text:
    8119.
    Bentley v. Johns.
   Broyles, P. J.

1. Ordinarily an exception to the refusal of the court to grant a nonsuit will not be considered by this court when the case proceeded to a verdict and there is an exception also to the overruling of a motion for a new trial, which includes the ground that the verdict was contrary to law and the evidence. Under the particular facts of this ease, however, the exception to the refusal to grant a nonsuit will be considered.

2. As a general rule, for the defendant to avail himself of the statute of frauds he must specially plead it. However, under the ruling in Denmead v. Glass, 30 Ga. 637 (which was cited and apparently approved in Johnson v. Latimer, 71 Ga. 470), in the absence of such a plea the defendant can avail himself of this defense by a timely motion to non-suit the case. See also Tift v. Wight, 113 Ga. 681, 684 (39 S. E. 503). In this case the plaintiff’s evidence clearly showed a promise by the defendant to “answer for the debt, default, or miscarriage of another” (Civil Code of 1910; § 3222, subsection 2) ; and such promise being the basis of- the suit, and the plaintiff’s evidence further showing that this promise had never been in writing, the defendant’s motion for a nonsuit, expressly based on this ground, should have been sustained. In the case of Marks v. Talmadge, 8 Ga. App. 559 (69 S. E. 1131), “it does not appear that the motion for nonsuit was based on any ground relating to the statute of frauds.”

Decided April 3, 1917.

Complaint; from Gordon superior court—Judge Fite. November 27, 1916.

F. A. Cantrell, Maddox, MeCamy & Shumate, for plaintiff in' error. J. G. B. Erwin Jr., contra.

3. The error in the judgment upon the motion to award a nonsuit rendered the further proceedings in the case nugatory, and the remaining assignments of error are not passed upon.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    8188.
    Swearingen v. Virginia-Carolina Chemical Co.
    Decided April 3, 1917.
    Complaint; from Dooly superior court—Judge George. July. 5, 1916.

      Busbee & McDonald, for plaintiff in error.

      Powell & Lumsden, contra. ,
   Bloodworth, J.

1. When considered in connection -with the explanatory note of the judge, no error was committed in admitting the note in evidence.

2. “The evidence demanded a verdict for the plaintiff, for the value of the guano which was the consideration of the note, whether the note was signed by the defendant, or its execution authorized or not, since it showed that she knowingly received the property for which the note ivas given, and accepted the benefits thereof. This amounted to a ratification of the purchase of the guano, and raised on her part an obligation to pay therefor.” Home Fertiliser & Chemical Co. v. Dickerson, 12 Ga. App. 149 (76 S. E. 1040).

Judgment affirmed.

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


author: Luke, J.

text:
    7988.
    CONTINENTAL AID ASSOCIATION v. HAND.
    1. Where suit was brought in a justice’s court, and, after judgment for the plaintiff, he, being dissatisfied with the amount thereof, entered an appeal to a jury in that court, the subsequent entry of an appeal to the superior court by the defendant did not serve to remove the case from the justice’s court, or to divest it of its jurisdiction, even though both appeals were entered within the time allowed by law for entering such appeals.

      2. The evidence authorized the verdict and judgment in the justice’s court, and accordingly the court did not err in overruling the certiorari.
    Decided April 4, 1917.
    Certiorari; from Floyd superior court—Judge Wright. October 23, 1916. •

      Harris & Harris, for plaintiff. L. H. Covington, for defendant.
   Luke, J.

Suit was instituted in a justice’s court, and the plaintiff obtained a judgment against the defendant on February 3, 1916. The plaintiff was dissatisfied with the amount of the judgment, and on February 4 entered his appeal to a jury in the justice’s court. Subsequently (February 7) the defendant entered its appeal to a jury in the superior court. When the case came up for trial before a jury in the justice’s court the defendant’s attorney objected to its being tried in that court, on the ground that it was pending on appeal in the superior court. The objection was overruled, and, the trial having resulted in a verdict for the plaintiff, the defendant sued out certiorari; the certiorari was overruled and the defendant excepted. The question for determination is: Which appeal is good in law? This question is controlled by the “miller’s rule.” Section 4741 of the Civil Code of 1910 provides: “In all cases in a justice’s court where an appeal can be entered to a jury in the superior court, it shall be lawful for- such appeal to he entered to a jury in either the justice court or the superior court; any case appealed to a jury in one court shall not be appealed to a jury in the other court.” The plaintiff selected the court of proper jurisdiction in which to submit his cause, and exercised the right of appeal first, and appealed his case to a, jury in the same court. The appeal of the plaintiff took precedence of the appeal entered to a jury in the superior court. This ruling is not in conflict with that in the case of McDougald v. Chattanooga Medicine Company, 10 Ga. App. 653 (73 S. E. 1089). The precise question raised in the present case is decided in the case of East Tennessee &c. Railroad v. Miles, 72 Ga. 252. The case as appealed was submitted to the proper court, the evidence authorized the verdict, and the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    7993.
    Vaughn v. American National Insurance Company.
    Decided April 4, 1917.
    Certiorari; from Fulton superior court—Judge Bell. October 16, 1916.

      II. A. Allen, T. G. Lewis, for plaintiff.

      Willis M. Everett, for defendant.
   Luke, J.

It was not error to rule out the testimony of the plaintiff as to . the custom of the defendant company in allowing the plaintiff to become in arrears in the payment of his insurance premiums; the evidence of the plaintiff did not authorize a verdict in his favor, and the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    8002.
    Shoemaker v. Reese.
    Decided April 4, 1917.
    Certiorari; from Carroll superior court—Judge R. W. Freeman. October 28, 1916.

      Buford Boykin, for plaintiff in error. II. 0. Strickland, contra.
   Luke, J.

The 'answer- of the 'justice of the peace to the writ of certiorari denied the truth of the allegations of the petition, and the judge of the superior court did not err in entering the following judgment in the cause, to wit: “The traverse to the answer of the magistrate having been found in favor of the answer, and the answer not showing that any plea was ever filed or tendered, I do not think the court committed any error in entering judgment for the plaintiff in this case.. The suit was upon an itemized, verified account, and personal service on the defendant. It is ordered and adjudged that the certiorari be and the same is hereby overruled and dismissed.”

Judgment affirmed.

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


author: George, J.

text:
    8035.
    Bacon v. Howard, administrator.
   George, J.

1. The general grounds of a motion for new trial,—that is, (1) the verdict is contrary to the evidence and without evidence to support it, (2) the verdict is decidedly and strongly against the weight of evidence, and (3) the verdict is contrary to law and the principles of justice and equity,—contain no recital of fact that requires a formal verification by the trial judge in order to authorize the Court of Appeals to entertain and consider such grounds. Harris v. State, 120 Ga. 196 (47 S. E. 573).

2. If formal approval of the general grounds of the motion for a new trial were necessary, the order of the trial judge, entered thereon, containing the following clause: “This defendant, Berry Bacon, having made a motion for new trial in said case on the grounds therein stated, said • grounds having been approved by the court,” etc., would appear to be sufficient to authorize this court to entertain and iconsider such grounds.

3. An order in the usual form, approving the recitals of fact contained in an amendment to the motion for a new trial, and signed “Walter W. Sheppard, Sup. Cts. Atlantic circuit,” is a verification by the trial judge of the recitals of fact in the amendment, especially where the motion for a new trial recites that it is made in a case tried in Evans superior court, and where the rule nisi issued thereon is signed: “Walter W. Sheppard, judge of the superior courts of the Atlantic circuit,” and where the signature of the judge to his order overruling the motion for a new trial is followed by the words: “Judge S. Cts. Atlantic J. C. of Ga.,” and where the bill of exceptions, duly certified by the judge of the superior courts of the Atlantic circuit, recites that the movant “presented to the said presiding judge for an approval an amendment to his original motion for new trial, setting forth additional grounds thereof, which . . amendment to said motion for new trial was . . approved by said presiding judge and is of file as a part of the record in said case,” and where such amendment is certified and sent up in the record.

4. The Court of Appeals will take judicial cognizance of the fact that' his honor Walter W- Sheppard was judge of the superior courts of the Atlantic judicial circuit of Georgia at the date of the order approving the recitals of fact contained in the grounds of the amendment to the motion for a new trial. Compare Jossey v. Brown, 119 Ga. 758, 765 (47 S. E. 350); Perry v. State, 113 Ga. 936 (39 S. E. 315).

5. The relation of landlord and tenant is indispensable to the maintenance of the proceeding authorized by section 5385 of the Civil Code of 1910, for the summary eviction of a person as a tenant holding over. Although there was sufficient evidence to warrant the jury in finding that the tenant entered into the possession of the premises during the lifetime of the intestate, under a contract of rental, nevertheless the evidence was undisputed that after the death of the landlord the tenant took possession of the premises under a deed from six of the nine heirs at law of the intestate.

6. Ejectment in some one of its forms, and not the proceeding in code-section 5385, supra, is the appropriate remedy for the administrator to pursue in order to recover the possession from the heir oi; any person who may have succeeded, either by operation of law or by purchase, to the rights and possession of the heir. Cassidy v. Clark, 62 Ga. 412; Powell on Actions for Land, 537, § 405. Compare Watson v. Toliver, 103 Ga. 123 (29 S. E. 614), and Williams v. Seale, 103 Ga. 801 (30 S. E. 644).

7. “Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law.” Civil Code of 1910, § 3929. The heirs at law are entitled to the possession of lands owned by an intestate at the time of his death until it is needed by the administrator for the purpose of administration, that is, for the purpose of paying debts and making legal distribution to the heirs.

Decided April 4, 1917.

Eviction; from Evans superior court—Judge Sheppard. March 35, 1916.

H. B. Strange, J. P. Moore, for plaintiff in error.

8. The evidence disclosed that the defendant in the eviction proceeding was holding possession of the land under his son, who had succeeded to the interest of certain of the heirs at law of the plaintiff’s intestate. The deeds executed by the heirs at law were unimpeaehed, and the administrator was not authorized to recover the possession of the premises in this proceeding. The trial court therefore erred in overruling the motion for a new trial.

Judgment reversed.

Wade, G. J., and Luhe, J., eonew.


text:
    8156.
    DENHAM et al. v. TEXAS COMPANY et al.

    1. Minor children residing with their father can not maintain an inde-pendent and separate suit for the negligent homicide of their mother, under section 4424 of the Civil Code of 1910,. which provides that “the husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly, and not separately, with the right of survivorship as to said suit if either die pending the action.”
    2. The failure and refusal of the husband and father to join in the suit with the children for the negligent homicide of the mother will not authorize a separate suit by the children.
    3. The court did not err in sustaining the general demurrer to the petition.
    Decided April 4, 1917.
    . Action for damages; from Baldwin superior court—Judge Park. January 11, 1916.
    C. E. Denbam and others, by their next friend, filed suit against the Texas Company and A. S. Denham, alleging the following facts: Plaintiffs are- the minoy children of A. S. Denham and Patty N. Denham. The Texas Company is á corporation nonresident of this State, and A. S. Denham is, and was at the time of the-injury complained of, the company’s agent in charge of-its office in the county of the suit. On June 10, 1915, Mrs. Patty N. Denham, the mother of the plaintiffs, at the invitation of said A. S. Denham, agent of the Texas Company, and with the knowledge and assent of the Texas Company, occupied a seat and was riding in an automobile then being used .by the Texas Company in the conduct of its business in said county. The said automobile was being then operated by A. S. Denham in the performance of his duties as the agent of said Texas Company. While the plaintiffs’ mother was so riding she was thrown from the automobile and killed, as a result of the negligence of A. S. Denham, her husband, in causing said automobile to collide with another vehicle. The specific negligence alleged was: the operation of the automobile at a high and dangerous rate of speed, in -violation of a valid municipal ordinance of the City of Milledgeville, and in violation .of the rules of the road, and in violation of the law of the State; the failure to cheek the speed of the automobile on approaching a street crossing in the City of Milledgeville, and the failure to sound a horn or whistle or to give any warning in approaching the said street crossing. Mrs. Patty N. Denham, at the time of her death, was capable of earning $60 per month, she was thirty-four years of age and had a reasonable expectancy of thirty-five years of life, and the full value of her life was $7,500. The petitioners are her only heirs at law. By amendment it was alleged that the car furnished by the Texas Company was defective, in that its brakes were out of order and would not operate, and could not be applied to stop the car when it was in motion; that the failure to have the car equipped with a proper brake was negligence and contributed to the injury complained of, and that A. S. Denham, the father of the plaintiffs, refused to sue for the death of his said wife; and the prayer for judgment against him was stricken.
    The Texas Company demurred to the petition, on the following grounds: (1) The allegations of the petition set out no cause of action against the defendant; (2) the petition shows on its face that the injury and death of the plaintiffs’ mother was attributable to the negligence of their father, at whose invitation their mother was riding at the time; (3) the petition shows on its face that the father of the plaintiffs was living at the time the suit was filed; that the fight of action for the homicide of the wife and mother was in the husband and father, and not in the children; and that during the lifetime of the father no right of action for the homicide of the mother exists in the children. The court sustained the demurrer and dismissed the petition.

      Hines & Vinson, for plaintiffs. Allen & Pottle, for defendant.
   George, J.

(After stating the foregoing facts.) The principal, and perhaps controlling, question presented here is whether minor children can recover for the negligent homicide of their mother when the husband and father is living and refuses to sue. If the plaintiffs can recover at all, they must do so by authority contained in section 4424 of the Civil Code of 1910. This section first 'appeared in the Code of 1863, as section 2913, and in the Irwin revision as section 2920. See also section 2971 of the codes of 1873 and 1882. Section 2913 of the Code of 1863, supra, contaips only the first sentence of the present section, which is as follows : “A widow, or if no widow, a child or children, may recover for the homicide of the husband or parent, and if suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first case to the widow, and in the latter case to the surviving child or children.” This section of the Code of 1863 is codified from the act of 1850 (Cobb’s Digest, 476), and the act of 1856 (Acts 1855-6, p. 155). The act of 1856 was an act to enlarge and extend the liability of railroad companies for injury to person or property, and section 4 therein provided, “if any one shall be killed by the carelessness, negligence, or improper conduct of any of said railroad companies, their officers, agents or employees, by the running of the cars or engines of any said companies, that the right of action to recover damages shall vest in his widow, if any; if no widow, it shall vest in his children if any, and if no child or children, it shall vest in his legal representatives.” In Miller v. Southwestern Railroad Co., 55 Ga. 143, the court said: “In providing in the Code who might recover damages for the homicide of another, it ' is limited to the widow and children of the husband or parent; the words in the act of 1856, ‘if no child or children, it shall vest in his legal representative,’ are omitted, and as the legislature, in adopting the 2971st section as it found it in the Code [of 1873], were dealing with the same subject-matter as contained in the 4th section of the act of 1856, we are bound to‘ presume that the words ‘if no child or children, it shall vest in his legal representative,’ were intentionally omitted.” By the act of 1878 (Acts 1878-9, p. 59) it was provided: “The plaintiff, whether widow or child or, children, may recover the full value of the life of the deceased as shown by the evidence. In the event of a recovery by the widow she shall hold the amount recovered, subject to the laws of descents just as if it had been personal property descending to the widow and children from the deceased.” And it was there further provided that “any recovery had under the provisions of this act, and of the law of which it was amendatory, shall be subject to no debt or liability of any character of the deceased husband or parent.”

The first sentence of section 4424 of the present code was considered and construed in Allanta & West Point Railroad Co. v. Venable, 65 Ga. 55, and it was there held that the word “parent” meant either father or mother, and that the section gave a right of action to the minor children for the homicide of the mother, and did not restrict them to recovery for the homicide of the father. In that case it was not expressly decided, but in the argument sustaining the court’s view it was intimated, that the right of the child to recover for the death of its mother exists because the death of the father casts the burden of supporting the child on the mother, and. the child thus becomes interested in the life of the mother. In Mott v. Central Railroad, 70 Ga. 680 (48 Am. R. 595), it was held that the adult son of one killed by a railroad train, who left neither widow nor minor child, could not maintain a suit to recover damages for the homicide. The opinion in that case recognizes that the right of action is given the child for the negligent homicide of the husband or parent, but confines the right to a dependent member of the family at the time of the homicide of the parent, and confirms the intimation expressed in the argument in the Venable case, supra". In Scott v. Central Railroad, 77 Ga. 450 (2), it was unequivocally held: “Where a husband and father is dead, a right of action arises in favor of the children for the homicide of- their mother, but they have no such right of action where their father is alive.” That case was decided on November 23, 1886. In 1887 the legislature further amended the section of the code now under consideration, by inserting, after the words “surviving child or children,” the following: “The husband may recover for the homicide of his wife, and if she leave child or children surviving, said husband and children shall sue jointly and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action. A mother, or if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless such child leave'a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child. The word 'homicide/ used in this section, shall be held to include all cases where the death of a human being results from a crime or from criminal or other negligence." ' Acts 1887, p. 43. Since the passage of this act no ease involving the right of /he child to recover for the negligent homicide of the mother, where the husband and father is in life and fails or refuses to join in the action, has been before the Supreme Court of this State, so far as we know.

Counsel for the plaintiffs in error contend that the amendment of 1887, supra, gives to the children a substantial interest in the life of the mother, even in the lifetime of the husband and father, and that the provision of that amendment requiring the joinder of the children with the husband and father in the suit is merely a rule of practice, in no wise limiting the substantial right of the children to sue for the negligent homicide of the mother. It is urged that this provision aims to prevent a multiplicity of suits, but does not deny the right of the child or children to sue in the event the father and husband refuses to join in the action. It must be remembered that prior to the act of 1887 the father could not sue for the homicide of the mother. In the ease of Georgia Railroad & Banking Co. v. Wynn, 42 Ga. 331, it was ruled that the husband has no right, under the common law or the statute law of Georgia, to maintain an action to recover damages for the homicide of his wife. While the act of 1887 was passed at the session of the legislature next after the decision in Scott v. Central Railroad, supra, we are not by that fact persuaded that the legislature intended to give to the child a right of action for the homicide of the mother if the husband and father were living. The plain language, “the husband may recover for the homicide of his wife” (the first.clause of the amendment), would indicate that the legislature intended to give the right of action to the husband for the homicide of his wife,—a right heretofore denied the husband under the laws of the State. Prior to the act of 1887, on the authority of the decisions of the Supreme Court cited above, the children had a .right of action for the homicide of the mother, the husband and father being dead, but the husband had no right of action at all. The father and husband being in life, no one could recover for the homicide of the mother and wife. We think that this amendment intended to confer upon the husband the right of action for the homicide of his wife, but qualified this right by the provision that the action should be brought jointly in his name and in the name of the children, if any. If the amendment of 1887 affects the decisions in the Scott and Venable cases, supra, it simply put in the form of a statute the decisions of the court to the effect that during the life of the father the children had no separate cause of action in their own right. Our conclusion is influenced by the rule of strict construction always applied to the provisions of section 4424 of the present code. The statute is in derogation of common law, and is strictly construed. It is not remedial and subject to liberal construction. The right to maintain a civil action for a negligent homicide has been restricted by the repeated decisions of the Supreme Court of this State to those persons expressly named or by necessary implication included in the terms of the statute. Moreover, it must be remembered that the right of civil action for a negligent death is founded upon the theory of compensation. The beneficial interest in the life of the deceased is the basis upon which the right of recovery exists. So it is ruled in this State that a father can not maintain an action for damages on account of the homicide of his infant child, who was at the time of its death incapable of rendering him any services. The mother can not recover for the homicide of her son unless she is able to allege and prove facts showing a pecuniary damage to her in the death of the son. While our statutes may be and are in certain instances punitory, they are largely compensatory. If a penalty were intended to be inflicted upon thé wrongdoer, the legislature might easily so provide, and then the wrongdoer could never escapo for want of a party plaintiff. In eonferring the right of action,for a mere negligent homicide the legislature did not intend thereby to punish the wrongdoer.

Our attention is directed to tho hardships that may and will often result to the children of the deceased mother if they be not given the right of a separate action for her death. It is said that the father and mother may separate. It is said that the father may divorce the mother. At the present day this is too often true. It is said that the father may abandon his family and that his whereabouts may be unknown to his children. We do not think that such injustice will flow from the construction we have here placed upon section 4424 of- the code. If the father is separated from the mother, and if the burden' of supporting the children is cast upon the mother, she in legal effect is the head of the family, and for her wrongful death under such circumstances the children may have the right to sue. If the father be divorced, and if the mother be given the custody of the children, the provision of our law which compels her to support the children during their minority might confer upon them such a beneficial interest in her life as would •enable them to maintain a suit in their own names for the death of the mother, but we do not so decide. If injustice to the children result in exceptional cases by reason of the construction here given to section 4424, that matter should be brought to the attention of the legislature. In the present case the decision is certainly in no wise unjust to the children. The father is in life. The children are living with him. The civil law places upon him the duty to support his children, and the criminal law compels him to discharge this duty. His negligence caused the death of his wife, the mother of the plaintiffs. Certainly he can not recover. The law gives to him the benefit of the wife’s services during her life. If another wrongfully destroys the earning capacity of the wife, the right of recovery is in the husband. If her death is due to the negligence of another, the right of action, by the plain language of the code section, is in the husband. If she leave child or children surviving, the husband and children must sue jointly, and not separately. Conceding that the children have the joint right of action for the negligent homicide of the mother when the- father is in life, a strict construction of the code section confines them to a joint action against the wrongdoer. The section, by its terms, does not authorize a separate suit by the children, the father being in life. If this section be not given the construction here placed upon it, in a case where the homicide of the wife is caused by the negligence of one other than the husband, it is conceivable that the children may recover the full value of the life of the mother upon an allegation in the petition to the effect that the husband and father refuses to join in the action. This, at the time of the filing of the suit and at the time of the trial, may in. fact be true. It would be difficult to conceive any just or equitable ground upon which the husband’s subsequent right to recover in his own right for the homicide of his wife could be defeated, where, as in this ease, he is not made a party to the. suit brought by the children.

If we are correct in our conclusion, the plaintiffs can not maintain this action. It is questionable whether the petition sets forth a cause of action even if the right of the children to bring this suit is conceded. While it is averred that the mother was riding in the automobile of the Texas Company, with the knowledge and assent of that company, it is very plain to us that this knowledge and assent were in truth and in fact the knowledge and assent of her husband. The corporation is alleged to be a non-resident of the State, and the husband is alleged to be the agent in charge of its place of business in Baldwin county. The petition is to be construed most strongly against the plaintiffs. A fair, and certainly a strict, construction of the allegations made in the petition would lead to the inference that the husband of the deceased was the only representative of the company in Baldwin county at the time of the death of his wife. It is alleged that the husband of the deceased was acting within the scope of his duties in permitting his wife to ride in the car with him. This is a very broad conclusion. The company ought not to be held liable merely because the husband invited the wife to ride with him in the car. Knowledge and consent, express or implied, upon the part of the company are essential to the plaintiffs’ cause of action. Moreover, the husband and agent must have been acting within the scope of his authority. The facts alleged in the petition, when conclusions are disregarded, hardly make a case entitling the plaintiffs to recover. Our judgment is not, however, placed upon this ground. There was no special demurrer. Counsel may desire the Supreme Court of this State to pass upon .the important question ruled in the head-notes to this opinion. We desire to leave the question unincumbered by any embarrassing observations, and rule directly that the trial judge rightly dismissed the petition on demurrer, because the children have not, under the law of this State, the right to bring a separate action for the wrongful homicide of the mother, if the husband and father be in life, although he may refuse to join in the action.

Judgment affirmed.

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


text:
    8224.
    FOSKEY v. WRIGHTSVILLE & TENNILLE RAILROAD COMPANY.
    1. Tlie fact that one riding as a passenger on a railroad-train actually purchased from an agent of the carrier, before boarding the train, a ticket entitling him to transportation thereon, does not relieve him of tlie.obligation to surrender the ticket to the conductor on demand; and if he is unable, through no fault of the carrier, to produce and deliver. the ticket to the conductor after he has been given reasonable opportunity for so doing, he must, in order to entitle him to remain upon the train, offer to pay his fare.
    2. Where a passenger claiming to have misplaced his ticket has been given a reasonable opportunity to find it and surrender it to the conductor, and fails to do so and makes no offer to pay the cash fare, he may lawfully be expelled from the train. '
    3. Where, for the sole purpose of expelling the passenger, on his failure either to produce and surrender his ticket or to offer a cash fare, steps are taken to stop the train, or it is brought to a full stop between stations and at a point at which it is not scheduled to stop, he can not, after expulsion, demand the right to re-enter the train.

      4. Although it may be lawful to expel the passenger, special circumstances as to the manner or the time or place of the ejection may render it wrongful. In this case the evidence for the plaintiff clearly . disclosed that his expulsion was lawful, and he sustained no injury on account of the manner, time, or place of his expulsion. The nonsuit was properly awarded.
    Decided April 4, 1917.
    Action for damages; from Laurens superior court—Judge Kent. April 35, 1916.
    On the evening of December 34, 1914, the plaintiff purchased from the defendant’s agent a ticket from Dublin, Georgia, to Brew-ton, Georgia. About 5:30 o’clock, p. m., he boarded a passenger-train of the defendant at Dublin. When the train was about a mile and a half out from Dublin the conductor asked him for hir ticket, and he informed the conductor that he had misplaced his ticket, or had lost it, and could not find it, that ho had put it in some one of his pockets. The conductor went through the train, taking up tickets, and when the conductor returned the plaintiff was still searching for his ticket. When tho conductor came back the second time the plaintiff was satisfied that he had lost his ticket. He did not offer to pay the cash fare at either the ticket rate or the train rate, and the conductor caused the train to be brought to a'stop and asked him to alight. This was done in a prpper manner, and the plaintiff complied with the request. After he had left the train and when it was moving slowly forward, he found his ticket in one of his pockets. He testified, on the direct-examination, that he so informed the conductor, and that the conductor did not invite him to board the train. He could have boarded the train after it was in motion, but did not do so, because the conductor had said to him that he must get off. On cross-examination he testified: “As the train moved off I walked on up towards the baggage-car. I was trying to show the conductor my ticket. I didn’t get back on the train, because the conductor put me off. The reason I didn’t get back on the train after I had found my ticket, the conductor didn’t say so. .• . I couldn’t understand what he said when I told him I had found my ticket. I don’t know whether he said for me to get back on or not. I don’t-know but what he told me to get back on the train. I didn’t understand what he was saying.” So far as the plaintiff could testify, the conductor did not know that he had found his ticket. The plaintiff was about three miles and a half from his home when he was invited to leave the train. This distance he walked. He was accustomed to walk this distance. It did not hurt him. He did not get wet, but got sprinkled some. He was in good health on that night, and suffered no injury from the walk. At the conclusion of the plaintiff’s testimony, the judge granted a nonsuit.

      S. P. Kea,- Fred Kea, for plaintiff.

      B. M. Daley, J. K. Burch, J, 8. Adams, for defendant.
   George, J.

(2-fter stating the foregoing facts.) 1, 2. This suit was for wrongful expulsion, and not for damage sustained by the plaintiff as a result of his being compelled to leave the train. There is nothing in the evidence to warrant the jury to find that the time, the place, or the manner of the expulsion was wrongful.' In. Harp v. Southern Railway Co., 119 Ga. 927 (47 S. E. 206, 100 Am. St. R. 212), it was said: “The fact that one actually purchased a ticket, and that this was known to the agent who sold it, or to the gatekeeper who examined it, or to employees on the train who saw it, would not relieve the passenger of the obligation to surrender it do the conductor. . . The mere fact that the plaintiff has a ticket does not, therefore, necessarily establish his right to be transported on a given train. . . When the conductor makes his demand he is entitled to have the ticket surrendered. He can not be required to hear evidence or investígate the bona Mes of the passenger’s excuse for its non-delivery, nor to wait until he arrives at the next station and, by telegraphic correspondence with the selling agent, undertake to verify the correctness of the plaintiff’s statement, or determine the character and validity of the ticket sold.” In the ease at bar it affirmatively appeared from the testimony of the plaintiff that he had misplaced his ticket and was unable to find it and surrender it to the conductor upon demand. He was given a reasonable opportunity to .produce and deliver his ticket. Unable to do so, he did not offer to pay a cash fare, either at the train rate or at the ticket rate, to the point of his destination. The ejection of the plaintiff from -she train was therefore proper. The decision in Wilson v. Southern Railway Co., 343 Ga. 189 (84 S. E. 445), is controlling upon the case at bar. The headnote in that case is as follows: “In a suit for damages against a carrier of passengers, for a wrongful expulsion by defendant’s agent of plaintiff, who was without a ticket on defendant’s cars, where the petition fails to allege that the plaintiff tendered to the defendant’s ticket-collector the proper fare at the train rate in lieu of a ticket when the same was demanded of him, such petition set forth no cause of action, and the court did not err in sustaining a proper demurrer thereto.” In that case the petition alleged that the plaintiff, before boarding the train, had purchased a ticket. He misplaced or lost it through no fault of the railroad company. Although he was able to produce fairly satisfactory proof of the purchase of the ticket by him, and offered to pay the regular ticket fare to the point of his destination, the ticket-collector caused him to be ejected from the train. In that case, as in this, the plaintiff, if he in fact purchased a ticket, had lost it. In that case he offered to pay the regular ticket rate, while in this case he did not offer to pay a cash fare. Counsel for the plaintiff attempt to distinguish that case from this case by the fact that Wilson admitted the loss of his ticket, while in this case the plaintiff, at the time of his expulsion, was still engaged in a search for his ticket. This fact certainly can not be of any relevancy. One might search for a ticket, either in good or bad faith, from the beginning to the end of his journey. Certainly his mere belief that he may yet be able to find the ticket will not entitle one to remain on the train. The railroad company, in the discharge of its duties to the public, can not stop and wait until the passenger has satisfied himself that the ticket is lost beyond recall. If the train continue to run as long as the passenger is willing to search for his ticket, he may thereby have his ride without paying his fare. His misfortune,-if he has in fact lost his ticket, can not prejudice the right of the railroad company to eject him from its train upon the failure to surrender his ticket aftér he has been given a reasonable opportunity to find and present the ticket. He may prevent the eviction by offering to pay the cash fare, but this must be done before the- train is brought to a stop.

3. The principle announced in the third headnote needs no elaboration. So far as we know, the courts of this State have not gone beyond the rule there announced, yet the writer is clear that a passenger who has been rightfully expelled, even at a station, for refusing to pay fare, can not continue his passage by paying fare from that point only, but must pay for the whole distance actually traveled. Compare Ga. Southern & Fla. R. Co. v. Asmore, 88 Ga. 529 (15 S. E. 13, 16 L. R. A. 53). The language of Chief Justice Bleckley in that opinion is pertinent: “If he [the passenger] higgles and hesitates until he becomes a proper subject for ejection, and until steps have been taken to that end, he is too late. Any rule which would allow one passenger to play fast and loose with the conductor would allow all the passengers to do so, and a train might thus be kept halting and alternating between running at ordinary speed and stopping throughout the whole of its journey, and to this embarrassment not only one train, but every train run for the carriage of passengers, would be exposed.”

4. In view of the plaintiff’s testimony, which is given almost in full in the statement preceding this opinion, a further discussion of the principle announced in'the fourth headnote is unnecessary. The conductor invited the plaintiff to leave the train.- The invitation or demand to leave the train was not made under circumstances calculated to embarrass the plaintiff. He got off the train safely and continued his journey on foot, without injury or inconvenience. He was accustomed to walk the distance from the point of his expulsion to his home, and on this occasion the walk, resulted in no injury to him. There is nothing in the evidence to indicate that the place of his ejection was an improper place. Compare Samples v. Georgia & Florida Ry. Co., 143 Ga. 805 (85 S. E. 1002). The nonsuit was proper.

Judgment affirmed.

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


text:
    8269.
    Georgia Land Owners Company v. Gazaway.
    Decided April 4, 1917.
    Action on contract; from Fulton superior court—Judge Smith presiding. July 28,- 1916.

      James L. Key, for plaintiff in error. W. H. Terrell, contra.
   George, J.

1. 'The complaint in a number of grounds of the motion for .a new trial is to the effect that the court erred in failing to charge certain principles of law involved under the pleadings and the evidence in the case. On a careful examination of the whole charge, it appears that the court covered substantially all the issues involved; and, in the absence of an appropriate and timely request for more specific instructions, none of the assignments of error are meritorious.

2. The evidence is sufficient- to sustain the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7971.
    Sikes v. Hurt.
    Decided April 4, 1917.
   Broyles, P. J.

1. The court did not err in sustaining the demurrer to

the affidavit of illegality and striking the affidavit and ordering that the execution proceed against the property of the defendant. The questions raised in the affidavit of illegality were substantially the same ones that he had previously raised in a motion to set aside the verdict and judgment in the cáse, which motion was overruled, and the judgment overruling the motion was not excepted to, and the time for excepting had expired before the affidavit of illegality was filed. Under such circumstances the former judgment of the trial court concluded the defendant as to the issues raised in the affidavit of illegality. He . had had his day in court, and could not go behind the judgment by an affidavit of illegality. Civil Code (1910), §§ 4335, 4336, 5311; Rodgers v. Evans, 8 Ga. 143 (3), 146 (52 Am. D. 390) ; Field v. Sisson, 40 Ga. 67, 70; Parker v. King, 43 Ga. 299; Brown v. Wilson, 59 Ga. 605; Manning v. Weyman, 99 Ga. 57 (26 S. E. 58); Southern Ry. Co. v. Daniels, 103 Ga. 541 (29 S. E. 761); Brock v. Brock, 104 Ga. 10 (30 S. E. 424); Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (82 S. E. 774); Harris v. Exchange Bank of Fort Valley, 19 Ga. App. 135 (91 S. E. 211).

2. Under the facts of the case it was not error for the trial judge, in passing upon the affidavit of illegality and the demurrer thereto, to consider the entire record in the original case (which had been tried by him) and his own judgment therein adjudicating the points at issue. See Harris v. Exchange Bank, supra.

3. The assignments of error as to other matters are without merit.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Affidavit of illegality; from city court of Atlanta—Judge Reid. August 23, 1916.

James & Bedgood, for plaintiff in error.

George T. Northen, R. E. L. Cone, Owens Johnson, contra.


author: Jenkins, J.

text:
    7999.
    Falligant v. Blitch.
    Decided April 4, 1917.
    Attachment; from Bryan superior court—Judge Sheppard. November 8, 1916.

      J. Hartridge Smith, for plaintiff.
   Jenkins, J.

1. “An attachment issued upon an affidavit administered by a clerk of the superior court is absolutely void,” and consequently can not be the basis of a judgment in attachment as against the specific property seized thereunder. Heard v. national Bank of Ill., 114 Ga. 291 (40 S. E. 266); Bruce v. Conyers, 54 Ga. 678.

2. But, though such an attachment be absolutely void, this is no ground for dismissing a declaration thereon, praying- for judgment in personam, where the declaration has been properly filed and the defendant duly cited to appear, and general appearance has been made therein. McAndrew v. Irish Am. Bank, 117 Ga. 510 (43 S. E. 858); Cincinnati, N. O. & T. P. Ry. Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8).

Judgment reversed.

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


author: Bboxdes, P. J.

text:
    8025.
    Johnson v. Pacific Fire Insurance Company.
   Bboxdes, P. J.

1. The policy of fire insurance upon personal property on which the suit wafe based contained the following stipulation: “This entire policy, unless otherwise provided by agreement endors'ed hereon or added hereto, shall be void ... if the subject of insurance be personal property and be or become incumbered by a chattel mortgage.” The petition as amended showing upon its face that the personalty covered by the contract of insurance was so incumbered at the time the policy was issued, and it not being alleged that the insurance company knew of this incumbrance, or that it had, by endorsement on the policy or by addition thereto, abrogated or waived the stipulation mentioned, the court properly dismissed the petition on oral demurrer. Alston v. Phenix Insurance Co., 100 Ga. 287 (27 S. E. 981); Hartford Fire Insurance Co. v. Liddell, 130 Ga. 8 (60 S. E. 104, 14 L. R. A. (N. S.) 168, 124 Am. St. R. 157). See also Finleyson v. Liverpool &c. Ins. Co., 16 Ga. App. 51 (84 S. E. 311); Nowell v. British-American Assurance Co., 17 Ga. App. 46 (85 S. E. 498) ; Liverpool &c. Ins. Co. v. Hughes, 145 Ga. 716 (89 S. E. 817).

Decided April 4, 1917.

Action on insurance policy; from city court of Hall county— Judge Wheeler. November 20, 1916.

Joseph G. Oollins, Luther Roberts, for plaintiff.

- Smith, Hammond & Smith, W. A. Charters, for defendant.

(a) This ruling is not in conflict with section 2484 of the Civil Code, which reads as follows: “An alienation of the property insured, and a transfer of the .policy, without the consent of the insurer, voids it; but the mere hypothecation of the policy, or creating a lien on the ■ property, does not void.” This section, when properly construed, means that the mere act in itself of creating a lien on the property insured does not avoid the policy. It does not mean that the policy can not be avoided by the creation of a lien on the property insured where there is an express stipulation in the policy itself that such an act mil void it. Neither is our ruling in conflict with the decision in Clay v. Phœnix Insurance Co., 97 Ga. 44 (25 S. E. 417); for there the insurance company, through its agent, knew that the property was mortgaged when the policy was issued, but nevertheless issued the policy and accepted the premiums therefor; and the Supreme Court held that by such conduct the insurance company was estopped from pleading a forfeiture of the policy under the stipulations therein.

2. The ruling made in the preceding paragraph being controlling, it is unnecessary to consider other questions in the case.

Judgment affirmed.

Jenkins mid Bloodworth, JJ., concur.


author: Bboyles, P. J.

text:
    8113.
    Russell et al. v. Gilliland.
   Bboyles, P. J.

1. “A homestead which has been regularly set apart can neither be waived nor renounced by the head of the family so as to authorize a levy upon, and sale of, the property so set apart, under an execution issued upon a judgment rendered against him; and if, pending the existence of the homestead, such property be levied upon under such an execution and sold, the sale is void, and a purchaser thereat acquires no title, even though the judgment upon which the execution issued is based upon a promissory note containing a stipulation in which the head of the family does solemnly ‘waive and renounce’ the benefit of the homestead.” Rogers v. Baker, 96 Ga. 800 (22 S. E. 585). In the instant case the “pony” homestead was set apart in 1905, and the “waiver” note was executed by the head of the family in 1914.

2. The accretions of homestead property are exempt from levy and sale. Civil Code, § 3398; Powers v. Rosenblatt, 113 Ga. 559 (3), 561 (38 S. E. 969).

(a) The provisions of code-section 3398, supra, apply to the statutory or “short” homestead as well as to the constitutional homestead. Kupferman v. Buckholts, 73 Ga. 778.

3. The court having required the plaintiff to write from the verdict the item of $1.60 interest, the error in the charge, that if the jury found ' in favor of the plaintiff he would be entitled to recover the value of the cows, together with hire and interest, was corrected.

■ Trover; from Catoosa superior court—Judge Fite. August 11, 1916.

W. E. Mann, for plaintiffs in error. M. L. Harris, contra.

4. The general grounds of the motion for a new trial, that the verdict is contrary to law and the evidence, can not be considered, as such grounds require a review of the evidence, and that which purports to be a brief of the evidence shows on its face that it is incomplete, and raises a legitimate inference that it does not contain all the material evidence adduced on the'trial. Under such circumstances, there being no merit in any of the special grounds of the motion for a new trial, the judgment of the lower court must be affirmed.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8202.
    Reid v. Tyson.
    Decided April 4, 1917.
    Trover; from Calhoun superior court—Judge Cox. June 6, 1916.

      W. S. Collins,'for plaintiff.
   Bloodworth, J.

1. A nonsuit should not be granted unless “the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover.” Civil Code of 1910, § 5942.

2. In this case, there being evidence upon which a'jury could have based a verdict for the plaintiff,’ the trial judge erred in granting a nonsuit. Bryan v. Watson, 20 Ga. 480 (51); East & West R. Co. v. Sims, 80 Ga. 807 (6 S. E. 595) ; Vickers v. A. & W. P. R. Co., 64 Ga. 306.

.Judgment reversed.

Broyles, P. J., and Jenlcins, J., concur.


text:
    7819.
    SHEPPARD v. WARTHEN.
    The petition set forth a cause of action, and the court erred in dismissing it on demurrer.
    Decided April 5, 1917.
    Action on contract; from city court of Sandersville—Judge Jor^ dan. July 25, 1916.

      A. B. Wright, for plaintiff. Evans & -Evans, for defendant.
   George, J.

Plaintiff rented from defendant, for the year 1916, a three-horse farm described in the petition, agreeing to pay as rent eight bales of cotton. He went into possession of the farm on January 1, 1916, and prepared the land for cultivation and pitched his crop. On June 4 his crops were completely destroyed by a hail-storm, and on account of this misfortune he was unable to continue his farming operations, and he so advised the landlord. On June 9, 1916, plaintiff and defendant entered into a new contract in writing, by the terms of which the defendant agreed to advance to the plaintiff the sum of $150, in installments, the first advance of $50 to be made in cash on June 10, 1916. Under the new contract the plaintiff was to pay a graduated rental, based upon the cotton produced by him. He was to replant his crop immediately and cultivate it with due 'diligence. In compliance with the conditions of the second contract, the plaintiff, on the morning of June 10, began replanting his cotton, and he continued this work during the entire day, and was ready,- able, and willing to do all things required of him under the terms of the contract. -He did in fact plant about ten acres of cotton, which work was worth $10.. A demand was made on defendant for the advance of $50 according to agreement, and defendant, without excuse, cause, or justification, refused to make the advance, and thereby breached her contract to the injury of plaintiff. Both parties understood that plaintiff could not carry on his contract without financial aid from the defendant. This fact was well known to the defendant when she entered into the contract. Plaintiff could not in fact obtain the necessary means with which to carry on his crop elsewhere, and, on account of the failure of -the defendant to comply with her agreement, was forced to abandon his contract. He sued for a sum of money paid out for labor and supplies in working the farm, for the value of farming implements necessary for the purpose of carrying on the farm, which were purchased at a cost stated, for the value of fertilizers purchased and distributed' under his crops, for the cost of ten acres of cotton planted by him on June 10, and for the loss of prospective profits over and above the rent agreed to be paid, in a sum stated, which was alleged to be “the actual value of his term under said contract and rent agreement.” The defendant demurred generally, upon the ground that the items of damage alleged were sums of money expended under the original contract, and not money expended under the terms of the second contract; and upon the further ground that the damages alleged were too vague, indefinite, remote, and speculative to be the basis of a recovery. There was also a special demurrer to that part of the petition which referred to prospective profits,' and to the several items alleged to have been expended for labor and supplies, for farming implements, and for fertilizers placed under the crops. On the argument of the demurrer the plaintiff formally announced that he did not insist on nominal damages, and the court sustained the demurrer and dismissed the petition.

It is clear that the $480 alleged to have been expended for labor and supplies in making the crop, $440, the cost of stock and implements necessary for the purpose of conducting the farm, and the $154 paid for fertilizers placed under the crop, were all expended by the plaintiff under the original contract, and prior to the execution of the new contract on June 9. These sums were lost to the plaintiff through no wrong or fault of the defendant, but by an act of God, and the demurrer directed especially to these several items as recoverable damages was properly sustained. The paragraph of the petition seeking to recover prospective profits is subject to special demurrer; and while the special demurrer to this paragraph is not itself as definite as it might be, we think that the lower court was right in sustaining it. The petition is to be construed most strongly against the pleader, and, even if prospective profits could be recovered under-the facts alleged in the petition, the pleadings were insufficient to withstand the objection urged thereto. However, the plaintiff distinctly alleges that he was compelled ’to abandon his contract by reason of the defendant’s breach, and that the defendant herself had taken possession of the ten acres of cotton planted by him on June 10, 1916, and that the services rendered by him under the second contract, in planting the cotton, were reasonably worth to the defendant the sum of $10. While the plaintiff did not insist on nominal damages, the petition set forth a good cause of action for this item of damage, and the fact that • his actual damage in. this respect may« be nominal did not authorize the dismissal of the petition. Moreover, we do not wish to be understood as holding that the plaintiff can not also recover the actual value of his lease. If the defendant’s breach of the contract resulted in the loss to plaintiff of his term of lease, we see no reason why he may not recover therefor. The lease unquestionably had a value, and, while he ean not recover for the fertilizers placed in the ground, and for preparation of the ground, under his original rent contract, which he, on account of an act of Providence,- was forced to surrender, nevertheless the state of preparation and the condition of the farm on June 10, 1916, may be taken into consideration by the jury in estimating the value of the lease. If the. actual value of plaintiif’s lease exceeds the amount of rent to be paid therefor, he may have a recovery on that account. Although prospective profits, as such, are not recoverable under the facts alleged in this petition, we are not disposed to say that the preparation given the land, the amount of fertilizer placed thereon,, and any other fact which might tend to illustrate the value of the premises for rental purposes, may not be taken into consideration by the jury, even though such preparation of the land for the growing of a crop might have been made by some one having no connection whatever with the second contract, for the breach of which this suit is brought. For the reasons stated above, the order sustaining the demurrer and dismissing the petition is

Reversed.

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


text:
    7954.
    National Biscuit Company v. Futrell.
   George, J.

1. A petition by a minor alleged: that on March 5, 1915, he was employed by the defendant company in the capacity of delivery-wagon driver; that it was his duty to drive a wagon and horse of the defendant and deliver goods of the defendant in the City of Macon; that it was the duty of the defendant to furnish him with a wrench with which he could keep the nuts on the ends of the axle spindles tight and thereby prevent them h-oni getting loose and coming off; that under the rules of the defendant its officers were charged with the duty of furnishing each wagon driver with such a wrench; that the nuts would come off and allow the wheels of the wagon to come off, and this was well known to the officers and agents of the defendant company, but unknown to plaintiff, and the danger of driving the wagon without having the nuts tightened was not apparent to him; that he often requested the officers and agents of the defendant to furnish him -with the wrench, but they failed to furnish it, and on the contrary stated to Mm that the wheels of the wagon would not come off, that it was safe for Mm to drive the wagon and to go on with his work, and that they would give him a wrench to tighten the nuts in time, and that he would not be injured in driving the wagon until they could obtain the wrench; that the officers and agents making these promises and assurances were the alter ego of the defendant, and that the plaintiff relied upon the promises and assurances of the defendant and continued to operate the wagon, believing that he would not be injured or damaged thereby; that on the date named, while in the discharge of his duty in the City of Macon, a wheel of the wagon came suddenly off, and he was thrown violently to the pavement and sustained certain injuries set forth in his petition; and that he was in the exercise of ordinary care and diligence and could not have avoided the consequences to him caused by the negligence of the defendant, which is specified as follows: (a) in failing to furnish him with a wrench with which to tighten the nuts; (&) assuring him that he would be furnished with such a wrench, and that he would not be injured by driving the wagon without having the nuts tightened; (c) furnishing him with a wagon to drive which was not reasonably safe and so defective as to injure him while he was at work with it in an ordinarily careful and prudent manner. Selcl: The petition set forth a cause of action. It can not be held, -as matter of law, that the negligence alleged was not the proximate cause of the injury, or that the plaintiff’s injury was due to his own negligence, or that he assumed the risk due to continued use of the wagon, or that the consequences of the defendant’s negligence could have been avoided by the exercise of ordinary care on the part of the plaintiff. The grounds of special demurrer are without merit. Moore v. Dublin Cotton Mills, 127 Ga. 609, 616 (56 S. E. 839, 10 L. R. A. (N. S.) 772) ; Mitchell v. Schofield’s Sons Co., 19 Ga. App. 201 (91 S. E. 275), and cases there cited.

Decided April 5, 1917.

Action for damages; from city court of Macon—Judge Guerry. October 11, 1916.

Richard Gurd, Hardeman, J ones, Parle & J ohnston, for plaintiff in error. ^Walter Defore, J. G. Esles, contra.

2. The employee is deemed to accept the risk ordinarily incident to his employment, notwithstanding the promise of the employer to furnish a necessary tool, where the danger is great, obvious, or immediate,— such as a reasonably prudent man would not encounter. The court did not err in overruling the demurrer to the petition.

Judgment affirmed.

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


text:
      8022.

    PUSHA v. OCEAN STEAMSHIP COMPANY.
    The petition did not set forth a cause of action, and the court did not err in sustaining a general demurrer thereto.
    Decided April 5, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. December 11, 1916.

      D. 8. Ailcinson, for plaintiff. H. W. Johnson, for defendant.
   Luke, J.

The petition is substantially as follows: The defendant owns, controls, and operates a line of ships. On June 29, 1916, plaintiff, as a laborer in the employment of the defendant, was helping to load a certain ship. The gang of laborers with which he was working were under a foreman, and were loading lumber, 3x10, thirty feet long, on the upper deck toward the stern of the ship, against number 4 hatch on the port side, and were storing the lumber so that it would come in contact with the forward end of the hatch on its left-hand side. The lumber was heavy, each piece weighing about 800 pounds. There were nine men in the gang of laborers in which plaintiff was working, but, under a rule of the company and in this instance at the direction of the stevedore, the gang were split, five men were put to work on the other side of the ship, and the remaining four men, of whom plaintiff was one, were put to work loading the lumber on the port side of the ship. When they were loading the lumber and as they were putting a heavy stick of the lumber up on the top tier in accordance with the rules of the company, plaintiff and Joe Barn-well raised the end next to the hatch, up on the tier, and in ac-' cordance with the said rule, while plaintiff held the end up, Barn-well left him and went "to the other end to assist the other two men in raising that end on the tier. The rule of the company in regard to storing this lumber was in substance as follows: “As many men as are necessary lift one end of the lumber up on the tier. This end is to be held in place by a laborer or laborers, and as many men as are necessary lift the remaining end upon the tier.” In- this instance two men were not strong enough to lift the other end, and it became necessary under the said rule of the company, for Barnwell to go to the other end to assist in lifting it. This action, under the said rule, left plaintiff to hold the end which had been placed up on tier. As the lower end of the lumber was being lifted by the three men the strain on plaintiff became so great that he was unable to hold his ■ end of the lumber on the tier, and it fell off, striking him and knocking him into the open hatch. He did not know the lumber was too heavy for him to hold. He was earnestly engaged in his work, which required the concentration of all of his faculties, and he assumed that the defendant would not place him in a dangerous position. When it became apparent to him, in the exercise of ordinary care, that he -could not hold the lumber it was too late to recall Barnwell to his assistance. He could not by jumping backwards avoid the lumber striking him, because there was a donkey engine of the defendant directly back of him, and the only way to escape death was to jump toward the open hatch, and this he did, the lumber at the same time striking him and knocking him into the hatch, and he fell to the lower “between decks,” a distance of about twenty-eight feet, breaking both of his forearms and injuring his hip. The four men who, under the rule of the defendant, were placed at the work of storing this lumber were not sufficient to handle it. The lumber was too heavy for them to handle, and too heavy for him to hold up on the top tier. The defendant was negligent in having the'hatch open through which he could fall in case the lumber fell on him or towards him, and the only place he had to go in case the lumber did fall was upon this hatch or into it. The work was strenuous and arduous, and required his attention. He assumed that his employer would not put him at a dangerous place to work without warning him or without proper rules to* govern the work, or without sufficient men to handle the lumber. He did-not know, and, because of his earnest work, in the exercise of ordinary care, could not know that the lumber was too heavy for him to hold, or that the hatch was open. When he did learn that the lumber was too heavy for him to hold it was about to fall on him. It was after Barnwell had turned loose and started towárd the other end of the lumber, in accordance with the rules of the company, and plaintiff did not have an opportunity to get out of the way of the lumber or to call Barnwell back to- help him hold it, for the lumber quickly fell upon him, knocking* him into the open hatch. The lumber was placed on the ship -under the supervision of the stevedore, and the stevedore was familiar with the handling of lumber and with its weight, and he and the defendant knew, or could have known, in the exercise of ordinary care, that the lumber was too heavy for four men to handle and store in the manner required by defendant. They knew, or in the exercise of ordinary care could have known, that plaintiff could not hold one end of the heavy stick of lumber up on a high tier, as required by said rule of the defendant; that the hatch through which plaintiff fell was open, and that if a stick of timber fell it would knock him, or other laborers who were in his position, into the ©pon hatch; and that if the hatch had been covered his injuries would have been slight. It is alleged that defendant was negligent: (1) in having a rule to split up a gang so that only four laborers should store lumber of the weight and size of the lumber which plaintiff and his gang were storing; (2) in not having an additional man to assist plaintiff in holding his end of the lumber on the tier; (3) in having a rule which required the man with whom plaintiff was working, in lifting the end of the heavy and large piece of lumber up on the tier, to leave plaintiff to hold the said lumber and go to the other end of the stick of lumber to raise the same; thus, through the working of the rule, leaving plaintiff in this dangerous position; (4) in having the hatch open next where plaintiff was working, this being the only retreat left open to him in case of the falling of the lumber as it did fall in this instance. It is alleged -that each of these acts concurred in causing the injury, and that tire plaintiff did not know of the same and did not have equal means with the defendant of knowing of the same; that he was where he had a right to be, and that he assumed that the defendant would furnish him a safe place to work and would have safe rules governing the conduct of the work. The court sustained a general demurrer to the petition, and the plaintiff excepted.

This ease is clearly distinguishable from the 'case of Brown v. Rome Machine & Foundry Co., 5 Ga. App. 142 (62 S. E. 720). In the Brown case one of the three men carrying the ladle was called- away by an officer of the company, and Brown and his co-employee were directed by the alter ego of the company to proceed, and, without the help of the employee so called, away, the load carried was too burdensome for the two to carry. In the instant case the rule pleaded required that a sufficient number of men stand at each end of the timber to manage the weight. The plaintiff and Barnwell complied with the rule and were holding one end of the lumber. Barnwell, a fellow servant, despite the rule, and' with the knowledge and not against the advice of the plaintiff, violated the rule and left the plaintiff to hold the lumber, while he volunteered to assist other coemployees at the other end of the lumber. The facts set forth in the petition do not show that the injury to the plaintiff is attributable to the negligence of the defendant. The- court did not err in sustaining the general demurrer.

Judgment affirmed.

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


text:
    8104.
    Brookshier v. Williams.
    Decided April 5, 1917.
    Action for damages; from Whitfield superior court—Judge Fite. April 5, 1916.
    Brookshier sued Williams in separate counts for malicious prosecution, false arrest, false imprisonment, and malicious abuse of process. The action was based on a prosecution begun by the swearing out of á warrant by Williams, charging Brookshier with the offense of larceny after trust of 12 gallons of sorghum. From the evidence it appears that Brookshier was a tenant cultivating land of Williams for a share of the crops. A dispute arose between them over certain cotton, for which the tenant sued out a possessory warrant against the landlord, and the latter, on the day set for the trial of the ease in a justice’s court of Whitfield county,, went before the justice and swore out warrants against Brookshier, charging him with the offense stated above, and he was arrested and gave bond for his appearance to answer the charge at the next term of the court. The possessory-warrant case was continued, and at the next term of the court the justice insisted that he had no jurisdiction of the cases against Brookshier, as it appeared that the .transaction'in question took place in a different county. According to the testimony of Brookshier’s attorney, he insisted on a trial unless Williams, who was present, would dismiss the warrants for larceny after trust, but Williams refused to do so, the cases were called, Brookshier pleaded not guilty, Williams made a statement showing that the transaction took place in Catoosa county, and the justice entered an order dismissing the warrants, for want of jurisdiction.
   George, J.

1. “An arrest under process of law, without probable cause, when done maliciously, gives a right of action to the party arrested.” Civil Code (1910), § 4450. “A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the party prosecuted, gives him a cause of action.” Civil Code (1910), § 4439.

2. An inquiry before a committing court, or a justice of the peace, amounts to a prosecution. Civil Code- (1910), § 4445. Any unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty, constitutes false imprisonment. Civil Code (1910), § 4447.

3. “Want of probable cause” is the same in actions for malicious arrest as in actions for malicious prosecution. Civil Code (1910), § 4452. Want of probable cause is a question for the jury, under the direction of the court. Civil Code (1910), § 4440.

4. The evidence in the present record was sufficient to carry the ease to the jury on the counts for illegal arrest, false imprisonment, and malicious prosecution. The defensive facts developed on cross-examination of the plaintiff were not sufficient to authorize the trial court to find, as a matter of law, that probable cause existed for the arrest, imprisonment, and prosecution of the plaintiff. The court therefore erred in granting a nonsuit.

Judgment■ reversed.

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

On the trial of this suit Brookshier testified: “At the time I was charged with larceny after trust of 12 gallons of sorghum I was a- tenant on the place of Mr. Williams. . . I raised a crop of sorghum and had it made into syrup, and Mr. Williams had nothing there to put his in, and the man that manufactured it put it in my barrel and I used it. I used all that was made, and there was 6 gallons going to Mr. Williams and I used that. There was 41 gallons made in all, and 6 gallons of that was going to Mr: Williams. As to settling with Mr. Williams, I told him that some of his hands had hauled off six shocks of cut corn belonging to me that averaged six bushels to the shock, and that ought to cover the amount of sorghum going to him, and he said ‘You ought to have said something about that;’ and that was all he ever said to me. This was six months or may be longer, before I was arrested on this charge. On the day I was arrested I was in Cohutta at the trial of a po'sse&sory-warrant case about some cotton in which I was plaintiff and Williams defendant. I was over there alone and did not have an attorney with me to represent me, and none were available to represent me on that day. The case was called for trial at the instance of my attorney on that date. Mr. Williams did not make any statement at the trial, only that he wanted to withdraw the case, and that the transaction happened in Catoosa county and not in Whitfield.” On cross-examination the witness testified: “I swear that I raised a crop of sorghum on the Williams place and it was put into my barrel and I used it. There wasn’t any contract between me and Williams about what part of the syrup he was to have. He was to have a part- of the sorghum and he did not get any. Williams was to have a part of the cotton, corn, and crop of any kind. I did not pay any money rent, but was to pay one third of the corn, one fourth of the cotton, and half of the hay. I expected Mr. Williams to get some part of the sorghum—whatever was customary. The man that manufactured the syrup said there would be 6 gallons going to Mr. Williams. The syrup was put in my barrel and I used what was in there es-, cept a part that leaked out. I never gave Mr. Williams any sorghum.”

J.B. Johnston, for plaintiff,

cited: Penal Code (1910), § 189; Civil Code (1910), §§ 4451, 4444, 4439, 4450, 4448, 4504; Hartshorn v. Smith, 104 Ga. 239; Hicks v. Brantley, 102 Ga. 264; Stewart v. Mulligan, 11 Ga. App. 660; Page v. Citizens Banking Co., 111 Ga. 73; Swift v. Witchard, 103 Ga. 197; Berger v. Saul, 113 Ga. 871; Porter v. Johnson, 96 Ga. 146; King v. Yarbray, 136 Ga. 213; Goggans v. Monroe, 31 Ga. 331.

W. C. Martin, W. H. Mann, for defendant,

cited: Civil Code (1910), §§ 4439, 4450, 4448, 5942; Joiner v. Ocean Steamship Co., 86 Ga. 238; Wilcox v. McKenzie, 75 Ga. 73; Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294, 296; McBurney v. Wheelan, 54 Ga. 473; Page v. Citizens Bkg. Co., supra; King v. Yarbray, supra.


text:
    8278.
    LIVSEY v. GEORGIA RAILWAY & ELECTRIC CO.
    1. The plaintiff can recover only upon the cause of action laid in his petition; and a verdict for the defendant is required when the cause of action thus laid is not proved, although another cause of action in . favor of the plaintiff may appear from the defendant’s testimony.
    2. In an action for negligence the plaintiff is required to set out his cause of action plainly and distinctly, and he can not recover on account of acts of negligence not alleged in the petition. In such a case it is proper for the trial court so to instruct the jury.
    3. Where the jury find that the defendant is not liable at all, a complaint that the court erred in not submitting, but in eliminating, the question as to the plaintiff’s permanent injury will not require a new trial.
    4. The error in charging, in immediate connection, section 2781 and section 452ÍÍ of the Civil Code of 1910, without proper explanation, is in its effect to qualify' the former section by the latter, and make the defendant liable if the jury should find both parties negligent, notwithstanding the fact that, if the plaintiff exercised ordinary care, he would not have been hurt. Such a charge, if error at all, is beneficial, rather than hurtful, to the plaintiff in an action fop personal injuries.
    Decided April 5, 1917.
    Action for damages; from DeKalb superior court—Judge Smith. January 21> 1916.

      Alonzo Field, for plaintiff. Colquitt & Conyers, for defendant.
   George, J.

The plaintiff in error brought suit against the Georgia Eailway and Electric Company for personal injuries, alleging that he was a passenger on one of the cars of the company, and that when the ear reached his place of destination in the City of Decatur it came to a stop, and he undertook to alight from it, and when he was in the act of alighting the car was negligently and violently moved forward, throwing him to the ground and inflicting upon him certain physical injuries. The defendant contended that the plaintiff alighted from a moving car which had not stopped, but was running between stopping points, and that it was the act of the plaintiff himself which caused his injury. The defendant further contended that the plaintiff was not injured as claimed by him. There was a verdict for the defendant, and the plaintiff excepts to the order overruling his motion for a new trial.

1, 2. In the present record the evidence for the plaintiff tended to sustain the allegations of his petition, while the evidence offered by the defendant tended to sustain its contentions. The judge charged the jury as follows: “I charge you further that if Mr. Livsey attempted to step off the car while it was moving, then the jury should find for the defendant company, . . because he alleges in his declaration that he undertook to debark from this car after it had stopped, and it was not running at the time, and he says he was thrown off. Now, if he was injured in any other way than the way alleged by him, then he can not recover in this case.”. He further charged the jury that no verdict in favor of the plaintiff could be returned on account of the failure of the conductor to cause the car to stop, or on account of the failure of the conductor to warn the plaintiff not to attempt to alight from the car while in motion. The plaintiff by his evidence sought to recover solely upon the theory that he undertook to alight from a standing car, and that the starting of the car with a sudden, violent jerk while he was in the act of alighting caused his injury. To meet this allegation and contention of the plaintiff, the defendant proved that the car was moving between stops and had not come to a stop when the plaintiff voluntarily stepped off the car. Unless the jury believed that the car came to a stop and started, and threw the plaintiff as alleged in his petition, it is plain that he could not recover! The only act of negligence alleged against the company is that, after having brought its car to a full stop, and while the plaintiff was in the act of alighting, it suddenly and violently caused its car to move forward. The question here involved is not whether the plaintiff could have alleged a cause of action upon the theory that he undertook to leave a slowly moving car and that a sudden or violent jerk of the car caused his fall, nor whether the conductor in charge of the car was negligent in permitting him to attempt to alight from the car while in motion, but the question here is: What were the allegations and contentions of the plaintiff upon which he based his right of recovery?

The court is not required to charge the jury on a wider or broader case than that made by the petition, though the evidence might warrant it were the petition amended. Compare Doggett v. Simms, 79 Ga. 253 (3), 257 (4 S. E. 909). Even if the evidence makes a good case, unless it be substantially the case alleged in the petition, the complainant ought not to recover. Compare Rakestraw v. Brogdon, 56 Ga. 549. It is settled in this State that the plaintiff must recover, if at all, upon the cause of action laid in the petition, and a verdict for the defendant is demanded when the cause of action thus laid is not proved, although another cause of action in favor of the plaintiff against the defendant may appear from the defendant’s testimony. Burdett v. Crawford, 125 Ga. 577; Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579, 581), and cases there cited. The evidence for the plaintiff tended to sustain the contention made in his petition. The evidence for the defendant disproved this contention and established the contention of the defendant, to wit, that the plaintiff undertook to alight from a moving ear. No amendment was made by the plaintiff during the progress of the trial. The court properly submitted the issue actually involved under the pleadings and the evidence, and these instructions of the court are not erroneous. “If, during the progress of the trial, the plaintiff sees that his evidence does not prove the charge of negligence made in his declaration, it is his right to amend the declaration to meet his evidence, provided he does not allege a new cause of action.” Hill v. Callahan, 82 Ga. 109 (8 S. E. 730). If, during the progress of the trial, the plaintiff desires to take advantage of the defendant’s negligence disclosed by the defendant’s own evidence, then an appropriate amendment should be offered, specifically charging such negligence. In this case it is unnecessary to invoke the principle of law that the plaintiff’s petition and his testimony are to be construed most strongly against him. He plainly and distinctly set forth the act of negligence upon which he relied for a recovery, and the court rightly instructed the jury that he could not recover on account of other negligence, even though such appeared.

3. In the motion for a new trial the point is made that the court erred in not submitting to the jury the question of the plaintiff’s permanent injuries. From an inspection of the whole charge of the court it appears that this contention of the plaintiff in error is not well,founded. Conceding it to be well founded, there is no merit in this ground of the motion, for the simple reason that the jury found in favor of the defendant -and never reached the question of damages at all. If the defendant is not liable at all, the charge eliminating from the consideration of the jury the particular item of damage on account of permanent injury will not require a new trial. The court instructed the jury to return a verdict for the plaintiff for his lost time and for his decreased capacity to labor, as well as for pain and suffering. The issues in the case were clear cut and well defined. The verdict for the defendant can be explained only upon the basis that the jury did not think the defendant liable at all. See Binder v. Georgia Railway & Electric Co., 13 Ga. App. 381 (2), 384 (79 S. E. 216); McBride v. Georgia Railway & Electric Co., 125 Ga. 515 (54 S. E. 674); Edwards v. Block, 73 Ga. 450 (3).

4. The contention is made by plaintiff in error that the court charged in immediate connection the substance of section 2781 and section 4426 of the' Civil Code of 1910, without proper explanation. If this be error, the error consists in qualifying the former section by the latter, and the only effect of such a charge is to make the defendant liable if the jury should find both the plaintiff and the defendant negligent, notwithstanding the plaintiff failed to exercise ordinary care, or if, in the exercise of ordinary care, he could have avoided injury to himself. The decisions by the Supreme Court are to the effect that a charge confusing the code sections referred to, without proper explanation, is erroneous for the reason indicated. We are unable to see how this charge, if error at all, was hurtful to the plaintiff. It would seem that it directly benefited him. The verdict is not without evidence to support it, and the trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, Q. J., and Luhe, J., concur.


text:
    8297.
    CENTRAL OF GEORGIA RAILWAY CO. v. SWANN.
    1. In order for a mother to recover, under the provisions of section 4424 of the Civil Code of 1910, for the negligent homicide of her minor son, it must appear both that at the time of the homicide she was dependent upon the child and that the child contributed substantially to her support. The degree of dependence may be either total or partial, and the contribution by the child may be either in part or in full support of the mother.
    2. In such a ease the mother may recover notwithstanding the father of the child be in life and in such a state of health as to enable him to perform labor. The right of action in favor of the mother is created by'the fact of contribution and dependence, and not by the legal obligation to contribute to her support. The contribution may be either in labor or in money, or both.
    3. If the father, the mother, and the minor son reside together and are mutually dependent upon the labor of the family for support, the minor son, who, by his labor or its proceeds, aids in the support of the family, is to be considered as contributing substantially to the support of the mother.
    4. In a suit against a railway company for the negligent homicide of the plaintiff’s son it is necessary that the cause of action be plainly and distinctly set out, and the plaintiff can not recover on account of acts of negligence not alleged in the petition. •.

      5. In such a suit, if it be shown by evidence that the injury on account of which the suit was brought was caused by the running of an engine or ears of the defendant, the presumption arises that the company or its agents were guilty of the acts of negligence alleged in the petition.
    6. A verdict for $4,000, returned four years after the negligent homicide of plaintiff’s son, who at the time of his death was fourteen years of age, and who contributed substantially to the support of the mother, is not excessive.
    7. The evidence in the present record warranted the verdict, and the exceptions to the charge of the court are without substantial merit. The court did not err in overruling the motion for a new trial.
    Decided April 5, 1917.
    Action for damages; from-Washington superior court—Judge Hardeman. March 7, 1916.

      Saffold & Jordan, for plaintiff in error.

      Samuel H. Sibley, contra.
   George, J.

The act of 1887 (Acts 1887, p. 45), codified in section 4434 of the Civil Code (1910), provides that “A mother, or, if no mother, a father, may recover for the homicide of a child minor or sni juris, upon -whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child.” The language of this statute is that the recovery may be had either when the parent is dependent or when the child contributes to the parent’s support, but it is settled, both by the decisions of the Supreme Court and of this court, that, in order to authorize a recovery, there must have been both dependency and contribution to the parent’s support. In the case of Clay v. Central R. Co., 84 Ga. 345 (10 S. E. 967), it was held that “the legislature did not intend to give to a mother or father, under the circumstances stated, the right to recover for the homicide of a child, unless the mother or father was dependent upon such child for a support and such deceased child contributed to the support or maintenance of the mother or father;” and it. was accordingly there ruled that the disjunctive “or,” as used in this clause of the act, should be read as “and.” This act was given the same construction in Smith v. Hatcher, 103 Ga. 158 (39 S. E. 163), in Augusta Southern Railroad Co. v. McDade, 105 Ga. 134 (7), 138 (31 S. E. 430), and in many other decisions of the Supreme Court. Although'in each code adopted since the passage of that act the legislature has continued to use the disjrmctive “or” as it appeared in the original act pf 1887, the courts of this State have continued to read the conjunctive “and” into the statute. Compare Fuller v. Inman, 10 Ga. App. 680 (74 S. E. 287).

It is well settled that the statute with which we are now dealing, being in derogation of the common law, must be strictly construed. The act is partly punitory and partly compensatory, according to the opinion by Mr. Justice Lumpkin in Georgia Railroad & Banking Co. v. Spinks, 111 Ga. 571 (36 S. E. 855). However, the statute seems to be mainly compensatory. Indeed, this doctrine is fixed in the law of this State, and must have influenced the court in declaring that the legislature meant to use the conjunctive “and” where the disjunctive “or” appears in the statute.

While, in a suit by a mother for the tortious homicide of her minor son, it is necessary to prove both dependence and material contribution to the support of the mother, it is equally well settled that this dependence may be either total or partial, and that the contribution to her support may be either in full or only in part. Since the decision delivered by Chief Justice Bleckley in the ease of Augusta Railway Co. v. Glover, 93 Ga. 133 (18 S. E. 406), it has been recognized in this State that contribution by a child to a common stock out of which the family is supported constitutes such partial dependence and substantial contribution as will authorize the mother to recover for his negligent homicide, although the father be alive and able to labor. See Fuller v. Inman, supra; City of Thomasville v. Jones, 17 Ga. App. 635 (87 S. E. 933). In the present case the mother testified as follows: “He [the son] gave his money to me, and I used it for the family to help support the family. . . Of course, I needed the child’s money. . . I needed the boy’s money to assist us in the support of the family, because we had a right large family, and I needed it to help support the family.” It appears that the husband, who was a guard at the State convict camp, earned $45 per month, but that when he was unable to labor a proper deduction was made for his lost time. The evidence discloses that the deceased was a bright boy, and was fourteen years old at the time of his death, and that prior to his death he was earning $15 a month by his labor, beyond the services directly performed for the mother. His monthly earnings were delivered to the mother and were by her used to help support the family. The court clearly and repeatedly instructed the jury that, before the mother could recover, it must appear, by a preponderance of the evidence, both that she was dependent upon her deceased son and that he substantially and materially contributed to her support. The instructions to which exceptions are taken here did not confuse the jury, and the evidence is sufficient to sustain their verdict, and the verdict is not excessive.

The petition alleged that the defendant company was negligent in failing to secure or fasten the rear door of the coach on which the plaintiff’s minor son was riding as a passenger, and in leaving this rear door open without chains or other protection to keep any one from falling from the coach, and in disconnecting the coaches immediately attached to the coach in which he was riding, without notice, or warning to him, and in negligently locking and fastening the closet door in the rear end of the coach in which he was riding, and in running its train at a high and reckless speed, giving it a violent' lnrcli when he was attempting to pass from the coach in which he was riding to the coaches which he supposed to be in the rear, it being, for reasons set forth in the petition, necessary for him to do so. No one saw him as he went out of the rear door of the coach. The facts and circumstances in the record are sufficient to authorize the jury to conclude that he did pass out of the rear door of the coach in which he was riding, and that he was killed by the operation of the defendant’s train. The defendant offered no evidence. The presumption that the company was guilty of the acts of negligence specifically alleged in the petition is sufficient to authorize.the recovery. Compare Ga. S. & F. Ry. Co. v. Thornton, 144 Ga. 481, 484 (87 S. E. 388). The court did not err in overruling the motion for a new trial, and the judgment is therefore

Affirmed.

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