text:
    7582.
    FULTON v. METROPOLITAN CASUALTY INSURANCE COMPANY.
    1. The court did not err in excluding testimony as to sayings of the plaintiff’s husband regarding the probable cause of his pains or illness, these sayings not being within the exception to the hearsay rule as declared by the Civil Code (1910), § 5766. They were not a part of the occurrence to which they related, but rather a narrative concerning something that had taken place in the past.
    2. Where an accident policy insured against “the effects of bodily injuries sustained directly, solely, and exclusively through accidental means,” resulting in the death of the insured, it was necessary, in an action thereon, to show that in the act which preceded the injury alleged to have caused his death something unforeseen, unexpected, or unusual occurred.
    3. While, in such case, the allegation that the insured met his death “solely and exclusively through' accidental means, to wit, by the accidental straining' of his physical body through the exertion of pulling and pushing a boat from dry land into water, from the result of which straining a blood vessel in the stomach became ruptured and death ensued,” may be sustained by proof of circumstances, as well as by direct evidence, the proved facts in this case, considered in connection with the defensive facts developed upon cross-examination, were not sufficient to make a jury question. Accordingly the court did not err in directing a verdict. Évcms V. Josephine Mills, 119 6a. 448 (46 S. E. 674).
    Decided January 23, 1917.
    Action on insurance policy; from city court of Savannah— Judge Davis Freeman. May 10, 1916.

      Twiggs & Gazan, for plaintiff. Bryan> Jordan & Middlebroolcs, David 8. Athinson, W. R. Tichenor, for defendant.
   George, J.

Mrs. Fannie J. Fulton filed suit against the Metropolitan Casualty Insurance Company and alleged, that she was the widow of Abraham J. Fulton, that the defendant issued to him an accident policy, under the terms and stipulations of which he was insured for $3,000 against the effects of bodily injury sustained directly, solely, and exclusively through accidental means, and that for loss of life so resulting the defendant contracted and obligated itself to pay that sum to the beneficiary named in the policy, the plaintiff in this action; and that he died on September 12,1915, “directly, solely, and exclusively through accidental means, to wit, by the accidental straining of his physical body through the exertion of pushing and pulling a boat from dry land into water, and also from the accidental straining due to the casting of a seine net, from the result of which straining a blood vessel in the stomach became ruptured and death ensued.” The defendant in its answer denied the paragraph of the petition above quoted as to the cause of the death of the insured. Other defenses set up in the answer are not material to this decision. On the trial of the case the judge, at the conclusion of the plaintiff’s evidence, sustained a motion to nonsuit.

1. During the progress of the case the plaintiff sought to prove by three witnesses certain statements made by the deceased as to his physical condition and as to the cause thereof; and in each instance the court excluded the testimony offered. The plaintiff excepts to these rulings. These exceptions will be treated together. The evidence ruled out involves an identical principle of law. The answers excluded may be stated as follows: “I hurt myself in getting the boat out of the mud to go casting; I strained myself in lifting the boat out of the mud.” These statements were made some sixteen hours after the occurrence to which they related. There was no error in excluding this testimony. W. & A. R. Co. v. Beason, 112 Ga. 553 (37 S. E. 863).

2. The policy in this case insured against the effects of bodily injury sustained “directly, solely, and exclusively” through accidental means. There is an apparent and perhaps actual conflict in the decided cases, both English and American, in construing the clause contained in this policy and quoted above. Many of the courts have distinguished between a clause insuring against death by accident and a death occasioned by accidental means. There is a line of decisions holding that an injury may be “accidental in character” where it results from an intentional and voluntary act, performed in the usual, ordinary, and intended manner by the insured, while there is another line of decisions to the effect that, where the act itself was foreseen and intended, and performed in the ordinary and usual manner by the insured, the act can not be considered as an “accidental means.” This court is bound by the construction given the above-quoted clause by the Supreme Court of Georgia. Such a provision in an accident policy was considered by that court in Cobb v. Preferred Mutual Accident Association, 96 Ga. 818 (22 S. E. 976), and it was there ruled: “Where an accident insurance policy insured the person to whom it was issued ‘against bodily injuries effected through external, violent, and accidental means/ and on the trial of an action thereon, predicated upon the loss of an eye, it appeared from the evidence that the plaintiff, while in an emaciated and feeble condition, after safely alighting from a train, carried his baggage, weighing from sixty to eighty pounds, a distance of about fifty yards and ‘injured himself in some way or other’ in so doing, so that soon after putting the baggage down a defect in the vision of one of his eyes became apparent, which finally resulted in a total loss of sight as to that eye; and it also appeared that the plaintiff had not fallen, nor received a blow, or jar, or shock of any 'kind, and that there was nothing unusual in his manner of carrying the baggage or in his locomotion while so doing, no case for a recovery was made. Even if the plaintiff’s injury was attributable to the carrying of the baggage, it was not effected by ‘external/ ‘violent/ or ‘accidental’ means in the sense in which these words are used ‘in the policy.” Counsel for the plaintiff in error insist that the words “external” and “violent,” in the policy in that case distinguish it from the case now under consideration; but it is to be noted that the decision in that ease declares that the means alleged to have produced the injury were not effected by external, violent, or accidental means in the sense in which these words were used in the policy. The Supreme Court, in Atlanta Accident Association v. Alexander, 104 Ga. 709 (30 S. E. 939, 42 L. R. A. 188), again construes the same provision involved in the Cobb case, supra. It is to he noted that in both cases the decisions were announced by Chief Justice Simmons. In the course of his opinion in the Alexander case he'said: “We think the evidence in the present case was sufficient to authorize the jury to infer that the plaintiff’s husband was injured in the manner described in the policy. It appears from the record that he was a hale, hearty man; his occupation was that of blacksmith; it was his duty upon this occasion to use a heavy sledge-hapimer; he had used it many times before in the course .of his business; on this particular occasion, in striking a slanting blow he suddenly felt a severe pain in the lower part of his abdomen; the injury proved to be a rupture producing hernia, which injury resulted, in a few days, in death. Taking all the facts together, the fact of his previous good health, the fact that he had many times before used the hammer, the sudden pain after the blow of the hammer, and other facts which appeared, the jury could properly infer that the act which preceded the injury was something unforeseen, unexpected, and unusual, and that the injury resulted directly and immediately from such act, and was therefore produced by external, violent, and accidental means.” Attention is called to the concluding sentence in this quotation. This sentence states the rule as announced in the Cobb case, supra, and as set forth in the second headnote in the present case.

In the case of the Continental Casualty Co. v. Pittman, 145 Ga. 641 (89 S. E. 716), the Supreme Court decided as follows: “It appearing from the evidence, on the trial of an' action upon a policy of accident insurance, that the insured died from sunstroke which overcame him as he was performing his ordinary duties as fireman on a locomotive engine on a hot summer day, and nothing appearing to show that the sunstroke was due to ‘external, violent, and accidental means,’ within the meaning of these terms as used in the policy, the verdict in favor of the beneficiary therein was unauthorized.” One clause in the policy under construction in the case last cited provides for the payment of indemnities set forth for bodily injuries caused through external, violent, and purely accidental means, and another clause reads as follows: “If sunstroke, freezing, or hydrophobia, due in either case to external, violent, and accidental means, shall result, independently of all other causes, in the death of the insured within ninety days from the date of exposure or infection, the company will pay said principal sum.” The person insured in that ease was a railroad fireman- and occupied a position on the sunny side of the cab of his engine. The weather was very hot, and he was exposed to the sun and to the heat of the engine. He became overheated, was taken with a high fever, and suffered a sunstroke produced by the extremely high heat to which he had been subjected in the performance of his duties. To quote from the opinion of the court in that case: “The death of the insured was from sunstroke, which overcame the decedent while he was performing his ordinary duties in the ordinary way upon a hot summer day; there is nothing in the evidence to show that the sunstroke was due to external, violent, and accidental means,’ within the meaning of those terms as'employed in the policy sued upon.”

It will be seen that, if there is a seeming conflict between the Cobb ease and the Alexander case, supra, the Pittman case,- supra, decided by the Supreme Court on August 18, 1916, recognizes the rule which we have adopted in the second headnote in the instant case. The rule which seems to reconcile the cases involving a construction of this, or a similar clause, in an accident policy of insurance, is that when the facts show that no unforeseen, unexpected, unusual, unintentional, or involuntary muscular effort or exertion occurred in the doing of the act which preceded the injury, the injury can not be regarded as resulting from accidental means; but where the circumstances under which the injury was sustained were such as to call for a severe effort or exertion, in the course of which the insured may have been placed in a position where some unforeseen, unexpected, unusual, unintentional, or involuntary movement produced a physical injury, it is a question of fact for the jury whether the injury was caused by such involuntary strain; in which ease the means are accidental.

It is not suggested that all of the decisions of the American courts can be harmonized upon the rule stated, but, applying the same to the Cobb case, ■ supra, it will be seen that the facts precluded the reasonable probability that any unintentional or involuntary strain or demand was made upon the plaintiff, while in the Alexander ease, supra, the insured was using a hammer which he intended to use, and in a way in which he intended to use it, and in a way in which he had used it many times before in the course of his business, yet in striking a slanting blow he suddenly felt a severe pain in the lower part of his abdomen. These facts, coupled with his previous good health, do not preclude the reasonable probability that on the occasion of his injury he may have unexpectedly and unintentionally placed himself in a position which called for the unusual strain upon the muscles of his abdomen and produced the injury from which he died. The question to be determined is whether, in the doing of the act, intentionally and purposely undertaken, anything occurs, or any facts or circumstances are shown, from which the jury may reasonably infer that something did occur to call for unintentional and involuntary physical exertion on the part of the insured. The insured may have attempted in an ordinary and accustomed way to perform a particular act, and if he did so, and if there were no facts from which it can legally be found by the jury that anything unforeseen or unexpected occurred to require of the insured unintentional or involuntary physical exertion, his death can not be considered as resulting from accidental means, within the meaning of the terms of the policy involved in the instant case.

3. The conclusion stated in the third headnote requires no elaboration. The plaintiff relied entirely on circumstances to prove the cause or means of injury alleged to have been sustained by the insured, and the proved facts do not meet the requirements of the rule of circumstantial evidence as applied to civil cases. The judge did not err in granting a nonsuit.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    7589.
    Whitehead v. Arnold.
   Luke, J.

1. The exclusion of certain evidence relating to the number and amount of payments made upon the land of the plaintiff (upon which ■was grown the crop sued for in this trover action) was not error, it being admitted by the defendant that the bond for title and the remaining notes for the purchase of the land had been surrendered by agreement between the parties in 1913, whereas this action related to the crops produced on the land in the year 1914.

Í. No material error is shown in the excerpt from the charge of the court complained of.

Decided January 23, 1917.

Trover; from Jasper superior court—Judge Park. May 26, 1916.

E. M. Baynes, for plaintiff in error. Doyle Campbell, contra.

3. Tlie issue of fact as to whether the defendant was farming the land under a bona fide claim of right as purchaser thereof, or whether he was a cropper' under contract as testified by the plaintiff, was settled by the verdict. There was evidence to authorize the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Wade, C. J.

text:
    7595.
    Rhodes v. Savannah Gas Company.
    Decided January 23, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. May 13, 1916.
    6r. H. Richter, for plaintiff. Adams & Adams, for defendant.
   Wade, C. J.

From the allegations in the petition it clearly appears that

the proximate cause of the injury was the negligence of a fellow servant engaged with the plaintiff in performing the same work (Whitfield v. L. & N. Railroad Co., 7 Ga. App. 268, 270, 66 S. E. 973, and cases there cited; McDonald v. Eagle & Phenix Mfg. Co., 68 Ga. 839, 844; Hamby v. Union Paper Mills Co., 110 Ga. 1, 35 S. E. 297; Moore v. Dublin Cotton Mills, 127 Ga. 624, 56 S. E. 839; Studevant v. Blue Springs Lumber Co., 16 Ga. App. 668, 85 S. E. 977) ; and since the proposed amendment set up no sufficient additional facts to make a cause of action, the trial court did not err in refusing to allow the amendment and in thereafter sustaining the oral motion to dismiss the petition. McCook v. Crawford, 114 Ga. 337 (40 S. E. 225) ; Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280) ; Ridgway v. Bowser, 14 Ga. App. 300 (80 S. E. 692). Judgment affirmed.

George and Luke, JJ., concur.


author: George, J.

text:
    7618.
    KIRKLAND v. CITIZENS TRUST COMPANY OF UTICA, NEW YORK, for use, etc.
    1. An amendment by which the payee of promissory notes not transferred in writing was added as plaintiff, suing for the use of the original plaintiffs, was allowable in an action on the notes, brought against the maker by indorsers, who (as appeared from their notice of intent to sue, attached to and made a part of the original petition) were the holders of the notes, on which they alleged the defendant was indebted to them, although it was not alleged that they had paid off the notes,

      2. The amendment adding the payee of the notes as plaintiff, suing for the use of the original plaintiffs, did not render ineffectual the notice given by the original plaintiffs for the purpose of recovering attorney’s fees.
    Decided January 23, 1917.
    Complaint; from city court of Floyd county—Judge Nunnally. May 20, 1916.
    Ferris, Lewis, and Fuller brought suit against Kirkland on two promissory notes, payable to the Citizens ‘Trust Company of Utica, New York, or order, signed by Kirkland and indorsed by Ferris, Lewis, and Fuller. It did not appear from the original petition or the exhibits that any of the notes had been transferred to the plaintiffs, nor was it alleged that the indorsers had paid off the notes, but it was alleged that the defendant was indebted thereon to the petitioners; and copies of the notices served upon the defendant for the purpose of fixing liability for attorney’s fees, and made a part of the petition, state -that the petitioners are the “present holders” of the notes. " The notices claiming attorney’s fees identify the notes and demand payment thereof in the name of the plaintiffs. The defendant made a motion to dismiss the suit, on the grounds, that the petition set forth no cause of action in favor of the plaintiffs, that it appeared that the title to. the notes sued on was in the Citizens Trust Company, and that there was no assignment of the -notes and no allegation that the plaintiffs had paid off the notes. On the hearing of the motion the plaintiffs tendered an amendment making the Citizens Trust Company a party plaintiff, suing for the use of Ferris, Lewis, and Fuller. To this amendment Kirkland objected, on the ground, that it added a new and distinct party plaintiff, and that there was nothing in the original petition to amend by. The court allowed the amendment and overruled the. motion to dismiss the action, and (no defense having been interposed) rendered judgment for the full amount of principal, interest, and attorney’s fees sued for; and the case was brought to this court for review.

      M. B. Eubanks, for plaintiff in error. Benny & Wright, contra.
   George, J.

(After stating the foregoing facts.)

1. The amendment was properly allowed by the court. Neal Bank v. Bruce, 137 Ga. 361 (73 S. E. 503); Gelders v. Kennedy, 9 Ga. App. 389 (71 S. E. 503); Toole v. Cook, 15 Ga. App. 133 (82 S. E. 772).

2. The court properly entered judgment for attorney’s fees, the notices served upon the defendant fully describing the notes upon which suit was brought, and expressly alleging that Ferris, Lewis, and Fuller were the “present holders” of the same. The point raised as'to the notice was expressly ruled upon in Gelders v. Kennedy, and Toole v. Cook, supra.

There is a motion in this case to assess damages for delay, and we think that the motion is meritorious. Damages are therefore awarded in favor of the defendant in error and against the plaintiff in error in terms of the statute.

■Judgment affirmed, with damages.

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


text:
    7625.
    English v. Griffin Mercantile Company.
    Decided January 23, 1917.
    Certiorari; from Monroe superior court—Judge Searcy. May 6, 1916.

      B. H. Manry, for plaintiff in error.
   Luke, J.

Under the facts of this cause, as shown by the answer of the justice of the peace to the certiorari, the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    7632.
    HARRIS v. EXCHANGE BANK OF FORT VALLEY.
    The judgment of-this court at the October term, 1915, in the case then pending between the parties in this matter, was a final judgment upon the controlling questions in the affidavit of illegality; and the court did not err in dismissing the affidavit of illegality on motion.
    Decided January 23, 1917.
    Affidavit of illegality; from city court of Houston county— Judge Eiley. June 23, 1916.

      Duncan & Nunn, for plaintiff in error.

      Brown & Brotvn, contra.
   George, J.

This case was before this court at the October term, 1915. Harris v. Exchange Bank of Fort Valley, 17 Ga. App. 700 (88 S. E. 40). The case was then considered on the refusal of the trial court to set aside and vacate the judgment upon which was issued the execution to which the present affidavit of illegality is filed. The grounds of the motion to set aside 1he judgment, so far as material here, are: (1) Movant was not a party to the trial of the case in the court below, and never had his day in court. (2) Movant made answer to a summons of garnishment in this case, but did not admit any indebtedness to the defendant in fi. fa. Subsequently a claimant interposed a claim to the fund referred to in the answer of movant and gave a bond to dissolve the garnishment, and for this reason no legal judgment could thereafter be rendered against movant. (3) Movant’s answer, in which indebtedness to the defendant was denied, was not traversed, and no valid judgment could have been rendered against him without a traverse of his answer. All the questions made by movant on the former review of this case were ruled against him. It must therefore be considered as finally adjudicated in this case that the plaintiff in error was a party to the proceeding in which judgment was rendered against him, that no-traverse of his answer in that proceeding was necessary, that the said answer did admit indebtedness due by him to the defendant in the main case, and that the judgment rendered against him was legal and binding. In the affidavit of illegality stricken by the order now- under review it is alleged: (1) The debt purported to be represented by said execution has been paid by this defendant in full, payment being made to the alleged claimant after the filing of a claim bond and before judgment against the plaintiff in error was rendered in the court below. (2) Defendant never had his day in court and has been denied his constitutional right of trial by jury. (3) The court rendering the judgment was without jurisdiction to render the same, there being no pleadings upon which any judgment could be legally rendered against the plaintiff in error. (4) The third ground is amplified in the 4th, in which it is again averred that, without a traverse to the answer of plaintiff in error in the garnishment proceedings in the court below, no legal judgment could have been rendered against him.

The presiding judge properly dismissed, on motion, the affidavit of illegality. The validity of the judgment having been declared by this court, the plaintiff in error can not go behind the judgment and plead a payment thereof to an alleged claimant, made by him before the judgment was entered against him. He is precluded, upon every ground made in his affidavit, of illegality, by the rule last announced, and by the order of the trial judge refusing to vacate and set aside the judgment. If res adjudicata is a matter for plea only, as is insisted by counsel for the plaintiff in error, and if a trial court may not take notice of the matters appearing of record in the same case and before him upon the trial of an issue raised in the case, including former judgments of the court, certainly the trial judge is, under the circumstances of this case, bound to enforce the ruling of this court in the same cause, involving the same questions, in the main, and between the same parties. In Robinson v. Dumas, 43 Ga. 614, Judge McCay ruled that the affidavit of illegality in that case was properly stricken on motion. The precise point made by counsel for the plaintiff in error in this case was not raised in the case last cited, and the decision in that case may not he authority binding upon this court, but the judgment dismissing the affidavit of illegality must, for the reasons hereinabove stated, be affirmed. This inevitably follows, since this court has held the very judgment in question to be legal and binding on the plaintiff in error.

Judgment affirmed.

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


text:
    7653.
    THOMPSON OIL MILL CO. v. MURRAY CO.
    The undisputed evidence demanded a finding for the plaintiff in at least the amount recovered. The court therefore did not err in directing the verdict.
    Decided January 23, 1917.
    Complaint; from Pulaski superior court—Judge Graham. June 13, 1916.

      W. L. Grice, Hall & Grice, Charles J. Bloch, for plaintiff in error. H. F. Lawson, contra.
   George, J.

The Murray Company brought suit against the Thompson Oil Mill Company upon an open account, in the city court of Pulaski county. That court was abolished and the case transferred to the superior court of Pulaski county, in which court the trial resulted in the direction of a verdict for the plaintiff. While the case was pending in the city court of Pulaski county the plaintiff filed a demurrer to the answer of the defendant; the demurrer was overruled in part and sustained in part, and to that ruling no exception was taken. The case is here upon exceptions of the defendant to the overruling of a motion for a new trial and to the direction of the verdict.

The Murray Company sold to the Thompson Oil Mill Company, upon a written order, certain parts of machinery to be used in connection with a gin plant, already in operation. The defendant admitted that it received the articles sued for, but alleged, that one of its gin plants had been damaged by fire; that it was necessary to make repairs thereon, and that its manager, who gave the order for the parts of the machinery, was unfamiliar with machinery, and, in purchasing the articles sued for, relied upon representations as to what was necessary to put the gin in good condition, made by the salesman of the Murray Company; that when the articles ordered were received it was found that they would not fit, in that the feeder system was too shallow one way and too wide the other, but it is admitted by the defendant that these feeders were made to answer the purpose by the outlay of $25 in labor and material. It was alleged that the press boxes also gave trouble, but that these were made to answer the purpose upon an outlay of $50 in labor and material. In this connection it was claimed by the defendant that the purchase of a hydraulic system, at a cost of $500, was necessary to make the press boxes ' answer the purpose for which they were intended. It is to be noted, however, that the judge of the city court struck this particular allegation of damage upon demurrer, and no exception was taken. The defendant further contended that it operated two gin plants, one of which was operated under the plant’s own power, and the other of which was operated with power furnished from the oil mill, with which the two gin plants were connected. It alleged that it was not able to do any ginning with one of the plants and was forced tó do all the ginning with the plant farthest removed from the power system of the oil mill, at an extra cost in fuel and labor of $1000. It also claimed certain other items of damage, to wit: expenses on the articles covered by the bill of particulars, $17; freight on all articles ordered, $68; and for labor in taking out the cylinder and changes thereon, $75. The defendant summed up its allegations by a plea of total failure of consideration, and asked, in addition, for recoupment of damages in a sum stated.

It is contended by the plaintiff in error that the law of the case was fixed in the city court, and that the ruling upon the demurrer in that court was controlling upon the judge of the superior court. On a careful reading of the entire record in the case it will be seen that this contention is beside the question. The verdict could not have been directed upon the theory advanced by the plaintiff in error, that the items of damage claimed were not recoverable. Manifestly the court, in directing the verdict, must have gone on the theory that, after allowing the defendant all the items of damage which it had proved, or which, the evidence offered even tended to prove, the undisputed evidence in the case entitled the plaintiff to a verdict in at least the sum directed by the court. The plaintiff consented-to the direction of the verdict by the court. It is true that the defendant’s superintendent testified: “We ginned only 97 bales of cotton on 8 seventy-saw gins during one season.” There is not a line in the evidence tending to show the cost of fuel and labor necessary in order to do the ginning required of the defendant on its gin plant farthest removed from its power plant. The evidence does not disclose how many bales of cotton could, or might have been, ginned upon the particular gin plant for which the articles were purchased, during the season when only 97 bales were in fact ginned, nor indicate in any way what profit it thereby lost. The evidence for the defendant shows that only two of the articles sold the defendant were not properly adjusted to its gin system in use. To quote from the evidence of its witness Wynne: “Only two things were wrong, the feeder system and press boxes.” There was no inherent defect in either of these parts, but certain work had to be done in order to fit these parts to the system in use by the defendant. It was admitted by the defendant that every article furnished by the plaintiff was finally made to serve the purposes of the defendant. The superintendent, Mr. Peacock, admitted that-none of the parts furnished by the plaintiff were worthless. The contention of the defendant was that they were worthless to it before they were adjusted to the system in use by the defendant. The plea of total failure of consideration was therefore wholly unsustained by the evidence. See Trippe v. McLain, 87 Ga. 536 (13 S. E. 523); Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558 (54 S. E. 538). The trial judge allowed the defendant every item of damage supported by the evidence in the case. Moreover, he did not allow interest on the account, which under the undisputed evidence matured in July, 1913. If the accrued interest from July, 1913, to the date of the verdict, March 16, 1916, should be taken into account, it is plain that deductions in excess of every item of damage referred to in the evidence have been allowed the plaintiff in error; and it is therefore in no position to complain of the verdict directed against it. The judgment is therefore

Affirmed.

Wade, O. J., and Lulce, J., concur.


author: Wade, O. J.

text:
    7691.
    Lowe Company v. Patterson.
    Decided January 23, 1917.
    Complaint; from city court of Nashville—Judge Lankford. November 30, 1914.

      Hendricks & Hendricks, Louis A. Mills, for plaintiff.

      Joseph A. Alexander, for defendant.
   Wade, O. J.

The suit, as amended without objection, being obviously a suit to recover an .amount of money alleged to have been overpaid to the defendant for certain shingles, together with expenses incurred in connection with the disposition of- the shingles, and the undisputed evidence disclosing that the amount realized on resale was more than the total amount advanced by the plaintiff to the defendant and the expenses, the court did not err in directing a verdict generally for the defendant. As the verdict directed was demanded, the exceptions based upon the admission of certain testimony, which could not have affected the result under the foregoing ruling, need not be considered.

Judgment affirmed.

Wade, 0. J., and Lulce, J., concur.


text:
    7876.
    Eason v. The State.
    Decided January 23, 1917.
    Indictment for sale of liquor; from Tattnall superior court— Judge Sheppard. August 31, 1916.

      II. H. Elders, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   George, J.

No error of law is complained of, and the evidence is sufficient to show the guilt of the accused beyond a reasonable doubt.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.


text:
    7878.
    Nelson v. The State.
    Decided January 23, 1917.
    Indictment for sale of liquor; from Tattnall superior, court-judge Sheppard. August 31, 1916.

      H. H. Elders, for plaintiff , in error.

      W. F. Slater, solicitor-general, contra.
   Wade, C. J.

There was direct evidence to support the verdict of guilty. The motives actuating the witnesses for the State were for consideration by the jury in weighing their testimony, and may not be inquired into by this court. There was no error in overruling the motion for a new trial, which was based on general grounds only.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    7910.
    Peek v. City of Atlanta.
    Decided January 23, 1917.
    Certiorari; from Fulton superior court—Judge Bell. September 28, 1916.

      G. G. Battle, for plaintiff in error.
    J. L. Mayson, S. D. Hewlett, contra.
   George, J.

No error of law is complained of; and the evidence is ample to support the judgment of the recorder, finding the defendant guilty. Accordingly, the judge of the superior court did not err in overruling the petition for certiorari.

Judgment affirmed.

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


text:
    7921.
    Haynes v. The State.
    Decided January 23, 1917.
    Accusation of misdemeanor; from city court of Nashville—■ Judge Christian. October 16, 1916.

      William Story, for plaintiff in error.

      J. H. Gary, solicitor, J. P. Knight, contra.
   Wade, C. J.

The motion for a new trial being based upon the general grounds only, and the evidence being sufficient to support the verdict, the judgment is Affirmed.

George and Luke, JJ., concur.


author: Geobqe, J.

text:
    7922.
    West v. The State.
    Decided January 23, 1917.
    Accusation, of gaming; from city court of Madison—Judge Anderson. October 23, 1916.

      Williford & Lambert, for plaintiff in error.

      ‘A. G. Foster, solicitor, contra.
   Geobqe, J.

1. Objection that one of the grand jurors named on the indictment and who returned the indictment was ineligible as a grand juror, because he had served as a grand juror of the court at the term thereof next preceding the finding of the indictment, should have been made by challenge, it affirmatively appearing that the defendant was arrested, gave bond, and was fully apprised of the fact that the grand jury returning the time bill of indictment would investigate the case against him; and this is true whether the grand juror was a regularly drawn juror or was “caught up” by the sheriff under instructions of the court. The disqualification of the grand juror is propter defectum. On being sworn he stood upon the same basis as if he had been regularly drawn. His service became a matter of public record, and of challenge by the defendant in the exercise of due diligence. The plea in abatement, setting up the ground indicated above, was properly overruled. Folds v. State, 123 Ga. 167 (51 S. E. 305) ; Edwards v. State, 121 Ga. 590 (49 S. E. 674); Parris v. State, 125 Ga. 777 (54 S. E. 751); Brooks v. State, 12 Ga. App. 104 (76 S. E. 765).

2. The sheriff, before the call of the case for trial, remarked that “Bob West [the defendant] was a very good negro, but would gamble or skin,” and this remark was made the basis for a motion for continuance of the case, for trial by another jury; whereupon the court ordered the entire panel of jurors to be put upon the voir dire, required the statutory voir dire questions to be propounded to each juror, and in addition inquired of each juror whether he heard the remark of the sheriff, 'and whether such remark would influence him upon the trial, and especially instructed the jurors that the case should be tried according to the evidence, and not upon the remark of the sheriff. Beld: The • motion was properly overruled. If the motion is considered either as a challenge to the array or to the poll, the timely conduct of the judge, the investigation made by him, and-his decision that the jurors were qualified to try the case, were at once proper and correct. Compare Wells v. State, 102 Ga. 658 (29 S. E. 442); Lewis v. State, 118 Ga. 803 (45 S. E. 602); Bryan v. State, 124 Ga. 79 (52 S. E. 298).

3. There was positive evidence of the guilt of the accused, and, although there was an attempt to impeach the witness for the State by proof of bad character, the jury believed his testimony.

Judgment affirmed.

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


text:
    7926.
    Phillips v. The State.
    Decided January 23, 1917.
    Accusation of keeping gaming-bouse; from city court of Columbus—Judge Tigner. October 7, 1916.

      McLaughlin, & Shanks, for plaintiff in error.

      T. E. Fort, solicitor, contra. .
   Wade, C. J.

1. The accusation charged that the defendant did, on a day named, “unlawfully and with force and arms by himself, servants, and agents, keep, have, use, and maintain a gaming-house and room, and, in a house, place, and room occupied by him, permit persons to come together with his knowledge, and play for money and other valuable • things at games and devices for the hazarding of money and other things of value, contrary to the laws,” etc. There was circumstantial evidence from which it might be inferred, to the exclusion of every other reasonable hypothesis, that a game played with cards and poker-chips was in progress when the room of the defendant was entered by the police officers, but there was no direct evidence, nor any circumstance in proof, from which. it could be inferred, to the exclusion of every other reasonable hypothesis, that either money or other thing of value was placed at hazard in any game, or that any bet or wager had ever been made at any time in the room controlled and occupied by the defendant. The defendant did not own or control the entire building, and the proof that certain persons known by common repute as gamblers had been often seen to enter and leave the building, though never seen in the room occupied by the defendant (while it was a circumstance which might furnish corroboration, if the fact of gaming in the room of the defendant had been otherwise shown), was not sufficient in itself to establish the character of the room or place used and maintained by the defendant. Eeld: The evidence did not support the inference of the defendant’s guilt to the exclusion of every other reasonable hypothesis, and the trial judge therefore erred in overruling the motion for a new trial. See Nix v. State, 15 Ga. App. 470 (83 S. E. 876), and cases there cited. The case of Dudley v. State, 18 Ga. App. 509 (89 S. E. 599), is not in conflict with the above ruling as to the admissibility of testimony relating to the general reputation of a place, in a prosecution for keeping a gaming-house.

2. The assignment of error not covered by the foregoing ruling relates, to a matter not likely to recur on another trial, and therefore need not be passed upon. Judgment reversed.

George and Luke, JJ., coneur.


text:
    7936.
    Peterson v. The State.
    Decided January 23, 1917.
    Indictment for burglary; from Fulton superior court—Judge B. IT. Hill. October 21, 1916.

      T. J. Ripley, W. M. Bailey, for plaintiff in error.

      John A. Boykin, solicitor-general, Eb. T. Williams, E. A. Stephens, A. L. Ivey, contra.
   Wade, C. J.

Not only was there proof of a plenary confession by the accused, apparently made without improper inducement, but the corpus delicti was shown by independent testimony, and there were circumstances in proof which definitely connected the accused with the perpetration of the crime. Proof of the corpus delicti may itself be sufficient corroboration of a confession. Wimberly v. State, 105 Ga. 188 (31 S. E. 162) ; Westbrook v. State, 91 Ga. 11 (16 S. E. 100) ; Davis v. State, 105 Ga. 808, 813 (32 S. E. 158) ; Sutton v. State, 17 Ga. App. 713, 714 (88 S. E. 122, 587), and cases there cited. The amount of corroboration necessary is not fixed, but is for the jury. Griner v. State, 121 Ga. 614 (49 S. E. 700) ; Holsenbake v. State, 45 Ga. 43; Cook v. State, 9 Ga. App. 208 (70 S. E. 1019).

Judgment affirmed.

George and Luke, JJ., concur.


text:
    7962.
    Bryant v. The State.
    Decided January 23, 1917.
    Indictment for murder—conviction of voluntary manslaughter; from Hall superior court—Judge J. B. Jones. October 9, 1916.

      W. B. Sloan, E. 0. Dobbs, O. B.' Faulkner, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Wade, O. J.

1. The evidence made out a case of justifiable homicide or of murder, and the court therefore erred in instructing the jury as to the law of voluntary manslaughter.

2. The exception taken to certain remarks of counsel for the State need not be considered, since the case must be retried, and it is not reasonable to suppose that the remarks complained of, which were withdrawn by counsel, will be repeated. The remaining exceptions are without merit. Judgment reversed..

George and Luke, JJ., concur.


text:
    7976.
    CLARK v. THE STATE.
    Although the sheep alleged to have been stolen were only temporarily absent from the place from which they were missed, and the evidence against the accused was wholly circumstantial, the circumstances were sufficient to authorize the verdict of guilty.
    Decided January 23, 1917.
    Indictment for larceny; from Mitchell superior court—Judge Cox. April 1, 1916.
    From the evidence it appears that two lambs were in the possession of the accused at or near the time and place at which two lambs alleged to have been stolen from J. E. Collins were missed; and two or three weeks later the missing lambs were found in the same place. The defendant, in his statement at the trial, said that he had never bothered” any of Mr. Collins’s sheep or brought any of them to his own place; but his possession of two lambs or sheep at the time or place mentioned above was not denied or explained by him. Collins testified, that his sheep ranged at Flint, and stayed a good deal around and under Cochran’s cottonseed house, near Cochran’s store, at that place; that the first of September, 1915, he left there after dinner, and on his return, about four o’clock, was told that two of his sheep had been taken away; that he called up his sheep and found that two lambs were missing; that there were tracks of a buggy which seemed to have been drawn by a horse, at the corner of the cottonseed house, where the sheep were supposed to have been pulled from under the house; and a lot of dry litter and some wool had been pulled out from under 'the house; that previously on the same day and before leaving the place he saw the accused at Flint and bought a turkey from him; that the accused lived about eight miles from there; that a search warrant was issued and the defendant’s place searched three or four days after the disappearance of the sheep, but they were not seen'until two or three weeks later, when they came back or were returned to their range near the store; that he did not look to see if they were there on the morning of the day on which they disappeared, and had not seen them for two or three days prior to that day; and that they were not marked. From the testimony of A. A. Cameron and A. W. Lanier it appeared that they were together in a buggy at Flint in September, 1915, and saw two lambs or sheep in a buggy in which was a man identified by Lanier as the accused; Cameron testified that he did not know the defendant, but “he favors him right smart;” that the buggy was drawn by a gray horse and was 50 or 75 yards from Cochran’s cotton-house; that about half an hour before that, when going from the store .to the gin-house, he saw somebody around the corner trying to catch something, and went on around there and did not see anybody; there was no buggy about the house then; he saw a buggy under the shelter at Cochran’s store at the end of the cotton-house; he thought Collins was then on the river tending to some fish baskets, and not in Mint; he knew' Collins missed some sheep about that time. Lanier testified that before the accused passed them in the buggy with the sheep, he saw the accused in the store at Mint on the same day, and saw his buggy standing at the shelter at the corner, but did not then see any sheep; he did not know what month it was. R. P. .McDaniel testified that some time early- in the fall of 1915 he saw the accused seven or eight miles from Flint, driving a gray horse, with some sheep, and three or four days later saw Collins, the prosecutor, pass in a buggy with an officer; and- that the defendant’s father owned sheep.

      Johnson & Warren, for plaintiff in error.

      B. G. Bell, solicitor-general, F. A. Hooper & Son, contra.
   George, J.

The evidence in this case, though circumstantial, was -sufficient to exclude every other reasonable hypothesis than that of the guilt of the accused. Therefore the verdict finding him guilty of sheep-stealing, which has the approval of the trial judge, will not be disturbed, although it does appear, as counsel for the plaintiff in error insist, that the stolen sheep came back; as was true in the case of “Bo-Peep,” which is respectfully submitted to us as authority. While the sheep came back, it does not appear that this is in any wise conclusive that they had not been in fact taken and carried away, as alleged in the indictment; it being entirely for the jury to say whether.or not an extended search by the prosecutor, armed with a search warrant, of which the accused had actual notice, some three weeks before the home-coming of the sheep, may riot have influenced their return.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.


text:
    7987.
    HARPER v. THE STATE.
    The evidence was sufficient to authorize the conviction of the accused of the offense of keeping on hand intoxicating liquors at his place of business.
    Decided January 23, 1917.
    Accusation of misdemeanor; from city court of Nashville— Judge Christian. October 16, 1916.

      J. D. Lovett, for plaintiff in error.

      J. S. Gary, solicitor, contra.
   Wade, C. J.

The defendant was convicted of the offense of keeping liquors on hand at his place of business. One witness testified that the defendant was in his place of business “all day, and was drinking from a bottle that was sitting on the counter;” and also that the defendant was drunk, “was drinking in the morning, drinking in the afternoon, and drinking that night.” From this and other testimony the jury were authorized to infer that the defendant was drinking from a bottle containing whisky, in his place of business, on the date charged. The quantity kept at a place of business being immaterial, this direct testimony itself would have authorized his conviction. There was, however, proof that a large package containing whisky was likewise stored in the defendant’s place of business on the same date, arid there were circumstances in proof sufficient to exclude the hypothesis that the accused had no knowledge of its presence. The verdict having been approved by the trial judge, and there being some evidence to support it, this court may not set it aside.

Judgment affirmed.

George and Lulce, JJ., concur. 9


text:
    8004.
    Ellis v. City of Greensboro.
    Decided January 23, 1917.
   George, J.

No error of law is complained of, and the judgment of the mayor, finding the defendant guilty, is supported by direct evidence, and has been approved by the judge of the superior court. This court will not interfere with the judgment, although the credibility of the witness sworn for the city is attacked by more than one witness. Combs v. Carrollton, 17 Ga. App. 328 (86 S. E. 738); Rice v. Eatonton, 15 Ga. App. 505 (83 S. E. 868).

Judgment affirmed.

Wade, C. J., amd Lulce, J., eoneur.

Certiorari; from Greene superior court—Judge Park. November 4, 1916.

J. 0. Faust, for plaintiff in error. Noel P. Park, contra.


author: Jenkins, J.

text:
    7236.
    McMILLAN v. HEARD NATIONAL BANK OF JACKSONVILLE.
    1. In a suit on a promissory note a petition in two separate and distinct counts, one against the defendant as maker and the other against him as surety, is not duplicitous.
    .2. When a joint action is brought against the principal and the surety on a joint and several promissory note, and the plaintiff, by amendment, voluntarily dismisses his action against the principal, the surety is not thereby ipso facto discharged from liability.
    3. A surety on a promissory note providing for the payment of attorney’s fees is ordinarily liable therefor.
    Decided January 23, 1917.
    Complaint; from city court of Savannah—Judge Davis Freeman. December 10, 1915.
    The Heard National Bank of Jacksonville brought suit against the South Atlantic Blow Pipe and Sheet Metal Company as maker and T. H. McMillan as indorser, on writings which were as follows:
    “Jacksonville, Fla., Oct. 6, 1914.
    “Sixty days after date we promise to pay to the order of the Heard National Bank of Jacksonville $5,000.00—five thousand dollars, with interest after maturity at the rate of ten per cent, per annum until paid, for value received. Negotiable and payable at the Heard National Bank of Jacksonville; and if not paid at maturity this note may be placed in the hands of an attorney at law for collection, and in that event it is agreed and promised by the makers and indorsers severally to pay an additional sum of ten per cent, of the face hereof for attorney’s fees.
    “South Atlantic Blow Pipe & Sheet Metal Co. (Seal).
    by R. H. McMillan, Mgr. (Seal).
    “(Indorsement) Presentment, protest, and notice of dishonor are hereby waived by each and every indorser hereon. T. H. McMillan. Pay to the order of Chase National Bank. The Heard National Bank. 63-14, Jacksonville, Fla. 63-14. J. J. Heard, Pres'. Indorsement cancelled.”

      “Jacksonville, Fla., Nov. 5, 1914.
    “Thirty days after date we promise to pay to the order of the Heard National Bank of Jacksonville $1250.00—twelve hundred and fifty dollars, with interest after maturity at the rate of ten per cent, per annum until paid, for value received. Negotiable and payable at the Heard National Bank of Jacksonville; and if not paid at maturity this note may be placed in the hands of an attorney at law for collection, and in that event it is agreed and promised by the makers and indorsers, severally to pay an additional sum of ten per cent, of the face hereof for attorney’s fees.
    “South Atlantic Blow Pipe & Sheet Metal Co. (Seal).
    T. H. McMillan, Pres. (Seal).
    “ (Indorsement on back) Presentment, protest, and notice of dishonor are hereby waived by each and every indorser hereon.
    “T. H. McMillan.”
    The defendant McMillan demurred both generally and specially and answered, the ground of the special demurrer being that the petition failed to set out any fact that constituted a contract of indorsement on his part. On July 10, 1915, the court sustained the special demurrer and allowed the plaintiff to amend the petition, which was done'on July 16, 1915, by setting out that the defendant McMillan was surety instead of indorser on the notes sued on. By another amendment on the same day the plaintiff added to the petition a separate and distinct count, suing McMillan as maker on the notes jointly with the South Atlantic Blow Pipe and Sheet Metal Company. McMillan renewed his general demurrer, and demurred specially to the petition as amended, on the ground that it was duplicitous, because the latter amendment made equivocal allegations as to the right to recover, in that he was sued both as maker and surety. These demurrers were overruled, and exceptions pendente lite were filed by McMillan, and error is assigned thereon. By an amendment allowed on November 10, 1915, the plaintiff voluntarily dismissed its action against the South Atlantic Blow Pipe and Sheet Metal Company, without prejudice to any rights the plaintiff might have against that defendant, and proceeded solely-against McMillan.
    To the petition as amended McMillan demurred, on the ground that, by reason of the fact that the suit had been dismissed against the principal or maker, the South Atlantic Blow Pipe and Sheet Metal Company, he was discharged as surety; and on November 19 he moved the court, for this reason, to dismiss the action against him. The court denied this motion and overruled the demurrer; and he filed exceptions pendente lite to this judgment, and error is. assigned thereon. On November 22 the defendant moved the court to be allowed to amend his defense by filing a plea to the effect that the plaintiff, by voluntarily dismissing its action against the South Atlantic Blow Pipe and Sheet Metal Company, released and discharged him as surety; and in the proposed amendment he sought to show that he had been deprived of a substantial right, in that the assets of that company consisted of accounts and notes owing to it on April 19, 1915, against which the statute of limitations was running, and that these assets were becoming less valuable and more difficult to collect, and further that the machinery and material owned and used by it on that date were deteriorating and becoming less valuable by wear and tear, and that the expense 'of keeping the said machinery and material was a Constant source of expense, thereby reducing its assets. The proposed amendment further set forth that but for the dismissal of the suit against the principal, McMillan would, if held to be a surety, have had the right to pay off and discharge the debt of the principal, and to have such act entered upon the execution, and to control it for the purpose of enforcing it against the principal debtor, and to be subrogated to all the rights of the plaintiff for the purpose of reimbursing himself from his alleged principal. The court refused to allow this amendment, and the defendant filed exceptions pendente lite to this ruling, and error is assigned thereon. On November 22 he further amended his original defense by filing a plea denying that he was indebted to the plaintiff for attorney’s fees, for the reason that he did not undertake or promise to pay the same. On the trial the court, after hearing jffie evidence, directed a verdict against the defendant as surety, for principal, interest, and attorney’s fees as sued for.
    Of the contentions made in the court below counsel for the plaintiff in error'insists upon only three propositions: (1) that the petition as amended was duplicitous, and therefore should have been dismissed upon demurrer; (2) that the voluntary dismissal of the suit against the principal, the South Atlantic Blow Pipe and Sheet Metal Company, operated as a release and discharge of the surety, McMillan, and that the suit against him should have been dismissed upon demurrer on this ground, and his amendment, setting up this defense should have been allowed; and (3) that his plea setting up his non-liability as a surety for attorney’s fees should have been sustained. The foregoing statement sets forth such of the pleadings and the proceedings thereon as are material to an understanding of these contentions.

      P. W. Meldrim, for plaintiff in error. Oliver & Oliver, contra.
   Jenkins, J.

(After stating the foregoing facts.) 1. The trial judge did not err in refusing to dismiss the plaintiff’s- amended petition on the ground of its being duplicitous. While the use of two or more inconsistent theories as to the right to recover in the same count would not be permissible, the common-law rule against duplicity was at an early date evaded by setting out the different grounds for recovery for the same demand in separate and distinct counts. Our practice requires that the causes of action be of a similar nature, and that each count shall contain a complete cause of action in distinct and orderly paragraphs. 7 Enc. PI. & Pr. 236; Cooper v. Portner Brewing Co., 112 Ga. 894 (3) (38 S. E. 91).

2. The contention upon which the learned counsel for the plaintiff in error mainly insists is that the court below erred in refusing to sustain the demurrer, and to allow the amendment setting up that the surety was released and discharged because the plaintiff voluntarily dismissed the suit against the principal, while maintaining it against the surety alone. While there may be and in fact have been instances in which such action would work such injury to the surety as to justify such result, it can not be stated as a rule that a surety is ipso facto discharged‘by such an act. Therefore the trial judge did not err in overruling this demurrer. The writings upon which suit was brought in this case are joint and several obligations. Reid v. Flippen, 47 Ga. 273; Booth v. Huff, 116 Ga. 8 (42 S. E. 38, 94 Am. St. R. 98). The liability on the notes being joint and several, it was the right of the holder to sue the principal and .surety jointly, or, at his option, to sue either the principal or the surety alone. Civil Code, §§ 3553; 3559; Howard v. Brown, 3 Ga. 523; Reid v. Flippen, supra. Since the creditor thus has the right to bring his suit solely against the surety, a dismissal of the action against the maker in a joint action -ordinarily works no injury to the surety, and he has no cause to complain thereof. In the case of Brooks v. Thrasher, 116 Ga. 62 (42 S. E. 473), Justice Eish said: “While a petition in an action against A. and B., upon a promissory note purporting to be an instrument which they had executed at the same time, A. by signing the paper on its face and B. by writing his name on the back thereof, may be amended by striking the name of A. as a defendant. . . It was, however, in such a case, erroneous to dismiss the plaintiffs’ petition upon the ground that B. appeared, from the petition, to be a surety upon the note, and the suit could not proceed against the surety after the same had been discontinued as to the principal, the note being in the form of a joint and several undertaking.” If, however, the particular facts and circumstances attending the dismissal of the suit against the principal in such a joint action are such as to work specific injury and damage to the surety by reason of such action, then and in such event the rule would be otherwise. In the case of Armstrong v. Lewis, 61 Ga. 680, judgment' was obtained against the maker and the accommodation indorser, and the maker appealed, giving bond and good security thereon. After judgment, and after appeal bond with good security had been given, the creditor dismissed his appeal as to the maker, thus losing both to the creditor and the indorser the security and protection under the bond given by the maker on appeal. This act of the creditor necessarily harmed the surety on the note. Justice Bleckley laid down the proposition that such an act by the creditor himself would result in the discharge of the surety under the circumstances detailed in the record of that case. In the case of McCarter v. Turner, 49 Ga. 309, strongly relied upon by counsel for the plaintiff in error, there was no question of suretyship involved, ahd, as pointed out by Justice Cobb in Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830), and by Justice Lumpkin in Johnson v. Longley, 142 Ga. 814 (83 S'. E. 952), the reasoning of Judge Trippe in that case upon the question of a surety’s discharge is purely obiter. In McCarter v. Turner Judge Trippe used the following language: “The true reason of our holding is, that a creditor can' not, by voluntarily bringing suit, thus discharge the surety from the necessity of giving the notice, put him at ease and off his guard, and then, after the lapse of a considerable time, it may be after protracted litigation, suddenly, of his own motion and without notice to the surety, dismiss the action as to the principal and claim the payment of the debt from the surety. It would be a legal cheat of the surety out of the protection the law gives to a favored class. Every right the law affords sureties it will strictly enforce. Their liability is stricti juris, and creditors must, be astute not to infringe them.” The facts in the present case, however, do not bring it within the principle which the reasoning of Judge Trippe outlines. In that case, as pointed out by Justice Lumpkin in Johnson v. Longley, supra, the right of the creditor to sue the principal had become barred, and the consequent right of the srirety. to require this to be done had been lost. In the present case none of the difficulties there enumerated exist. A considerable time has not elapsed; there has been no protracted litigation; the action taken by the creditor was not without' notice to the surety, but done during the progress of the case where the surety had appeared and pleaded. The facts embraced in -the proffered amendment by the defendant in the ease at bar, as set forth above in the statement of facts, are not of such character .as will take it out of the application of the general rule.

The law looks with favor upon the rights of an indorser or surety, and his liability is one of strict law. However, there are statutory provisions whereby the 'surety may compel the creditor to bring action against his principal, or in- default be himself discharged. Civil Code, § 3546. The-Civil Code, § 3544, provides ■as follows: “Any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge him; a mere failure by the creditor to sue as soon as1 the law allows, or negligence to prosecute with vigor his legal remedies, unless for a consideration, will not release the surety.” The rule of law recognized in this State seems to be, as stated in the ease of Williams v. Kennedy, 134 Ga. 339, 345 (67 S. E. 821), that some positive act must be done by the creditor, either before or after judgment, which injures the surety in some way; mere failure or negligence on the part of the creditor will not relieve the surety; and the exceptions to this general rule will be found to be where the creditor omits to do something by which some collateral security in his hands is made, unproductive, or-where he is notified under the statute to proceed and he fails or refuses. Our courts by numerous decisions have upheld the principle that even gross acts of negligence, by way of omission, other than those mentioned, on the part of the creditor in failing to prosecute his remedies against the principal, will in no wise suffice to discharge the surety. The statutes have given to the surety abundant remedies for his protection other than the one already mentioned, whereby he can compel suit by the creditor against the principal, by making the statutory demand upon the creditor. “A surety or indorser is. entitled to the process of attachment against his principal before payment of the debt, under the same circumstances as any other creditor.” Civil Code, § 3551. “Payment by a surety or indorser of a debt past due entitles him to proceed immediately against his principal for the sum paid, with interest thereon, and all legal costs to which he may have been subjected by the default of his principal.” Civil Code, § 3552. “If the payment was made under' judgment, and the principal had notice of the pendency of the suit against the surety, the amount of such judgment shall be conclusive against the principal ás to the amount for which the surety was bound. If the payment was not made under judgment, the principal may dispute the validity of the payment as to the amount, or as to the competency of the person to whom it was paid.” Civil Code, § 3553. “If the surety be sued separately from his principal, on payment by him of the judgment against him he shall be entitled to control the judgment and execution against his principal in the same manner as if the judgment and execution were joint; and if he does not appear as surety in the judgment against him he may give notice and málce the proof and obtain control in the same manner as pointed ’out in cases of joint judgment.” Civil Code, § 3559. “If the 'surety pay off the debt, pending the' action against the principal and himself, or against the principal alone, such payment shall operate only to cause the action to proceed for the benefit of such surety, and the judgment may be entered in the name of the original plaintiff for the use of such surety.” Civil Code, § 3560. These are remedies to which the surety can resort for his protection, independently of any voluntary action by the creditor. The injury complained of by the surety is simply the discontinuance of a voluntary suit by the creditor, which, in the absence of a demand on the part of the 'surety, he was not obligated to bring. There appear to be no facts set forth in the record whereby the remedies granted the surety are rendered insufficient by reason of the plaintiff’s dismissal; and thus the failure of the creditor to voluntarily provide the surety with a judgment against the principal does not, under the facts of this case, appear to have worked such injury to him as would result in his discharge.

3. The third headnote sets out the rule of liability of a surety for attorney’s fees. See Jones v. Findley, 84 Ga. 52 (10 S. E. 541); Youmans v. Puder, 13 Ga. App. 785 (80 S. E. 34); Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275 (4), 279 (65 S. E. 35); Clements v. National Bank of Tifton, 4 Ga. App. 270 (61 S. E. 146).

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7287.
    Williams Valve Company v. Amorous.
   Broyles, P. J.

1. The contract of a surety is one of strict law, and his liability will not be extended by implication or interpretation. Civil Code, § 3540.

2. A guarantor of any class may by his contract limit his liability according to his own pleasure, and stipulate for such diligence or pre-' liminary action on the part of the creditor as he may choose to exact. Wright v. Shorter, 56 Ga. 72, 77.

3. Where the liability of the promisor is fixed by the mere default of the principal, it is an absolute guarantee; but if the promisor’s liability depends upon any other event than the non-performance of the principal, it is a conditional guaranty. Stearns on Suretyship (2d ed.), 73, § 61; 20 Cye. 1398.

4. If the contract of suretyship expressly provides for giving information of specific acts, such information must be given although the obligee considers such acts of no importance; else the surety will be discharged. Childs- on Suretyship, 204. See also 1 Brandt on Suretyship (3d ed.), §§ 2, 113.

(a) Where the contract of suretyship stipulates that notice of the principal’s default shall be given to the surety, failure to give such notice within the time specified, or to .give notice promptly if the contract provides for immediate notice, will prevent recovery from the surety. 32 Cyc. 176; Stearns on Suretyship, 89, 90, 163.

5. Where the intent of the parties is clearly expressed in the instrument, or has been fully ascertained from the circumstances, the rule of strict construction applies, and the guarantor may stand upon the precise terms of his contract. Stearns on Suretyship, 59, 60; Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 284 (63 S. E. 52).

Decided January 23, 1917.

Complaint; from city court of Atlanta—Judge Beid. December 21, 1915.

Dillon & Burress, for plaintiff.

A. A. & E. L. Meyer, for defendant.

6. In a suit brought against a guarantor, performance by the plaintiff of a condition precedent, to be performed by him, must be averred in the petition. Griswold v. Scott, 13 Ga. 210; 4 Enc. Pl. & Pr. 628.

7. This suit was brought against ar guarantor, to enforce liability upon a written instrument called by the plaintiff, in its amended petition, a contract of guaranty. This contract, which was signed by the guarantor and accepted by the plaintiff, contained, among other things, a stipulation that “in case the said Englehart Heating Company defaults in the payment for said material and goods, according to the . terms of their agreement with you, I further agree that upon notice from you to 'this effect, by mail, my agreement to pay therefor becomes absolutely unconditional.” It does not appear from the petition as amended that the plaintiff ever gave the guarantor the notice required by the contract; and the court therefore did not err in dismissing the petition on general demurrer.

Judgment affirmed.

Jenkins and Bloodworth, JJ., eoneur.


text:
    7309.
    Cordray v. James.
   Jenkins, J.

1. Where a person tells another to let a third person have goods, and that he will see that the debt 'is paid, and credit is accordingly given the promisor, the promise is an original and not a collateral undertaking, and is not within the statute of frauds. Baldwin v. Hiers, 73 Ga. 739; Maddox v. Pierce, 74 Ga. 838; Cruse v. Foster, 76 Ga. 723; Ellis v. Murray, 77 Ga. 542; Crowder v. Keys, 91 Ga. 180 (16 S. E. 986); Henderson v. Hughes, 4 Ga. App. 52 (60 S. E. 813).

2. In all such cases, in order that the promisor shall become bound for the obligation, it is requisite that the credit shall be given exclusively to the promisor; for, if the effect of such an agreement between the promisor and the seller should be that such third person also is to be responsible, the contract would be merely one of suretyship, and not an original undertaking. Reynolds v. Simpson, 74 Ga. 454; Davis v. Tift, 70 Ga. 52; 20 Cyc. 180, E.

3. Where a promisor, by contract with the seller, thus ■ renders himself solely responsible for the sale of goods furnished to another, and the seller so enters the sale and charges the items upon his books of account, a jury may find accordingly even though the party to whom the goods were actually furnished was ignorant of such contract between the promisor and seller, and regarded himself as the sole purchaser. Cruse v. Foster, supra, 20 Cyc. 183; 15 L. R. A. (N. S.) 224, note.

4. There was no error in ruling out testimony of the defendant in which lie endeavored to explain his good faith in failing to pay the account in accordance with his alleged agreement, where it appeared that such agreement related to a date subsequent to that of the sale. Such an agreement being a nudum pactum, evidence upon this point is immaterial. The sole question in such an issue is whether or not the defendant made an original binding promise, before the sale of the goods, that he would pay for them.

Decided January 23, 1917.

Complaint; from city court of Blakely—Judge Sheffield. February 22, 19Í6.

Glessner & Collins, for plaintiff in error. Billie B. Bush, contra.

5. The charge of the court, carved up as in the motion for a new trial, may possibly contain slight inaccuracies of statement, but the whole charge, taken' together, is free from substantial error, and correctly gave the rules of law governing the facts of the case. ‘ The verdict was authorized by the evidence.

Judgment affirmed.

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


text:
    7330.
    Jambs v. Boyett.
    Decided January 23, 1917.
    Complaint; from city court of Blakely-—Judge Sheffield. -February 22, 1916.

      B. B. Bush, for plaintiff. Glessner & Collins, for defendant.
   Broyles, P. J.

1. This was a suit on account for'fertilizer furnished to a person other than the defendant, and the jury found for the defendant. The controlling issue -in the case was whether there was an original undertaking between the plaintiff and the defendant, or whether the fertilizer was sold by the plaintiff to the third person named on an oral promise by the defendant that he would become surety for that person in the transaction; and there was evidence which authorized the jury to find that it was a case of suretyship only.

2. The grounds of the amendment to the motion for a new trial, not being specifically argued in the brief of counsel for plaintiff in error, are deemed abandoned. The general statement in the brief that “plaintiff in error insists most strongly on each and all of the amended grounds of motion for new trial and does not abandon any of them, but says that the court erred as set forth in each of the amended grounds,” is not sufficient to change the rule. Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651 (3) (90 S. E. 222).

Judgment affirmed.

Jenhins and Bloodworth, JJ., concur.


author: Jenkins, J,

text:
    7351.
    Gillespie v. Farkas.
    Decided January 23, 1917.
    Motion to set aside judgment; from city court of Albany— Judge Clayton Jones. March 13, 1916.

      Walters & Redfearn, for plaintiff in error.

      Leonard Farkas, contra.
   Jenkins, J,

1. While, under the code of this State, a judgment can not ordinarily be set aside, except for defects appearing upon the face of the record, there are instances in which motions so designated have been granted where based upon matters not so appearing. Whether such a petition be technically a motion to set aside a judgment, or denominated by other appropriate name under a proper proceeding by petition with rule nisi or process and service thereon, whenever such a petition- is predicated upon matters extraneous to the record, it must ordinarily be filed at the term during which the judgment was rendered, inasmuch as such a petition partakes of the nature of a motion for new trial. Garfield Oil Mills v. Stephens, 16 Ga. App. 655 (85 S. E. 983); Ford v. Clark, 129 Ga. 292 (58 S. E. 818) ; Moore v. Moore, 139 Ga. 597 (77 S. E. 820); Bourquin v. Bourquin, 120 Ga. 115 (47 S. E. 639) ; Union Compress Co. v. Leffler, 122 Ga. 640 (50 S. E. 483).

2. In order for such a motion to be entertained, at a term subsequent to that at which judgment was rendered, the movant must show a meritorious defense which he was prevented from making by the fraud of the prevailing party, and that he was not in laches; and must show either that he had no notice of the judgment against him at the term of its rendition, or such other good cause as would excuse his failure to make such motion at that time. Turner v. Jordan, 67 Ga. 604.

3. Where a motion to set aside a judgment alleged to have been obtained by fraud is presented to the trial judge in vacation, after the term of the court at which the verdict and judgment were entered, the court will not have jurisdiction to entertain the motion or grant a rule nisi thereon. Civil Code, § 4854; Haskens v. State, 114 Ga. 837, 840 (40 S. E. 997); Regopoulas v. State, 116 Ga. 596, 598 (42 S. E. 1014) ; Garfield Oil Mills v. Stephens, supra; Malsby v. Studstill, 127 Ga. 726, 728 (56 S. E. 988).

4. Where the approved bill of exceptions shows that the trial judge, in vacation, granted a rule nisi on such a motion, returnable for hearing to the next regular term of his court, and that the motion was continued from the date so set to the next regular term of the court, the fact that the opposite party appeared as cited, and moved to dismiss the petition, would not operate as a waiver on his part, nor operate to confer jurisdiction upon the court to hear and determine the same.

In dismissing the motion to set aside the judgment as made by the plaintiff in error, the trial judge committed no error, and his judgment in so doing is

Affirmed.

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


author: Bloodworth, J.

text:
    7360.
    WILSON v. OWEN.
    1. There was ample evidence to support -the verdict.
    2. “When personal property is sold, and the seller retains the title as security for his purchase-money, and the. indebtedness matures in installments,, he may proceed to rescind the sale and to recover possession of the property as soon as any of the installments become due and re-' main unpaid.” Scott v. Glover, 7 Ga. App. 182.
    3 A vendor of personal property holding a note for the purchase-price, in which title is retained in himself, is not estopped from bringing an action of trover for the property by the fact .that he has previously sued out a purchase-money attachment.
    Decided January 23, 1917.
    Trover; from city court of Atlanta—Judge Eeid. December 18, 1915.

      B. W. Crenshaw, for plaintiff in error. C. B. Bush, contra.
   Bloodworth, J.

W. H. Owen, defendant in error, brought suit in the city court of Atlanta, alleging, that A. E. Wilson, plaintiff in error, was in possession of certain property to which petitioner claimed title; that he had made demand on defendant for said property and "the profit thereon,” both of which demands were refused. In his plea defendant admitted possession of the property described in the petition, but denied that plaintiff had any right or title therein. He also denied that plaintiff had made demand as alleged in his petition. Defendant amended his plea as follows: "That on or about April 14th, 1914, the plaintiff and the defendant settled their differences in the following manner: The plaintiff agreed that if the defendant should execute and deliver to him two promissory notes of fifty dollars each, indorsed in.a manner satisfactory to said plaintiff, the said plaintiff would then render to the said defendant the note and contract outstanding between them, and mark same cancelled; that on the date first named above it did in pursuance of said offer execute and deliver to the said plaintiff two notes representing the amount then owing by him, which said notes were indorsed satisfactorily to the plaintiff; that the plaintiff never fulfilled his promise to deliver up to him his outstanding note and contract, although he was repeatedly requested to do so, nor did he ever comply with his agreement to cancel said contract.” The evidence for the plaintiff showed that he sold the property described in the petition to defendant for $235, $100 of which was paid in cash and a note executed for $135; that when said note fell due there was a payment of $35 made thereon and a new note given for $100; that when said note fell due it was not paid, and plaintiff sued out purchase-money attachment; that this suit was settled by defendant executing two notes of $50 each, bearing an indorser; and that on several occasions'he demanded the property from defendant. The contract óf sale in which title was reserved was introduced, and the two notes for $50 each. Defendant swore that while the attachment proceedings were pending he executed and delivered to petitioner two notes for $50 each, bearing an indorser, which plaintiff agreed to accept in settlement of said purchase-money attachment proceedings; and that plaintiff had n'ever made demand for the possession of the property described in petition. In rebuttal plaintiff testified that he did not agree to accept the two notes of $50 each and cancel the bill of sale, but accepted the two notes as additional security. The trial resulted in a verdict for the plaintiff in the sum of $100 principal and $12.67 interest. Thereupon the defendant (now plaintiff in error) moved for a new trial on the general grounds, and later amended this motion and alleged that “a new trial- should be granted him, (1) because the evidence adduced at the trial shows that the defendant abandoned whatever title he had to the property described in the petition when he accepted the two notes of $50 each, indorsed as "described in said brief of evidence, in settlement of the purchase-money attachment proceedings which were pending in the justice court for the 1234 district G. M.; (2) because it appears from the evidence that at the date said action in trover was filed by the plaintiff there was only one of the said $50 notes due, and that, as to $50 of the amount, said action was premature.” It will be noted that the first ground of the amendment to the motion is simply an amplification of the general ground that the verdict is contrary to the evidence. The motion was refused and the defendant excepted.

1. There was ample evidence to support the verdict. The contention of the plaintiff in error that there was no proof of the value of the property is without merit. “As between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie, but not conclusive, evidence of the actual value of the property.” Elder v. Woodruff Hardware Co., 9 Ga. App. 484, 486 (71 S. E. 806); see also Young v. Durham, 15 Ga. App. 678 (84 S. E. 165). No effort was made to overcome the prima facie ease made by the plaintiff when he introduced the contract of sale and note. “Where personalty was sold, and the vendor retained the title until it was paid for, the amount of purchase money due, with interest, is the measure of damages recoverable in trover.” Horne v. Guiser Mfg. Co., 74 Ga. 790; Fussell v. Heard, 119 Ga. 527 (46 S. E. 621); Jordan v. Jenkins, 17 Ga. App. 58 (86 S. E. 278).

2. The second ground of the amended motion, as set out above, is without merit. “When the seller of personal property on credit takes notes payable in installments for the purchase price, and retains the legal title as security for his debt, he' may rescind the conditional sale and recover the property in trover (doing equity as to any payments made), as soon as any part of the purchase price becomes due and remains unpaid.” Scott v. Glover, 7 Ga. App. 182 (66 S. E. 380). Besides, the jury found adversely to the contentions of the plaintiff in error that defendant in error “abandoned whatever title he had to' the property described in the petition when he accepted the two notes of $50 each, indorsed as described in said brief of evidence, in settlement of the purchase-money attachment proceedings which were pending in the justice court.”

3. There is nothing in the contention of the plaintiff in error that “when plaintiff sued out his purchase-money attachment for .the property sold, and to which title was retained, he abandoned his title and waived his rights subsequently to institute trover proceedings for the same property.” “The record does not disclose any allegation or proof that the attachment was ever levied or that any legal notice- of its pendency was served upon the defendant. It was neither alleged nor proved that the defendant either did or refrained from any act resulting in injury to him, or beneficial to the plaintiff, by reason of the previous attachment proceeding.” Jordan v. Jenkins, supra. See also Coley v. Dortch, 139 Ga. 239-240 (77 S. E. 77).

Judgment affirmed.

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


text:
    7381.
    Brandon v. American National Bank.
    Decided January 23, 1917.
    Certiorari; from Fulton superior court-—Judge Bell. March 15, 1916.

      Watt Kelly, for plaintiff in error. M. Ilerzberg, contra.
   Broyles, P. J.

Under the facts of this ease the judge of the superior court did not err.in overruling the certiorari.

Judgment affirmed.

Jenhins and Bloodworih, JJ., concur.


text:
    7418.
    WILKINS v. GEORGIA CASUALTY COMPANY.
    1. Where, under the terms of an accident policy, a suit is brought for the entire and irrecoverable loss of the sight of an eye, it is incumbent upon the plaintiff to show that the loss is both entire and irrecoverable.
    2. Where in such a suit it is shown that the loss is entire, there is no presumption of law that such condition will remain until the contrary is proved.
    3. Under the facts in this case, the jury should have been allowed to say whether or not a prima facie case of irrecoverable injury had been made by the plaintiff.
    Decided January 23, 1917.
    Action on insurance policy; from city court of Floyd county— Judge Nunnally. March 13, 1916.

      Eubanlcs & Mebane, for plaintiff. Barry Wright, for defendant.
   Jenkins, J.

On March 13, 1915, J. W. Wilkins brought an action against the Georgia Casualty Company for $1,000 in the city court of Floyd county, the same being a suit under the terms of a policy of accident insurance, for loss of the sight of an eye. The clause in the policy under which suit was brought, so far as pertinent to an understanding of the case before us, is as follows: “If such injuries . . shall result, independently and exclusively of all other causes in one of the losses enumerated below . . within ninety days from the date of the accident . . the Company will pay the sum set opposite such loss . . for loss of . . sight of one eye, % principal sum. . . Loss shall mean . . with regard to eyes, -entire and irrecoverable loss of sight.” The trial judge granted a nonsuit, on the ground that it was not shown that the loss of the sight of the eye was “irrecoverable,” as required by the terms quoted from the policy. The only question this court is now called upon to decide is whether or not the trial judge erred in sustaining the motion to nonsuit, for the reason indicated.

The evidence of the plaintiff nowhere affirmatively undertakes to show that the loss of sight is irrecoverable. He testified that it was total, and testified as to the nature and extent of the injury, but he' did not undertake to say directly whether or not the injury was permanent and irrecoverable. However, it is thought proper to state the substance of his testimony, for the purpose of throwing such light as it may upon the issue here to be determined. The plaintiff testified, that he'was employed by an express company, for which he drove a wagon; that on October 3, 1914, in order to tighten a tap on the wheel of the wagon, he was striking it with á wrench, which caused particles of steel to fly off, hitting and penetrating his right eye; that in consequence of this injury he was unable to work for the remainder of the day, and on October 5 consulted a physician, who on that day removed .the steel from the injured eye and continued to treat the eye from time to time until January 20 of the following year; that since the date of the injury he had not seen out of the injured eye so as to tell what anything was; that there had never been a time, since the eye was hurt, when by its use he could have found his way home; that he had not been able to distinguish anything by the use of the injured- eye from the time of the injury; that he could tell daylight from dark, but could distinguish nothing; that he kept thinking and hoping it would get better, but it continued to grow worse in spite of the treatment given; that he could not see quite as well in January as he could in the preceding January; that the. steel went directly into the center of the pupil, and his physician worked faithfully to save it, but failed to do so.

Dr. L. W. Garard testified for the plaintiff as follows: “I am a practicing physician and do a little surgery. I have been practicing about nine years. I am a graduate from the University of Georgia. In my opinion, assuming that on the 3d day of October, 1914, a piece of steel flew from a wrench or hammer and struck the plaintiff in the center of the cornea of the right eye, and imbedded itself to such an extent that it had to be located by an X ray to be removed, that immediately he lost, from the striking, as soon as it was struck, the vision of that eye, that it has remained lost from then until the present time, in my opinion it would be a permanent injury. I examined Mr. Wilkins’s eye in there a moment ago. There seems to be opacity in the eye there; and sometimes by the removal of the lens you might restore it; it is rather doubtful in this case, from what I can see there. An operation might benefit it; no certainty of that. Opacity is a milky substance back in the posterior portion of the eye, caused from inflammation brought about by injury. A person’s eye when it goes blind either from a natural or unnatural cause—most generally that eye does change in color, opacity sets up and gradually grows, and, as it goes on, the eye gradually changes from what you would - call dead to deader, and after a long time it gets white. After a man’s eye is injured and vision is destroyed, it still is sensitive to light and heat, bright light somewhat. The more the opacity the more the light is shut out. Practically all blind people, for several years after they have lost their vision, can tell the difference between daylight and dark, and things of that kind to some extent. I do not treat the eyes very much. Naturally, very often cases come' through, in the practice of medicine, where a man is called upon to look at a person’s eyes, and he usually refers them to a specialist. I have never operated on the eyes more than to remove foreign bodies in the cornea, on the outside of the ball or stuck in. An operation such as I described for Mr. Wilkins’s eye is entirely possible. This condition of Mr. Wilkins’s eye is somewhat similar to a cataract on the lens. In fact, from what I can see, it looks like the lens is affected. Sometimes you get good results from a surgical operation and sometimes you don’t. That is true about any operation, more or less. In an operation for appendicitis sometimes the undertaker gets the good end of it. Any operation is liable to be a success or a failure, as the case may be, but it is doubtful as to his eye. From what I can see of the condition of his eye I think an operation would be all right. If I were called upon to advise Mr. Wilkins to have an operation, or not, I would advise him to try an operation, without making a further examination of the case. The thing about an operation is to let that cataract get good and ripe. An operation now would probably stand a better chance than an operation shortly after the injury, because the cataract has gotten riper. I would not swear that the loss of this eye'is irrecoverable, that is, by an operation, or otherwise. A cataract grows on the lens, it is a disease of the lens.' ■This opacity is on the lens, what I can see of it. I mean, by saying that I would advise an operation, that I would advise that as an experiment, to see if it can not be restored. I would not advise liim, in my judgment, that an operation would restore it. I would not give it as my opinion that' an operation would restore his sight, but I think it worth trying. I could not positively say that after a man had been blind for eighteen months that an operation would be successful, in my opinion. I was asked a while ago as to my expertness in these matters. I have witnessed such operations, and I have studied the eye in my regular practice.”

1-2. We can not agree with the contention of counsel for the plaintiff in error in their application of the doctrine of the “presumption of continuity” as applied to this case. It is argued by counsel that when a state of things is once proved to exist, there is a presumption that it will continue until a change or some adequate cause of change is made to appear. The true doctrine of the rule invoked is that when a condition is shown to exist prior to the trial, there is a legal presumption of its continuity at the time of trial; and the application of this rule should not be applied to a presumption of future continuity. Where the question is whether an injury is recoverable or irrecoverable, there can be no application of the doctrine invoked, as the issue itself relates entirely to the future. The doctrine of presumption of continuity does not raise a presumption that something shown to exist will continue, but raises the presumption that something shown to exist has continued. We do not think that our construction of this doctrine is contravened by the rulings in Anderson v. Blythe, 54 Ga. 507, and Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S. E. 424), or the ruling in Sasser v. Byrd, 8 Ga. App. 824 (70 S. E. 157), cited by counsel for the plaintiff in error. By the terms of the policy'under which the suit was brought, it was incumbent upon the plaintiff to allege and prove that the injury to his eye, which is the basis of his suit, was not only entire, but also irrecoverable. If, therefore, by the evidence for the plaintiff, the injury to the eye has been established to be “entire,” in accordance with the terms of the policy, there is no presumption of law, arising from such proof, that such condition will continue, so as to shift the burden of proof upon the defendant. Even where the doctrine of presumption of continuity can be properly applied, it is a well-settled principle that presumptions, except conclusive presumptions, must give way to proof; and the plaintiff is therefore compelled to stand upon the evidence introduced in support of his contentions.

3. We think the jury should have been allowed to pass upon the question as to whether or not the injury was irrecoverable. While the testimony of the expert witness, which in the statement of facts has been set forth in full, does not positively assert that an operation would not benefit the injured eye, still he gives it as his positive and unequivocal opinion that such an injury as is shown by the facts of this case is a permanent one. lie testifies that he would advise an operation as an experiment, but would not state that in his judgment such an operation would restore the sight. According to the evidence it was his opinion that such an operation was “worth trying,” and the jury might have been authorized to assume that it was for that reason that he was unwilling to testify positively that the loss of the sight is absolutely irrecoverable. Furthermore, the jury need not have been governed entirely on this point by the testimony of the expert witness, but would have had the right to consider the testimony of the plaintiff himself, who, it will be recalled, had testified that he had never been able to see with the injured eye from the date of the accident. In view of this testimony of plaintiff, taken together with the other evidence in the case, it was for the jury to say whether or not the sight of the injured eye was irrecoverably lost.

It is, therefore, the judgment of this court that the ruling of • the trial judge granting a nonsuit was erroneous.

Judgment reversed.

Broyles, P. J., and George, J. (presiding in place of Blood-worth, J., disqualified), concur.


text:
    7429.
    McDew v. Hollingsworth.
   Broyles, P. J.

1. All agreements, covenants, warranties, etc., made by-parties to a contract are presumed to be written into the contract. A plea and answer showing- that' the statements and warranties alleged, if made, were made before the signing of the contract, and no sufficient allegation of fraud having been made, the written contract was in law the agreement of the parties.

2. No sufficient allegation as to an emergency being made to excuse the defendant’s failure to read the contract, the court did not err in striking that part of the plea which related to his failure to read it.

S'. Where a written contract for the sale of a mule states that it is “about fen years old,” this will be regarded as an express warranty that the animal is about that age; and where the same contract contains an express warranty that the seller “does not warrant life, soundness, nor works of said mule, only the title thereto,” both -warranties should be construed together; and if there is an apparent conflict between the two, they should be construed so as to reconcile all the parts of both warranties and permit the whole of the warranty of the contract to stand; and if this is impossible, the entire warranty should be construed most strongly against the party who prepared it and in whose favor it was made. Construing all the parts of the warranties together, it means that except as to the fact that the mule was about ten years old, every other warranty as to its kind or quality was excluded, as well as all implied warranties as to the soundness of the mule, etc. The distinct statement that the mule was “about ten years old” can not be excluded from the warranty. This is a material statement, the age of the mule being an important factor as to its value. The plea setting up the above warranty as to the age of the mule, and alleging that it was in reality about twenty-five years old can also be construed to be an attack upon the truth of this express warranty. Mizell Live Stock Co. v. Banks, 10 Ga. App. 362, 363, 364 (73 S. E. 410). For these reasons the court erred in striking the defendant’s amended plea.

Decided January 23, 1917.

Complaint; from city court of Hazlehurst—Gordon Knox, judge pro hae vice. April 17, 1916.

Newton Gaskins, P. L.- Smith, J. W. Haygood, Eldridge Gutts, for plaintiff in error. John Rogers Jr., contra.

4. The error in striking the plea rendered all further proceedings in the case nugatory.

Judgment reversed.

Jenkins and Bloodtoorih, J.J., concur.