text:
    330.
    HILL & MOULTRIE v. WHEELER.
    On tlie .trial of an action by real-estate agents for the recovery of a commission on the sale of property, it was error to award • a nonsuit, where it appeared, from the evidence, that the defendant had placed the property in their hands to sell upon specified terms, and that, pending negotiations between the agents and their customer, they wrere-prevented from selling, or at least from concluding their negotiations-for a sale, by the action of their principal in taking the matter into-his own hands, and, without notice to them, selling the property at a. lower price to the customer procured by their efforts. In such a ease-the good faith of the parties and the question as to whether the stipulated price was waived, as w7ell as whether a purchaser would have-given the stipulated price, are all questions of fact for the jury.
    Complaint, from city court of Floyd county — Judge Hamilton^ December 13, 190C.
    Argued May 6,
    Decided July 18, 1907.

      Lipscomb & Willingham, for plaintiffs.

      Seaborn & Barry Wright, for defendant.
   Russell, J.

We think the court erred in awarding a nonsuit in this case, for we think that there was an issue of fact involved, in the evidence, upon which only the jury could legally pass. The. question was certainly raised by the testimony adduced in behalf of the plaintiff, as to whether the defendant acted in good faith in selling the property himself at a lower price than he had at. first stipulated, after using the services of the real-estate agents'to find a purchaser for it and to interest him. in its advantages. Under the testimony for the plaintiffs, the jury could have found (in the absence of anj7 further evidence) that there was a waiver of one of the terms of the sale on the part of the defendant,— that is, as to the price at which defendant was willing to sell,— and that the defendant himself prevented the sale being made-by the real-estate agents, to prevent them from receiving commissions. It appears, from the testimony of the plaintiffs, that the-defendant and Captain Garlington, to whom he sold, met several times in the plaintiffs’ office, and made two or three trips, after the first one, to view the premises, and that in all of the negotiations np to the very time of the sale the plaintiffs were engaged in assisting the defendant to sell the property, — not necessarily, so far as appears from the evidence, at the price first set by the defendant, but at some price to be agreed upon, by seller and buyer. To use the language of one of the plaintiffs,' in the evidence, “We were constantly negotiating, in trying to get them together and get them to agree.” It further appears, that the defendant never notified the plaintiffs that he had taken the property out of their .hands; that he did not withdraw it, but after several different meetings and various propositions and counter-propositions, and while negotiation was still pending between the •plaintiffs and their customer, the defendant himself sold the property.

We do not mean to say that the plaintiffs were obliged to recover,- — -that the evidence demanded a verdict in their favor; and indeed the jury might find, on evidence adduced by both parties, that they were not entitled to recover; but we are clear that the evidence, construed in the light of decisions in our State, would have authorized a finding for the plaintiffs. Where the evidence, in any view of the case, would authorize a finding for the plaintiffs, the case should not be taken away from the jury by a judgment of nonsuit. While a real-estate agent, to recover commissions from his principal, must show that he was employed to sell land in which the principal had an interest, and that he. procured a customer ready and able to buy upon the terms proposed by the seller, still there may be an implied modification of the terms of sale, arising from the conduct of the seller, which would be equivalent to an •express modification. The price at which property is to be sold is only one of the terms of the sale, and may be modified by the principal, as any other term. And if the owner of real estate who has placed it for sale in the hands of a real-estate agent interferes with the sale by his agent, by modifying the terms of sale as regards the price, he would be just as much liable for his commissions as if he had interfered in any other way. Under the principle laid down in Doonan v. Ives, 73 Ga. 302, if the brokers set to work to sell the property and procured Captain Garlington as a customer, or one likely to buy from them, and, pending their negotiation with him, the owner interfered, knowing or having information that they were negotiating with the customer., and sold the property to the customer thus procured by them, even with some modifications of the price at which he had. authorized them to sell, he could not defeat their commissions) “because it would be the fraudulent taking advantage of their labor without paying for it.55 If the -negotiation in which the plaintiffs were engaged had terminated, and they had abandoned all further efforts to sell, or if the defendant, after reasonable notice to them (if no time limit had been agreed upon) had withdrawn his property from their hands, and thereafter himself sold to Garlington, or any other purchaser, Avithout the plaintiffs’ aid, they could not recover. “Because one puts property in the hands of a broker to sell, it does not follow that he himself can not sell. If he does not use their labor to help him, he owes them nothing; if he does use it and puts in to take the trade — its consummation — out of their hands so as to escape paying them, then, ex ajquo et bono, he does owe them, and must pay just what they could have made by the contract if he l'.acl not prevented it. This is sound sense and good law.”

In this case it is undisputed that the plaintiffs brought the defendant and Captain Garlington, AA’ho purchased his place, together; that previous to this, Mr. Moultrie, one of the plaintiffs, .had interested Garlington in the property, and had, at his own ■expense, carried him several miles to see it and taken the trouble to show it to him. On several different occasions, after the defendant and Garlington began to discuss the matter, they used the plaintiffs’ office and maps, in discussing the proposed trade, and Mr. Moultrie did all he could to effect an agreement. Each time ‘Garlington would say that he would give $9,000. According to the evidence, he never did say that he would not give $10,000, the price agreed upon between the seller and his agents; nor did the .seller in these conferences say that he would not take less than ■$10,000. As Moultrie was present, engaged in assisting the defendant to sell, Ave think it more fair to presume that the stipulation as to price was waived by the seller, than that he should receive the services of the agent for nothing, in view of the fact that he did not withdraw the property from the hands of the agents or lead them to suppose that he would undersell them. The question of good faith was one that should have been submitted to the jury. It should have been left to the jury to say whether, by selling to Garlingtou at $9,000, instead of for $10,~ 000 to a purchaser procured by the plaintiffs, the defendant did not ratify all of the efforts of the plaintiffs to sell, and did not himself waive one of the terms of the sale, to wit, the original, price fixed by him in his agreement with the real-estate agent. In Odell v. Dozier, 104 Ga. 203, 30 S. E. 813, it was held that the-liability of the principal to the agent was not affected by the inability of the purchaser, procured by such agent, to comply with the original terms of sale. In this case the purchaser, instead off being unable, was unwilling to comply with the term, so far as-the price was concerned; and, according to the testimony of the-plaintiffs, the’defendant, without notifying his agents or giving-them any further opportunity to perfect the sale at the higher-price, sold at a lower price to their customer, and thus perhaps, prevented them from making the sale at the higher price. If this,, is true, the plaintiffs are entitled to recover. If it is not true,, the defendant can show it and relieve himself from a recovery. In. any view of it, it is a question for the jury, and not for the court to determine. Judgment reversed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    333.
    ATLANTA & WEST POINT RAILROAD CO. v. HUDSON.
    1. In a suit against a railroad company for killing stock, where the-vital point illustrating the question of negligence is the distance that the stock could have been seen on the track by the engineer, it is; competent for the plaintiff to prove the results of experiments made subsequently to the accident, where it appears that the experiments were-made at the place of the accident, and upon facts and under conditions substantially similar to those surrounding the accident.
    'h Physical experiments based on substantially similar facts frequently elucidate the truth in controversy. The closer the similarity in the facts proved and the facts upon which the experiment is based, the. greater the probative value of such evidence.
    C. The charge of the court complained of, on. the subject of the impeachment of witnesses, was a substantial compliance with the sections off the code.
    4. The rule of diligence required of railroads i l running cars to prevent, killing stock is not modified nr altered by the legislation known as the. stock law; and it is not, as matter of law, contributory negligence to allow stock to run at large in communities where sueli stock or fence law prevails.
    5. No error of law was committed, and the verdict was warranted by the evidence.
    Action for damages, from city court of LaGrange — Judge Harwell. October 6, 1906.
    Argued May 7,
    Decided July 18, 1907.

      Dorsey, Brewster, Howell & Heyman, A. H. Thompson, for plaintiff in error. J. R. Terrell, F. P. Longley, contra.
   Hill, C. J.

The plaintiff sued the Atlanta "and 'West Point Pailroad Company for killing two cows and injuring a third. The jury found a verdict for the plaintiff, and the motion of the defendant for a new trial was overruled. The evidence showed that the cows were killed at or near a private crossing near the town of LaGrange. The contention of the defendant was that the engineer could not see the cows in time to stop or control the train, because of the embankment of a cut through which the track ran just before reaching the crossing, that the cows came from around the edge of the cut, and the engineer did not see and could not have seen them until the train was right at them; that he did everything in his power to prevent the accident after seeing the cows. The plaintiff contended that a cow at or near the crossing in question could be seen by the engineer for several hundred yards before reaching the crossing, and in ample time to stop or get the train under control.

The storm center -of the evidence was the contested point as to how far a cow could have been seen on the track by the engineer in approaching the crossing at or near which the accident occurred. To illustrate this question, the court permitted the plaintiff to prove the result of certain experiments he and others had made. These experiments consisted,in placing a steer at and near the crossing where the cows were killed, and then in determining by sight and measurements how. far the steer could be seen up the track in the direction from which the train was approaching;' and also by determining in the same manner the distance from the track near the crossing that the steer could be seen by a person standing where the train left the cut before reaching the crossing. The results of these experiments were objected to as evidence, by tbe defendant, on the ground that they were not based upon the actual facts of the case, and were therefore irrelevant. The experiments were-made according to the facts as proved -by the plaintiff. Experiments made in and out of court sometimes malte a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth. It is necessarily largely within the discretion of the trial court to determine whether the testimony shows that the experiments were made under such conditions as to fairly illustrate the point in issue. Yet, when it is shown that the conditions were essentially the same, the testimony should be admitted, and its weight determined by the jury. If the experiments be predicated upon different facts than those in the particular case, evidence of the results would tend to confuse rather than enlighten the jury, and should be excluded. We think the true rule is that there should be substantial and reasonable similarity in the facts proved in the case and the facts upon which the experiment is based. The facts need not be exactly or in every particular similar; if they are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented in regard to the special point in controversy, the evidence is admissible. Of , course the closer the similarity in the facts of the case and the facts of the experiment, the greater the probative value of the evidence. Morton v. State (Tex. Cr. App.), 71 S. W. 281; Com. v. Piper, 100 Mass. 185; 5 Enc. Ev. 475, 485. The case of Byers v. Nashville R. Co., 94 Tenn. 345, 29 S. W. 128, is analogous to the present one. It appeared that plaintiff’s husband had- been killed by defendant’s train while crossing a bridge. On the question as to whether the engineer could have stopped the train after coming in view of the deceased, the plaintiff was allowed to introduce evidence -of experiments showing the distance at which a man could be seen standing where deceased was killed. We think, under the facts in the record, the requirements of the law were sufficiently shown to make the evidence of the experiments and the results therefrom admissible.

Error is assigned, on the following charge as to impeachment of witnesses: “A witness may be impeached by proof of contradictory statements as to matters, that are material to the issues on trial. The general rule is that when a witness has been successfully impeached, he should not be believed. If such, witness be corroborated, that is, if there be other evidence in the case sustaining what the witness said, such witness may be believed. In all attempts at impeachment, it is for you, the jury, to say whether or not such attempt has been successful.” The'objection to this instruction is, that it took away from the jury the right to believe the witness although impeached by proof of contradictory statements, it being for the jury to determine the credit to be given his testimony when impeached by proof of contradictory statements. This criticism of the charge is not well taken. The court did leave the whole matter of the witness’s credit, although impeached, to be determined by the jury.

Error is assigned on the failure of the court to - charge the jury upon the issue of contributory negligence. It is claimed that what, is known as the stock law existed in the community where the cows were killed, and that the fact that the owner of the cows allowed them to roam at large where such law prevailed furnished evidence of contributory negligence. The existence of the stock law may be a pertinent fact to be considered by the jury .along with other facts and circumstances in determining the question of the exercise of ordinary and reasonable care and diligence i:i guarding against killing stock by the running of trains. The -existence of the stock law is not necessarily evidence of contributory negligence, nor is the rule of diligence imposed by law upon railroads to prevent the killing of stock altered or modified by .such local legislation. "With or without the stock law, the degree of diligence required of railroad companies is one and the same. It is ordinary and reasonable care.” Besides, there was no request for the court to charge on this subject; and even if such instruction had been proper, there was no error in failing to give it where no request to do so was made. Judgment affirmed.


text:
    399.
    MAYOR AND COUNCIL OF MACON v. DALEY et al.

    1- The fact that a change in the grade of a street is made in conformity to an ordinance of a municipality acting in its legislative capacity does not prevent an abutting-property owner from recovering consequential damages to such property, resulting from said public work.
    2. The constitution of 1877 (paragraph 1, section 3 of the “bill of rights”) gives to the citizen the right to recover consequential damage to his property, resulting from work of a public character, although such work may be authorized by legislative action.
    3. The constitutional provision referred to in the foregoing note limits the power of eminent domain in the State, and in counties and municipalities as the agents of the State. It is remedial in character, and for the purpose of giving property holders additional security, and should be liberally construed.
    4. The measure of damages to abutting property caused by raising the grade of a street is the difference between the market value of the prop- • erty before and after the change of the grade. On the trial of an action for the recovery of such damages, it is competent to prove the cost of the filling in of the property and raising it to the level of the street, as a fact or circumstance illustrating the general question of market value.
    5. Where the court instructed the jury fully, clearly, and correctly as to the measure of damages, there was no material error in failing to charge specifically that in arriving at market value any enhanced value of the property caused by the street improvement should be set off against any damages proved. In determining the question of market value, the jury necessarily would have to consider consequential enhancement as well as consequential damage.
    C. No error of law was committed, and the verdict is amply supported by the evidence.
    Action for damages, from city court of Macon — Judge Hodges, March 2, 1907.
    Argued June 21,
    Decided July 18, 1907.

      Minter Wimberly, Jesse Harris, for plaintiff in error.

      R. Douglas Feagin, Claud Estes, contra.
   Hill, C. J.

Plaintiffs in 'the court below brought suit against the Mayor and Council of the City of Macon, for damages resulting to their property by the action of the city in raising the grade of the street on which said property was situated. The jury found a verdict for the plaintiffs, and the judgment of the court overruling the defendant’s motion for a new trial brings the case to this court. It was admitted that the change of grade of the street in front of plaintiff’s property was in conformity to an ordinance of the Mayor.and Council of the City of Macon in their legislative capacity; and it is therefore insisted that there is no liability for any consequential damages to said property caused bjr the change in the grade of the street. It is perfectly well settled that municipal corporations, acting under authority conferred by the legislature, are not liable for consequential damages to abutting-land owners, arising from grading or changing the grade of streets, provided that in so doing they keep within the limits of the streets and there is no physical invasion of the rights of private property, and reasonable care and skill are exercised in the performance of the work, unless there is some provision in the State constitution, in the city charter, or in some statute creating such liability. And even where the constitution contained the provision that private property should not be “taken” for public use without just compensation, it was uniformly held by the corirts of the State and the United States Supreme Court that municipalities were not liable for consequential damages caused by an authorized change in the grade of a public street, where private property was not actually taken or there was no physical invasion of the property. 'The theory upon which these decisions was based was that the 'State had duly delegated to the municipality the power to make public improvements, and as long as the work was carried on within the scope of the authority thus delegated, and without negligence in the performance of the work, there would be no liability for whatever damage occurred. “A citizen was thus left without protection in all that large class of cases where, through some act done for the public benefit, or for a use public or quasi-public, although no part of his tangible property was physically taken, the use "or value of the property was palpably impaired, or was stripped of incidents comprised within the conception of complete property rights which brought to those rights quite as much value as the mere possession of property.” Brown v. Seattle, 5 Wash. 35. This was a mischief for which a remedy was sought; and a most complete remedy was found in the constitutional provisions of many of the States. The State of Illinois was the pioneer in this measure of relief to the citizen. In 1870 that State inserted in its constitution the provision that “private property shall not be taken or damaged for public use without just compensation.” Many of the States followed the example thus set, of a more liberal rule of protecting the citizen against public progress or improvement, and similar constitutional provisions were adopted. Where this special constitutional provision exists, the rule of municipal liability has been changed, and greatly enlarged. The courts have, without a single exception, held, that although prior to these provisions a municipal corporation was 'under no liability to an adjoining or abutting-land owner for any damages sustained from the action of the city in grading or changing the grade of its streets, unless his property was actually invaded, under such provisions a city is liable to him for all direct and consequential damages resulting from changing the grade- of the street, where the damage thus inflicted exceeded the benefit derived from the grading. Of course the same rule applies to all improvements of a. public character. The decisions of the courts announcing this rule of liability are numerous. Many of them can be found collated in 30 Am. St. Rep. 835-850, where the subject is ably and exhaustively considered by the learned editor. The Supreme Court of the United States, in the case of Chicago v. Taylor, 125 U. S. 161, construing the provision of the Illinois constitution, supra, declares that under such provision “a recovery may be had in all cases where private property has sustained a substantial injury from the making and use of an improvement that is public in its character, whether the damages be direct, as when caused by trespass or physical invasion of the property, or consequential, as in diminution of its market value.”

As pertinent to the contention of the able and indefatigable attorney representing the City of Macon, now being considered, that the city is relieved from liability because the change in the grade of the street was in accordance with a profile or plan of improvement adopted by the mayor and council in pursuance of legislative action and under legislative authority, we quote from the opinion of Mr. Justice Harlan this statement, “The city did this work under the power conferred by its charter ‘to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds/ and as directed by special -ordinances of the city council.” The question is not an open one in Georgia. The constitution of 1877 and decisions of the Supreme Court settle it beyond all controversy. Paragraph 1, sec. 3 of the “bill of rights” declares, “Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Under the express terms of this broad provision of the fundamental law, neither the State nor county nor city by legislation or otherwise can authorize or do any public work which damages private property, without just and adequate compensation: In City of Atlanta v. Green, 67 Ga. 386, the Supreme Court held that the constitutional provision, supra, changed the rule of liability for consequential damages resulting to property owners from raising or lowering the grade of streets, and that such damages were recoverable. This ruling has been approved and followed in every case since. Smith v. Floyd County, 85 Ga. 420, 425; Moore v. Atlanta, 70 Ga. 611 (3); City of Augusta v. Schrameck, 96 Ga. 426; Atlantic Railway Company v. McKnight, 125 Ga. 331; Pause v. Atlanta, 98 Ga. 92; Mayor and Council of Macon v. Wing, 113 Ga. 90; Barfield v. Macon County, 109 Ga. 386; Campbell v. Met. St. R. Co., 82 Ga. 320. Indeed the language of the constitution is so clear and free from doubt that no room is left for judicial interpretation. The inclination of the eourt to content itself with reference to its terms has yielded only to the earnest appeal of the learned counsel for the plaintiff in error to carefully consider his contention and the authorities cited in support thereof. This has been done; but this court has found no reason for not willingly accepting-the decisions of the Supreme Court of the State, the unanimous deliverances of other courts of last resort, including the Supreme Court of the United States, or from giving to the plain language of the constitution its only rational construction. If the position of counsel were sound, the mandatory language of the constitution would be wholly ineffective and meaningless, and the paramount law of the State would be powerless to protect the citizen wherever private property was taken or damaged for public use, provided such taking' and damage were in pursuance of leg's • lative action of thie State, of of counties and municipalities by virtue of legislative power delegated to them by the State. Neither the State in its legislative capacity nor the subordinate agents of the State can thus render inoperative and void the supreme law of the land.

The 1st, 2d, 3d, 4th, and 5th grounds of the amended motion for a new trial assign error in the ruling of the court permitting testimony to be introduced as to the cost of filling in the lot to a level with the street, and in not instructing the jury as to the effect of such testimony. Plaintiffs are entitled only to recover the diminution in the market value of the property. It is urged that such evidence tended to confuse them as to the measure of damage. Any evidence that will tend to show damage to the property would be admissible. Certainly the cost of filling up the lot to a level with the street was a proper factor to be considered in determining the question of damage. The court clearly and correctly instructed the jury that the measure of damages to abutting property, caused by raising the grade of a street, was the difference between the market value before and after the grade was changed. But this evidence of the cost of filling in the lot .to bring it up to the level of the street was competent, not as an independent item of special damage, but as a fact or circumstance throwing light upon the general question of the diminution of market value. Campbell v. Metropolitan Street Railroad Company, 82 Ga. 320; City of Augusta v. Schrameck, 96 Ga. 426; Atlantic Railway Company v. McKnight, 125 Ga. 329 (3).

The 6th and 7th grounds are fully covered by the first part of this opinion. These grounds embody requests to charge the principle of law as therein contended by the city.

The 8th ground assigns error in the failure of the court to charge the jury that any increased value resulting from the improvements should be set off against the damage proved. While the court did not expressly charge this well-established rule of law, yet the charge was so apt and clear as to the damage that plaintiffs were entitled to recover, that we do not think the jury could have been at all confused, or have failed to understand the correct measure of damage. The jury could not arrive at the market value without taking into consideration both consequential damage and consequential enhancement, balancing the one against the other, thus determining if there was in fact any real damage. But there was no request made to charge more specifically on this subject.

In our opinion the law governing the facts of the case was fully, fairly, and aptly submitted to the jury. No error was committed during the trial, and the evidence amply supports the verdict.

Judgment affirmed.


author: Powell, J.

text:
    403.
    Kiser Company v. McLean, Everett & Company.
   Powell, J.

“A judgment overruling a demurrer to an answer, unless excepted to and reversed, concludes the plaintiff as to the legal sufficiency of the answer; and if the same goes to the whole of the plaintiff’s demand and is duly supported by evidence, a complete defense is established.” Louisville Coffin Co. v. Rhudy, 111 Ga. 827, 35 S. E. 632.

Judgment affirmed.

Complaint, from city court of Statesboro — Judge Brannen. December 18, 1906.

Submitted June 21,

Decided July 18, 1907.

Johnston & Cone, Mayson & Hill, for plaintiffs.

R. Lee Moore, for defendants.


author: Russell, J.

text:
    405.
    WOODRUFF v. HUGHES.
    1. Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.
    ’2. A conspiracy is the combining of two or more persons for the purpose of doing something unlawful, oppressive, or immoral, as a means or an end. The allegation and proof of conspiracy is important to the action only because it will enable the plaintiff to recover his damages in case the conspiracy can he proved, not only from the actual participants engaged in committing the injury, but also from those defendants who conspired to accomplish it, although neither present nor participating. An averment that the acts alleged were clone in pursuance of a conspiracy does not change the nature of the action, hut it may he pleaded and proved as aggravating the wrong of which the plaintiff complains, and to enable him to recover against all the conspirators as joint tortfeasors, or (in case no conspiracy he shown) that the plaintiff may still recover against such of the defendants as may be guilty of the tort.
    .3. In an action on the case for conspiracy the allegation with reference to the combination, conspiring, and concert of action are mere matters of inducement leading up to the relation of the acts from which conspiracy may he .inferred. To show conspiracy it is not necessary to prove that the parties met together or entered into any specific or formal agree-, ment, or that by words or writing they formulated their unlawful objects. Proof that two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.
    ■4. Possession of realty is presumed to be lawful until the contrary appears; and where possession is alleged, that such possession is lawful is such a conclusion as can properly he pleaded.

      ■5. In neither petition nor answer is an exhaustive statement of the exact evidence upon which a party will rely in the establishment of his contentions required. On the contrary, so far as matters of inducement and other minor matters are concerned, a clear, brief statement of immaterial matters-(the briefer the better) is to be commended.
    ‘6. There was no error in overruling the demurrer.
    Action for damages, from city court of Atlanta — Judge Reid. March 18, 1907.

      Argued June 21,
    Decided July 18, 1907.

      Payne, Jones & Jones, for plaintiffs in error.

      B. B. Blackburn, Westmoreland Brothers, contra.
   Russell, J.

J. A. Hughes brought suit in the city court of Atlanta against G. W. Woodruff, E. Woodruff, J. C. Gentry, Bobert P. Jones, and Winfield Jones, to recover damages for an alleged conspiracy to oust the plaintiff from the lawful possession of certain premises. Some time after the institution of the suit, G. W. Woodruff was dismissed as a party defendant, on account of failure-to properly serve him with copy process. To the original petition the defendants, jointly and severally, demurred generally as Avell as specially. The demurrer, on being heard before his honor Judge Beid, was overruled. To the order overruling said general and special demurrers the defendants except. The petition alleges, in. substance, that on.-the 3d of February, 1906, the plaintiff was in lawful possession of a- certain house and lot in the city of Atlanta,, known as No. 16 Bailroad Street, having been in lawful possession thereof from the 10th of January, 1906, up to and including the 3d of February, 1906; that the defendants, conspiring and confederating for the purpose of evicting the plaintiff from said premises,, undertook forcibly to eject him therefrom, failing in which, one of the defendants, acting for and on behalf of the others, caused a warrant to issue against the plaintiff,’ charging him with the offense of criminal trespass;. and that under said warrant the plaintiff was-arrested and carried before a magistrate, where, upon securing his recognizance bond, he was released from custody. The petition thereupon proceeds to allege, that, being released from custody, the plaintiff returned to the said premises, unlocked the door, he having the keys of said house in his custody, and went into the house and found therein and on the premises agents and servants of the defendants ; that immediately thereafter and on the same day the defendants, still further carrying out the conspiracy, caused a warrant, to issue, charging the plaintiff with the offense of forcible entry and detainer, under which warrant plaintiff was arrested, incarcerated in jail for four or five hours, and, upon giving his bond, was finally-released from custody; that after being released the second time the.plaintiff repaired to said premises and undertook to repossess himself thereof, but was, by force and violence on the part of the defendants, prevented from repossessing himself of said property; and-that the defendants took possession thereof and retained the same over his objection and protest; that, the warrants coming on to be heard, the magistrate dismissed them, and plaintiff was discharged from custody; that both of the warrants were sued out maliciously and without probable cause, defendants well knowing that the plaintiff was in lawful possession of said premises and had not committed the crimes charged in said warrants'; that said prosecutions were pressed against him maliciously and without probable cause, there being aggravating circumstances both in act and intention in the conduct of the proceedings against him; and that the plaintiff, by reason of said conduct on the part of said defendants, was greatly wounded in his feelings, held up to contempt and ridicule, and humiliated in the extreme. It is alleged that both of the prosecutions alleged were a part of one and the same scheme, conspiracy, and confederation of the defendants to oust the plaintiff from the possession of said property and gain the physical possession thereof. The plaintiff seeks punitive as well as actual damages, and asks judgment against the defendants in the sum of ten thousand dollars.

We will first consider the general demurrer of the defendants, alleging that the petition sets forth no cause of action; because, if that contention is well taken, the special demurrers need not b.e considered. We think the petition sets forth such a cause of action as will withstand the general demurrer. It has been frequently said that there is no legal term of which it is more difficult to give an exact definition than conspiracy, and yet its essentials are easily enumerated. “The elements of a conspiracy are: (a) The confederating — the combining together of two or more persons. (&) The intent — for the purpose. (c) The object — of doing something unlawful or oppressive, or immoral, as a means or an end.” 1 Eddy on Combinations, § 365, p. 238. The law of civil conspiracy is only an extension of the law of criminal conspiracy, and, as far as rights and remedies are concerned, all criminal conspiracies are embraced within civil conspiracies. In a criminal conspiracy the conspiring together is the essence of the charge. It must be either to do an unlawful act or to do a lawful act by criminal or unlawful means, but proof of the conspiracy to do either will authorize a conviction. On the other hand, where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action; the gist of the action is the damage and not the conspiracy. As said by Devens, J., in Boston v. Simmons, 150 Mass. 463, 23 N. E. 211, 6 L. R. A. 629, 15 Am. St. R. 230, “The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The .gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy. On the other hand, when the tort committed and the damage resulting therefrom proceed from a series of connected acts, the averment that they were done by several in pursuance of a conspiracy does not so change the nature of the action, that, if the wrongful acts are shown to have been done by one only, it can not be maintained against him alone, and the other defendants exonerated.” Whether a conspiracy be civil or criminal, if the person who is the object of such conspiracy is damaged, he has his remedy in an action on the case. As pointed out in 8 Cyc. 645, the statement’that the conspiracy is not itself the cause of action has two meanings: (1) that the conspiracy is executed to the injury of another; and (2) that the conspiracy will not render an act unlawful which is lawful when committed by one. But all parties to a conspiracy are jointly and severally liable for damages occasioned by the unlawful combination, and acts done by any one of the conspirators in furtherance of a common object become the acts of all. Conceding, then, that an averment that the acts alleged were done in pursuance of a conspiracy does not change the nature ■of the action or add anything to its legal effect, the allegation and proof of conspiracy is important to the action only because if will ■enable the plaintiff to recover his damages against such of the defendants as may be shown to be guilty of the tort, even should he 'fail to prove a conspiracy or concerted design; and it may be pleaded and proved as aggravating the wrong of which the plaintiff complains and to enable him to recover against all the defendants as joint tort-feasors. If the conspiracy can be proved, the party wronged may look beyond the actual participants committing the injury and join with them as defendants those who conspired to accomplish it. “An action will not lie for the greatest conspiracy imaginable, if nothing be put in execution; but if the party be damaged, the action will lie.” Savile v. Roberts, 1 Ld. Raym. 374. In passing upon the general demurrer, then, only two questions need be considered. Were sufficient facts alleged in the petition to set forth and constitute a conspiracy within the above definition, and does it appear that the plaintiff was damaged by reason thereof? If both of these questions be answered in the affirmative (as we think they should be), then there was no error in overruling the general demurrer. The law recognizes the intrinsic difficulty of proving a conspiracy. The allegations with reference to conspiracy are treated as matters of inducement leading up to a more particular description of the acts from which conspiracy may be inferred. It has even been held that when it becomes necessary to prove a conspiracy in order to connect the defendant with the wrong complained of, no averment of the conspiracy need be made in the pleadings to entitle it to be proved. Parker v. Huntington, 2 Gray (Mass.), 124. Loss certainty is required in setting out matters of inducement than in setting out the gist of the action. We think, therefore, that paragraph three of the plaintiff’s petition sufficiently sets forth a conspiracy between the defendants to enable him, if he can, to hold all of them liable as joint tort-feasors, and to aggravate and increase his damages should he be found to be entitled to any. ’The conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. The rule is to allow great latitude in setting out in the complaint the particular act upon which the conspiracy is to be inferred, and even to allow individual acts of the conspirators to be averred. “To show conspiracy it is not necessary to prove an express compact or agreement among the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding' that they will accomplish the unlawful design. And any one, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto . . as if he had been an original member.” 1 Eddy on Comb. § 368. The petition, then, sufficiently alleged “the combining together of two or more persons.” It also alleged the intent (for the purpose) of evicting the plaintiff from the premises described. Then, was the object of their conspiracy, either in the means used or in the end sought to be attained, .unlawful, oppressive, or immoral? According to the allegations of the petition, the means used to accomplish the eviction was the unlawful and malicious use of legal process. According to those allegations, two warrants without any foundation were sworn out against the plaintiff; he was twice arrested; was confined in jail and subjected to humiliation without cause. If these allegations be true, even if the defendants had the right to the possession of the premises,-they used unlawful and immoral means to obtain it. If this action was taken in pursuance of a common intent, understanding, or design, all who participated in the acts alleged would be liable. If the proof failed to show conspiracy, then any one guilty'- of either of the unlawful means by which petitioner was damaged (if he was damaged as alleged) should respond. In view of what has been said .above, there was no error in overruling the general demurrer. The conspiracy was sufficiently alleged. It is immaterial whether the act -which it is alleged the defendants intended to do was or was not unlawful, oppressive, or immoral. “Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means.” 1 Eddy on Comb. § 171. The means alleged, in either event, were unlawful and oppressive. The damages were such as were connected with and would naturally flow from the tortious acts alleged. The damages being the gravamen of the action, the act or acts causing such damages are required to be set forth with particularity; but no complaint is made upon this score by defendants, and indeed we think there is no room for such complaint.

The defendants demurred specially as follows:

To the allegation in paragraph two of the petition, that plaintiff was in lawful possession of a certain house and lot in the city of Atlanta, etc., on the ground that the allegation is a mere conclusion of the pleader and not based upon any alleged facts to substantiate it; and to the allegation in the same paragraph with reference to the length of time which plaintiff’s lawful possession is stated to have existed, upon the same ground; and because it is not shown, by the allegation of said paragraph alone or in conjunction with other paragraphs of the petition, by virtue of what authority, right, interest, or title, or by consent or authority of ■what person holding title or right of possession of said premises, ■the-plaintiff was in lawful possession of said premises. We think that tli is demurrer was properly overruled, because, if it is specific enough to reach the word “lawful” as being the conclusion of the pleader, it would not be well taken, because possession is presumed to be lawful until the contrary appears, and the statement that the possession was láwful would be such a conclusion as naturally followed the statement of possession. For the same reason it is not necessary for the petitioner to state by what authority or title he is in possession. Indeed, from our standpoint the matter is entirely immaterial, because it is 'a statement made by way of inducement leading up to the tort alleged later in the petition.

The second ground of demurrer complains specially of the allegation that “the defendants each and all confederated and conspired together for the purpose of evicting plaintiff from said . premises,” on the ground that said allegation neither by itself nor .in conjunction with other paragraphs of the petition alleges any circumstances upon which the conspiracy can be based. As we .have already stated, the conspiracy is not the cause of action, and the statement of conspiracy is only for the purpose of aggravating j" ‘the damages and of joining defendants who may bave c’ons'pired : and yet have not personally participated in the acts done. This -demurrer is settled by the case of Parker v. Huntington, above' ■cited. And for the same reason, the statement in the petition, in regard to the defendants causing Winfield Jones to appear before •a justice of the peace and make oath that the plaintiff had commit■ted the offense of forcible entry and detainer, is sufficiently ample.

Defendants demur specially to the allegation that plaintiff “sought to repossess himself thereof, but was by force and vio- . lence, menaces and threats, made by the defendants, their agents .and servants, prevented from repossessing himself of said property,” on the ground that it is not alleged by what authority or title the plaintiff sought to repossess himself, and because it is not alleged how the parties seeking to prevent the plaintiff from entering the premises were the agents of the defendants. They also demurred specially to the allegation that “the defendants, their agents and servants, took possession thereof and retained the same,” on the ground that the allegation does not show that the defendants, their agents and servants, had no authority or right to take possession of said premises. We think this special demurrer was properly-overruled, not only because it fails “to put its finger on the point” by specifically stating what further allegation should have been m'ade, but also because no amendment was necessary. It is impossible and impracticable for a pleader to do more than state the fact upon which he relies. He is not required to insert in his petition or plea a statement of the evidence upon which he expects to rely, any more than to give thé names of the witnesses by whom he hopes to establish his contentions. The same ruling applies to' the fifth special ground of demurrer.

The sixth special ground of demurrer complains that the plaintiff fails to show any facts constituting lawful possession on' the part of the plaintiff, or how the defendants could have known of such alleged lawful possession. As already stated in ruling upon the first demurrer, the insertion of the word “lawful” was a conclusion properly to be derived from the other facts stated, and could be averred. And in the absence of proof to the contrary, the defendants would be presumed to have notice and knowledge of the character and extent of the plaintiff’s possession. Defendants also demur to the statement of the petition contained in paragraph eleven, “there being aggravating circumstances, both in act and intent, . . and said acts were wanton, wilful, and oppressive in the extreme,” the demurrer being that the allegation fails to show how the act and intent of defendants were wanton and wilful, and of what the aggravating circumstances consisted. We think it clear that the aggravating circumstances and the wanton, wilful, and oppressive conduct of the defendants can well be derived from the' allegation with reference to the issuance of the warrant and the arrest thereunder. If those allegations are proved, the jury would have the right to infer that the acts and conduct of the defendants were wilful and wanton and oppressive in the extreme.

The seventh special ground of demurrer, that the allegations of the petition failed to show any facts or circumstances upon. which tlie conspiracy to oust the plaintiff from possession is based, was without merit; for, as hereinbefore ruled, no averment is necessary on the subject of conspiracy, further than that one was entered into between the defendants.

The eighth, ninth, and tenth special grounds of demurrer were properly overruled, because, although the petition may liave contained the statement of facts which might have constituted separate and distinct causes of action and alleged acts done at different times, and differing in character, still each of these acts, as clearly appears from the petition, is stated to -have been done in pursuance of and with a sole view to effectuate the illegal conspiracy, unlawfully to deprive the plaintiff of his possession of the premises.

The allegations of plaintiff’s petition are consistent, and will entitle him, if proved as laid, to a recovery. A conspiracy to oust him by unlawful means from premises of which he was in possession is alleged. The unlawful acts used in carrying out the intent and purpose formed are fully detailed, and his damages, flowing -from these acts, are set forth. Judgment affirmed.


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    406.
    WILLIAM BENSEL CONSTRUCTION CO. v. HOMER.
    1. A city may by reasonable ordinance limit the amount of space in the street which may be occupied by material assembled for the erection of a building on an abutting lot. A violation of such' an ordinance is, as against a member of the public using the street for ordinary travel and injured by reason of such violation, per se wrongful and negligent; and the court may so instruct the jury.
    2. Pedestrians have the right to use the entire highway, and are not confined to the sidewalks alone. If a pedestrian leaves the sidewalk and enters upon the portion of the highway devoted primarily to vehicles, the surroundings may require of him the exercise of a greater amount of care and caution for his own protection than if he-had remained upon the sidewalk; but the question of his negligence under the circumstances is one for the jury.
    3. There being evidence justifying a finding that the defendant was negligent, that the plaintiff was injured as the proximate result thereof, and that the plaintiff was not guilty of such contributory negligence as to defeat a recovery, the verdict in the latter’s favor is sustained.
    Action for damages, from city court of Atlanta — Judge Reid. January 31, 1907.

      Argued June 21,
    Decided July 18, 1907.

      Anderson, Felder, Rountree & Wilson, for plaintiff in error.

      James L. Key, contra.
   Powell, J.

Mrs. Homer recovered a verdict against the "William Bensel Construction Company for personal injuries; -and the latter, its motion for a new trial having been overruled, brings error. The defendant was engaged in erecting a building on the north side of Trinity avenue in the city of Atlanta, and, under building permits and a city ordinance allowing the laying of building material on the street and sidewalk to the extent of one half the width thereof, had piled lumber, and other building material in the street. Mrs. Homer lived on the north side of Trinity avenue just above the ¡dace where the building was being erected, and returning home after nightfall she stumbled over a piece of scant-ling projecting from underneath a pile of lumber, fell, and’ sustained injuries. According to her testimony, which is to be taken as true (although contradicted), since the jury decided in her favor, the pile of lumber covered more than one half the width of the street, and the sidewalk was totally obstructed; the piece of scant? ling over which she stumbled projected about five feet further out into the street than did the outer margin of the pile of lumber. A city .ordinance required the placing of lighted lanterns so as to mark the corners of such obstructions; and while three lanterns were placed on the lumber, they were not so placed as to indicate that there was any obstruction beyond the margin of the lumber; and owing to the darkness the plaintiff did not see the scantling. She knew that the building was going on, and that lumber was piled in the street, but did not know of this scantling, as it had been placed there since she had last passed the place where it was. Coming up Trinity avenue towards her home, when she reached the obstruction on the sidewalk she attempted to go around it in the street, though sh'e could have-avoided it by using the sidewalk on the south side of the avenue. The ordinance of the city provides (omitting immaterial parts) : “Any person or persons actually building, or about to build or repair any building, may collect and lay all such materials as may be .necessary for such building or repairs in the street, lane, or alley next adjoining to or in front of such building or.repairs, .and such person or persons so building or repairing shall have the privilege of using one half of the sidewalk and one half of the width of the street adjoining or in .front of said building or repairs; during all such times as such mmerials shall so lie in any street, lane, or alley, the owner or proprietor of such materials shall cause a lamp or lantern, with good and sufficient light therein, to be securely hung up, placed or fixed on a post, or otherwise, at each of the two corners of such enclosure prelecting into the said street, lane, or alley, and in such manner as clearly and plainly to show the place and extent occupied by such material.”

It is urged by the plaintiff in error that the verdict is contrary to the evidence, because the plaintiff by ordinary care could have avoided the injury, and because the negligence, if any, of the defendant was not the proximate cause of the injuries. Exception i; also taken to the following instructions of the court to the jury: “This defendant had the right, under the permit issued to it by the city, to use one half of the width of .the street in laying 'ts material, piling and keeping it, during the progress of the building, but it did not have the right to go any further than half the width of the street; and if it used any more than half the width of the street for the purpose, such use, beyond a half of it, was in violation of the city ordinance, and unlawful, and it would be as against any person who sustained injury on account of such violation, if such person did sustain injury,, negligence as against that person. But if they did not exceed half the width of the street, gentlemen, if they were within their legal rights as defined under this ordinance, then, so far'as their acts being a question of negligence, as a matter of law, there would be no negligence, if they did not violate the ordinance.” Also: “This clause of thei ordinance means just what it says, expressed in plain English words, and I can not make it any clearer by enlarging upon it. If there was a failure on the part of the defendant to comply with that clause of the section with reference to the lights, that would be a violation of the ordinance, and, as against any person injured on account of it, would be negligence as a matter of law, and you would so consider it. If there was no violation of its terms, to which I called your attention, then as a matter of law, gentlemen, there would be no negligence with reference to the lights, but would become a question for you, under the instructions which I shall now give you on the general subject of negligence.” Also: “So far as going along the street is concerned, as a matter of law, a pedestrian, that is one walking, has the legal right to walk on any part of the street as well as the sidewalk. Now whether a pedestrian,, or person walking, is in violation of ordinary care in going upon any part of the street at any time, or at a given time and place,, under a given state of circumstances and facts, is a question for the jury to determine. Whether ordinary care required one not to have done it, or whether one could have done it in the exercise of ordinary care, — it becomes a question of fact for the jury to say what ordinary care required under the circumstances.” Other exceptions were taken; but as they do not involve any new or interesting questions, we shall not elaborate them, but merely state that they present no error.

An unlawful obstruction to the free and safe passage along a public street is a nuisance; and ordinarily a person specially injured thereby has a cause of action. Brooks v. Atlanta, 1 Ga. App. 678, 57 S. E. 1081, and cit. The/city may by a reasonable ordinance limit the amount of space in the street which may be occupied by material assembled for the erection of a building on an abutting lot. No complaint is made that the ordinance in question is unreasonable or invalid. As against a member of the public injured as the proximate result-thereof, a violation of such an. ordinance is per se wrongful and negligent; and the court may so instruct the jury. This is no invasion of the province of the jury to determine questions of negligence from the facts proved; lor if the ordinance and the violation be shown, the negligence follows as a matter of law. Central Ry. Co. v. Bond, 111 Ga. 14 (7), 17, 36 S. E. 299, and cit. Likewise where the city ordinance requires the placing of lanterns to indicate the presence and the boundaries of obstructions permitted in the streets, non-compliance with the requirement is negligent. Wilson v. White, 71 Ga. 506, 51 Am. R. 269.

We think the instruction of the court upon the subject of the right of a pedestrian to use the street, instead of confining himself to the highway, correctly states the law. The entire highway is for the use of pedestrians; and if a person on foot leaves the sidewalk and goes upon the portion of the street devoted primarily to the use of vehicles, he is not necessarily negligent. The circumstances may require of him a greater amount of care and caution for his own protection than if he remáined upon the sidewalk; but this is all an open question for the jury. A. & W. P. R. Co. v. A. B. & A. Ry. Co., 125 Ga. 529, 54 S. E. 736; Brunswick R. Co. v. Gibson, 97 Ga. 498, 25 S. E. 484.

We can not hold that the plaintiff was guilty of such contributory negligence as to defeat her recovery.' We presume that this question was fairly submitted to the jury, as there is no complaint to the contrary. We can not say as a matter of law that common prudence demands that a pedestrian who, walking along the sidewalk on one side of the street, meets with an obstruction, shall, in order to reach a point further along on the same side of the street, cross to the opposite sidewalk, proceed till the obstruction be passed, and then recross, rather than attempt to go around the obstruction by using that portion of the street which under the law should not be obstructed and which the location of the danger signals does not indicate to be obstructed. Nor can we say that the violation of the ordinance in question was not the proximate cause of the injury. It is true that .if the lumber had been piled within the lawful limits and the projecting scantling had also been situated within those bounds, and the plaintiff had attempted to pass as close to the lumber as she did, in all probability she would have been injured just as she was. If this had been the case, and lanterns properly placed had indicated the presence of the scantling or other obstruction within the boundaries so marked out, and the plaintiff had transgressed within these bounds, she could not have recovered. She then would have been injured, but the defendant would have been free from wrong and therefore not responsible; but such is not the case. The defendant wrongfully placed an obstruction viiere it did not have the right to place it; the'plaintiff, using the highway in the exercise of ordinary care, and without notice of the presence of the obstruction, fell over it and was injured. These are the facts found to be true by the jury; and the recovery is therefore sustained. Judgment affirmed.


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    407.
    Stone v. Garrett & Russell.
   Hill, C. J.

There is no complaint of any error of law, and under the evidence the jury could have properly found no other verdict.

Judgment affirmed.

Complaint from Newton superior court — Judge Roan. November 17, 1906.

Submitted June 21,

Decided July 18, 1907.

Stone shipped 24 hales of cotton to Garrett & Russell, cotton factors at Augusta, Georgia. From time to time he drew drafts on Garrett & Russell against this cotton. These drafts were cashed by Garrett & Russell, and Stone admitted ¿receiving the money thereon. The drafts were all introduced in evidence, and showed that the total amount advanced exceeded the proceeds for which the cotton was sold, by the sum sued for. Suit was brought for this amount in the county court, and appealed to the superior court. The defense was that the plaintiffs had been instructed by the defendant to hold the cotton until’ lie ordered them to sell it, and that they disregarded his instructions and sold it when the market was down. Plis letters to the plaintiff, put in evidence, showed that he directed them to sell the cotton and apply the proceeds to the payment of the drafts. This the plaintiffs did in the usual course of trade, and, after applying the proceeds to the payment of the defendant’s drafts, there was left the balance represented by the suit. The jury found a verdict for the full amount with interest. A motion for a new trial was made by the defendant on the general grounds, and -was overruled.

E. R. Gunn, W. H. Whaley, for plaintiff in error.

Joseph P. Brown, Rogers & Knox, contra.


text:
    440.
    McCook v. Dublin & Southwestern Railroad Company.
    Action for damages, from city court of Dublin — Judge Clements presiding. March 7, 1907.
    Submitted June 25,
    Decided July 18, 1907.
   Hill, C. J.

1. It is the duty of passengers to supply themselves with tickets before getting on the trains.”

2. Where a passenger, without fault of the railroad company, but solely beeause of his own lack of reasonable diligence, fails to buy a ticket, he is not entitled to transportation without paying the train rate; and if he refuses to pay such rate, the company can lawfully eject him. \ .

3. The plaintiff’s own testimony clearly shows that he had no cause'of rction, and that his case was utterly without merit. The nonsuit w- s properly granted. Judgment affirmed.

K. J. Hawkins, for plaintiff.

Peyton L. Wade, Daley & Bussey, for defendant.


text:
    443.
    Southern Railway Company v. Stone.
    Certiorari, from Dougherty superior court — Judge Spence. April 9, 1906.
    Submitted June 25,

    Decided July 18, 1907.

      DeLacy & Bishop, for plaintiff in error.
   Hill, C. J.

1. The allegations of the petition for certiorari must he verified by the answer of the magistrate whose decision is sought to he reviewed, or the truth of the allegations must be admitted by the defendant in certiorari.

2. Where no answer to a certiorari was filed giving information to the reviewing court as to rvhat was done by the lower court, and the answer was not waived, and the truth of the allegations contained in the peti-’ tion was not admitted, there was nothing before the court on which a final judgment could have been rendered. In such condition of the record, the only proper judgment would have been the dismissal of the certiorari; and a final judgment by the superior court against the plaintiff in certiorari for the amount alleged to have been recovered in the, justice’s court was erroneous and must be set aside.

Judgment reversed.


text:
    138.
    Virginia-Carolina Chemical Company v. Roberts.
    Certiorari, from Dougherty superior court — Judge Spence. April 9, 1906.
    Submitted February 26,
    Decided July 25, 1907.

      L. W. Nelson, for plaintiff in error.

      J. W. Walters Jr., Clayton Jones, contra.
   Russell, J.

1. The assignment of error in the bill of exceptions is sufficiently specific. The motion to dismiss the writ of error is therefore overruled.

2. One who has unsuccessfully claimed title to property levied upon by an execution in favor of a third party is not thereby estopped from foreclosing a mortgage in his favor upon the property previously claimed by him and asserting the lien of such mortgage. Consequently there was no error in sustaining the certiorari in this ease.

Judgment affirmed.


text:
    309.
    Fair v. Metropolitan Life Insurance Company.
    Certiorari, from Bibb superior court — Judge Felton. December 20, 1906.
    Argued May 2,
    Decided July 25, 1907.

      L. D. Moore, for plaintiff.

      Hardeman & Jones, E. P. Johnston, for defendant.
   Russell, J.

Unless the judgment rendered is absolutely demanded by the evidence, the first grant of a new trial on certiorari will not be interfered with. Judgment affirmed.


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    320.
    Western Union Telegraph Company v. Cooper.
    Appeal, from Gwinnett superior court — Judge Beagan presiding. December 13, 1906.
   Russell, J.

1. This case is controlled by the decision ol the Supreme Court in Brooke v. Western Union Telegraph Company, 119 Ga. 695, 46 S. E. 826, and cases therein cited, in which it is held that in the transmission of a telegraphic message the telegraph company is the agent of the sender, to whom, and not to the company, the recipient must loo'.c for damages arising out of error in the transmission of the message.

2. The contract for sending a telegraphic message is made with the sender, and not with the addressee or sendee; and hence any action brought by i the sendee for delay in delivery must be an action ex delieto for breach . of public duty due to the negligence of the telegraph company in failing to transmit or deliver a message in accordance with its legal duty. As held in the ease of Wilson v. Western Union Telegraph Company, 121 Ga. 122, 52 S. E. 153, an action by the sendee must allege a breach of duty. The only right of action of the sendee is for the tort arising out of the breach of a legal duty, of which a justice’s court has no jurisdiction. Nor does an appeal to the superior court invest such court with jurisdiction. Berger v. Saul, 109 Ga. 240, 34 S. E. 1036.

3. A suit in a court having no jurisdiction of the subject-matter is a nullity, and when it appears from the record that a judgment has been rendered by a court having no jurisdiction of the subject-matter, that judgment will be reversed, although the point may not have been raised in the lower court. “Consent of parties . . can not give a court jurisdiction of a subject-matter when it has none by law; and when this court discovers from the record that a judgment has been rendered by a court having no jurisdiction of the subject-matter, and the case is brought here for review upon writ of error, this court will of its own motion reverse the judgment.” Smith v. Ferrario, 105 Ga. 53, 31 S. E. 38. Judgment reversed.

Argued May 7,

Decided July 25, 1907.

Dorsey, Brewster, Howell & Heyman, Lamar Rucker, for plaintiff in error. M. D. Irwin, R. B. Fortune, contra.


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    344.
    Strickland, administratrix, v. Thornton & Nasworthy.
    Complaint, from city court of Dawson — Judge Raines. October 17, 1906.
   Russell, J.

1. While service of a bill of exceptions before it has been certified by the judge is equivalent to no service, and an acknowledgment of service on a bill of exceptions can not by aliunde proof be shown to bear the wrong date, yet other parts of the record outside of the bill of exceptions may be consulted to ascertain the true date of acknowledgment of service on the bill of exceptions. And when it thus appears that the acknowledgment of service was erroneously dated, the writ of error will not be dismissed. Harper v. Burke, 74 Ga. 412. When a bill of exceptions is certified as of the date October 18, 1906, and the acknowledgment of service is dated October 17, 1906, and .it appears from the certified bill of exceptions that the ease was not heard until October 18, it sufficiently appears that the bill of exceptions was not served prior to October 18, 1906, and that this ground of the motion to dismiss is not well taken.

2. The Supreme Court of this State had jurisdiction of a writ of error brought from the city court of Dawson on October 18, 1906.

3. It is error to sustain a demurrer to a petition brought by an administratrix, alleging that her intestate, at the time of his death, was in possession of a tract of land which he had rented out for the year during which he died, and that the rent due said intestate for said year, consisting of cotton, had been taken possession of by the defendants without right or authority, and with notice of plaintiff’s right to the same, and sold by them, and asking judgment for the proceeds of said sale, upon the ground that the action could not be maintained, because plaintiff had not title in said rent cotton.

4. Under the provision of the Civil Code, § 3353, the title to all personalty, including ehoses in action, vests in the representative. “Rent is personalty, and the right to collect and distribute it is in the personal representative of the decedent.” Autrey v. Autrey, 94 Ga. 579, 20 S. E. 431. And that the rent was payable in cotton, and not money, does not change the rule. The petition alleging that the defendants had notice of the plaintiff’s right, this case is controlled by the decision in Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212, 33 S. E. 175. It differs from Worrill v. Barnes, 57 Ga. 404, especially in the fact that in the case last .cited the purchaser was. an innocent party and. bought without notice, and the landlord was still in life; and the case, therefore, was not affected by § 3353 of the code.

Judgment reversed.

Argued May 13,

Decided July 25, 1907.

R. O. Lovett, for plaintiff.

M. C. Edwards, M. J. Yeomans, for defendants.


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    MAYOR AND COUNCIL OF AMERICUS v. JOHNSON.
    1. Municipal corporations are required to keep their streets and sidewalks' in safe condition for travel in the ordinary modes by day and by night; and are responsible if they fail to exercise ordinary and reasonable care and diligence for the accomplishment of this end.
    2. A traveler using a street or sidewalk is required to use ordinary care-to avoid being injured by any defect therein or obstruction thereon. What amount of lookout for defects or obstructions he must observe-in order to meet this requirement is a question of fact for the jury, to-be determined by the circumstances of each case.
    3. An instruction to the jury, which, in attempting to define ordinary care, makes the jurors the standard of what is a prudent person is erroneous. .
    4. In order to bind a municipal corporation for the care of a strip of land offered by an abutting owner as a sidewalk, acceptance by the-proper city authorities must be shown. The acceptance may be express or implied. If express, it can be shown only by the minutes of the official tribunal; if implied, it may be shown by proof that the-sidewalk was worked and used under authority of the council, or other body having such matters in charge. Testimony that work was done-upon the sidewalk by the street hands of the municipality, or by its-engineer, or under the directions of its street committee, is admissible-for the purpose of raising the inference that the work was done by the authority of the municipal body.
    Action for damages, from city court of Americus — Judge Crisp. March 5, 1907.
    Argued June 20,
    Decided July 25, 1907.

      Lane, Maynard & Hooper, for plaintiff in error.

      E. A. Nisbet, Blalock & Cobb, contra.
   Powell, J.

The plaintiff obtained a verdict against the City of Americus on account of injuries received by her through her having fallen over a stump which she claimed was situated upon the sidewalk on the north side of Church street in that city. There-was sharp conflict in the testimony as to whether the stump was-' within or without the northern margin of the sidewalk, and also-as to whether the walk on the north side of the street was a sidewalk, in the sense of a walk used as a portion of a public street. and under the control and responsibility of the city government. The injury occurred at night; but there was an electric arc lamp near by. The plaintiff admitted that she had seen the stump prior to the time of the injury; but explained that she had been accustomed to use the walk on the south side of the street, and was present on the north side on this occasion only by reason of the fact that the other side was temporarily obstructed, and that it had escaped her attention and memory that there was a stump on the walk she was using. The defendant introduced proof showing that, under the deeds by which the city held title to the street, this stump and probably the entire walk on the-north side of the street were beyond the limits of the street. The plaintiff introduced evidence showing that the owner of the abutting property on the north side of the street had set his fences back, and had offered a dedication of the strip of land on which the stump was situated, for the purposes of a sidewalk, and that the street force of the city had worked it as a part of the street. The minutes of the city council were introduced showing that that body had never formally accepted the dedication. In the motion for a new trial several exceptions were taken to instructions of the court to the jury, and to rulings upon evidence. Upon that motion being overruled the city brings error.

The degree of diligence required of municipal corporations in the maintenance of their streets and sidewalks is now well setr tied. It is required that they keep their streets and sidewalks in safe condition for travel in the ordinary modes by day and by night; and they are responsible for a failure to exercise ordinary and reasonable care and diligence to this end. Whether they have exercised that care and diligence is a question of fact to be determined by the circumstances of each case. In determining this question regard must be had as to whether the street is newly opened or has been in existence for some time, whether the municipality is small and poor or populous and wealthy, whether the street is a frequented thoroughfare or a remote passageway; after viewing these and all other legitimate considerations the jury must determine whether, in the light of all the circumstances, the municipality has used reasonable diligence to make the highway safe. Idlett v. Atlanta, 123 Ga. 821; City Council of Augusta v. Tharpe, 113 Ga. 152 and cit.; Elliott on Boads and Streets, § 613.

The court instructed the jury as follows: “I charge you that there is no duty on a person walking on a sidewalk to , watch ^ for the condition of the sidewalk, because the law imposes it upon the municipality to have it reasonably safe.” Every person is . bound to ordinary care to prevent injury to himself from another’s negligence. The judge in another, portion of the charge gave the jury this principle; but this, instead of curing the error, tended to aggravate it; for when the two instructions are taken-together it is tantamount to saying that, while every person is bound to exercise ordinary care to prevent injury to himself, this degree of care would not require him to watch for the condition of the sidewalk. This is obviously a question for the jury. Dempsey v. Rome, 125 Ga. 804. While the jury may take into consideration the dutjr of the municipality to keep the sidewalk safe, as a circumstance tending to excuse the plaintiff from exercising as much caution for his own protection as otherwise he ought to use, yet this is to be given only such weight in determining the matter of his contributory negligence as the jurjr may believe it is entitled to under all the facts of the case. In this case the plaintiff knew there was a stump on the sidewalk. Some courts hold that this mere knowledge, would defeat a recovery; but our courts, following the stronger current of authority, hold that the plaintiff’s knowledge of the defect is not conclusive upon this subject. “The fact that a traveller voluntarily attempts to pass, with knowledge of the defect or obstruction, is not ordinarily conclusive evidence of a want of due care.; but if he has or ought to have notice thereof, he mast exercise such care as the circumstances demand; and if an ordinarily prudent person would not attempt to pass, under the •circumstances, he would be guilty of contributory negligence.” Elliott on Roads and Streets, § 636. Idlett v. Atlanta, 123 Ga. 823 and cit.; Harrell v. Macon, 1 Ga. App. 413, and cit. One of the exceptions taken in' the record is that the court , erred in failing to charge • the jury “that if the plaintiff knew that the stump over which she fell-was upon the sidewalk, a greater degree of diligence should have been exercised upon her part to avoid the injury, and that if she failed to exercise a greater degree of diligence than that required of a person walking along the sidewalk and having no knowledge of any defect or obstruction in the sidewalk, she would not be entitled to recover.” From what has just been said it is manifest that this exception is not well taken. The degree of care is the same whether the traveler has knowledge of the defeat or not; ordinary care and diligence is the requirement in either situation. To constitute or-: dinary care in the case where knowledge exists may require the exercise of more caution, of more forethought, of more circumspection, or the employment of more acts of prudence than in the case where the knowledge does not exist; but the degree of care is always the same. The court should leave to the jury, untrammeled by any intimations further than a statement of the general legal rules applicable, the whole question of what acts the plaintiff should have done or should have refrained from doing under the particular situation.

In defining ordinary care the trial judge used this language to the jury: “Ordinary care is that care which you and the generality of men would exercise in taking care of your own property and affairs.” A charge which makes tide individual jurors the standard of prudence is erroneous. Coleman v. Allen, 79 Ga. 643. The individual jurors might be extremely cautious men, or, on the other hand, might be somewhat careless; for uprightness and intelligence, not care and caution in handling one’s affairs, is the test of the qualification of a juror; but from that intelligence, “from their observation, from their common sense, their common knowledge and experience,” the jurors determine the standard of ordinary prudence, of ordinary care and diligence. Broyles v. Prisock, 97 Ga. 643.

To constitute a sidewalk a portion of a public street by dedication, both dedication and acceptance must appear; but both these elements may be' shown by implication. To bind the city, the acceptance must be made by the public authorities; as to the City of Americus under section 43 of its charter, by the mayor and’ city council. Acts 1889, p. 972. If a formal acceptance be relied upon, this can be shown only by the minutes of the council. Parsons v. Trustees, 44 Ga. 538. If implied acceptance be relied upon, it may be shown by proof that the street or walk was used or worked as a highway under the authority of the council; mere use by members of the public is not sufficient. “Acceptance- may be implied from repairs made and ordered, or knowingly paid for by the authorities which have the legal power to adopt the street or highway.” Abbott’s Municipal Corp. § 736; Kelsoe v. Oglethorpe, 120 Ga. 954; Georgia R. Co. v. Atlanta, 118 Ga. 489; Parsons v. Trustees, supra; Elliott’s Roads and Streets, §§ 151-154. There was sufficient evidence both as to the dedication and acceptance to authorize the submission of the same to the jury. Testimony that work was done upon the sidewalk by the street hands of the city, or by the city engineer, or under the direction •of members of the street committee, is admissible for the purpose of raising the implication that the work was done under authority of the city council.

There being evidence tending to show that the stump was not on the land originally bought by the city for a street, and also a dispute as to whether the street had been widened by the donation of the abutting-land owner and acceptance by the city of an additional strip to be used for the sidewalk, both these questions should have been submitted to the jury. Judgment reversed.


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    402.
    Garrick v. Jones.
   Russell, J.

'1. In a court for the correction of errors of law, the verdict of the jury is conclusive as to issues of fact properly submitted to them. -Three well-defined issues of fact were involved — contract, performance, advances, upon the determination of- which depended the legal result of lien or no lien. The verdict established the plaintiff’s evidence as the truth of the case, and is presumptively right. No reason appears why the verdict and the judgment in accordance therewith should be set aside, and the motion for' new trial was properly refused.

2. According to the facts found by the jury to be true, the plaintiff in error, as landlord, was to furnish the land, plow stock, etc., and the defendant in error was to furnish the labor; and the crop was to be equally divided. The relation of landlord and “cropper” existed, which is merely a mode of paying a laborer wages for his labor, and he has no title to any part of the crop until the rent and advances are paid. It was undisputed that the landlord was in control and had received all of the crop that had been gathered, up to the foreclosure of the laborer’s special lien; and the jury found,- as authorized by the evidence, that the portion of the crop taken by the landlord was more than enough to pay the rent and all the advances, and that the cropper was entitled to foreclose his special lien- on the remainder. The right of the jury to prefer this evidence can not be questioned, and it is equally well settled that after the payment of the rent and all advances a cropper is entitled to foreclose his special laborer’s lien for the balance due. McElmurray v. Turner, 86 Ga. 215, 12 S. E. 359.

Foreclosure of lien, from city court of Statesboro — Judge Brannon. February 12, 1907.

Submitted June 21,

Decided July 25, 1907.

A. M. Deal, Fred. T. Lanier, for plaintiff in error.

R. Lee Moore, contra.

3. If a landlord has no property upon which a laborer’s general lien may be foreclosed, a cropper is not required to wait to foreclose his special laborer’s lien until the entire crop has been delivered to the landlord and by him disposed of. Theoretical satisfaction is not the equivalent of actual relief. The rent and advances made to aid in making the crop • must, from the nature of the ease, be first paid, but the agreement to pay the cropper part of the crop as his wages is as much a part of the contract.

4. Delivery of the landlord’s share of the crop by the cropper and payment by such cropper for all advances is full performance of the contract upon his part, and will entitle such cropper to foreclose his lien as a laborer, either up-n the remainder of the crop or upon the property of the landlord generally. Judgment affirmed.


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    Hines v. The State.
    Certiorari, from Liberty superior court — Judge Seabrook. April 18, 1907.
    Submitted June 17,
    Decided July 25, 1907.

      O’Connor, O’Byrne & Hartridge, Donald Fraser, for plaintiff in error. N. J. Norman, solicitor-general, contra.
   Hill, C. J.

1. The verdict being fully warranted by the evidence, and no error of law complained of, the judgment of the superior court in refusing the writ of certiorari will not be disturbed.

2. Assignments of error not presented in the brief or 'argument will be considered as abandoned. Judgment affirmed.


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    500.
    Holt v. The State.
   Russell, J.

1. It is never necessary or proper for a court, during the trial of a case and in the hearing of the jury empaneled therein, to relieve itself by reference -to the right of the Supreme Court to reverse its rulings to which respectful objection is being made, and by suggesting that counsel try the remedy. In a case stubbornly contested and close and doubtful, to intercept, cut off, and prevent a question from being asked a witness by defendant’s counsel, with the remark, “I may be wrong about this; you have your remedy, you can go to the Supreme Court. 1 won’t permit .him to testify about a matter on the former' trial until the record is read to him,” was prejudicial to the defendant, and it is such an intimation of the court’s opinion that the defendant is guilty as requires the grant of a new trial.

Accusation- of illegal sale of liquor, from city court of Eastman —-Judge Clements. May 4, 1907.

Submitted July 17,

Decided July 25, 1907.

DeLacy & Bishop, D. M. Roberts & Son, for plaintiff in error.

W. M. Morrison, solicitor, C. W. Griffin, Tye, Peeples, Bryan & Jordan, contra.

2. “The fact that a defendant in a criminal ease may take up his case to the Supreme Court is no reason why he should not have meted out to him, by the court and jury, the full measure of his legal rights.” Hodges v. State, 15 Ga. 118.

3. The right of a defendant to test the consistency or improbability of a-witness’s story, as well as his interest or feeling in the case, by cross-examination thorough and sifting, is secured to every party as to witnesses called against him. Civil Code, § 3864. And a material abridgement or denial of this right is ground for a new trial. A. & B. Ry v. McManus, 1 Ga. App. 302, 58 S. E. 258. Judgment reversed.


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    507.
    HAMMOND v. THE STATE.
    1. The evidence justified the verdict.
    2. The instructions complained of, when taken in connection with the context, do not present any grounds of material or reversible error.
    Accusation of illegal sale of liquor, from city court of Eastman —Judge Clements. May 2, 1907.
    Submitted July 17,
    Decided July 25, 1907.

      DeLacy & Bishop, D. M. Roberts & Son, for plaintiff in error.
    W. M. Morrison, solicitor, C. W. Griffin, Tye, Peeples, Bryan & Jordan, contra.
   Powell, J.

The trial judge charged, “Moral and reasonable certainty is all that can be expected in legal investigation. In all civil cases the preponderance of testimony is considered sufficient to produce mental conviction. In criminal cases a greater strength of mental conviction is held necessary to justify a verdict of guilty,”' Exception is taken to so much of this instruction as states that “in. all civil cases the preponderance of testimony is considered sufficient to produce mental conviction,” on the ground of its irrelevancy to the issue. While in criminal trials it is not appropriate that the judge should ordinarily refer to the rule of proof applicable in civil trials, yet, taken in connection with the context and with the fact that the judge fully instructed the jury as to the benefit of reasonable doubt to which the defendant was entitled and as to the presumption of innocence in his favor, it is clear that no injury .resulted to him. Jackson v. State, 125 Ga. 102 (3), 53 S. E. 607.

Further isolated excerpts from the charge are excepted to. When viewed in light of the entire charge they present no ground of reversible error. Judgment affirmed.


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    508.
    FRANKLIN v. THE STATE.
    The facts alleged in .the accusation -and proved did not constitute the offense of cheating and swindling; and the verdict should have heen set aside and a new trial granted on the general grounds.
    Accusation of cheating, etc., from city court of Fayetteville—Judge Hollingsworth. April 24, 1907.
    Argued July 17,
    Decided July 25, 1907.

      J. W. Wise, for plaintiff in error.

      T. V. Lester, solicitor, contra.
   Hill, C. J.

The defendant was convicted (for a violation of the Penal Code, §670, the general section on the subject of cheating and swindling. The specific acts alleged as constituting the offense are set out in the accusation as follows: said defendant “did on the 14th day of November, 1905, in county of Fayette, by using deceitful means or artful practices other than those mentioned in Vol. 3, Code of Georgia of 1895, cheat and defraud Charlie Bussey to the extent of ten dollars. . . Said deceitful means and artful practice consisting in the said Franklin representing to said Charles Bussey that he had sworn out an accusation against said Bussey in the city court of Fayetteville for disturbing divine worship, said representation being false and fraudulent,” etc. The evidence showed that the defendant was the pastor of a church in the country; that the prosecutor, Bussey, had by disorderly conduct disturbed the congregation assembled in the church while engaged in divine worship. The defendant proposed to prosecute him for this offense; and while he did not actually swear out the accusation, he intended to do so, and did not carry out such intention because of the payment of ten dollars. We think, under these facts, the conviction was without evidence, and was contrary to law. The prosecutor was not defrauded or cheated by representation made by the defendant; neither was such representation deceitful or artful. The defendant did accuse the prosecutor of disturbing his congregation lawfully assembled for divine worship, and agreed not to press the prosecution or accusation if he was paid ten dollars. The ten dollars was paid, and, according to promise, no prosecution was instituted. While the conduct of the defendant or pastor does not show a very high standard of morality, yet it falls short of a penal offense. Judgment reversed.


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    512.
    Schley v. The State.
    Accusation of illegal sale of liquor, from city court of Americus — Judge Crisp. April 13, 1907.
    Argued July 17,
    Decided July 25, 1907.

      Blalock & Cobb, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Powell, J.

This case is controlled by the decision of this court in Plummer v. State, 1 Ga. App. 507, 57 S. E. 969.

Judgment affirmed.


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    513.
    Turner v. The State.
    Accusation of vagrancy, from city court of Americus — Judge Crisp. May 13, 1907.
    Argued July 17,
    Decided July 25, 1907.

      Blalock & Cobb, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Hill, C. J.

The defendant was convicted on an accusation charging her with vagrancy under the act of 1905, and alleging that she was a minor over sixteen and under, twenty-one years of age. The undisputed evidence showed that her father was able to support her. Held, that the verdict of guilty was not warranted by the evidence. Acts 1905, p. 110, par. 8; Collins v. State, 125 Ga. 15, 53 S. E. 809.

Judgment reversed.


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    519.
    MIMBS v. THE STATE.
    1. There was no error in refusing a new trial on the -ground that there was not sufficient evidence to support the conviction.
    2. The testimony of a witness, in referring to an act which took place in his presence, “It seems to me that he closed the door behind him, but I can not say positive that he did close the door, I was so far away,” is not subject to objection on the ground that it is opinionative.
    Accusation of keeping lewd house, from city court of Mount Yernon — Judge Geiger. April 1C, 1907.
    Submitted July 17,
    Decided July 25, 1907.

      William B. Kent, A. C. Saffold, for plaintiff in error.

      W. M. Lewis, solicitor, contra.
   Powell, J.

The defendant was convicted of maintaining and keeping a lewd house. The evidence shows that the defendant, her daughter, and her niece lived together; that men were seen frequenting the place by night and by day; that the defendant had a general reputation of being a lewd woman, and the house of being a place of prostitution. This was sufficient. McCain v. State, 57 Ga. 391; Hogan v. State, 76 Ga. 82.

A witness may testify to facts with a degree of certainty less than that of absolute positiveness. Many men guard their statements as to facts concerning which they are most certain, with expressions indicative of doubt. With some people, notably the Scotch, this cautiousness is almost a national trait. But that the witness is not willing to state positively the existence of a fact of which, from the-nature of things, he has some knowledge does not render his testimony inadmissible. The statement of the witness in this case, “It seemed to me that he closed the door behind him,” taken in connection with the context, manifestly showed that the witness was not attempting to give his opinion, but to state the impression of his mind as to a fact concerning which his recollection or ability to see perfectly would not permit him to state with more positiveness. In Franklin v. Macon, 12 Ga. 257, the court says: “It is not sufficient to exclude the• testimony of a witness, who swears that ‘the impression resting on his mind, was so and so,' as every witness must swear according to the impressions on his mind, which are the materials of his knowledge, and this is only a more cautious mode of expressing himself.” Ordinarily, the words «it was my understanding,” when used hy a witness, mean his knowledge and recollection of the fact, though of course there are-times when these would be apt words to express merely the opinion, of the witness; in the former event,the evidence is admissible, in. the latter not so. Moody v. Davis, 10 Ga. 403; Fielder v. Collier, 13 Ga. 496; Neal v. Field, 68 Ga. 557; Martin v. State, 38 Ga. 297; Printup v. Mitchell, 17 Ga. 558 (3), 63 Am. Dec. 258. The words "I believe” ordinarily indicate that what follows them is merely the opinion of the witness; but this is not alwaj^s so. They may be merely words of caution; in which event the evidence is admissible notwithstanding the statement may be prefaced by these words. Thompson v. Davitte, 59 Ga. 483 (13); Imboden v. Etowah Co., 70 Ga. 87 (12d). In Central R. v. Coggins, 73 Ga. 689, it is held, that, taken in connection with the other facts to which he deposed, it was not error to permit the plaintiff to testify that «as the engineer slacked up for the switchman to get on the train, he seemed to shut off his engine, and the ear ran úp on the engine, and he opened his. engine right suddenly, I suppose.” As to the use of the word «suppose” as qualifying the statement of the witness, but not rendering it inadmissible, see Atlanta Ry. Co. v. Beauchamp, 93 Ga. 6, 19 S. E. 24. In Thomas v. State, 67 Ga, 464 (4), the, Supreme Court says, «The appearance of a thing is a fact.” To state that a thing «seems” so to a witness is merely to state its appearance as viewed by the witness. See, in this connection, Roberts v. State, 123 Ga. 146, and cit. The words used by Justice Lumpkin in the case of Franklin v. Macon, 12 Ga. 261, are still true and apply to existing conditions. We therefore quote them with approval: «I have long' been satisfied that we are too hide-bound and restricted in our practice, with regard to the admissibility of evidence. The books of Beports will show that there is no State in the Union, and no country in the world, where there are as many captious objections made to the testimony. It is high ■ time that the practice should be discouraged. . . Nothing tends more to embarrass a trial, civil or criminal, than the frequent and frivolous objections that are so commonly and so capriciously made to the introduction of the proof.” Judgment affirmed.