the suit, as to the “extent” of the injury, considered in the sense above suggested, the notice would be fatally defective; but we do not think a variance between the amount of damages claimed in the demand made upon the city before suit and the amount thereafter named in the suit itself would constitute such a fatal defect.

It will be recalled that section 910, supra, allows the municipal authorities 30 days after presentation in writing of a claim for damages in which to act on the claim, before suit can be instituted, and where some money demand is made for damage to person or property, and the notice otherwise so far complies with the requirements of the statute as to inform the city authorities of the nature and character of the demand, they are advised not only of the fact that the person making the claim has a grievance against the city, but also that he claims money damages therefor, and, within the 30 days allowed by law, opportunity is thus afforded for the city authorities and the injured person to arrive at an adjustment'of the difference between them before suit can be instituted, regardless of whether the amount of money claimed in the notice is greater or less than the amount claimed in the suit.

Ordinarily one may amend a suit for damages by praying for the recovery of a larger amount than that sought in the action as originally brought. “An allegation in a petition, that under the facts pleaded the plaintiff is entitled to recover a certain amount, is .not an estoppel in judicio which precludes an amendment that under the same facts the plaintiff is entitled to a larger recovery.” Huger v. Cunningham, 126 Ga. 684 (4) (56 S. E. 64). It is equally true that such a suit may be amended by asking for a recovery of a smaller amount than that originally sought. If it were necessary that the notice and the suit should both claim the identical amount, notwithstanding the liberal practice as to amendment under the laws of this State, it would result that in cases where the evidence adduced at the trial of a claim for damages against a municipality would authorize the recovery of a larger amount than the amount named in the demand made upon the governing authority of the municipality (on proof of injury of the same nature and character as that alleged in the notice), the plaintiff would be prevented from recovering any larger amount than that named in the original notice, notwithstanding the municipality, before the suit was instituted, refused to paj any amount whatsoever—or in other words, notwithstanding a denial in effect by the municipality of all liability on account of the alleged injury. This would be both unreasonable and unjust, where it is not shown that the city recognized any liability whatever by proposing to pay any amount on account of such injury. Of course, where the plaintiff makes an exorbitant demand for alleged injury and the city refuses the demand but tenders a less amount, such action on the part of the city authorities, where properly taken and properly pleaded, could protect the city against the actual court costs, where the' suit as brought is for an amount equal to or less than the amount tendered as compensation for the injury by the municipality.

2. Where a change is-made by a municipality in the grade of a street, and the market value of real property abutting thereon is thereby decreased, it is well settled by numerous decisions of the Supreme Court and of this court that under the' provisions of article 1, section 3, paragraph 1 of the constitution (Civil Code of 1910, § 6388), the owner of the realty has a cause of action against the municipality. It is equally well settled that in such cases the measure of damages is the difference between the market value of the property before and after the change of the grade. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (87 S. E. 698), and cases there cited. While the plaintiff is entitled to recover only for the diminution in the market value of the property, it is competent to prove the cost of filling in lots to raise them to the level of the street, the grade of which has been changed, not as an independent item of special damage, bnt as a fact or circumstance throwing light upon the general question of diminution of market value. Id.

3. It appears to be well settled that in determining the relative amount of damage and benefit resulting to a parcel or tract of land on account of the opening of a street through it, or by changing the grade of a street already existing, the entire tract or parcel must be considered, and not merely the part immediately adjacent to the street or abutting or bordering thereon (Shawneetown v. Mason, 82 Ill. 337; 25 Am. R. 321, 324); and if the value of the property considered as a whole is increased on account of such improvements, no damages can be recovered, notwithstanding the market value of certain lots included in the tract or constituting a portion of the entire tract or parcel may have been lessened by such improvements. The resulting advantages and disadvantages brought about by changing the grade of a street must be estimated upon the tract as a whole, and not upon a part. Baltimore & P. R. Co. v. Springer, (Pa.) 13 Atl. 76. The measure of damages being the diminished market value of the property through which or abutting which the street runs, it would be obviously unjust to allow a plaintiff to select arbitrarily any particular lots out of a tract of land through which the street runs, and recover damages based on testimony showing that the market value of these particular lots has been decreased, though the market value of the entire tract, including the lots damaged, has been materially enhanced by changing the grade of the street.

The plaintiffs in this case introduced as a witness a civil engineer who testified what amount of earth would be required to fill in certain lots of land which comprised a part of a large tract belonging to the plaintiffs. -He further testified that he was familiar with the condition of the property prior to the change of grade in Wald-burg street, and that before the grade of that street was altered the propery was "bottled up,” and that in the opening of Waldburg. street and the elevation of the grade of that street the value of the entire property belonging to the plaintiffs was enhanced—that the opening and elevating of the street “was an advantage to the property.” The chairman of the board of tax-assessors of the City .of Savannah testified in behalf of the plaintiffs that there were other lots adjacent to the lots which the plaintiffs alleged had been damaged by the elevation of the grade of Waldburg street, which were assessed for taxation as the property of the plaintiffs,—“a large tract of land on each side, east and west, of these lots.” He further testified: “I think the general effect of the opening of these streets and grading them across the tracks was, generally speaking, to enhance the Schley estate’s value all along that territory. There used to be a baseball park over on the eastern side of the railroad track. There was no change made in the assessment of those lots at all after this change in grade.” Another witness introduced by the plaintiffs testified that in 1911 he was city engineer of the City of Savannah, and that he had a “general recollection of the conditions generally, prior to the grading of those streets. As to whether or not this Schley property in question— the subject-matter of this suit—was accessible at that time, will say that I think Waldburg street was closed up with a coal chute. I don’t think it had ever been opened prior to that time. . . As to whether the grading of these streets across the railroad enhance the value or diminish the value of that entire traqt, will say I am not a railroad expert, and I would prefer not to answer that question.” A witness testified as to the cost requisite for filling in the number of cubic yards which the engineer had testified would be necessary to raise the grade of the lots abutting on the street to the present elevation thereof. Another witness for the plaintiffs testified that he was in the real-estate business, and had been in that business for 12 years, in the City of Savannah, and was familiar with the lots of land named in the suit, and was also familiar with the general conditions before 1911 and since that date, in respect to this property. He testified further: “The value of these various lots of land prior to the grading of the streets—the raising of the grades of the streets, was about two hundred and fifty to five hundred dollars apiece,—about that. As to the damage to the market value of these lots by the raising of the grades at Waldburg .and New Houston streets, will say they have been injured to the extent it would cost to fill in those lots to the present grade of the street, and they really have been damaged a little more than that, for the reason that if any industry of any kind wanted to locate along the side of the track, it would be more expensive to put sidetracks in there. I don’t know how you would get at that damage. I think the damage is what it would cost to fill in the lots to the street level. The amount of damage is what it would cost to fill in those lots, and according to my estimate it would be about fifty per cent., according to the figures furnished as to what it would cost to fill them up.” On cross-examination this witness further testified: “1 do not think the value of the lots prior to the raising of the grade has nothing [anything] to do with it. The condition has not been changed. It was a grade crossing then and it is a grade crossing now. . . The value of the lots prior has nothing to do with the damage to the lots. My testimony is that the only element to be considered is the cost of filling in. . . Based upon those figures furnished [the data as to the cost of earth and the amount necessary to fill in], I say the lots have been damaged substantially fifty per cent. I say that from the estimate they would put on the lots at the time just before the filling in was done. Their value before the filling was done [has] got nothing to do with the amount of damage. That is the value I put on the lots” (referring to values on a paper handed to witness by counsel). There was introduced in evidence a memorandum of values testified to by this witness, showing market value before the change in grade, amounting to a total valuation of $15,550.

This was the entire evidence-presented on the question of value, and it will be noticed that there is absolutely no testimony to show that the value of the whole tract of land, of which the lots alleged to have been injured by the change of grade in the street constituted but a part, had been diminished by reason of the change of grade. The witness who testified that the value of the lots abutting the street had been in his opinion lessened fifty per cent, by the change in grade further testified and reiterated that he did not consider the value of the lots prior to the change of grade in forming his estimate, or as being a matter which should be considered, but clearly asserted that his estimate of damage to these particular lots adjacent to the street was based entirely upon the cost of filling in these lots up to the new elevation of the street. He did not attempt to testify that the entire tract of land belonging to the Schley estate and claimed by the plaintiffs in this suit, and which was assessed by the City of Savannah for taxation as their property, was injuriously affected, so far as its market value was concerned, by the opening up or elevation of Waldburg street. The civil engineer who made the estimates as to the amount of earth that would be required to raise the level of the lots named in the petition of the plaintiffs, 'and which abutted on Waldburg street, testified that in his opinion the entire tract of land belonging to the plaintiffs had been enhanced in value by the elevation of the street’s level. Nowhere was there any testimony that the market value -of the tract of land owned by the plaintiffs, which included as a part thereof the lots alleged to have been damaged, had been lessened in value by the act of the city in changing the grade of the street as described in the petition of the plaintiffs. If a plaintiff could select certain lots out of an entire tract belonging to him and sue for the difference in market value of these lots before and after the grade of a street abutting them had been altered, notwithstanding the value of the entire property, including these lots, had been greatly enhanced thereby, this would be not only in direct opposition to the ruling in Nelson v. Allanta, 128 Ga. 252 (57 S. E. 245), but also in opposition to the general principle that an increase in value resulting from improvements may be set off against damage caused by the grading of streets. Moore v. Atlanta, 70 Ga. 611, 617; Hurt v. Atlanta, 100 Ga. 274 (28 S. E. 65).

The evidence offered in behalf of the plaintiffs clearly failed to show any diminution in market value of the entire tract of land belonging to the plaintiffs and traversed by the street, the grade of which was changed by the city, and therefore the trial judge did not err in awarding a nonsuit.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Luke, J.

text:
    8001.
    Smith v. Wright.
    Decided April 25, 1917.
    Levy and claim; from city court of Tifton—Judge Eve. November 6, 1917.

      A. 8. Bussey, for plaintiff. J. A. Comer, contra.
   Luke, J.

The evidence in this case did not demand a verdict in favor of the claimant, and it was therefore error for the court to direct a verdict in her favor.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    8024.
    Dawson Paper Shell Pecan Company v. Bush.
    Decided April 25, 1917.
    Appeal; from Terrell superior court—Judge .Worrill. November 25, 1916.
    TP. II. Gurr, for plaintiff in error, lí. II. Marlin, contra.
   Wade, C. J.

1. The court did not err in overruling the demurrer. There .was evidence from which the jury was authorized to infer that the delivery was so made as to place the goods sold entirely beyond the control of the vendor and completely within the control' of the vendee (Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 4, 42 S. E. 366), and that the contract of sale had been fully executed by the vendor, in accordance with the terms of his parol agreement.

2. The charge of the court substantially covered the material issues in this ease, and there ivas no reversible error in refusing the requests submitted! Judgment affirmed.

George and Luke, JJ., concur.


author: Per Curiam.

text:
    8128.
    Brock v. City of Tallapoosa.
    Decided April 25, 1917.
   Per Curiam.

1. Except as to cases specially provided for by law, the Civil Code (1910), § 613S, declares that “no cause shall be carried to the Supreme Court upon any bill of exceptions so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the case.” Baldwin v. Lowe, 129 Ga. 711 (59 S. E. 772); City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755).

2. Where, to a suit for damages, the defendant filed several pleas in bar and abatement, two of which (one of res ad judicata and one based upon the ground that the present cause of action was a renewal of one that had been withdrawn by the plaintiff without having paid the costs or making a proper pauper affidavit in lieu of payment of costs as provided by the Civil Code (1910), § 5625) were passed upon by the trial judge to whom, by agreement, the issues thus raised were submitted ■without the intervention of a jury, and who found against the pleas, and who, upon a motion based upon matters appearing upon the face of the record, vacated his judgment finding against the pleas and reinstated the pleas, the judgment reinstating the pleas can not be reviewed by direct bill of exceptions to this court. Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Johnson v. Merchants & Farmers Bank, 141 Ga. 721 (81 S. E. 873). Leave, however, is granted to enter the bill of exceptions, or the official copy of it retained below, of record, as exceptions taken pendente lite, and direction is given accordingly.

Writ of error dismissed.

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

Motion to dismiss the writ of error.

U. 6-. Brock, E. J. McBride, for plaintiff.

Lloyd Thomas, for defendant.


author: George, J.

text:
      8238.

    Kiser Company et al. v. Stewart.
    Decided April 25, 1917.
    . Levy and claim; from Carroll superior court—Judge Freeman. June 8, 1916.

      Boykin & Robinson, for plaintiffs.

      B. Eolderness, contra.
   George, J.

Error is assigned upon certain portions of the charge of the court, but it appears that at the conclusion of .the charge the oourt directed a verdict for the claimant. Error in the charge is immaterial, since the evidence demanded a verdict for the claimant. The court did not err in so directing.

Judgment affirmed.

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


text:
    8148.
    Harp v. Kerlin, next friend.
    Decided April 25, 1917.
    Action for damages; from Fayette superior court—Judge Searcy. August 12, 1916.

      J. W. Culpepper, for plaintiff in error. E. A. Allen, contra.
   Wade, C. J.

There was evidence to sustain a finding in favor of the plaintiff as to at least one of the alleged acts of negligence for which a recovery was sought; pain and suffering could be inferred from the nature and character of the wound inflicted upon the plaintiff (a child of tender years), which rendered him unconscious fora time, from which he bled profusely, and which necessitated his removal to a hospital, and a recovery was authorized therefor; the motion for a new trial is based only on the general grounds as to the sufficiency of the evidence, and the evidence as a whole sufficiently supports the verdict.

Judgment affirmed.

George and Luke, JJ., eonour.


text:
    8164.
    GORDON v. ROSENTHAL.
    1. The excerpt from the charge of the court to which exception is taken is not erroneous for any reason assigned, and the requests to charge which were refused by the trial judge, so far as pertinent to the issues, were fully and fairly covered by the charge given.
    2. The verdict is not without evidence to support it, and the court did not err in overruling the motion for a new trial.
    Decided April 25, 1917.
    Action for damages; from Muscogee superior court—Judge Gilbert. June 20, 1916.

      Slade & Stvift, A. W. Gozart, for plaintiff in error.

      T. T. Miller, Matcher & Matcher, contra.
   George, J.

The petition in this case was considered by the Supreme Court at the October term, 1914. Rosenthal v. Gordon, 142 Ga. 682 (83 S. E. 511). The headnote of the decision then rendered is as follows: “A petition which alleges that the plaintiff purchased a described lot of land from the defendant; that the defendant’s agent in negotiating the sale, with the intent to defraud the plaintiff, and with the knowledge that the lot purchased was of dimension materially less than expressed in the deed (there being a deficiency in the width of the lot of fire feet and ten indies, in a total of 73 feet and 10. inches), falsely and fraudulently represented its width, and fraudulently inserted in the deed to the plaintiff the words ‘more or less,’ assuring the plaintiff that the meaning and purpose of these words was to cover any slight discrepancy in the number of inches; that the plaintiff was without means of ascertaining the correct measurement of the lot without an actual survey; that the defendant and hc.r agent were of such high social standing as to forbid his suspecting that he was being defrauded; and that, relying upon these representations, he consummated the purchase, to his injury, sets forth a cause of action for damages for the discrepancy. It was error to dismiss the petition on demurrer.” In the opinion by Presiding Justice Evans it is said: “The plaintiff’s action is not one of covenant, but an action founded upon fraud, ne bargained for a definite lot of land, with the dimensions given in the deed as qualified by the words ‘more or less.’ Where a lot of land is sold in á body, as. containing a certain area ‘more or less,’ and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. Walton v. Ramsey, 50 Ga. 618. But where the vendor in the consummation of the sale is guilty of actual fraud in representing the area, the rule is different. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41). It is charged in the present case that the vendor’s representation at the time of the sale as to the width of the lot was not only false, but false within the knowledge of the vendor, and was acted upon by the vendee to his injury. This is a charge of actual fraud. Emlen v. Roper, 133 Ga. 726 (66 S. E. 934). The plaintiff charges that the vendor’s agent not only knowingly and falsely represented the width of the lot, but also fraudulently stated the legal effect of the words ‘more or less,’ representing that this elastic expression was not intended to extend more than a' few inches, whereas the shortage was more than five feet. All the negotiations were made through a real-estate agent, who was the son-in-law of the defendant, and she is bound by the conduct of her agent in the consummation of the sale.” The case was submitted to a jury and the trial resulted in a verdict for the plaintiff. This verdict was set aside by the presiding judge and a new trial granted the defendant. The ease was again tried and a verdict in favor of the plaintiff was again returned. The defendant, in her motion for a new trial, the refusal of which is assigned as error, complained of the following charge: “If a purchaser has equal opportunities with the seller for discovering the dimensions of a lot sold, and both parties act in good faith, he is bound to avail himself of such opportunity. If you find from the evidence that Doctor Bosenthal had equal opportunity with defendant’s agent for ascertaining the dimensions of the lot, and said agent, Blackmar> acted in good faith, the plaintiff could not robo ver. If said agent did not act in good faith, but was guilty of adtual fraud, as already explained, the rule would be otherwise, notwithstanding both parties may have had equal opportunity to judge the dimensions.” From a careful review of the evidence we conclude that this charge was authorized, and is in substantial accord with the ruling of the Supreme Court in this case. It is insisted that certain requests to charge, submitted in writing before the jury retired to consider the verdict, should have been given by the court. In so far as the requests were pertinent to the issues involved under the ple'adings and evidence, they were fully and fairly covered in the general charge. Indeed, the charge of the court, considered as a whole, is at once clear, concise, and nicely adapted to the issues. The evidence is in sharp conflict, and on the question of equality of opportunity and actual fraud the plaintiff in error seems to us to have rather the better of it. However, there is some evidence to support the verdict, and this court has no power to interfere with the jury’s finding.

Judgment affirmed.

Wade, Q. J., and Luke, J., concur.


text:
    8232.
    Arnold, trustee, v. Faulk.
    Decided April 25, 1917.
    Levy and claim; from Twiggs superior court—Judge Kent. February 3, 1-916.

      L. D. "Moore, for plaintiff in error.

      F. Chambers, Shannon & Ilamson, contra.
   Luke, J.

1. In a statutory homestead the description of the property should be sufficiently definite to impart notice of the property homesteaded, and where a person in possession of property, in, 1914, representing the property to be free from liens and incumbrances, gave a mortgage on it, he will not be permitted to defeat the lien of the mortgage by claiming the property under a homestead granted in 1908, where the sole description of the homestead property was “one mule,” unless it be shown that the mortgagee liad actual notice that the mule, which was fully and particularly described in his mortgage, was the same mule referred to in the homestead. Harris v. Hill, 1 Ga. App. 425 ( 58 S. E. 124).

2. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8252.
    Wooley v. Doby.
   George, J.

1. Where the owner of an automobile delivers it to a mechanic for the purpose of repair, and surrenders the entire control of it to him, the mechanic is not the servant of the owner, but an independent contractor. Where the mechanic, under such circumstances, negligently and in violation of a municipal ordinance, injures another while testing the car, the owner is not liable in an action for damages for the injury; and the fact that the owner’s driver was, on the invitation of the repairer, riding in the car at the time of the injury does not alter the rule. Civil Code (1910), § 4414. See Babbitt’s Law of Motor Vehicles (2d ed.), § 849; Berry on Automobiles (2d ed.), § 687. Compare Segler v. Callister, 167 Cal. 377 (139 Pac. 819, 51 L. R. A. (N. S.) 772); and Woodcock v. Sartle, 81 Misc. (N. Y.) 488.

Decided April 25, 1917.

Action for damages; from Fulton superior court—Judge Pendleton. February 8, 1916. '

Dorsey, Shelton & Dorsey, Hugh M. Dorsey, for plaintiff.

Bryan, Jordan & Middlebroolcs, W. R. Tichenor, tor defendant.

2.' The undisputed evidence in the present record disclosing that the owner delivered his ear to the mechanic for the purpose of repairs, that the repairs were left entirely to the judgment of the mechanic, that the injury complained of occurred through the negligent operation of the car while the mechanic was testing it, and that the owner’s driver had no control over it or the repairs, although he was riding in the car which was being driven by the mechanic at the time of the injury, the court did not err in directing a verdict for the defendant.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7990.
    American Life &c. Insurance Co. v. Quarterman.
    Decided May 3, 1917.
    Complaint; from municipal court of Atlanta. November 20, 1916.

      Foster & Stockbridge, for plaintiff in error.

      T. J. Ripley, W. M. Bailey, contra.
   Broyles, P. J.

Since the adoption of the constitutional amendment of 1916 as to the jurisdiction of the Court of Appeals, a direct bill of exceptions thereto from a municipal court established under the amendment of 1912 (Acts 1912, p. 30) will not lie. This ruling applies to all cases pending in this court on writs of error from such municipal courts, irrespective of the time when the writ of error was sued out. Griffin v. Sisson, 146 Ga. 661 (92 S. E. 278). This court, therefore!, being without jurisdiction to hear and determine this case, the writ of error is Dismissed.

JenMns and Bloodworth, JJ., concur.


author: Jenkins, J.

text:
    7732.
    Bankers Health & Life Insurance Co. v. Duncan.
    Decided May 3, 1917.
    Complaint; from municipal court of Atlanta. July 13, 1916.

      A. M. Brand, for plaintiff in error.

      F. C. Buchanan, Hewlett, Dennis & Whitman, contra.
   Jenkins, J.

Under the ruling in American Life &c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

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


text:
    8289.
    Central of Georgia Railway Co. v. Coleman et al.

    Decided April 25, 1917.
    Action for damages; from Jefferson superior court—Judge Thomas presiding. February 8, 1916.

      Saffold & Jordan, John B. Phillips, for plaintiff in error.

      Hines & Jordan, Frank Hardeman, contra.
   Luke, J.

1. A railroad company is bound to exercise ordinary care and diligence to prevent communication of sparks from its locomotives. An instruction that a railroad company is required to equip its engines with “up-to-date and standard spark-arresters” is erroneous; the true rule being that the railroad company is to use ordinary care and diligence to apply to its engines the best appliances in general use, the use of which is consistent with the practicable operation of its engines, and to use reasonable care’ and skill in keeping the same in good order. Southern Railway Co. v. Thompson, 129 Ga. 367 (58 S. E. 1044) ; Albany & Northern Ry. Co. v. Wheeler, 3 Ga. App. 414 (59 S. E. 1116); Gainesville Railroad Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213).

2. The evidence for the plaintiff was weak, and the error in the charge of the court tended to mislead the jury. The court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    8309.
    Lafitte v. Schunamann.
    Decided April 25, 1917.
    Action for damages; from Chatham superior court—Judge Charlton. January 27, 1916.

      W. B. Hewlett, H. P. Oobb, for plaintiff.

      Bouhan & Herzog, for defendant.
   Luke, J.

This suit was against the owner of an automobile, for injuries sustained by the plaintiff by reason of having been struck by the automobile. The evidence of the plaintiff showed, without contradiction, that the automobile, at the time it struck him, was being driven by one who ivas not in the employ of the owner of the automobile, and who was driving it without the knowledge or consent of the owner. Eeld, that the court did not err in granting a nonsuit. Fielder v. Davison, 139 Ga. 509 (77 S. E. 618); Wooley v. Doby, ante, 797.

Judgment affirmed.

Wade, G. J., and George, J., concur.


text:
    7928.
    MOORE v. DIXIE EIRE INSURANCE COMPANY.
    Under tbe evidence submitted in tins ease, it was a question for tlie jury whether the insurer had absolutely refused to pay the loss under the policy of fire insurance, or had made a bona fide attempt to adjust it.
    Decided April 25, 1917.
    Action on insurance policy; from city court of Richmond county —Judge Black. September 29, 1916.

      O. II. & B. 8. Cohen, for plaintiff.

      Barrett & Hull, for defendant.
   Jenkins, J.

The record of this case shows that the plaintiff insured a certain boat-house and its contents in the sum of $500, under a policy of fire insurance issued by the defendant company, and that the property insured was destroyed by fire on September 23, 1914. On a suit upon the policy a nonsuit was granted. The errors complained of are: (1) that the court erred in granting a nonsuit; (2) that after the court had orally announced that a nonsuit was granted, the court erred in not permitting the plaintiff to again testify, and in not allowing plaintiff’s son to testify, as to the absolute refusal to pay on the part of the insurance company. The sole reason for granting the nonsuit, as shown by the certificate of the trial judge, was the plaintiff’s failure to show such absolute-refusal to pay, after having failed to furnish the proofs of loss as required by the terms of the policy. The plaintiff admits, in his petition, that such proofs had not been made, and alleged therein that they had been waived by the insurance company by its absolute refusal to pay.

The only witness whose evidence related to these questions was the plaintiff himself. His testimony on this questioon, on direct examination, was as follows: “The adjuster did appear. I don’t remember the exact time, but within a week or so afterwards. The adjuster saw Jesse, my boy, about it, and then I went to see Mr. Mell, the adjuster of the Dixie Eire Insurance Company. I had furnished an itemized list of what I had in the boat-house, and they took that list and figured it out and offered me $425, or $424 and a few cents, for the boat-house and contents. I told him that I would not accept $425-; that my policy called for $500; that I had in the boat-house around $800, that is, in the boat-house and material that was in it, and I had paid my insurance premiums on $500, and I expected $500, and would not accept $425. He then told me that was all they could offer, that they did not hive to pay anything; that I didn’t own the land on which the boat-house was built, and they were not liable under the policy, because it was on leased land, and they wouldn’t pay anything. I then had two or three letter correspondence with the company, and couldn’t get any satisfaction or arrangement with them, and turned it over to Mr. Cohen to handle.” On cross-examination this witness testified : “Under these figures Mr. Mell uses, the total amount of my loss was $42-1 and some cents, and he offered to pay me that amount and I declined to accept it. He told me that they were not liable anyhow, but still offered to pay me $424 and odd cents. That is correct. He said, under the policy the company was not liable for anything. When I-wrote to the president of the insurance company I recognized that they were then willing to pay me $425, or within a few cents of that amount; that was also true when the letter was written to me by Mr. Bush, the president of the insurance company; the offer was not withdrawn at any time. I went up to see Mr. Mell. This memorandum was given to my son by Mr. Mell. He brought it home to me and I said, Us that the way they want to settle the policy?’ Then I went to see Mr. Mell and asked him why he depreciated the value of the stuff; that I wordd not accept any depreciation; that I had paid for $500 of insurance and expected $500 insurance, and wouldn’t accept anything less than $500 insurance, unless the company would replace my boat-house just as it was, which I would rather have than the money. He then told me they could not pay this amount. I don’t remember the exact figures, but to the best of my recollection it was $424 and some few cents that his company would pay, but that they wouldn’t pay anything more than that; that they were not liable for anything, but would pay that much just to settle it, and I refused it.” The record of the case discloses that the insurance company, in a letter to the attorneys of the plaintiff, written as late as December 10, 1914, while specifically stating that it neither admitted nor denied its legal liability under the policy, yet in effect recognized the continuance of its previous offer, and only insisted upon its contention of depreciation, and that the payment be limited accordingly.

The bill-of exceptions shows that after the evidence of the plaintiff was in and he had announced closed, the defendant moved to nonsuit the said cause. Thereupon, after the court had announced, “a nonsuit is granted,” but before any written judgment to that effect had been entered, the plaintiff asked leave to introduce additional testimony of the plaintiff, Mr. Owen 0. Moore, and testimony of Mr. Jesse Moore, to prove that Mr. Owen 0. Moore’s reason for not furnishing proof of loss in accordance with the requirements of the policy was that the defendant had waived the proof of loss by its absolute refusal to pay this loss under the policy sued on. The plaintiff offered to prove by his son and agent, Mr. Jesse Moore, the following: (1) that the Dixie Fire Insurance Company, through its legal representative, refused payment, on the ground that the property upon which the building was located was not the property of Mr. Owen .0. Moore, and absolutely refused to make payment. The plaintiff offered to prove by Mr. Jesse Moore and Mr. Owen 0. Moore the following: (2) that the company or its representatives absolutely refused to pay, and said “We won’t pay you anything,” or words to that effect,—an absolute refusal to pay. Plaintiff also offered to prove by Mr. Jesse Moore and Mr. Owen 0. Moore the following: (3) that on one, two, or three occasions Mr. Mell, the adjuster, refused to pay this policy. The presiding judge, in his certificate, states that the reason for his refusal to reopen the case in order to allow Jesse Moore to testify, after announcing that he would grant a nonsuit, was that “it appeared from the evidence that he was not the owner of the property destroyed by fire, and, subsequent to any conversation between Jesse Moore and Mr. Mell, the representative of the insurance company, the evidence, both oral and documentary, showed the insurance company offered to pay Owen 0. Moore, the plaintiff and owner of the property, four hundred and twenty odd dollars in settlement of the loss, and, Owen 0. Moore having testified this offer of settlement made him by Mr. Mell as a representative of the insurance company was never withdrawn, he was estopped from -testifying that there was an absolute refusal to pay the loss.”

1. The stipulations in the policy sued on, which are attached to the petition, require the insured to furnish proof of loss within sixty days after the fire, and, among other things, it is specified that he “shall make a complete inventory of the same [property], stating the quantity and -cost of each article, and the amount claimed thereon, . . the cash value of each item thereof, and the amount of loss thereon.” Proofs of loss are primarily intended for the purpose of securing an adjustment between the insured and the company (19 Cyc. 854), and it is in accordance with sound public policy that our law recognizes the right of insurance companies to make such requirements in their contracts. By the Civil Code (1910), § 2490, this right on the part of the insurance companies to prescribe regulations as to notice and preliminary proof of loss is specifically allowed, and it is thereinr provided that such stipulations must be substantially complied with on the part of the insured, unless such compliance is waived by the insurer’s absolute refusal to pay. A reasonable requirement as to the time, in which such proof of loss must be made has been recognized by our Supreme Court in the cases of Southern Fire Insurance Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216); and Harp v. Fireman’s Fund Ins. Co., 130 Ga. 726 (61 S. E. 704, 14 Ann. Cas. 299). In the cases just cited it appears that the provisions in the contract relating to proof of loss are identical in all respects with those embraced in the policy sued on hr the instant case. The first headnote of the decision in the case first cited is as follows: “Where a policy of fire insurance set forth various requirements and conditions, a violation of which by the insured would operate as a forfeiture of the policy, and the same also contained a stipulation requiring the insured to furnish proofs of loss within sixty days after the fire, but did not make failure to do so a ground of forfeiture, and where under the terms of the policy the insurer was not liable to make- payment until after sixty days from the receipt of such proofs of loss, the policy further providing that no suit thereon should be brought unless commenced within twelve months after tire fire: Held, that if the insured furnished the required proofs of loss in time for at least sixty days to elapse between the date upon which they were furnished and the expiration of the twelve months limitation, the policy was not forfeited by a failure to furnish such proofs within sixty days after the fire occurred.” There is no contention in 'the present ease, however, over any question relating to the furnishing of proofs, save as to whether or not the necessity therefor had been altogether- waived by virtue of the company’s absolute refusal to pay. It is the plaintiff’s contention that the evidence showed, and the evidence offered would have shown, that there had been an absolute refusal to pay on’ the part of the defendant company, at least to such an extent as to make the determination of the question one which the jury should have j>assed ujion.

By the Civil Code, § 5942 (1910), it is provided that “if the plaintiff fails to make out a jjrima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit will be granted.” This statement of the code can hardly be rendered more clear or certain in meaning by words other than those used by the terms of the statute itself; but there have been numerous elucidations of this provision of law, the purport of which might be fairly stated as limiting the right of the trial judge to grant a nonsuit if there is evidence .sufficient to authorize the jury to find for the plaintiff, even though the evidence might not so require. East & West Railroad Co. v. Sims, 80 Ga. 807 (6 S. E. 595); Phillips v. Brigham, 26 Ga. 617 (71 Am. D. 227); Barnett v. Terry, 42 Ga. 283 (3); Dyson v. Becham, 35 Ga. 132; Neff v. Broom, 70 Ga. 256; Burnam v. DeVaughn, 65 Ga. 310; Davis v. Kent, 97 Ga. 275 (23 S. E. 88); Standard Cotton Mills v. Cheatham, 125 Ga. 649 (54 S. E. 650).

Coming now to a consideration of the question as to whether, under the rules of law just stated, the judge Avas authorized to grant a nonsuit in the present case, because of failure of the plaintiff to make out a prima facie case as to an absolute refusal to pay by the insurer, Ave are convinced that the fair and necessary import of the eAddence actually submitted by the plaintiff was to the effect that the defendant, although disclaiming all liability under the policy sued on, nevertheless purported to waive its exemption, by offering and continuing to offer something over $424 in settlement of the $500 claim, and in doing so contended that the amount so deducted arose from depreciation in the property. It is true that there is one clause in the plaintiff’s testimony, as given in his direct examination, which, taken by itself and disconnected from his other statements, Avould seein to convey a different meaning. The plaintiff, in detailing his conversation Avith the adjuster, quotes him in one clause of the testimony as saying that “they wouldn’t pay anything;” but, construing this clause of the sentence, not as an isolated statement, but in-the light of its context, that is, in connection with his other evidence immediately preceding, and with his testimony on cross-examination following, we reach the same conclusion in this respect as did the trial judge— not that “they wouldn’t pay anything,” but that the company offered and continued to offer the sum of $424 in full settlement, and that the reduction from the face of the policy purported to be based upon a claim of depreciation. It ivas held in the ease of Great American Co-operative Fire Association v. Jenkins, 11 Ga. App. 784 (76 S. E. 159), that “unless there is a bona fide attempt by an insurer to adjust a loss under a policy of fire insurance, by an offer to pay a sum approximating the loss sustained, there is an ‘absolute refusal to pay,’ within the meaning of section 2490 of the Civil Code (1910).” The facts of that case show that the defendant had offered $60 in settlement, and that on the trial the jury found that the plaintiff had sustained a loss of $300. ‘ The court held that such an offer in such a case amounted to an absolute refusal to pay, and in the opinion it was said: “The General Assembly could not have intended that an offer of $1 in settlement of a ten-thousand-dollar loss would not be a refusal to pay. The-line must be drawn somewhere, and the most rational solution would be for the jury to say whether a bona fide attempt has been made to adjust the loss, or whether the sum offered was so out of proportion to the amount due as to justify the conclusion that in reality there had been an absolute refusal to pay. If the insured suffered a loss of $300 and the company, with knowledge of this fact, offered only $60, this was such an absolute refusal to pay as waived strict compliance with the terms of the policy in reference to the character of the proofs to be furnished.” The bona fide character of any act or transaction is generally, if not always, a question of fact for the jury. In the opinion from which we have just quoted it is stated that the most rational solution would be for the jury to say whether or not a bona fide attempt to adjust has been made. As indicated in that case, it is difficult to draw the line, as a matter of law, whereby an offer to settle in any particular transaction can or can not be adjudged bona fide. And then too, in considering whether or not any given effort to adjust was made in good faith, it does not seem to us that the amount of the offer must in all cases necessarily determine the question. There might be instances where the offer could not be so considered, even though the sum tendered might approximate the loss. And while we do not intend in this case in any wise to intimate whether or not in our opinion the evidence shows a bona fide attempt to adjust the loss, or whether an absolute refusal to pay has been shown, we simply hold that this issue is one which the jury should be called upon to decide.

2. Although error is assigned because the trial judge refused to permit the case to be reopened in order that additional evidence might be submitted by the plaintiff, showing an absolute refusal to pay, and while the plaintiff in his motion offered to prove that the company reported in terms, “We won’t pay anything,” we have based our opinion and the direction given to the case on what had been actually shown, rather than upon the theory that the refusal to reoj)en the case requires that a'new trial be had. But for the fact that we have considered the evidence actually introduced sufficient to require a determination by the jury of the question we have discussed, we would be disposed to concur in the judgment of the trial judge that the additional evidence offered after the'verbal announcement that a nonsuit would be granted was, under the circumstances of the case, insufficient to alter its status; or rather, we would hesitate to hold that his discretion therein had been abused. Until the court signs the order granting a nonsuit, the judge has control of the case; and it is not too late, as a matter of law, for a motion to be made to allow the case to be reopened for the introduction of further evidence. Ellenberg v. Southern Ry. Co., 5 Ga. App. 389, 391 (63 S. E. 240). The question governing the discretion of the judge in allowing a case to be reopened for the introduction of further testimony in order to avoid a nonsuit was exhaustively discussed by the.late Justice Lumpkin in the case of Penn v. Georgia Southern & Fla. Ry. Co., 129 Ga. 856 (60 S. E. 172), and the rule there enunciated by him, after rviewing numerous previous decisions of our courts upon the question, is as follows: “1. Generally where counsel for a plaintiff has announced the plaintiff’s evidence closed, but has omitted to introduce evidence by reason of accident, inadvertence, or even because of a mistake as to the necessity for doing so in order to make out a prima facie case, on motion the presiding judge will allow the case to be reopened and additional evidence introduced, in order to prevent a nonsuit. 2. This rule is not one of arbitrary right on the part of the plaintiff or his counsel. The judge has a discretion in the matter, under the facts of each case, especially after announcement has been made that a nonsuit will be granted; and the exercise of such discretion will not be reversed unless it has been abused.” See also Crawford v. Crawford, 139 Ga. 394 (6) (77 S. E. 557). We do not think that there could have been possible error in refusing to allow the plaintiff to testify agairi upon this question, after having already been fully examined thereon by counsel for each of the litigants, and. after having fully and completely covered by his evidence the issue here involved.

Whether the court erred in refusing to reopen the ease for the purpose of allowing Mr. Jesse Moore, the son of the plaintiff, to testify upon the question of such absolute refusal to pay is a closer point. But, as stated by the trial judge in his certificate, it appears to be a reasonable and necessary deduction from the evidence of the jfiaintiff and the letters of the defendant that, subsequently to any conversation between Jesse Moore and the adjuster of the company, the defendant offered and continued to offer the payment already indicated. In the case of Davis v. Chaplin, 110 Ga. 322 (2) (35 S. E. 312), it is held that “After a judge has properly announced that he will grant a nonsuit, a decision overruling a motion to reopen the case for the introduction of additional testimony will not be reversed, when it does not affirmatively appear that the granting of such motion and the introduction of the new testimony would, in connection with the evidence already in, have placed the plaintiff in a position entitling him to a recovery.” Since it was not made to appear by the plaintiff’s motion that the son’s evidence, as then offered, related to a refusal to pay subsequent to the defendant’s offer to pay, as already testified to by the plaintiff, we do not think that, under the view of the law held by the trial judge, the requirements of the rule just quoted in the Davis case were met. In the absence of such affirmative showing, and in view of the plaintiff’s previous testimony in reference to the negotiations of himself and his son with the defendant, it would seem an altogether reasonable inference that the son’s testimony would have necessarily been of the same character as that already given by the plaintiff himself. Thus, while we differ with the court below as to the legal effect of the testimony adduced, we would not hold that there was an abuse of discretion in refusing to reopen the case, especially as the plaintiff made no offer to explain his former testimony, wherein he had stated that the defendant’s offer to pay “still continued” and “was not withdrawn at any time,” or to show that at the time that testimony was given he was unaware of the fact which he afterwards sought to show by the testimony offered under the motion. Cushman v. Coleman, 92 Ga. 772 (4), 778 (19 S. E. 46).

■Judgment reversed.

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


text:
    8038.
    Rowland v. Beasley.
    Decided April 25, 1917.
    Complaint; from Evans superior court—Judge Sheppard. April 28, 1916.

      P. M. Anderson, for plaintiff. Daniel & Daniel, for defendant.
   Jenkins, J.

There was evidence sustaining the material allegations of the defendant’s plea, upon which the jury might have found in his favor, and. therefore this court has no authority to disturb the verdict. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).

Judgment affirmed.

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


author: Bloodworth, J.

text:
    8062.
    Phillips-Boyd Publishing Co. v. Bird.
    Decided April 25, 1917.
    Complaint; from Taliaferro superior court—Judge Walker. October 18, 1916.

      Noel P. Parle, for plaintiff in error. Halves Cloud, contra.
   Bloodworth, J.

1. “This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict.” Bunn v. Hargraves, 3 Ga. App. 518 (60 S. E. 223); Wilson v. Barnard, 10 Ga. App. 90 (8), 99 (72 S. E. 943) ; Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132).

2. The trial judge did not err either in admitting the testimony complained of or in refusing a new trial.

Judgment affirmed.

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


author: Eloodworth, J.

text:
    8112.
    Chabble v. O’Neal.
    Decided April 25, 1917.
    Complaint; from Murray superior court—Judge Fite. August 23, 1916.

      G. N. King, for plaintiff in error.

      J. J. Bates, W. E. Mann, contra.
   Eloodworth, J.

1. “Exception to a judgment overruling a demurrer to the petition, or motion to dismiss a ease for the reason that the petition is insufficient in law, can not properly be made the ground of a motion for a new trial.” Gillis v. Powell, 129 Ga. 403 (58 S. E. 1051); Leathers v. Leathers, 132 Ga. 211 (2) (63 S. E. 1118).

2. This case appears from the record to be absolutely without merit, evidencing the fact that it was brought here for delay only; and the motion of the defendant in error, that the statutory penalty of ten per cent, damages be awarded against the plaintiff in error, is granted.

Judgment affirmed,, with damages.

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


text:
    8175.
    WIMBERLY v. LUMPKIN HOME MIXTURE COMPANY.
    1. The statutory requirements as to notice of intention to bring suit, and of the term of the court to which suit will be brought, in order to recover attorney’s fees provided for in a promissory note, in addition to the principal and interest (Civil Code of 1910, § 4252), were complied with in the notice served upon the defendant in this case, notwithstanding the omission of the word “suit” from the statement that “we will institute-on same in the superior court Stewart county, returnable to April term, 1915.”
    2. It appearing that the writ of error was sued out for delay only, damages are awarded against the plaintiff in error, in accordance with the statute (Civil Code of 1910, § 6213).
    Decided April 25, 1917.
    Complaint; from Stewart superior court—Judge Littlejohn. March 13, 1916.

      B. 8. Wimberly, for plaintiff in error. G. Y. Harrell, contra.
   Eloodworth, J.

1. Lumpkin Home Mixture Company brought suit against K. S. Wimberly on a note, for principal, interest, and attorneys’ fees as provided for therein. Upon the trial of the ease a verdict was rendered against the defendant for the amount sued for. The only question raised by his exceptions is whether or not the notice given-by the plaintiff to the defendant was sufficient to bind the defendant for attorneys’ fees. The following is a copy of the notice: “We hold for collection, in favor of Lumpkin Home Mixture Guano Company against you, note for $1,046.60, dated June 20, 1914, due Oct. 1st, 1914, amount now due, principal, bal. $856.30, amount now due int. to Mar. 30, 1914, $34.25, amount now due atty’s fees, 10%, $89.62. Total' sum due, $985.87. The above claim is a promissory note, calling for 10 per cent, attorney’s fees on principal and interest, if collected by law or through an attorney at law, and we hereby notify you, in pursuance of the statute, in order to bind you for said attorney’s fees, that if said claim is not paid by the 30th day of March, 1915, we will institute-on same in the superior court Stewart county, returnable to April term, 1915. . By paying said note on or by the 30th day of March, 1915, you will be relieved of said attorney’s fees and court costs. Please give matter your prompt attention and oblige. Tours very truly, Lumpkin Home Mixture Guano Co., payee.” It will be seen from reading the above that the notice is complete in all essential particulars. The complaint of the defendant is that the word “suit” was omitted after the word .“institute” in the statement that “we will institute-on same in the superior court Stewart county, returnable to April term, 1915.” This notice is a sufficient compliance with the statute (Civil Code of 1910, § 4252), and under it the jury were authorized to render a verdict for ten per cent, attorney’s fees.

2. Being convinced that this.case was brought to this court for delay only, we award ten per cent, damages in favor of the defendant in error against the plaintiff in error, as provided by section 6213 of the Civil Code of 1910.

Judgment affirmed, with damages.

Broyles, P. J., and Jenldns, J., concur.


author: Bkoyles, P. J.

text:
    8182.
    Holmes v. First National Bank of Arcadia, Florida.
   Bkoyles, P. J.

1. The discretion of the trial judge as to opening defaults at the trial term will not be interfered with unless manifestly abused. Brawner v. Maddox, 1 Ga. App. 332 (5) (58 S. E. 278) ; Thompson v. Kelsey, 8 Ga. App. 23 (68 S. E. 518); Graham v. Atlanta National B. & L. Asso., 110 Ga. 278 (2) (34 S. E. 847); Tower v. Ellsworth, 112 Ga. 460 (37 S. E. 736).

Decided April 25, 1917.

Motion to open default; from Crisp superior court—Judge George. February 21, 1916.

F. F. Strozier, for plaintiff in error. F. 0. Boatright, contra.

2. The trial judge did not err in refusing, at the trial term, to open the default, on the ground that the plea filed was insufficient in law, or in thereafter directing a verdict against the defendant for the full amount sued for. The plea to open the default set forth in substance that before the maturity of the notes sued upon, the plaintiff agreed in writing to extend the time of payment of the notes, but that when they fell due the plaintiff refused to carry out this promise, although the defendant then requested the plaintiff to do so; and the defendant contended that under the facts the notes sued upon were not due. Under the facts of the case, the plaintiff’s letter to the maker of the notes sued on (upon which the defendant was an indorser), offering or promising to extend the time of payment of the notes, was a naked promise, made without any consideration whatever. Even if in this transaction there was an implied or an express promise by the maker and the indorser, made before the notes were due, to pay them if the time for payment were extended, such, a promise could not form a consideration for the extension, since the maker of the notes and the defendant, as indorser, were already bound to pay them. See Tatum v. Morgan, 108 Ga. 336, 337. No presumption of a consideration arises under the facts of this case, and the defendant fails to show wherein he was injured, or the plaintiff benefited, by the promise to extend the time of payment. Moreover, it does not appear that the plaintiff’s offer to extend the time of payment was ever accepted by the maker of the notes or the defendant, or that' the time of payment was ever actually extended. In addition, even if the defendant had a meritorious defense to the suit, his plea to open the default does not state a sufficient reason for not filing an answer at the return term of the court, or within thirty days after the entry of “default,” as provided by section 5654 of the Civil Code of 1910.

3. This writ of error being manifestly without merit, the prayer in the brief of the defendant ill error, that ten per cent, damages as provided by the Civil Code, § 6213, be awarded against the plaintiff in error, for bringing up the case for delay only, is granted.

Judgment affirmed, mth damages.

Jenhins and Bloodworth, JJ., concur.