text:
    488.
    SMITH v. THE STATE.
    While upon the hearing of a motion for new trial (where the sole ground of the motion complains that a member of the jury which convicted the accused was related by affinity to the prosecutor within the prohibited degrees, and upon the hearing affidavits are introduced supporting and disputing this ground) the trial judge is the trior of the facts in controversy, and this court will not control his decision as to the credibility of the witnesses, still, where all the evidence adduced upon the subject of relationship showed the juror to be related to the prosecutor within the ninth degree, a new trial should have been granted.
    Iudictmeut for arson, from Oglethorpe superior court — Judge Holden. March 14, 1907.
    Argued May 27,
    Decided June 26, 1907.

      Samuel L. Olive, Paul Brown, for plaintiff in,error.

      D. W. Meadow, solicitor-general, Sibley & McWhorter, contra.
   Russell, J.

The plaintiff in error was convicted, at the April term, 1906, of the offense of arson; his motion for new trial was refused, and the judgment of the lower court was affirmed by the Supreme Court. Smith v. State, 125 Ga. 296. Thereafter, on October 17, 1906, he filed an extraordinary motion for a new trial, upon the ground tjiat one of the jurors who rendered the verdict finding him guilty was disqualified by relationship to the prosecutor. This motion was overruled' on March 14, 1907, and upon the judgment denying a new trial error is assigned.

Affidavits were property submitted, by the movant, showing that the juror Webb was related by affinity to the prosecutor, Mr. Pittard, within the prohibited degrees; and a counter-showing'establishing a more distant degree of relationship was made by the State. If the evidence submitted by the State on the hearing before the lower court had shown that there was no kinship, or that the relationship between the juror and prosecutor was within and beyond the prohibited degrees, we would have no difficulty in affirming the judgment refusing a new trial. Upon the authority of the decision in Buchanan v. State, 118 Ga. 751 (9), “where a ground of a motion for a new trial complained that a member of "a jury which convicted the accused was related by consanguinity to the prosecutrix within the prohibited degree, which fact had been discovered by the accused since the trial, and upon the hearing of the motion affidavits were -introduced to support this ground, and the State introduced affidavits to the effect that no such relationship existed, this court will not interfere with a finding by the trial judge, upon the issue of fact thus made, adverse to the contention of the accused.” But the affidavits presented by the State on the hearing of the motion, instead of contradicting and disproving movant’s contention that the juror Webb was disqualified, themselves established the juror’s disqualification.

A juror related by consanguinity or affinity to either party to a cause within the ninth degree is disqualified from sitting in the case. This was expressly decided in Ledford v. State, 75 Ga. 857, and our examination has failed to discover any ruling in this State to the contrary. According to the evidence for the State, the juror Webb was related to the deceased wife of Pittard, the prosecutor, in the ninth degree, and several living children of Pittard and his deceased wife continue the kinship by affinity. According to the movant’s showing, the juror Webb was a great grand,son of David Barnett, who was a brother of Benjamin Barnett, Mrs. Pittard’s grandfather. If we apply the diagram illustrative of lineal and collateral consanguinity, prepared by Blackstone (2 Bl. Com. 203), we find that Webb and Mrs. Pittard were related in the seventh degree 'by the civil law and in the fourth degree by the canon law adopted by use as part of the common law.

According to the State’s counter-showing, the juror and the prosecutor’s wife were related in'the fifth degree by the canon law and within the ninth degree by the civil law, the relationship being exactly the same as that subsisting between Bichard III and Henry VII, used by Blackstone as an example.

The following diagram shows the relationship as evidenced by the testimony for the State, the Boman numerals indicating kinship by the canon law and the Arabic ,figures the relationship by ihe civil law.

• “The method of computing these degrees in the canon law, which our law has adopted, is as follows: We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote* of them, is distant from the common ancestor, that is the degree in which they are related to each other.” 2 Bl. Com. 206. The degree of> relationship which will disqualify a judge from sitting in a case is fixed by our Civil Code, § 4045, and, as ruled in Short v. Mathis, 101 Ga. 286, is to be ascertained by the canon-law rule, but the quantum of kinship on the part of a juror which will disqualify has-not been defined by statute in this State. The Penal Code, §973, recognizes kinship as a ground of challenge for cause. “On calling each juror, he shall be presented to the accused in such a manner that he can distinctly see him, and then the State, or the accused, may make either of the following objections: . . 4. That he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving upon the jury.” But the degree of kinship which will disqualify is not declared in terms. So far as we are aware, however, the rule announced in the Ledford case has never been questioned. It was cited with approval in McElhannon v. State, 99 Ga. 680. In Roberts v. Roberts, 115 Ga. 261, Justice Cobb, after referring to 17 Am. & Eng. Enc. L. (2d ed.), 1124, where it is said that while at -common law originally relationship in any degree by consanguinity or affinity worked a disqualification of the juror, later writers state that the relationship must be within the ninth degree, calculated according to the civil-law rules, then quotes with approval from the Ledford case, “The juror was disqualified, being a third Cousin and within the ninth degree,” and states that it is supposed that tire ninth degree referred to is to be “calculated by the rules of the civil law, and not by the rules of the canon law, which are of force in this State in reference to matters of inheritance.” But it matters not whether the degree of relationship be computed according to the civil law or the canon law, 'in neither évent was Webb, the juror, qualified to try this case.

The degree of relationship to a party which will disqualify a juror is not the same as will disqualify a judge. At common law favor was not presumed in a judge, while originally the presumption as to a juror was that any relationship whatever, either by affinity or consanguinity, would disqualify a juror, this rule being later modified so that the disqualification by reason of kinship extended no further than to include the ninth degree. The limitation of the disqualification of judges to cases where one or more of the parties to the cause may be of kin within the fourth degree was the adoption of an arbitrary rule by statute, regardless of the common law, while the rule as to the disqualification 'of jurors (in the absence of legislation on the subject) is the common law.

The relationship of a party to a judge is ascertained by the rules of the canon law, because of the adoption, as stated by Blackstone, of the common-law rule. But it matters not in this instance whether the degree of relationship be computed according to the civil or the canon law; in neither event, under the evidence submitted, was Webb a juror qualified to try this case. Counsel for defendant in error virtually concede this by putting the stress of the case on the proposition that even-if the juror was disqualified, it was not properly an_ extraordinary ground for new trial and affords no sufficient reason for the grant of an extraordinary motion. The argument in support of this contention is drawn from the decision in Cox v. Hillyer, 65 Ga. 57 (2), in which it was held: “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder and it afterwards appears that the supposed deceased is alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and- cases of like character.” We think that the uncontradicted evidence of the juror’s disqualification, and of the fact that this was brought to the attention of the court as soon as it was known or ordinarily could have been known, presented a good extraordinary ground of a motion for a new trial. There is no higher purpose to be subserved in the administration of the criminal law than that every defendant shall be accorded a trial by jury, and jury trial is a mockery unless the jury be not only impartial but also beyond just suspicion of partiality. It is not mere punishment, but punishment justly indicted, which compels that respect for law which is essential to the prevention of crime.

It is earnestly insisted in the briefs of the learned counsel for the State that even if the disqualification of the juror is shown, and even if such disqualification would be good ground for granting an ordinary motion, it can not be classed as among the extraordinary grounds provided and recognized by law, and that nothing was submitted to the court showing that the result would probably be different on another trial. Counsel argue that “the question of the relationship of a juror not only ordinarily occurs in the trial of cases, but is of general and.constant occurrence. And the motion in this case shows on its face that it did occur in this case and was inquired for.” We will agree with counsel that the inquiry into the subject of the relationship of jurors, — questions as to such relationship, is a matter of almost daily occurrence in the courts. But in the opinion that the discovery of disqualification after counsel has called attention to the subject of relationship, and the trial judge has taken the pains to have an investigation in open court touching relationship, and the cautious juror’s mind is again indirectly turned to any cause which might bias his judgment by the questions propounded on the voir dire, is a common or ordinary occurrence, we do not concur. We hold •such a circumstance to be extraordinary, and the law has long so regarded it; for, contrary to the prevailing rule, it absolutely shuts its ears to the explanation that the juror was not aware of the relationship and that such relationship did not in any wise affect the verdict. The law will not hear or consider that the presence of the disqualified juror did not hurt the losing party. This ground of motion for new trial is extraordinary in the same sense as the ground mentioned in Cox v. Hillyer, supra, where one is convicted on the testimony of a witness subsequently found guilty of perjury in giving that testimony. It is lamentably true that perjury is not uncommon, but the law justly considers it an extraordinary circumstance that the falsity of testimony which has been credited by a jury and has induced a solemn verdict of guilty should be established.

The exact point decided in Kelly v. Hall, 50 Ga. 636, and Cox v. Hillyer, 65 Ga. 57 (which were applications for mandamus to compel the certification of second bills of exceptions), and in Malone v. State, 49 Ga. 210, and Doyal v. State, 73 Ga. 72 (cited in O’Neil v. State, 104 Ga. 543), is, that inasmuch as generally no second bill of exceptions can be allowed where the judgment refusing a new trial has been affirmed, a second motion for new trial must be “an extraordinary motion or case” as specified in § 1064 of the Penal Code. The rule as clearly stated in the first headnote in Doyal v. State, supra, is, that “After the trial of a cause by the jury and the return of a verdict of guilty and the refusal of a new trial by the circuit court, and the affirmance of that judgment by this court, the grounds of a second motion for new trial will be scrutinized closely, and must be laid in the very foundations, of the purity of jury trial, to authorize the grant of such an application.” Then is the presence and service of a juror clearly disqualified good ground for an extraordinary motion for a new trial; or, put more properly, does such a case present good extraordinary ground of a motion for a new trial? As has been held,, and more than once, motions upon extraordinary grounds are not viewed with favor, especially when newly discovered evidence, generally merely cumulative, is the basis of the motion; and the distinct and close scrutiny with which motions for new trial upon extraordinary grounds are regarded is evidenced by the provisions, of the Penal Code, §§ 1063, 1064. In the Cox and Malone cases cited supra, the extraordinary ground was newly discovered evidence, and there was a distinct holding that the evidence was merely cumulative. But in the Doyal case, supra, a new trial was ordered after the presiding judge had refused to interfere with a verdict which had been affirmed by the Supreme Court (70 Ga. 134), upon, the sole ground of the disqualification of a juror, the objection to the juror, as in this case, being propter affectum, and the reason, given (irrespective of the probable result on another trial) being that this ground was “laid in the very foundations of the purity of jury trial.”

In Beall v. Clark, 71 Ga. 849 (although there was no extraordinary motion for new trial), one of the grounds of the motion was that one of the jurors was a half-brother of an interested witness. After a review of the evidence on this subject, Justice Hall, observing that the fact that the juror and the'witness were intimate and of near kinship is the only circumstance which can cast a shadow of doubt upon the truthfulness of the juror’s statement that he knew nothing of the witness’s interest in the matter, nevertheless proceeds to deliver the opinion of the court as follows: “The trial by jury can not be too carefully guarded, to protect it not only from unfairness, but also from any uneertaintjr on that score. Jurors should be above suspicion. Omni exceptione majores. On another hearing this wrong can be avoided. The defendants will be then left free to assail the witness, if they deem it advisable, and will not be trammelled in their defence by the presence of his kinsman upon the jury. There can be no doubt that he was an improper juror. 28 Ga. 439; 47 Ib. 538.” If the juror Webb would be held disqualified in a civil case because his presence on the jury might trammel the defense by reason of his relationship to Pittard, how can less be held in a criminal case where the kinsman, Pittard. is the prosecutor, and the liberty of the citizen is involved?

One reason why a new trial is demanded where there is no doubt as to the disqualification of a juror (and where such disqualification is not waived by knowledge of that fact) is that the verdict is illegal and void. As held by the Supreme Court in Georgia Railroad v. Cole, 73 Ga. 713, “A jury composed of men who are not lawful men — men whose relationship to the parties renders them incompetent as jurors, can not render a lawful verdict. If the parties consent to the jurors or have knowledge of their incompetency, then'they will be held to waive the same. It •can not be said that the defendants in error have had their case tried; certainly not legally; and although the verdict may be in accordance with the facts, and such as a lawful jury should have rendered, yet it is no verdict, and the court did right to set it aside.”

Of course it has been uniformly held, with reference to extraordinary motions, that due diligence must be shown to have been •exercised by the movant in ascertaining the disqualification, if possible, before the trial; and it must further appear that diligence was manifested by counsel in moving on these extraordinary grounds and in bringing the facts before the superior court as soon as discovered. Failure to apprize the court of the disqualification of a juror, discovered during the trial, as soon as the fact was ascertained by counsel, was held to be a waiver, in Lampkin v. State, 87 Ga. 516. No complaint of lack of diligence on the part -of plaintiff in error or his counsel in this ease can be made in the present instance. It is uneontradieted that the facts upon which the disqualification of the juror depended were first ascertained within one week before the extraordinary motion was presented and filed on October 17, 1906, which, according to the admission of counsel for the State in their brief, was the day following the judgment making the judgment of the Supreme Court the judgment of the lower court.

There is no merit in the suggestion that the exercise of a greater degree of diligence on the part of plaintiff in error and his counsel might have discovered the disqualification of the juror before the trial. It is undisputed that the defendant’s counsel requested the court to inquire of the jury as to the relationship to the prosecutor, and that the trial judge -did this. As said by Justice Cobb in rendering the opinion of the court in Moore v. Farmers’ Mutual Ins. Asso., 107 Ga. 209, “When parties to a case announce ready for trial, it is the duty of the court, if the case is one to be tried by a jury, to furnish a panel of jurors composed of persons competent to sit as jurors in the case. When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived. If they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel. Further than this they are not required to go. Due diligence requires no more than this. The rule in reference to such matters is thus stated by Judge Stephens in Brown v. State, 28 Ga. 439: ‘He must make the objection at the right time, if he knows of the fact, but if he does not know of the fact nor have special reasons to believe it, he is not bound to-offend every man on the panel by making random imputations against him.’ Parties are hot required to make searching investigation out of court to determine whether the jurors who are summoned are disqualified in their cases. Not only is such a duty not placed by the law upon parties and their counsel, but the contrary practice is to be 'encouraged, for obvious reasons.”

In our opinion the movant’s “case” fulfills all the requirements of a meritorious extraordinary motion for new trial, and he should have a new trial. Judgment reversed.


source: Caselaw Access Project

author: Russell, J. Powell, J.

license: Public Domain

text:
    106.
    CITY OF CEDARTOWN v. BROOKS.
    1. A municipal corporation is bound to keep its streets and bridges in a reasonably safe condition for travel; and there is no error in so charging the jury. There was no error in the admission of evidence, or in the instructions to the jury, alleged to be erroneous.
    2. It is within the discretion of the trial judge, upon a proper showing made therefor and at the instance' and expense of the defendant iii the action, to require a plaintiff, suing for physical injuries, to submit to an examination by competent physicians in order to ascertain the nature and extent and probable duration of the injury, and to afford means of proving the same at the trial of the cause. Richmond £ Danville R. Co. v. Childress, 82 Ga. 719. It follows that it is likewise within the discretion of the judge to refuse to require such examination, and this discretion will not be controlled unless abused.
    3. Proper exception must be taken to such refusal on the part of the trial judge, before it can be considered by this court.
    4. (Per Hill, C. J., and Powell, J.) It is error for the court to refuse to permit the defendant, in a suit for alleged permanent personal injuries, to prove' that the plaintiff had refused to allow a committee of competent, disinterested physicians to make a reasonable physical examination, upon a timely request therefor, in order that the extent of the injury might be ascertained.
    Russell, J., dissenting (a) It is not assigned as error that the court abused its discretion in declining to compel a physical examination of the plaintiff in this case. In the absence of exception thereto, the exercise of a sound judicial discretion by a trial judge will be presumed. The discretion of the. trial judge having been properly exercised in the case, the reasons of a plaintiff for refusing to allow a physical examination of her person (said refusal being in accordance with the ord'er of the court) become immaterial and irrelevant. A physical examination should not be ordered except upon a showing of its necessity; and when the showing made to the trial judge is insufficient to warrant judicial interference in furtherance of justice, the fact that a plaintiff does not waive her right of personal inviolability raises no presumption prejudicial to her good faith in her claim for damages. The exercise of judicial discretion is not reviewable by jury trial.
    (6) Unless the exercise of judicial discretion can be questioned in a trial of the main case before a jury, evidence that the plaintiff refused to submit to a physical examination tends only to prejudice unfairly a plaintiff’s case, when the judge has declined to order such examination; and thereby is subversive, rather than in furtherance, of .justice. Unless an examination has been ordered by the judge, and compliance with the order has been refused by the plaintiff, the subject is irrelevant and immaterial. The whole matter of such examination, including the grant or refusal of an order for an examination, and the effect of the refusal of a plaintiff to comply with such order, as well as the penalty to be inflicted for such refusal, is within the discretion of the trial judge, and of no concern to the jury.
    (c) Regardless of the rejection of testimony, -the verdict is authorized by the evidence, and a new trial should not be granted.
    Action for damages, from city court of Polk county — Judge Irwin. May 19, 1906.
    Argued February 11,
    Decided June 20, 1907.

      W. C. Bunn, J. K. Davis, W. H. Trawick, for plaintiff in error.

      Seaborn & Barry Wright, Janes & Hutchens, W. W. Mundy, contra.
   Russell, J.

It is my peculiar fortune, in the division of our labor, to deliver the opinion of the court in this case, while I dissent from its judgment. My colleagues and myself are agreed as to all of the nineteen grounds of the motion for new trial except one. The majority think the lower court erred, in one respect, and that a new trial should result. With all deference to my associates, it is my opinion that the trial judge did not err in repelling the testimony as to the refusal of the plaintiff to submit to a physical examination at the request of the defendant. Furthermore, I think, even if the court did err in this respect, that the verdict for the sum of $1,250, is so amply supported by the evidence that the error is not sufficiently grave to require another trial. From the respect I feel for the opinion of my colleagues, I would cheerfully forego the expression of my views were I not convinced that the decision of the majority upon the subject on which we differ is likely to be injurious to that dignity and respect which is essential to the usefulness of a judicial tribunal, and may cause the introduction into many trials of personal issues, which are always prejudicial and ofttimes entirely incompatible with an 'impartial trial. Any door opened to passion affords an easy exit for the spirit of judicial poise which should characterize and control the functions of a jury. Those grounds of the motion upon which we are all agreed will first be dealt with, and I shall then present the reasons for my non-concurrence in the judgment of reversal.

Mrs. M. J. Brooks brought an action against the City of Cedar-town for personal injuries sustained by her in jumping from 'a buggy in which she was being driven across a bridge on Main street in said city. Upon the trial of the case the jury rendered a verdiet in favor of plaintiff for $1,250. The defendant made a motion for new trial. The motion was overruled, and thereupon defendant excepted and brings this writ of error. In her petition the plaintiff alleges that on the 10th day.of March, 1904, she was riding along the streets of Cedartown in a buggy drawn by two horses. As said buggy was crossing a bridge, known as Main street bridge, the foot of one of the horses passed through and caught in the flooring of said bridge, and thereupon both horses became' frightened and unmanageable. Fearing she would be •thrown from the buggy, the plaintiff jumped therefrom to protect herself, and in so doing sustained injuries which she alleges are permanent. She alleged that on account of said injuries she has endured great pain and suffering, and 'asks damages against the city for $20,000. The defendant filed its answer denjdng liability, and also demurred.

Subsequently to the return term of the court (the record- failing to reveal whether in term time or vacation) the defendant presented a petition to the judge of the city court of Polk county, praying that the court appoint a committee of competent physicians, to act in conjunction with the plaintiff’s physician, to examine into the physical condition of plaintiff. Upon said petition the judge of said court passed an order naming three physicians in accordance with the prayers of said petition, and the order provided that said committee should act in case plaintiff consented to be examined. At the January term, 1906, the defendants presented an additional petition, partially in the form of an amendment, substantially the same as the one heretofore mentioned, stating that the plaintiff had refused to consent to being examined by the committee appointed. In this latter petition the defendant offered to pay the cost of such examination, etc. The record docs uot disclose any order by the court refusing to require the plaintiff examined by said committee as provided for in said supplemental petition. ■

The evidence for plaintiff was substantially as follows: On Sunday, July 10, 1904, she was riding in a buggy with her husband, accompanied by two small children and a baby. On their drive they safely crossed Main street bridge in the City of Cedar-town. Eeturning home, however, when they had driven upon this bridge, one of the horses hitched to 'the buggy became frightened at a patch on the bridge floor, shied to the right, and the right foot of the left horse went through the bridge floor. The bridge had recently been repaired by an employee of the city, but the planks used for doing th,e .patching were old and partially rotten, at the time they were placed over the hole. It was when the horse stepped upon one of these rotten patches that its foot went through the bridge floor. The plaintiff and her husband jumped from the buggy, the former to avoid being thrown from the buggy, and the latter to lift out the children and loose the horses from the buggy. After they had alighted, assistance came, the harness was cut., the horses taken loose from the Vehicle, and after a considerable struggle the horse extricated its foot from the hole. The piece o£ plank used to make the patch was about twelve inches wide and about two feet long. The patching was done by nailing it over the floor where a hole had worn into it. The flooring used had originally been about two inches thick, but had worn down to about one fourth of an inch in thickness. The hasband of the plaintiff crossed the bridge four times a day, being a rural mail carrier. Both testified that ever since the date of the injury she had suffered pain. She was pregnant at the time, some three months advanced. On the night of the injury she came near having a. miscarriage. A physician was called in next morning. He gave her internal treatment for prevention of ■ the miscarriage. She continued to pass blood until the 20th or 21st of August following, at which time she had a miscarriage. She had suffered continuously from the date of the injury, and her health had been so bad that she was scarcely able to do anything after that date. The physician was advised of her condition daily, but did not see her but a few times.

The defendant offered no evidence. In addition to the original motion, containing the usual general grounds,_ there are two' amended motions specifying numerous assignments of error, numbered consecutively from 1 to 17. We will take these up in their order, saving the ninth, which will be treated last.

Because the court erred in charging the jury as follows: “I charge you, gentlemen, that it is the duty of the City of Cedar-town to keep its streets and bridges in a reasonably safe condition for travel. The law does not require that the roads and bridges be kept in an absolutely safe condition, but in a reasonably safe condition. Now, gentlemen, you look to the condition of the bridge, and determine from the evidence whether or not it was in a reasonably safe condition at the time of the alleged injuries,” We think there is no error in this charge, when measured by the standard laid down in the case of Atlanta v. Buchanan, 76 Ga. 539, where it was held, “We are clear that the city is bound to keep its streets, sidewalks, and bridges in a reasonably safe condition; and there is no error in so charging.” It is further held that “to keep,” when applied to streets, sidewalks, and bridges, might well include “to construct, to make.” In the case at bar the undisputed evidence is that the patches were rotten, and hence the bridge could not, from the time it was thus patched, have been kept in a reasonably safe condition for travel. Applying this law to the facts in this case it appears that the work was not going on, but had been completed, and ordinary care had not been exercised in keeping the‘bridge in reasonably safe ■ condition.

Because the court erred in charging the jury as follows: “In determining whether the plaintiff, Mrs. Brooks, was justified in jumping from the buggy, you will apply the rule of ordinary diligence. Ordinary diligence is that care which every prudent person takes of his own property of a similar character, such care as every prudent person would exercise under similar circumstances.” While the first part of the charge is not applicable to this case, the last clause sets out a correct definition of the terms employed, and the allusion to property in the first clause could not have misled the jury so as to' impair the rights of the plaintiff in error or be an error of sufficient importance to cause the grant of a new trial.

The third and fourth grounds of the motion are to the effect that in these portions of the charge the court expressed an opinion of the evidence. We fail to see any merit in these contentions. f

We think the charge of the court that the knowledge of the husband could not affect the wife’s right to recover was proper.

The sixth ground of the motion for new trial avers that the court erred in charging the jury on the subject of permanent injuries, for the reason, as stated, that the only allegation with respect thereto was stricken on demurrer. The defendant’s demurrer, it is true, was sustained, but it was only addressed to certain words in the fifteenth paragraph of the petition. The demurrer did not reach the 18th and 19th paragraphs. The record negatives the contention that all allegations as to permanent injuries were stricken. Paragraphs 18 and 19 of the original petition, and the evidence adduced thereunder, fully authorize the charge to which objection is made.

We think the principle that if the plaintiff’s injury was caused by her own negligence, she could not recover, is sufficiently explained to the jury in the charge of the court.

There is no merit in the assignment of error of the eighth ground of the motion; for the jury was, in another portion of the charge, instructed that there could not be a recovery unless there was an injury.

The tenth ground contains an objection to the admission of testimony to the effect that defendant in error complained to her husband. The complaints objected to seem to be a part of the res geste of the pain and suffering, and to be admissible under the ruling in Atlanta Ry. Co. v. Gardner, 122 Ga. 97, citing Nor. Pac. R. Co. v. Urlin, 158 U. S. 271, 275. For this reason the objection that such evidence was incompetent is not well taken.

While the evidence objected to in the eleventh ground might at the first glance appear to be- a conclusion of the witness, it is evident, when taken in connection with his other testimony on the same point, that, after having stated the facts, he is giving his reasons for the statement made in his testimony. Any witness may give his opinion as adduced from facts already fully stated by him, the value of the opinion being for the jury.

We do not think this testimony of the husband was incompetent. He certainly could know of his own knowledge what was the condition of his wife’s health. He could well know whether ' she was weak or strong, and, from seeing her make an effort to perform certain duties, whether she was able to perform them or not

In the thirteenth ground of the motion complaint is made that the plaintiff and her husband were permitted to testify that her menstrual periods had become irregular since her injury, and that she suffered great pain in consequence of this irregularity. There was no error in allowing this evidence to go to the jury, •under the pleadings. Paragraphs 18 and 19 of the original decíaration, which alleged permanent injury to plaintiff’s health and. which were not demurred to, were broad enough in their terms to admit of the testimony referred to. A proper objection to the testimony of the husband might have been sustained, but the objection offered was without merit.

The testimony complained of in these two grounds of objection was properly admitted, for the reason stated immediately above. The term “health” includes appetite. Under the pleadings the range of testimony was necessarily very broad. No demurrer was filed to paragraphs 18 and Í9.

The statements of the witness, that she did nothing to cause the miscarriage that she knew of, and that she was as quiet as could be prior to the miscarriage (objected to in'the sixteenth ground of the motion, as being conclusions of the witness), are not, in our opinion, objectionable upon that ground. Each is the statement of a fact. We are of the same opinion as his honor, who admitted the testimony with the remark, “If she had not done anything, we don’t know what else she could state.”

In the seventeenth ground of the motion error is assigned as follows, upon the following instruction delivered to the jury'; “The burden is upon the plaintiff to show that her injuries are permanent, and that her pain and suffering would likely continue' through life. The burden is on her to show that. If she has failed to show that her injuries are permanent, and that her injuries will continue through life, then you will be authorized; if you find the city liable under the rules I have given you in charge, to find for such time she has proven she has suffered.” “Movant says this charge was error, because it expressed the opinion of the court as to the facts of the case. Because it excluded from the jury the question of whether or not the plaintiff had suffered. Movant says that the sentence, ‘You will be authorized, if you find the city liable under the rules I have given you in charge, to find for such time she has proven she has suffered/ excludes from the jury entirely the question as to whether or not plaintiff has suffered, and directs them to find for her accordingly.” While the court could, by repetition of a prior instruction, perhaps have been a little more full and definite in this, instruction, it is not subject to the objections urged, that it expresses an opinion on the evidence, or excludes from the jury the question of whether or not plaintiff had suffered. A jury of ordinary intelligence must have known from this charge that the defendant in error could only recover for the pain'she had proved she suffered. Hence, if no suffering had been proved, she could not recover for any.

Complaint is made, in the ninth ground of the amended motion, that the court erred in withholding from the jury testimony (which the plaintiff in error says it could have adduced from the plaintiff and her husband on cross-examination) that the plaintiff refused to permit a physical examination of her person by physicians (suggested by the defendant some weeks before the trial) for the purpose of determining whether such injuries could not be remedied. It is further alleged that' plaintiff in error also offered at the trial to have plaintiff examined at the city’s expense, and she declined. Solely upon this ground the majority of the court hold (in the opinion hereto attached) that a new trial must be granted. In my opinion there is no such assignment of error as requires the court to consider this’ground of the motion. But, waiving this point entirely, I am firmly of the opinion that the ruling of the court in declining to allow such testimony to be introduced is no ground for reversing the judgment of the trial judge in refusing to set aside the verdict of the jury on motion. The only point settled by the decisions in R. & D. R. Co. v. Childress, 82 Ga. 719, 722, S., F. & W. Ry. Co. v. Wainwright, 99 Ga. 255, Bagwell v. Atlanta Ry. Co. 109 Ga. 612, and Macon Ry. Co. v. Vining, 120 Ga. 514, is that it is within the power of the trial court, in the exercise of its discretion, to compel the plaintiff to submit to a physical examination. At the time of the ruling in the Childress case the courts of other jurisdictions were in sharp conflict upon the question whether a physical examination of a plaintiff in an action for personal injuries could be ordered, without his consent or acquiescence. The common law had known nothing of such a practice, unless the writ de ventre inspeciendo be taken as a precedent; but a superior court of New York had asserted the power (in Walsh v. Sangre, which has since been overruled), and the Supreme Court of Iowa in Schroeder v. Chicago Ry. Co., 47 Iowa, 375, had affirmed its existence. But some of the courts, whose opinions are generally regarded as most weighty, are opposed to the exercise of the power. See Union P. R. Co. v. Botsford, 141 U. S. 250; Ill. Cen. R. Co. v. Griffin, 80 Fed. 278 (holding that such an examination can not be compelled either before or during the trial); Stock v. New York, N. H. & H. R. Co., 177 Mass. 155; McQuigan v. Delaware, 129 N. Y. 50; Newman v. Third Ave. Ry. Co., 18 Jones & S. 412; Cole v. Fall Co., 159 N. Y. 59, 53 N. E. 670 (affirming 87 Hun, 584); McSwyny v. Broadway Co., 54 Hun, 637; Roberts v. Ogdenburgh R. Co., 29 Hun, 154; Pittsburg, C. C. & St. L. R. Co. v. Story, 104 Ill. App. 132; Peoria R. Co. v. Rice, 144 Ill. 227; Joliet St. Ry. v. Call, 143 Ill. 177 (affirming 42 Ill. App. 41); Mills v. Wilmington R. Co., 1 Marv. (Del.) 269. See also Mary v. Northern P. R. Co., 32 Mont. 522, and Kingfisher v. Altizer, 13 Okla. 121. Our individual opinion follows that of the Supreme Court of the United States in U. P. R. R. v. Botsford, supra, in which Judge Gray, delivering the opinion of the court, says: “No right is held more sacred or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of •complete immunity: to be let alone.’ Cooley on Torts, 29. The inviolability of the person is as much invaded by a compulsory •stripping and exposure as b3r a blow. To compel an3r one, and especially a woman, to lay bare the bod3r, or to submit to the touch •of a stranger, without lawful author^-, is an indign^, an assault and a trespass; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obselete in England, and never, so far as we are aware, introduced into this country. So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made, or even moved for, in any of the English courts of common law, at any period of their history.”

The Childress case, however did not place Georgia “in line” with Iowa, Kansas, Nebraska, Wisconsin, Arkansas, and Missouri, whose courts had asserted the right to dismiss a plaintiff’s action where an order for a physical examination was not complied with. The decision in the Childress case was expressly based upon the provisions of the Civil Code, § 4047, par. 4, conferring upon every court power “to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it in every matter appertaining thereto,” and was supported by 1 Thompson on Trials, § 859, as authority. I am unable-to find any case, however, where the penalty of a dismissal of the action has been affirmed in this State. In Bagwell v. Atlanta Ry. Co., 109 Ga. 611, the judgment dismissing the action, because the plaintiff did not compel his daughter to be examined,’was reversed-In rendering the opinion Judge Lumpkin, after ruling that all that had ever been held in Georgia was that it was within the power of the court, in the exercise of its discretion, to compel the-plaintiff, to submit to an examination, clearly intimates that a. dismissal of the action is not the proper penalty in Georgia, where a female is sought to be subjected to the pain of an examination of her person. He repeats with approval the statement of Chief' Justice Bleckley, that there should be no danger in this country of an examination being ordered needlessly or where an improper shock to womanly modesty or feelings of delicacy would be likely. In both the Wainwright case and the Vining case orders-for a physical examination of the plaintiffs were refused, and the judgment of the trial judges were affirmed. After a careful examination of the original record in the Wainwright case,, it is clear'to my mind, from the language employed in the first-headnote in 99 Ga: 255; that the court did not err in this case or abuse his discretion in' not ordering the examination. Indeed,, there seems to be no contention, for the record does not disclose any exception, complaining that the court abused his discretion in refusing to compel the plaintiff to undergo a medical examination. The discretion to order a physical examination existing, any abuse of that discretion can be reviewed as matter of course. But that is not the question here. The only objection presented is that the court refused to allow testimony., to the effect that plaintiff' had refused to undergo such examination, to go to the jury. I think that the judge properly refused to allow the plaintiff in error to put in evidence in this case the fact that the defendant-in error had refused to undergo an examination of her person by the committee. This evidence would have been immaterial and. irrelevant, and there are many good reasons why it should n'ot have been allowed to go to the jury. Among them is the reason that the onty purpose for which such evidence is admissible is to discredit the witness and prejudice the case in the eyes of the jury. To allow the jury to have evidence that the plaintiff has refused to submit to examination must be for the purpose of showing that she had some improper motive for refusing, and the intention is thereby to lessen her credit. I do not think this would have been proper in the case at bar, for the reason that the court had declined to use his discretion in favor of the defendant’s request, though application had been made. The plaintiff had never been ordered to submit to an examination. The court being clothed with a discretion in the matter, the conduct of the party, except as such party might oppose the proper orders of the court, became immaterial. The plaintiff had the right to conduct her case as she saw fit, and certainly no presumption of bad faith as to her claim of injury could justly arise against her for consenting or refusing to submit to an examination which the court, in its discretion, declined to order, without attaching inevitably the conclusion that the court erred in not ordering it, which, under all of our decisions, means an abuse of discretion.

If I am correct in my view that the compulsory examination of a plaintiff suing for personal injuries is a power to be exercised by the lower court in its sound legal discretion, what is to be the effect of evidence of a refusal to be examined? Such evidence is admissible in courts, such as those of the United States, where the poAver of the court to compel a physical examination is denied; and the reason is manifest. In such forums the jury is the only tribunal before whom the issue of good faith (taking willingness to be examined as the test) can be taken; whereas in our State the whole question is submitted to the judge. The reason for the rule admitting testimony of refusal ceases, because in a proper case there must either be an examination or the case will be dismissed. The whole question is addressed to the judge. It is presumed that upon a proper showing he will order an examination. If he fails in such a case to order the proper examination, his abuse of discretion can be the subject-matter of review by writ of error. If, as my colleagues insist, the principle on which this testimony is admissible is that the refusal of a plaintiff to submit to an examination is akin in principle and similar in effect to the failure to produce evidence under the terms of the Civil Code, §5163, then the judge, who has exercised his discretion and held, that there is no necessity for an examination, can by proper request be required to charge the jury, in effect, that such action .on the part of the plaintiff is suspicious to’ say the least of it; and if the jury, believe the refusal is evidence of bad faith, then the jury can find that fact and will also find at the same time that the judge erred in not forcing an examination. Our code section (Civil Code, §5163) is nothing but the incorporation of a familiar rule of evidence in practically the language employed by .the Supreme Court in decisions in the 71st and 77th and 83d Ga. Reports. This rule, similarly expressed in Starkie on Evidence, has reference to such evidence as is universally recognized. It does not refer to such evidence as that deduced from an examination of the plaintiff’s body in this case, which can not be presented to the jury, must depend upon the opinion of experts, is not obtainable by subpoena or usual processes, and can only be ascertained and brought to court after the judge, in the exercise of a wise discretion, has had discovery made. Section 5163 is the subject-matter of instruction to the jury upon request. If the refusal by a plaintiff to have the sanctity of her person invaded, afler the court has declined to require it to be done, rests upon -the same principle of lack of good faith as the intentional concealment of material evidence referred to in §5163 of the code, then the defendant would have the right to have the jury given such a rule to guide them in considering the testimony of refusal. In my opinion this would be a palpable invasion of the rights of the judiciary by the jury. I so thoroughly trust and respect the findings of juries generally that I might be willing to go to the extent of conceding the position, except for the fact that I believe such review would be subversive of that authority and respect which must necessarily attach to the office of the judge in order to insure the orderly administration of the law. If the judge has the discretion to order a physical examination, as held in Childress v. R. & D. R. Co., and exercises it by a refusal, that is an end of the matter, except upon review of his discretion. In my opinion, the decision in the Wainwright case fully sustained the trial judge in his ruling. In the first application there was no attempt to follow the formula suggested by Chief Justice Bleckley in the Childress case. The proper request was made on the se'cond effort; but it came too late, according to the holding in the Vining and Wainwright cases. The only proper motion for physical examination was at the trial. According to the ruling in these cases it was untimely. .

If, however, the judge erred, as before stated, I think his action should be reviewed by a court for the correction of such errors, and not by a jury; and therefore the judge did not err in repelling the evidence. The presiding judge should not be put on trial before a jury in his own court for an abuse of his discretion. This would have been the inevitable result of admitting the evidence that the plaintiff declined to submit to a physical examination. The defendant having proved this, the plaintiff would have the right to give her reasons for declining; and it would be idle to suppose that she would fail to give her best one, — the fact that the judge had declined to order her to be examined. This would certainly satisfy the jury that the judge was not convinced that there was bad faith in her claim of injurjy, and afford the jury reason for resenting a mere innuendo. For this reason it would be incumbent upon the defendant, not only to insist in argument before the jury, but also to prove, if possible (by showing that the plaintiff’s injury was a sham), that the judge had abused his discretion, and that if he had exercised his discretion otherwise, the fraud would have been more fully disclosed. And thus would be ■ exposed the spectacle of the judge (whose usefulness is under-minded whenever confidence not only in his impartiality but also in his wisdom is gone) on trial in his own court. My associates say that it is the conduct of the plaintiff, and not of the court, which is and should be reviewed by the jury. I judge from observation and experience that where the discretion has been invoked and exercised, a separation of the discretion from the conduct of the plaintiff sheltered by it is practically impossible. There is no assignment here that the judge abused his discretion. How he exercised it is of no concern to the jury. If it was properly exercised, and the case was not one of an enforced physical examination, the fact that the plaintiff at her option refused one was as immaterial as if she had declined a proposition to continue the ease. Even if the evidence should have been admitted, the error is not such a one as calls for another trial at the expense of the county. The evidence sought by the defendant is worth nothing, unless it satisfies the jury that the plaintiffs claim of permanent injury is so suspicious as most likely to be false. With the knowledge which the jury would obtain, that the presiding judge had twice declined to use his, power, because the showing of the defendant was so defective, for some reason that the court had not thought the examination necessary or proper in furtherance of justice, it is hardly probable that the evidence of refusal, accompanied as a natural sequence by its explanation, would have been of any practical benefit to the defendant. If the testimony of the plaintiff is credible unless poisoned by the doubt raised by her refusal to be examined, viewed as a practical proposition it is more than likely that her explanation will remove the doubt.

The defendant introduced no testimony whatever to dispute the evidence of culpable negligence in its care of the bridge. It offered no witnesses to question, and perhaps could offer none to deny, the pain and suffering endured by the plaintiff, even if she has recovered. It did not ask and could not hope to disprove more than the plaintiff’s claim of permanent injury. The jury may have given a verdict of $1,250 for pain and suffering alone, and, in view of our past rulings, it can not be held that the standard of their enlightened conscience is too high. I go further. In my experience of twenty-six years at the bar and on the bench, I have observed that juries are hard to deceive. The jury which tried this case well understood that the plaintiff was asldng damages for permanent injuries. So far as appears from the record, the request for the examination was made in open court, and the offer to prove the refusal to be examined, which the court declined to allow by declining to permit the questions answered, was no doubt in the presence of the jury. As a matter of fact, though not of law, it was inevitable that attention of the jury was fixed on the physical appearance of the plaintiff. We have no means of knowing or guessing what her appearance was, but the jury saw it and had. the right to weigh it in considering the probability of the plaintiff’s story. If she did not show some of the tell-tale signs which, mark such suffering as she claimed to have endured, it is safe to assume that the jury were satisfied that the plaintiff might yet be restored to health. If they were convinced that the plaintiff’s injuries are permanent, then the verdict is so much smaller than the plaintiff was entitled to recover that the defendant has no right to complain. In my humble opinion the judgment should be affirmed; and I am the more firmly convinced by reason of the fact that the authorities quoted by my brethren in support of their judgment, with the exception of that from Watson on Damages, are, to my mind, clearly obiter dicta used arguendo.

Powell, J.

The court is unanimous in the opinion that for the most part the trial is free from error; but a majority of us can not agree with our brother Russell, who has written the opinion in chief, that the court did not err in refusing to permit the defendant to prove, for consideration by the jury, the fact that a timely request had been made of the plaintiff to allow a committee of competent and disinterested physicians to examine her person privately and under circumstances of least embarrassment to her, with a view of ascertaining whether the injury was as serious as she claimed, and whether the effects were really to be permanent. The almost uniform current of authority is to the effect that such a refusal may be shown. “Whether the trial court is denied the power to compel a party to submit to a physical examination, or, having the power and having made an order therefor, does not resort to extreme means to enforce it, evidence, as a rule, is undoubtedly competent for the consideration of the jury that the plaintiff was requested or ordered to submit to an examination of his person and refused to do so.” Watson on Damages for Personal Injuries, §675. Such evidence is competent because it tends to illustrate the faith, good or bad, in which the plaintiff’s demand is asserted. It stands upon a cognate principle to that presented in the Civil Code, §5163, that “Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, the presumption arises that the •charge or claim is well founded; but this presumption may be rebutted.” The Federal courts have no power to order such physical examinations; and yet even in those courts the defendant may prove that the plaintiff has refused a request for such examination, if the request be reasonably made. Union Pacific Ry. Co. v. Botsford, 141 U. S. 255, citing Clifton v. United States, 4 How. 242, and Turquand v. Strand Union, 8 Dow. 201, 4 Jurist, 74. The right to prove the plaintiffs refusal is entirely independent of the 1 court’s power to enforce an order for an examination, as well as of the court’s refusal to compel one where the power does exist. It is the plaintiffs conduct, not the court’s that is to be submitted to the consideration of the jury. They should consider it, together with any explanation offered by the plaintiff in regard thereto, and give to it just such weight as they deem proper. The doctrine announced is unequivocally asserted as a matter of general law in the following cases: Beckwith v. N. Y. C. & H. R. R. Co., 64 Barb. (N. Y.) 307; Elfers v. Wooley, 116 N. Y. 294; Schroeder v. C., R. I. & P. R. Co., 47 Iowa, 375; M. & M. Turnpike Co. v. Bailey, 37 Ohio St. 104; Stack v. N. Y., N. H. & H. R. Co., 177 Mass. 155, 52 L. R. A. 328. In the case last cited, the Supreme Court of Massachusetts, through Justice Holmes, denies the power of the court to compel an examination, but says: “No doubt, in general, a refusal to be examined by a doctor sent by the other side would be admissible in evidence.” In that case it also held, as in Wainwright's case, 99 Ga. 255, that if the plaintiff does not refuse to submit to an examination but merely makes the objection to the one proposed that it is not timely or impartial, and the court sustains the objection, the defendant should not be allowed to prove such an objection as a refusal. In this, Wainwright's case is perfectly distinguished.from the case at bar; for here the offer was timely and safely guarded against objectionable features.

Chief Judge Hill concurs in this view; and, in our opinion, the judgment must be reversed for the error herein noticed.


author: Russell, J.

text:
    331.
    WHISTENANT v. SOUTHERN STATES PORTLAND CEMENT COMPANY.
    There is no liability for damages accruing from an injury received on a public highway and occasioned by the fright of an animal attached to a vehicle, where such injury is occasioned by the running of a railroad train in the usual course of its business, and where no unusual or unnecessary noises attend the locomotion of such engine and cars. No higher duty in this respect is imposed on railroads operated for the carriage of freight by private corporations than is incident to railroads generally.

      Action for damages, from city court of Polk county — Judge Irwin. November 13, 1906.
    Argued May 7,
    Decided July 4, 1907.

      Seaborn & Barry Wright, J. A. Wright, for plaintiff.

      Blance & Tison, for defendant.
   Russell, J.

Whistenant brought suit against the Southern States Portland Cement Company, to recover damages for personal injuries. The defendant demurred to the petition, and it was dismissed. The only question, therefore, presented for our consideration is whether the allegations of the petition were sufficient to withstand the general and the special demurrers. The defendant operated'a railroad for private use; and it is insisted that rules different from those governing the liability of public-service corporations operating railroads should control. The allegations of the petition, in brief, are that the defendant, a private corporation operates a private line of railroad close to a public road or highway; that on the day named, the plaintiff was driving along the public road, and before he reached the point where the railroad and the public road run parallel with each other, he stopped and ascertained that the engine of the cement company was standing motionless near the company’s plant; that he then drove along, and when he reached the point in the road nearly parallel to where the engine was standing upon its track, the engineer, without warning, started his engine and was in a short distance of plaintiff when his horse became frightened at the approaching engine; that, “owing to a large and deep ditch being on the east side of the public road, petitioner had no opportunity to turn his horse and wagon around, and was attempting to get his horse on and by said engine, horse being badly frightened and attempting to get away caused petitioner’s wagon to come uncoupled, causing and forcing petitioner to jump out of said wagon and to catch and take hold of the horse by the bridle. Defendant’s engineer, seeing petitioner’s plight and the unmanageable and frightened condition of his horse, made no effort or attempt to slow down or stop his engine, but ran on by where petitioner was, and within about twenty feet of him, for a distance of about thirty yards, and then backed said engine into a switch which runs parallel with the track, and coupled to some cars, and had started back to main line of railroad with engine and cars, the engineer, still being in ■ clear view of plaintiff, and, seeing his horse frightened by the passing of engine, continued on by petitioner, and when opposite him his horse became frantic with fear and uncontrollable, and jumped forward and jerked petitioner in the ditch running along and parallel with the public road.” It is alleged that the defendant was negligent, in maintaining a line of railroad in such close proximity to the public road, it being a place where stock being driven along said road were likely to become frightened and were frightened by the operation of said railroad; and that the company was negligent, through its engineer, in running its engine and continuing to run it in such close proximity to the petitioner after seeing his horse was frightened, and in making no effort to stop his engine, though his horse was frightened. It is not alleged that the horse was gentle or roadworthy.

Unless the company was negligent in having its railroad near the public road, or unless it is the duty of one operating a private railroad to suspend operation on its own track "when it sees an animal frightened in the highway near by, the horse was the proximate cause of plaintiffs injury. If the defendant company had no right to maintain its railroad in such close proximity to a highway upon which horses were likely to become frightened, or if it was the duty of the engineer, when he saw the frightened condition of the horse, to have desisted from the service he was performing for his master (away from the public road, though near by and in sight of it), then, according to the allegations of the petition, the defendant’s engine, being the cause of the horse’s fright, can be considered as the causa causans, which produced the plaintiff’s injuries. There can be no question that the defendant would be liable if its engineer, wantonly or wilfully, by making useless and unnecessarj' noises, h,ad frightened the horse and thereby caused the injury to the plaintiff. Barclay v. W. & A. R. Co., 102 Ga. 546, in which a judgment of nonsuit was reversed because it was easily inferable from the plaintiff’s evidence that the noise was made wilfully' and wantonly, without any other purpose than that of frightening the plaintiff’s mules. But it is not alleged that there was anything unusual in the operation of the engine which frightened the horse in this case, nor that any unusual noise was made. It is, therefore, simply a question as to whether the engineer had the right to make any noise or do anything in the conduct of his business, after he saw plaintiff’s horse was frightened. It is insisted by learned counsel for plaintiff, that this case is not controlled by the decision in Hill v. Railway Co., 101 Ga. 66, and cases therein cited, for the reason that the defendant in this case is “a purely private concern, with none of the priblic duties, affording none of the public conveniences, and bound by no schedule, rules, tariffs, etc. It serves itself only, and not the public;” and that “the reason for the distinction is apparent and just, and rests upon the difference between a public and a private service.” We fail to see the application of the distinction sought •to be drawn. It is true that a public corporation is required to perform certain public duties which do not devolve upon a private corporation. But at last, both are run primarily for the pecuniary gain of their stockholders. The fact that healthful regulation of the terms upon which public corporations shall deal with the public at large (who must of necessity have business relations with them) is necessary does npt seem to us to illustrate the point in this case. It certainly would not affect the person injured. The pain, the suffering, and the injury would be no less nor, greater, if one’s horse were frightened, whether the engine was public or private. The horse could not be presumed to know the difference. It has been several times held that a railroad company is not responsible for the fright of animals caused by the ordinary operation of their trains. Ga. R. v. Thomas, 73 Ga. 350; Morgan v. Central R., 77 Ga. 793, and others. It is equally well settled that the company will be liable for unnecessary noises. Ga. R. v. Carr, 73 Ga. 557, 558; Hill v. Rome St. Ry. Co., 101 Ga. 66. It is true that the defendants in these cases were public corporations; but the principle upon which each was decided was that the artificial person, just as the natural person might do, could pursue its ordinary vocation if it were such that no injury was intended to others, and if the business was such as did not necessarily tend to affect and invade the rights of others. The same reason must control when the operation of a private corporation- is concerned. Most of the cases cited by the learned counsel for plaintiff apply specially to nuisances; and it has been held that a private concern operated upon a public highway is a nuisance. • This action, however, is brought upon the ground of negligence. The petition plainly shows that the damages are sought for injuries which, it is claimed, resulted from the defendant’s negligence, and there is no hint that the injury was occasioned by a nuisance. It is to be presumed that the defendant was exercising a legal right in running his engine; for its name imports a corporation and implies creation by law. It is likewise to be presumed that its location near the public road, which is alleged to he negligence, was permitted by a contract authorized by law. It is not alleged that the-engine was being run at a high rate of speed or at an unusual or unlawful rate of speed. There is no allegation that any unusual or unnecessary noises were being made by the engine. The original fright of the horse, as alleged, was due to seeing the engine;. and there is no allegation of negligence at all with reference to this, unless it be that the engineer started the engine without any warning. The company would not be liable for the fright of the: horse due to the mere appearance of the engine. O’Donnell i>„ Chicago, 69 Iowa, 102. Nothing is alleged as to the character of the horse or as to his previous conduct. In many decisions in. cases originating from the fright of an animal, stress is laid on the fact that the horse was gentle. From the absence of this allegation' in this petition it can perhaps be presumed that the horse: in question was not a trustworthy animal.

As was said by the Supreme Court, in Atlanta Ry. Co. v. Johnson, 120 Ga. 912, “From aught that appears it was as much the fault of the horse as anything else. It is not charged that the car was running at a high rate of speed, or that an unnecessary or unlawful noise -was made by its running. Indeed, a fair inference from the petition is that, after becoming frightened, the mere sight of the cars aggravated the condition into which the horse had gotten. The defendant was doing- only that which it had a right to do.” So far as the first allegation of negligence is concerned, we must conclude that the judgment of the trial court in dismissing the petition was right. However annoying it may be to have your horse frightened by a passing train, it can not be said to he negligence on the part of a company operating a railroad, whether public or private, to place its track near a road. If the location, of the railroad, upon any legal ground, can be objected to, the case would be one of nuisance, and not of negligence.

The second allegation of negligence was likewise without merit, because the defendant’s servant was only doing what he had the right to do. Furthermore, the allegations of the petition disclose such negligence on the part of the plaintiff himself as by their very terms offset any negligence on the part of the defendant. He was attempting to get his horse on and by the engine after it was apparent that the horse was badly frightened. This was recklessness and negligence tending to aggravate the fright of the hprse. It is next alleged that the wagon became uncoupled. It not being alleged that the uncoupling was due to the fright of the horse, it is to be presumed that it was due to the defective construction of the wagon; and as this was the cause of the plaintiff jumping out of the wagon to hold the horse, which thereupon jerked him into the ditch, it may be that the uncoupling of the wagon was the occasion of the injury. Perhaps if the plaintiff had not jumped out to hold the horse, he might have avoided the injury altogether.

This ease is controlled by our prior decision in Southern Ry. Co. v. Flynt, ante, 163. But authorities, almost without number, sustain the proposition that no matter how great the nuisance (as used in common parlance), nor even how great the danger from the running of trains near by and not upon a public road, there can be no recovery for injuries sustained by reason of the fright of animals, unless the same were caused either in the making of unnecessary and unusual noises, or by the agents of the company, either wilfully and wantonly, or otherwise unnecessarily or unlawfully frightening said animals. The cases of injury arising from the running of automobiles are dissimilar to the ease at bar, in that these vehicles are run in the public road, to which the citizen driving his horse is as much entitled as he who is traveling in the automobile. This fact is adverted to in all the cases upon the subject, which we have been able to examine. In Shinkle v. McCullough, 116 Ky. 960 (while the real gravamen of the com* plaint was that the high rate of speed at which the automobile was run was the cause of the animal’s fright, and the noise was only incidental to the running), attention is called to this equal right on the public highway. In other decisions which we have investigated, the fright of the horse was caused on a public highway, but in each the frightening cause was also in the highway.

In Myers v. Lape, 101 Ill. App. 182, a lady brought suit for damages, and recovered. Her injuries were serious, and were caused by the frightening of her horse as she was driving on a pub-lie highway. The fright of plaintiff’s horse was caused by a pony belonging to the defendant, which was of a very unusual size and mischievous appearance. The Court of Appeals of Illinois set aside the verdict, holding that the mere fact that a horse is small or of unusual color does not preclude the owner from using it on the public highway, even though some other horse may become frightened at it. The same court, in Galt v. Woliver, 103 Ill. App. 71, affirmed a judgment for damages in favor of the plaintiff whose horse was frightened by a corn-shredder on the roadway. But the evidence showed (what does not appear from the petition in this case) that the .plaintiff’s horse was ordinarily a perfectly gentle animal, and that the corn-shredder, which had broken down and was of strange appearance, had been negligently left on this public highway for several months before the accident, in spite of repeated orders given to the defendant to remove it. In Knight v. Lanier, 12 Am. Neg. Rep. 157, 74 N. Y. Supp. 999, the plaintiff’s horse was frightened by an automobile on a private lane on which the plaintiff was riding as a licensee; and the judgment was affirmed, the court leaving to the jury what was the duty and consequent liability of the automobile driver, under the peculiar circumstances. But the case turned upon the respective rights of the parties in a lane which both had the right to travel. The casualty took place in a road or way where both parties had a right to be. It was not, as in the present case, an instance of the pursuit of one’s ordinary vocation on his own premises. The case of Indiana Springs Co. v. Brown, 18 Am. Neg. Rep. 392, is also a case of damage resulting from the careless operation of an automobile. The plaintiff relied on a municipal speed ordinance and negligence in the operation of the automobile. The horse was gentle and well broken, but became frightened at the automobile approaching not only with unusual noise but at the unusual speed of twenty miles an hour. The judgment was affirmed, but the court held that the liability of the defendant was not due to the fact that plaintiff’s horse might become frightened at its passage along the highway in an ordinary and careful manner, although its tendency might be to frighten horses and sometimes to cause injuries. As long as the automobile was carefully and prudently run, in spite of its noise and appearance, the automobile had an equal right on the highway with the horse and buggy. The plaintiff begged the automobile driver to stop his machine and to allow him to take his horse, which the defendant plainly^ saw was frantic with fright, to a near-by cross-street and get the animal out of the road. The chauffeur totally ignored the request and proceeded at his reckless rate of speed to pass the horse, which ran away. The liability of the defendant, however, was expressly attributed to defendant’s inconsiderate and reckless disregard of plaintiff’s reciprocal right of the road. The Indiana case is not unlike that of Murphy v. Meacham, 1 Ga. App. 155, in which it was held that “if the automobile was being run properly and not in an unusuál manner, the defendant would not be liable merely because the mule was frightened and the plaintiff injured.”

A railroad company is not liable, for personal injuries resulting from a horse taking fright at the appearance of a standing car or engine, unless the car has been left standing on or near the public highway. The allegation in this case is that the engine was near the company’s plant.

Nor does the fact that the plaintiff’s horse was frightened by the sight of the moving locomotive or car, or by the noise naturally ■incident to its ordinary operation, nor the fact that the track was laid on its own land though near by a public road, render a railroad company liable, without more. If a horse is frightened by the noises of a locomotive or train or escaping steam from the engine in the necessary and proper operation of its machinery, the railroad is not liable for personal injuries resulting from the fright of a horse being driven on a near-by highway. There is no negligence, because there is an absence of a duty towards those who are driving in the public highway. The servants of the company and its engine are where they have a right to be, and they have a right to use their locomotive and train, presumably without affecting the rights of others. If, however, any act is wantonly or maliciously or negligently or unnecessarily done in the operation of either engine or cars, by which a traveler on the public highway is affected, the individual or corporation operating a railroad or any other instrumentality is liable. So far as the duty and consequent liability of an individual or corporation operating a private railroad is concerned, it does not differ from that of a common carrier operating a railroad so far as the rights of travelers along public highways are concerned. The- duties of a public railroad are essentially different in "many respects from those devolving upon one who merely uses his private railroad for his own purposes and in the conduct of his business alone. But as to the traveler on a public highway, the same rule is applicable to both. The maxim sic tuo utere ut non alienum lsedas applies to both, with the privilege, however, of regarding the well-known fact that all roadworthy animals are not afraid of trains.

Judgment affirmed.


author: Powell, J.

text:
    MANDEVILLE MILLS v. DALE (two cases).
    1. The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon, vary according to whethei the person injured was, at the time of the injury, a trespasser, a li, censee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law.
    (a.) Under the allegations of the petition in the present case, the injured person was a visitor by invitation, upon the defendant’s premises.
    <&) When the owner or proprietor of premises, by invitation, express or implied, induces or leads others to come upon his premises for a lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe for such use. *

    2. The petition in the present case is good as against general demurrer.
    3. A petition which does not aver a time, as to every material or traversable allegation, is subject to special demurrer pointing out the defect.
    Actions for damages, from city court of Carrollton — Judge Jiodnett. March 30, 1907.
    Argued June 25,

    Decided October 14, 1907.
    Eor the homicide of Eoy Dale, his father and mother brought separate suits against 'the Mandeville Mills. The allegations of both petitions, so far 'as material to the questions here made, are identical. In substance the petitions state, that Roy Dale was, at the time of his death, twelve years old; that he was learning the profession of a mill operative, in the defendant’s factory, but was off duty on temporary leave, in order that he might attend school; that on the day of his death he came into the defendant’s mill to see his father (ydio was employed there, and who worked on the second floor) on a matter of business; “that there was a narrow stairway leading from the room below up to the floor upon which [the father] was at work; that there were no banisters, or railing, to said stairway, and that the steps upon the same from long and constant use, had become very slick p that .the said Roy Dale, after having visited his father, left him to return to his home, and started to descend said stairway; that when he had gone some two or three steps down said stairway, his-feet slid from under him, and, there being no banisters as aforesaid to protect persons ascending and descending said stairway, he fell violently' to the floor below and was so injured, maimed,, and bruised that he died some thirty-six hours thereafter; that defendant, the said Mandeville Mills, through its agents, officers,, and employees, was well informed and aware of the dangerous condition of said stairway, and had made no effort to remedy the same, notwithstanding its attention had been frequently called to the same; that defendant was guilty of gross negligence in erecting said stairway and not putting a banister or hand-railing upon the same; that they were guilty of gross negligence for permitting said stairway to remain in said dangerous condition, after having ample opportunities to learn of its dangerous condition having increased by means of the steps wearing slick and dangerous.”' Ey amendment it is alleged, among other things, “that at the time Eoy Dale visited his father as set out in the original petition, he entered the room downstairs in which [his father] discharged some of the duties necessary as an employee of defendant, and was-informed that [his father] was upstairs. Whereupon he ascended the stairwa3’> hereinbefore described, that being the only means by which he could go from said room upstairs. Defendant, through its agent and employee, S. T. Pitts, was aware of the presence of' the said Eoy Dale, and of his ascending and descending said stairway at the time of said injuries, and made no objection, notwithstanding it had full knowledge of the danger incurred and the tender years of the said Eoy Dale. That the said Eoy Dale was invited by the defendant, through its agent and employee, Sank Lovvorn, who had authority so to do, to visit-his father while at work in said mill, at any time, on business. Said stairway heretofore referred to was erected for the purpose of furnishing a way for persons upon the lower floor, and in the üoom first entered by the said Eoy Dale, to ascend to the second floor, and descend from the second floor to the first floor, and was being used for that purpose. The slick and slippery condition of said stairway was a latent defect in the same, which was unknown to the said Eoy Dale and which could not have been discovered by him in the exercise of ordinary care.” The defendant filed a general demurrer to the petition; also a special demurrer to the paragraph alleging the invitation, on the ground that no time was averred. The demurrers having been overruled, the defendant brings error.

      S. W. Harris, Brown & Roop, for plaintiff in error.

      Hamrick & Smith, contra.
   Powell, J.

(After stating the foregoing facts.)

The liability of the owner or proprietor of premises, for injuries received by persons while present upon such premises, may be viewed in four aspects: (1) Where the person injured is there as a trespasser; (2) where he is there as a licensee; (3) where he is there by invitation of the owner or proprietor; (4) where he is there under some other special relation., In the first case — that of the trespasser — liability arises only where the injury has been occasioned by the wilful and wanton negligence of the proprietor or owner. No duty of anticipating his presence is imposed]; and^ as was pointed out by this court in Charleston & W. C. Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064),the duty to use ordinary care to avoid injuring him after his presence and danger is actually known is, in point of fact, merely the duty not to injure him wantonly or wilfully. So in the first case wanton or wilful negligence is essential to liability. ¡ In the second ease— that of the licensee — there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be med to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done./ See Southern Ry. Co. v. Chatman, 124 Ga. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283). To the licensee, as to the trespasser, no duty arises oí keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and. things of that character.

In the case of persons on the premises by invitation of the owner or proprietor, a higher degree of care is demanded. “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.”/ Civil Code, § 3824. The definition of the word “invitation,” as given in leading eases, shows why this should be so. We quote from Sweeny v. Old Colony R. Co., 92 Mass. (10 Allen) 373 (87 Am. Dec. 644): “The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement or inducement, either express or implied, by which they have been led to enter thereon, y A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner, or one in possession, to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the o-vimer or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: A mere passive acquiescence by the owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use; and for a breach of this obligation he is liable in damages to a person injured thereby.”

It is likewise said, in Turess v. New York R. Co., 61 N. J. Law, 314 (40 Atl. 614): “‘Invitations’ is a term whose legal import is known, and may be used to express the relation between an owner or occupier of land and one who comes thereon under certain circumstances. The invitation which creates such a relation may be express, as when the' owner or occupier of lands by words invites another to come on it, or make use of it or sométhing thereon; or it may be implied, as when such owner or occupier, by acts or conduct, leads another to believe the land or something thereon was intended to be used as he uses them, and that such use is not only acquiesced in by the owner or occupier, but is in accordance with the intention or design for which the way or place or thing was adapted and prepared or allowed to be used.” The distinction between the duty to a licensee and to one entering the premises under invitation is thus expressed in Beehler v. Daniels, 18 R. I. 563, 565 (29 Atl. 6, 27 L. R. A. 512, 49 Am. St. R. 790): “There is a clear distinction between ,-a ‘license’ and an ‘invitation’ to enter premises, and an equally olear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or wilfully cause him harm; while io one invited he is under obligation for reasonable security for the purposes of the invitation.” Mere permission to enter the premises creates the relation of licensee; invitation, express or implied, is necessary to create the more responsible relation and the consequent higher duty upon the owner or proprietor. In this class of cases wilfulness or wantonness is not necessary to ihe existence of liability, but merely ordinary neglect, either' through act of omission or of commission. See Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 (4 S. E. 759, 12 Am. St. R. 244); Archer v. Blalock, 97 Ga. 719 (25 S. E. 391); Central R. Co. v. Robertson, 95 Ga. 430 (22 S. E. 551). The case of Augusta Ry. Co. v. Andrews, 89 Ga. 653 (16 S. E. 203), and 92 Ga. 706 (19 S. E. 713), is authority, not for the proposition that mere permission is equal to an invitation, but for the proposition that a duly is owing to a licensee. ■

/The fourth class we shall not take up in detail; but it consists of those cases wherein, by reason of contract, public policy, or otherwise, there is imposed upon the owner or proprietor of the premises extreme care and caution. The duty owing by a carrier to his passenger is within this class.

The plaintiff in error asserts that young Dale was within the second class mentioned above, — was a bare licensee.; the defendant in error says that he was within the third class, was upon the premises of the mill company by invitation. If the petition had not been amended, the contention of the plaintiff in error would have been well founded. But taking the unequivocal statement of the amendment, “that the said Roy Dale was invited by defendant, through its agent and employee, Sank Lovvorn, who had authority so to do, to visit his father while at work in said mill, at any time, on business,” coupled with the further allegation, that with the full knowledge and consent of the defendant company he did, upon the day of the fatal injury, enter upon the premises of the defendant to visit his father on business, we are constrained to hold, under the admission of the demurrer, that he was not a bare licensee, but was a person lawfully upon the defendant’s premises by invitation. As to this feature of the case the general demurrer was therefore properly overruled.

We come, therefore, to the question whether the petition, shows a failure on the defendant’s part to exercise ordinary care and diligence to make his premises reasonably safe for his invited visitor. Ordinary care and diligence, as applied to the keeping-of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted. We think, however, that the allegation as to the worn and slippery condition of the stairway makes an issuable question as to the defendant’s negligence. If the stairway was no more worn and no slicker than those in ordinary use in other mills and similar places, the defendant was guilty of no breach of duty. We must confess that our greatest doubt in the case has arisen over the question as to. whether the allegations as to the stairway show a case of negligence at all; but we have finally concluded that enough is alleged to authorize submission to the jury on this point.

The question of the failure of the boy that was killed to use ordinary care to protect himself is also a jury question, not to be decided on demurrer. The jury may take the fact of his previous. acquaintanceship with the premises into consideration, not only in determining whether he could, by the exercise of ordinary care, have avoided the fatal injury (for if he knew of the condition of the stairway and was capable of appreciating its condition, a recovery can not be had), but also in determining whether the owner of the premises was negligent in inviting him in, under the circumstances; for it might be reasonably safe to allow a person acquainted with the condition of things to enter, where it would be wholly unsafe and correspondingly negligent to allow the same privilege to persons ignorant of the conditions.

A special demurrer raises the point that no time is alleged as to the allegation that the defendant’s agent invited young Dale tb enter. The petition must "aver a 'time when every material or traversable fact transpires.” This ancient rule of pleading has been recognized by our Supreme Court in its earliest utterances (Bond v. Central Bank, 2 Ga. 92, 100), as well as in its later rulings. Warren v. Powell, 122 Ga. 4 (49 S. E. 730).

Usually any date may be alleged, due regard being had for the statute of limitations, where applicable; for in ordinary cases the pleader will not be confined to the actual day named; but some specific time must be averred. Direction is therefore given that the trial court require the plaintiff to amend accordingly, and that in default thereof the petition he dismissed.

Judgment affirmed, with direction.