text:
    7875.
    LOUISVILLE & NASHVILLE RAILROAD CO. v. HARRIS.
    There was evidence from which the jury were authorized to find that the killing of the plaintiff’s dog by the train of the railway company was wanton and malicious, and the verdict for damages was warranted.
    Decided March 19, 1917.
    Certiorari; from Murray superior court—Judge Eite. August 23, 1916. . '

      G. N. King, Tye', Peeples & Tye, B. W. Blair, for plaintiff in error.
   George, J.

Since the decision in Jemison v. Southwestern Railroad, 75 Ga. 444 (58 Am. R. 476), it has been recognized in this State that a railroad company is liable for the wanton and malicious killing of the dog of another; and the facts in Southern Railway Co. v. Keel, 7 Ga. App. 244 (66 S. E. 627), and Seaboard Air-Line Railway v. Parrish, 16 Ga. App. 254 (85 S. E. 200), were held sufficient to authorize the jury to infer that the killing of the plaintiffis dog by the railway company was wanton and malicious. The evidence in this case makes a much stronger case against the railway company than is made by the evidence in those cases. It appears that the track of the railway company, at the point where the dog was killed, was straight for the distance of one mile, and that there was nothing to prevent the servants in charge of the train from seeing the dog. Moreover, the dog was killed at or near a crossing, and the train which ran over and killed the dog went into a siding not more than fifty or a hundred yards from this crossing. The train was slowing down for the purpose of entering this siding, and, according to the evidence, must have been going at a very slow rate of speed, not exceeding four or five miles an hour. An eye-witness ■ saw the dog on the track, fifty yards in front of the train, and the witnesses all testified that the dog turned and ran up the track a distance of about one hundred yards before it was finally run down and killed. The brakeman of the company was riding on the pilot of the engine, presumably for the purpose of opening the switch to let the train into the siding. The servants of the defendant company must have seen the dog, and they did nothing whatever to avoid the killing. The train either actually or practically stopped for the purpose of enabling the switchman to throw the switch. These facts illustrate the speed at which the train was running at the time the dog was killed and strongly indicate that the agents of the railroad company willfully ran the animal down. The defendant offered only one witness, and he was not one of the servants in charge of its train at .the time the dog was killed. His evidence was in the nature of expert testimony. Whether a dog, since the act of 1913 (Acts 1913, p. 46), is personal property in the sense that the owner may maintain an action for its mere negligent injury or destruction is not decided.

The court did not err in overruling the petition for certiorari and in denying the new trial prayed for.

Judgment affirmed.

Wade, G. J., and LuTce, J., concur.


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    7919.
    GEORGIA NORTHERN RAILWAY CO. v. SHARP.
    The marriage of a woman after receiving an injury in a railroad wreck does not divest her of the right to recover damages for the total or partial loss of her earning capacity. In such case the right of action, accruing to the woman before marriage, is complete in her, and after marriage the husband has no right of action for the diminished or destroyed capacity of the wife to labor and to earn money. Although the injury may be permanent in character, the right to sue arises immediately on the infliction of the injury, and remains in the person having the right of action at that time.
    The assignments of error do not warrant judicial interference with the verdict in this case.
    Decided March 19, 1917.
    Action for damages ;• from city court of Albany—Judge Clayton Jones. September 37, 1916.

      Walters & Bedfearn, for plaintiff in error.

      B. B. Marlin, W. E. Gurr, contra.
   George, J.

Mattie Sharp sued for personal injuries received while a passenger on a train of the Georgia Northern Eailway Company, and upon the trial obtained a verdict for $500. The railway company excepts to the overruling of its motion for a new trial.

1. Exception is taken to the following charge of the court: “Mattie Sharp, the plaintiff in this case, has instituted legal proceedings in which she seeks to recover damages for certain alleged injuries which she claims* caused her physical pain and suffering and mental anguish and the loss of earning capacity, and which were received in a wreck while plaintiff was a passenger on a train negligently operated by the defendant company.” The company insists that this charge, and especially the latter portion, amounted to an expression of opinion by the court that the plaintiff was injured by it and that its train was negligently operated. The court was here stating the contentions of the plaintiff, and this instruction could not have been misunderstood by the jury. If the trial court is required to preface every contention made by the parties with the statement that “it is contended” thus and so, the charge would become unintelligible to the average jury. In this case the subsequent instructions given by the court made sufficiently plain to the jury that the court did not intend to express any opinion upon the issues in the ease, but that the burden remained with the plaintiff to establish every fact alleged by her.

2. In the second ground of the amendment to the motion for a new trial it is contended by the company that the court, in its charge, placed upon the company the burden of showing that the accord and satisfaction pleaded by it was not made at a time when the plaintiff was mentally or legally incapacitated to make such a contract. Without inquiry into the merits of this contention, we think it sufficient to say that the undisputed testimony in the case shows that, at the time of the alleged accord and satisfaction and the execution of the written release specially pleaded by the company, 'the plaintiff was a minor. She denied the execution of the release, and the burden was certainly upon the company to show the execution of the release, by the preponderance of the evidence. Acting upon the theory that the jury might find that an accord and satisfaction had been made, the plaintiff pleaded her minority and tendered to the company the consideration of the same. Under the charge of the court on the question of the validity of a release executed by a minor (to which no exception is taken), there was but one finding that could result. Since this is true, it is unnecessary to determine whether the charge is in all respects technically correct.

3. The excerpt from the charge in the third ground of the amendment to the motion for a new trial is conceded to be a correct statement of a principle of law, but it is complained that the verdict is contrary to the charge there quoted.’ This assignment, under the rulings of this court and of the Supreme Court, amounts only to the complaint that the verdict is contrary to law.

4. In his instructions the judge reminded the jury that the plaintiff could not recover unless the defendant company was negligent in one or more of the ways alleged in the petition. He then said to the jury: “Neither can she recover a larger amount than that actually sued for, yet it is entirely discretionary with the jury to allow her the full amount sued for, or a part of the amount sued for, or they may find for the defendant, which of course would mean that the plaintiff would be allowed no amount whatever.” He then instructed the jury on the measure of damages for the alleged pain and suffering, and for the alleged diminution of earning capacity claimed by the plaintiff. The language of the court, in the charge above quoted, to wit, “that it is entirely discretionary with the jury,” does not furnish the jury a correct legal guide, and is inapt. In Central of Ga. Ry. Co. v. Brinson, 18 Ga. App. 113 (6), 114 (88 S. E. 1003), it was held: “Where in an action for damages there is no contention that the plaintiff, if entitled to recover at all, is not entitled to recover .as much as the amount of the verdict rendered in his favor, the instructions of the court upon the measure of-damages become immaterial. He who asserts that such error has been committed as requires the grant of a new trial must not only designate the error, but must, also show that the error worked to his injury.” If this statement of the rule be correct, the exceptions to the instructions on the measure of damages in the instant case are without merit. There is no contention that the verdict for $500 is excessive. The railway company contends that the plaintiff is not entitled to recover at all, but it is nowhere claimed that, if she is entitled to recover, she has recovered a sum in excess of her legal damages. It is true that the injury to the plaintiff is not conceded, but, under any view of the evidence in this case, a verdict for an amount of damages even larger than the amount returned by the jury would have been warranted, if she is entitled to recover at all, and the railway company does not contend otherwise. We, however, do not commit ourselves to the rule in the Brinson case, supra. We think the rule there stated is unsound, but in the case at bar the charge of the court does not require a new trial.

5. The evidence disclosed that at the time of the filing of the suit and at the time of trial the plaintiff was a married woman, having a living husband. It is further contended by the railway company that the right of action for the decreased earning capacity of the plaintiff, if any existed, was in the husband, and that the court erred in submitting to the jury the question as to recovery for decrease of her earning capacity. We think this contention fallacious. We might rest our conclusion upon the fact that such damages were claimed in the petition and there was no demurrer by the railway company. However, the record shows that the plaintiff was at the time of her injury an unmarried woman. Her injury was sustained in October, and she married in the following April. The husband could not recover for an injury sustained by the wife prior to the marriage, because he lost nothing on account of her disability. At the time of the marriage her capacity to earn money had already been impaired by the negligence of the defendant, and consequently he had no cause, of action for such impairment. The loss in this respect is that of the wife. On the infliction Of the injury she was vested with a complete right of action against the railway company. In law this right of action must be considered as already reduced to money on the date of her marriage. Certainly this is true in the present state of our law, because the separate estate of the wife is neither lost nor affected by the fact of marriage. A negligent injury to an unmarried woman, permanently decreasing her capacity to earn money, no parental rights being involved, is an injury for which she alone may recover, and this right is not lost by the fact that she thereafter enters into a marriage contract. The injury sustained by her may. have affected her ability to contract marriage, in the first place, and to contract an advantageous marriage, in the second place. Her subsequent marriage affords no. more consolation to the wrongdoer than any other contract made by the woman after the injury. The wrong being against her, and the right of action being in her, a subsequent contract entered into by her is of no concern to the wrongdoer. See Reading v. Penn. R. Co., 52 N. J. Law, 264 (19 Atl. 321). In one of the briefs it is stated that this is an open question in Georgia. We have neither the time nor the disposition to thoroughly examine the reports of this State to see if this conclusion of counsel is correct. Attention is called, however, to the case of Wrightsville & Tennille Railroad Co. v. Vaughan, 9 Ga. App. 371 (71 S. E. 691), which, in our opinion, settles this controversy. It is there said (p. 381): “When a man marries a woman in this State, he is entitled to her earnings, domestic and otherwise, so far as she is able and willing to exert herself to perform them for his benefit, and if a wrongdoer thereafter comes along and impairs the existing earning capacity, a right of action in the husband’s favor arises because of the wrong which has thus been done; but if the woman he marries has already converted her earning capacity into cash, or into property, or into a chose in action, he takes only what is left of the earning capacity for his own, and she remains the owner of the cash or the property, or of the chose in action as the case may be.” The evidence is sufficient to sustain the verdict, and nothing appears to warrant judicial interference therewith.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J.

text:
    7959.
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY, for use, etc., v. TATE.
    Allegations in a petition for certiorari which are not verified by the answer can not be considered. Erom the answer to the certiorari in this ease it does not appear that the trial court abused its discretion in refusing a continuance. There was evidence to support the verdict; and the judge of the superior court did not err in overruling the certiorari.
    Decided March 19, 1917.
    Certiorari; from Pickens superior court—Judge Patterson. September 27, 1916.

      Tye, Peeples & Tye, D. W. Blair, John 8. Wood, for plaintiff in error. F. G. Tate, Boscoe Pickett, contra.
   Wade, C. J.

Allegations , in a'petition for certiorari which are not verified by the answer can not be considered. Erom the answer of the magistrate in this case it does not appear that the trial court abused its discretion in refusing a continuance. The defendant pleaded a set-off, and it does not appear that there was a definite agreement between the parties for the dismissal of the case at the trial term, whereby the plaintiff was prevented from making preparation for trial. The magistrate says in his answer: “Attorney for plaintiff asked for a continuance, and the court told him that he would have to make showing for a continuance. He, Jno. S. Wood, being sworn, said that he had failed to reach a settlement with defendant and had not prepared his case either. Neither had he any witnesses. The court asked him if he had had his witnesses subpoenaed; to which he answered ‘mo;’ and the court then asked him if he did not bring tire appeal, and he answered he did. The court asked him if he had not had 30 days in which to bring his witnesses to court and have his case prepared, and he answered he had, but thought he would reach an agreement.” It is further distinctly stated in the answer that the court had no knowledge of any agreement between the parties to dismiss the case, though at a previous term “plaintiff’s attorney stated that he would endeavor to have the case settled,” and nowhere does it appear from the answer that the defendant admitted having made any agreement to dismiss.

Though the evidence of the defendant that he had sold certain peaches for one dollar a basket “f. o. b. cars Jasper, Georgia,” which he was compelled to sell on the local market at 80 cents and 75 cents per basket, because of the failure of the plaintiff to furnish a properly equipped car for the transportation of the fruit, is apparently somewhat in conflict with his further testimony that “he was selling at one dollar per basket f. o. b. here at packing shed,” his definite testimony, undisputed, was that he lost the difference in price between 75 and 80 cents and one dollar per basket, for which last price he had sold the peaches, provided the railroad company had furnished suitable ears for their shipment. We may assume that the testimony that the defendant was “selling one dollar per basket here at packing shed” was intended to mean “f. o. b. cars at packing shed;” and at all events we can not say, in view of the testimony as to a definite and specific loss, that the verdict was unsupported by the evidence.

The judge of the superior court did not err in overruling, the certiorari.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    7984.
    Graham v. Savannah Electric Company.
    Decided March 19, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. October 4, 1916.
    The petition as amended alleged, in substance, that the plaintiff boarded a car of the defendant’s electric railway in the city of Savannah, and paid her fare as a passenger, with the intention of being transported to Duffy and Ott streets, and remained on the car until it reached these streets; that on nearing the south side of Duffy street the car stopped, on signal, but the stop was made four or five feet from the crossing sidewalk; that in alighting she took the hand-hold of the car with her left hand „ and stepped down, and, in so doing, stepped upon a large cobblestone about seven inches in diameter, which was directly opposite the car step, about four or five feet from the crossing sidewalk, with the result that she was thrown flat into the street, and received bodily injuries described; that this cobblestone came from the cross sidewalk at Duffy street, and that between the tracks at this point the pavement had been loose for some time. ■ It was alleged that the injuries described were due entirely to the negligence of the defendant as follows: (1) The defendant, a common carrier; obliged to render extraordinary care in the selection of a suitable alighting place for its passengers, did not in this particular select a reasonably safe place for the plaintiff to alight, in that its agents stopped the car four or five feet short of the crossing sidewalk, and did not stop the car in a safe place for the plaintiff to alight: (2) The said obstruction in the street was known, or should have been known, to the agents and employees of the defendant; and these agents and employees—the crew of the ear—did not warn the plaintiff against this dangerous obstruction. (3) The employees in charge of the car were negligent in that they stopped the car four or five feet short of the proper stopping place; the proper stopping place being at the sidewalk of the cross street, if that place is safe, or at any other safe place that the agents of the defendant should select.
   Wade, C. J.

The adjudication of this ease is controlled in principle by - the decision in Bird v. Savannah Electric Co., 16 Ga. App. 453 (83 S. E. 621), as the material facts in both petitións are substantially the same. There was no error in sustaining the demurrer and dismissing the suit. Judgment affirmed.

George and Luke, JJ., eoneur.

Oliver & Oliver, L. A. Pinhussohn, for plaintiff,

cited: Turner v. City Electric Ry. Co., 134 Ga. 869; Macon Ry. Co. v. Vining, 120 Ga. 511; s. e. 123 Ga. 770; Ga. Ry. & Elec. Co. v. McAllister, 126 Ga. 447; Augusta R. Co. v. Glover, 92 Ga. 133; Wilkes v. W. & A. R. Co., 109 Ga. 794; Ga. R. Co. v. Usry, 82 Ga. 54; Pacetti v. Central Ry. Co., 6 Ga. App. 97 (1); (distinguished) Bird v. Savannah Elec. Co., 16 Ga. App. 453.

Osborne, Lawrence & Abrahams, for defendant,

cited: Bird v. Savannah Elec. Co., supra; Carroll v. N. O. Ry., 132 La. 683; Fuller v. Detroit Ry., 142 N. W. 572; Rose v. Boston Ry., 194 Mass. 415 (80 N. E. 580).


text:
    8067.
    Gray v. Ray.
   George, J.

1. On the trial of an issue formed by objections filed by a creditor of a decedent to the return of appraisers setting apart a year’s support to the widow and minor children, the burden of proof is on the objector. Lee v. English, 107 Ga. 152 (33 S. E. 39); Jones v. Cooner, 142 Ga. 127 (82 S. E. 445).

2. On the trial of such an issue the following charge to the jury was error: “Yoir have nothing on the face of this earth to do with any judgment of any court in the world; this is a new proceeding, and it is for you to pass on, regardless of what has been done with it anywhere else.” The report of the appraisers, which in this case had the approval of the ordinary, was prima facie correct, and the burden was upon the objector to overcome this presumption by evidence. Robson v. Harris, 82 Ga. 153 (7 S. E. 926) ; Lee v. English, supra. The charge quoted is error because the judge did not anywhere in his charge refer to the report of the appraisers, and entirely failed to insti-uct the jury that such report was prima facie correct. The jury could not have understood this charge to refer to anything other than the report 'of the appraisers.

3. On the trial of such issue, the objector offered in evidence a certain mortgage-note, executed by the decedent during his lifetime, and counsel for the applicant conceded that the mortgage-note was relevant for the purpose of showing that the objector was a creditor of the estate, but contended that it did not appear to be a purchase-money mortgage and was not in fact a purchase-money mortgage; to which the court replied: “The law means to pay for the property; to pay the purchase-money, and if you can go around it, that doesn’t mean anything.” This statement was made in the presence of the jury, and we think if was prejudicial to the rights of the applicant, and tended to unduly influence the jury in arriving at their verdict. This harmful error was hardly remedied by subsequent statements made by the court in again referring to the evidence, or in the charge to the jury.

Decided March 19, 1917.

Appeal; from Hart superior court—Judge Worley. May 15, 1916.

A. Q. & Julian McGurry, W. L. Hodges, for plaintiff in error.

James H. & Parlce Slcelion, contra.

4. Except as herein indicated, the trial was free from error. For the reasons stated the trial court erred in overruling the motion for a new trial, made by the widow of the decedent.

Judgment reversed.

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


author: Bloodworth, J.

text:
    7775.
    Burton v. Etheridge.
    Decided March 19, 1917.
    Complaint; from city court of Atlanta—Judge Beid. May 3, 1916.

      John P. Haunson, for plaintiff in error.
   Bloodworth, J.

1. When a ease is set for trial due diligence requires that the defendant, if he desires a continuance, be present either in person or by attorney on the call of the case; and it is not a good ground for a motion for new trial that an agent of the defendant, on the morning of the day set for the trial of the case, went to the home of the defendant to notify her to attend court, and, finding her in bed sick, was delayed in locating the family physician and getting an affidavit from him as to the condition of the defendant, and reached the court with the affidavit after the case had been tried.

2. Upon the call of a ease, if it appears that the defendant is absent, and the attorney for the defendant has his name stricken from the docket and from the ease, it is not error for the court to proceed with the case and give it such direction as the pleadings or the pleadings and the evidence may demand. Howell v. Glover, 65 Ga. 466 (2) ; Glover v. Dimmock, 119 Ga. 696 (46 S. E. 824) ; Sparks & Sons Co. v. Ober, 138 Ga. 316 (75 S. E. 135).

3. In the instant ease it is not made to appear that» the judge erred in directing a verdict for the plaintiff. Phillips v. Collier, 87 Ga. 66 (13 S. E. 260); Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7790.
    Barrineau v. Holman.
   Broyles, P. J.

1. Where the buyer of a mule freely and voluntarily signed a contract for the purchase of the animal, agreeing to pay a stipulated sum therefor, with full knowledge of the terms of the contract, one of which was that the seller “warrants said property against all such defects as are specifically noted and mentioned herein but against no others, latent or patent,” and another than “no statement, representation, or warranty of either party hereto, or by any agent of either, shall form any part of this contract or in anywise affect the same, unless herein set forth, and the undersigned in purchasing the above described property■ acts solely upon his judgment,” and where no defect of any character as to the property was specifically noted or mentioned in the contract, and it contained no representation or warranty other than stated above, as to the property, the doctrine of implied warranty as set forth in section 4135 of the Civil Code of 1910 was not applicable, and the purchaser waived all defects, either patent or latent, in the property; and in a suit upon the note, brought by the seller of the property, it was not error for the court to refuse to allow the following amendment to the defendant’s answer: “Defendant, for further answer, says: that on the 15th day of March, 1912, the plaintiff sold defendant an iron gray mule for the sum of two hundred and ten dollars. The sale of said mule was made without any waiver whatever, but under a general warranty implied by law as to soundness, healthfulness, and suitability as a farm mule, said mule being sold to defendant for farming purposes; and defendant shows that said mule was totally worthless and unsuited for a work animal, said mule going lame on the first day said mule was put to work, and after-wards by reason of such lameness being unable to do any work; that plaintiff is and has been since 1912 a non-resident of this State. Defendant prays that said damages, to wit, the purchase price of said mule, be set off as against the note sued on, and that he have a judgment for the excess.” See Floyd v. Woods, 110 Ga. 850 (36 S. E. 225) ; Mock v. Kemp, 17 Ga. App. 448 (87 S. E. 608).

Decided March 19, 1917.

Complaint; from city court of Cairo—Judge Willie. July 20, 1916.

8. P. Gain, for plaintiff in error.

Boscoe LuJce, M. L. Ledford, Claude Christopher, contra.

2. The original answer was insufficient in law, and the court did not err in striking it, and in thereafter rendering judgment in favor of the plaintiff for the full amount sued for.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.


text:
    7802.
    BROOKS et al. v. HICKMAN.
    The court did not err in refusing to allow the defendants to introduce evidence in support of their pleas, or in thereafter directing a verdict in favor of the plaintiff for the full amount sued for.
    Decided March 19, 1917.

      ■ Complaint; from city court of Tifton—Judge Eve. August 8, 1916.

      Sheen & Murray, J. S. Bidgdill, for plaintiff in error.

      McGehee & McGehee, B. D. Smith, contra.
   Broyles, P. J.

The plaintiff brought suit against the defendants on a promissory note for $1,000, dated January 37, 1906, and due October 1, 1909, payable to the order of J. Crouch & Son, and bearing an entry of credit of $134.03, dated December 30, 1909. The plaintiff introduced also the following written instrument, dated December 34, 1908: “Guarantee on the American Bred Grade German Coach Stallion ‘BamoP We have this day sold the American Bred Grade German Coach Stallion ^Bamo’ to the Tifton German Coach Horse Company of Tifton, Georgia, and we guarantee the said stallion to be a satisfactory, sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise. If the said stallion should fail to be a satisfactory, sure breeder with the above treatment, we agree to take the said stallion back and give the said company another stallion of equal value in his place, provided the said stallion is returned to us at Lafayette, Indiana, at our expense, in as sound and healthy condition as he is now in and in good flesh by June 1st, 1910. Accepted and signed: J. Crouch & Sons; J. J. L. Phillips, President, German Coach Horse Company, Tifton, Georgia.” It was admitted by counsel for the defendants that this guarantee referred to a second stallion furnished to the defendants by Crouch & Sons, and about which the defendants were pleading failure of consideration'. It will be observed that this contract of guaranty was signed by J. Crouch & Sons, the sellers of the stallion, and J. J. L. Phillips, the president of the German Coach Horse Company pf Tifton, Georgia; and under the facts of the case, as shown by the record, it is evident that Phillips, when he signed this contract, represented not only himself but all the other parties defendant, and that all are bound by it. The note sued' upon and the guaranty contract should be construed together, and when so construed it is clear that before the defendants could be let into their, defense of a failure of consideration, they must show that they had returned the stallion as the contract stipulated they must do. See International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034); Case Threshing Ma chine Co. v. Cook, 7 Ga. App. 631; McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Walker v. Malsby, 134 Ga. 399 (67 S. E. 1039); Fay v. Dudley, 129 Ga. 314 (58 S. E. 826); Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (72 S. E. 40).

The law of implied warranty has no application to this case, as the stallion was sold under a contract of express warranty. Malsby v. Young, 104 Ga. 205 (30 S. E. 854). As the defendants could not rely upon any implied warranty, then until they showed a compliance with the terms and conditions of the express-warranty contract, entered into between them and the sellers of the property, they could not plead a failure of consideration, either partial or total; and although the court had allowed them to file such pleas, it did not err in refusing to allow evidence introduced in support thereof. Williams Mfg. Co. v. Warner Sugar Ref. Co., 125 Ga. 408, 412 (54 S. E. 95).

Under our view of the ease it is immaterial whether or not the note sued-upon was transferred and indorsed to the plaintiff before or after its maturity, since the defendants had no defense good against the original payees of the note.

The court did not err in directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Jenkins and Bloodworih, JJ., concur.


author: Beotles, P. J.

text:
    7830.
    Clark v. Hilliard.
   Beotles, P. J.

1. All civil cases, with certain exceptions, shall be tried in the county wherein the defendant resides. Article 6, section 16, paragraph 6, of the constitution of Georgia; Civil Code of 1910, §§ 6543, 5526. The exceptions mentioned are: divorce cases, cases respecting titles to land, equity cases, suits against joint obligors, joint promisors, copartners, or joint trespassers, and suits against the maker and indorser of a promissory note, or drawer, acceptor, and indorser of a bill of exchange. Civil Code of 1910, §§' 6538, 6539, 6540, 6541, 6542, 5527, 5528, 5529, and 5530.

2. A proceeding by a montey rule is a suit, within the meaning of sections 5526 and 6543 of the Civil Code. Roberts v. Keeler, 111 Ga. 181 (36 S. E. 617) ; Barrett v. Pulliam, 77 Ga. 552 (4).

3. The right to rule an attorney for money alleged to be in his possession as such attorney is penal in its nature and must be strictly construed. Haygood v. Haden, 119 Ga. 463 (46 S. E. 625).

Decided March 19, 1917.

Money rule; from city court of Savannah—Judge Freeman. September 7, 1916.

H. B. Strange, Don. H. Ciarle, for plaintiff in error.

W. B. Hewlett, contra.

4. Where attorneys retain in their hands money from their clients after it has been demanded, they are liable to rule as sheriffs are. Civil Code of 1910, § 4954.

(a) A sheriff is not liable to be ruled outside the county of his residence. Kellogg v. Buckler, 17 Ga. 187 (4) ; Sheffield v. State, 69 Ga. 730 (2).

5. This was a rule nisi issued by the judge of the city court of Savannah, requiring the defendant, an attorney at law, to show cause why he should not pay over to his client a certain sum of money which the client claimed the attorney had collected and refused to pay over to him. The defendant filed his plea to the jurisdiction of the court, alleging that he was not a resident of the county of Chatham, but was a resident of the county of Effingham, and that the courts of the latter county had full jurisdiction of the subject-matter of the suit and the person of the defendant. It was conceded that the defendant was a resident of Effingham county, Georgia. It appears that he had an office in the city of Savannah, and was an attorney practicing in the city court of Savannah, and that the controversy between him and his client arose out of an alleged failure to pay over money collected in settlement of a case brought in the city court of Savannah. Under the rulings stated above, the court erred in overruling the defendant’s plea to the jurisdiction.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    7834.
    Baldwin v. Berry.
    Decided March 19, 1917.
   Broyles, P. J.

1. There was evidence which authorized a finding by the jury that the son of the plaintiff was his father’s agent in the negotiations with the defendant as to the giving of a correct bond for title to the land involved, and that the plaintiff through his son refused to make a correct bond for title to the defendant, and refused to sign the unsigned bond for title (which was given the defendant at the time he purchased the property), unless he would pay to the plaintiff an additional sum of money. This being true, the charge complained of in the special ground of the motion for a new trial was authorized by the evidence. There was in this charge no expression or intimation of opinion by the court as to what had been proved in the case; nor was it misleading or confusing to the jury.

2. There was some evidence to support the verdict, and, it having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Jenkins cmd Bloodworth, JJ., concur.

Complaint; from city court of Dawson—Judge Edwards. August 06, 1916.

B. B. Marlin, W. FI. Gurr, for plaintiff.

Yeomans & Wilkinson, for defendant.


text:
    7900.
    RUBY v. BOYETT.
    Where the plaintiff’s title to the note sued on depended on what purported to be the indorsement of a bank by its cashier, a defense sufficient to withstand an oral demurrer and to put upon the plaintiff the burden of proving the indorsement was made by a duly verified plea as follows: “Defendant denies the title of plaintiff to said note, and denies both the genuineness and legality of the indorsement of the Citizens Bank of Attapulgus on the back thereof, and denies that said indorsement was authorized by said bank, and denies that title to said note has ever passed out of said bank.” The plaintiff having failed to prove the indorsement, the court did not err in excluding the note from the evidence, or in awarding a nonsuit.
    Decided March 19, 1917.
    Complaint; from city court of Bainbridge—Judge Spooner. September 05, 1916.

      Hartsfield & Conger, for plaintiff,
    cited: Civil Code (1910), § 4299; Wingate v. Atlanta National Bank, 95 Ga. 1 (4); Crockett v. Garrard, 4 Ga. App. 360; Butler v. First National Bank, 13 Ga. App. 35; Gray v. Oglesby, 9 Ga. App. 356; Carey v. Giles, 10 Ga. 06; 3 R. C. L. 450, § 81.

      W. H. Krause, M. E. O’Neal, for-defendant,
    cited: Sheffield v. Jackson County Bank, 2 Ga. App. 200, 223; Federal Discount Co. v. Carter, 14 Ga. App. 645-7; Bruce v. Neal Bank, 134 Ga. 366-7; Mozley v. Reagan, 109 Ga. 182; 2 Dan. Neg. Instr., § 1225.
   Broyles, P. J.

1. The exception to the ruling upon the demurrer to the original plea, not having been argued in the brief of counsel for the plaintiff in error, will be treated as abandoned.

2. The code of this State provides that an indorsement of a note, when it is sued on by the indorsee, need not be proved “unless denied on oath.” • Civil Code of 1910, § 4299. It follows, as a negative pregnant, that where such an indorsement is denied on oath there must be proof of the genuineness of the indorsement. “In such a case the existence of a genuine indorsement will be essential to the case of the plaintiff, and the burden of proof ordinarily rests upon the person ‘to the existence of whose case or defense the proof of such fact is essential.’ Civil Code [of 1895], § 5160. The provisions of the Civil Code, § 3696 [Civil Code of 1910, § 4288], relating to the law of presumptions, are to be construed in connection with section 3705 [Civil Code of 1910, § 4299], and are not to be considered as so qualifying the rule there stated as to place upon the defendant the burden of disproving the genuineness of an indorsement, when, by. his plea filed under oath, he denies the indorsement. Under this interpretation of the law, and the condition of the record, the note . . [was] not admissible in evidence without evidence as to the genuineness of the indorsement.” Bruce v. Neal Bank, 134 Ga. 364, 367 (67 S. E. 819). It is true that in that case the sufficiency of the plea therein to withstand the demurrers interposed was not passed upon, but the rulings in the case generally, and the well considered and logical opinion by Mr. Justice Atkinson, construing the various code-sections hearing thereon, are, in the opinion of this court, controlling in the case at bar. The instant case Was a suit by the indorsee of a promissory note, and the defendant made by amendment the following verified plea: “Defendant denies the title of plaintiff: to said note, and denies both the genuineness and legality of the indorsement of the Citizens Bank of Attapulgus on the back thereof, and denies that said indorsement was authorized by said bank, and denies that title to said noté has ever passed out of said bank.” This plea, denying the genuineness of the indorsement, was sufficient to put upon the plaintiff the burden of proving the indorsement, and the court did not err in overruling the oral demurrer to the plea as amended.

The plaintiff having failed to prove the indorsement of the note, the court did not err in excluding the note from the evidence and in awarding a nonsuit.

Judgment affirmed.

Jenkins and Bloodworih, JJ., concur.


author: Jenkins, J.

text:
    7915.
    Brannen v. McElveen.
    Decided March 19, 1917.
    Complaint; from city court of Statesboro—Judge T. L. Hill presiding. September 6, 1916.

      Strange & Metis, for plaintiff in error. Hunter & Jones, contra.
   Jenkins, J.

1. This court will not grant a new trial on the ground that the verdict is contrary to law because the contract on which the suit was based should have been in writing, under the statute of frauds, where it appears that such defense was not raised either by plea or demurrer, motion for nonsuit, or objection to testimony, so as to invoke a ruling in the lower court on the subject. Johnson v. Latimer, 71 Ga. 470 (3) ; Tift v. Wight & Wesloshy Co., 113 Ga. 681 (39 S. E. 503); Capital City Brick Co. v. Atlanta Coal & Ice Co., 5 Ga. App. 436 (63 S. E. 562).

2. Where there was .an issue of fact as to whether the defendant under a contract for the purchase of land expressly agreed that a certain recorded fi. fa. which had been obtained against plaintiff and his predecessor in title should be extinguished by the defendant as a part of the purchase-price of the land, and where it appeared that, subsequently to the conveyance of the land by the plaintiff to the defendant under a warranty deed, the fi. fa. was paid off by the plaintiff, it was error for the trial judge to charge the jury as follows: “I charge you this principle of law: that where a man buys property with a recorded execution against it, that he would take it subject to that execution, with or without any understanding to that effect. . . If Mr. Brannen bought this property, and these executions appeared upon the general execution docket of this' county, Mr. Brannen would have those executions to pay, regardless of whether or not he agreed to assume them. Now, he would have them to pay, or he would suffer the consequences of a levy upon the property, the property in dispute.” These instructions were inapplicable and might reasonably have confused and misled the jury; and this is true although the court further charged the jury that the plaintiff in fact relied not upon such.legal liability but upon the express contract outside and apart therefrom.

Judgment reversed.

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


text:
    7937.
    Dolan et al. v. Lifsey.
   Broyles, P. J.

1. There is no substantial merit in the motion to dismiss the bill of exceptions, and it is accordingly denied.

2. In an indivisible contract “the entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other.” “In determining whether the contract is entire or severable the criterion is to be found in the question whether the whole quantity, service, or thing—all as a whole—is of the' essence of the contract. If it appear that the contract was to take the whole or none, then the contract would be entire. Clark, Con. 657.” Broxton v. Nelson, 103 Ga. 327, 330, 331 (30 S. E. 38, 68 Am. St. R. 97).

Decided March 19, 1917.

Complaint; from city court of Atlanta—Judge -Reid. September 30, 1916.

The bill of exceptions assigns error on the striking of the defendants’ plea and on the judgment thereafter rendered against them for the amount sued for. The ground of the motion to dismiss the writ of error is that “the errors assigned are insufficient to raise an issue to be determined by this court, in that it appears that a verdict was rendered in said case in favor of the defendant in error, and that nowhere in said bill of exceptions is error assigned upon the rendition of said verdict.”

W. F. Slaton Jr., L. S. EuTbert, for plaintiffs in error.

Moore & Pomeroy, contra.

3. Where a contract is entire the whole contract stands or falls together. Civil Code of 1910, § 4228.

4. Where.the plaintiff'has performed a part only of an indivisible contract, and the defendant has accepted this part performance, the plaintiff can recover upon a quantum meruit, or in assumpsit, but he can not recover upon the contract itself. Southern Ry. Co. v. Branch, 9 Ga. App. 310 (71 S. E. 696).

5. Where the plaintiff bases his right to recover upon an express contract, which is entire and indivisible, he can not recover unless he has performed all his obligations under the contract. Hill v. Balkcom, 79 Ga. 444 (5 S. E. 200); Parker v. Parlinger, 122 Ga. 315 (50 S. E. 98); Bennett v. Burkhalter, 128 Ga. 154 (57 S. E. 231) ; Broxton v. Nelson, supra.

6. The contract which is the basis of the action in the case at bar was an entire contract, and the defendants could plead that the plaintiff had breached the contract in certain particulars, setting them forth, and it was not incumbent upon them to allege the amount that they had been damaged by reason of such breaches.

7. The court erred in striking the defendants’ plea, and the subsequent proceedings in the case were nugatory.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    7942.
    Griner v. Lowe.
    Decided March 19, 1917.
    Trover; from city court of Nashville—Judge Christian. October 9, 1916.
    The defendant pleaded that under the facts stated above, the plaintiff was estopped from bringing this action; and pleaded fur-, ther that the action should abate because of non-pajunent of accrued costs before it was filed. It was contended also that as the ' property in question came into the hands of the defendant as a constable, and he acted under legal process, he was not subject to an action of trover.

      Ira 8. Clary, for plaintiff in error,
    cited: Chipstead v. Porter, 63 Ga. 220; Geer v. Thompson, 4 Ga. App. 756; Barton v. Thompson, 13 Ga. App. 786; Platt v. Sheffield, 63 Ga. 627-8.

      William Story, Jeff S. Story, contra,
    cited: Riley v. Martin, 35 Ga. 136; Mitchell v. Ga. & Ala. Ry., 111 Ga. 773.
   Broyles, P. J.

The following undisputed facts are shown by the pleadings

and evidence: The defendant Griner was a lawful constable, and he levied an attachment in favor of R. C. Chaneelor and against Dave Lowe upon certain household goods. Dave Lowe’s wife, the plaintiff in* this suit in the court below, filed a claim to the goods but gave no bond. She withdrew this claim, and at the next term of court filed a second claim to the property. When this second claim came on to be heard neither the claimant nor her attorney appeared to prosecute it, and it was dismissed and the property was found subject to the execution based upon the attachment which had been levied upon the property. The claimant filed within four days her appeal to a jury in the justice’s court, and when the case was called at the succeeding term of the court, a jury having been drawn, the appeal was dismissed on the ground that no appeal lay from the judgment upon the second claim filed. The claimant- then, instead of appealing her case to a jury in the superior court, instituted this trover proceeding in the city court of Nashville, without paying the costs which had accrued upon the filing of the second claim and the appeal to a jury in the justice’s court. Held: Under these facts the verdict for the plaintiff was unauthorized, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    8275.
    Rogers, Cassels & Fleming v. Bennett.
   Bloodworth, J.

1. There was evidence to support the verdict.

2. When read in connection with the entire charge, the excerpts therefrom complained of in the motion for new trial are not erroneous.

Decided March 19, 1917.

Complaint; from DeKalb superior court—Judge Smith. October 12, 1915.

Mark Bolding, for plaintiffs in error.

Oreen, Tilson & McKinney, contra.

3. Slight errors and inaccuracies of expression which .are not likely to mislead the jury are harmless in a charge which otherwise accurately, fairly, and comprehensively states the contentions of both parties and clearly presents the law applicable thereto..

4. The charge covered the issues made by the pleadings, and, if fuller instructions on any particular issue were desired, the judge should have been so informed by a timely written request.

5. The judge did not err in overruling the motion for new trial.

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


text:
    7659.
    RUSH v. SOUTHERN RAILWAY COMPANY.
    The petition did not set forth a cause of action, and was properly stricken on general demurrer.
    Decided March 20, 1917.
    Action for damages; from city court of Richmond county— Judge Black. June 21, 1916.

      Henry G. Roney, for plaintiff.

      Gumming & Harper, Bryan Gumming, for defendant.
   George, J.

The plaintiff alleged that he was an employee working for the defendant railway company in the State of South Carolina at the time of his injury. There is no allegation to' the effect that he was engaged in interstate commerce, nor do the facts in the petition bring the case within the application of the Federal employer’s liability act. His general employment'was that of a carpenter, but -he was required also to do other work at the direction of his foreman, and his foreman directed him to go into a box-car and bring from the car a bag of cement, to be used in the general work in which the plaintiff was engaged. The plaintiff had not been in this box-car on the day of his injury, but there is no allegation that there was anything unusual or peculiar about the car. He entered the car by the middle door, and, because it was a cloudy day, the car inside was very dark; he saw the cement bags piled in the far end of the car, but could not see more; he went to the cement and picked up a bag, and, as he turned to come out, his feet became entangled in a large pair of scales, and he was thrown to the floor by reason thereof, and received injuries described in his petition. He alleged that on account of the darkness of the car he did not see the scales; that he was not advised that the car contained anything except cement;-and that he would have safely performed the duty required of him had it not been for the presence of the scales in the car. He bases his right to recover upon the theory that the defendant had not provided him a reasonably safe place in which to work and had failed to notify him of the presence of the scales in the car. A general demurrer to. the petition was sustained by the trial court, and the plaintiff excepted.

The petition alleging that this injury occurred within the State of South Carolina, and no statute of that State being pleaded, the legal presumption is that the common law governing the relations of master and servant prevailed at the place where the injury occurred; and the rights of the parties must be determined by the common law. Southern Railway Co. v. Cunningham, 123 Ga. 90 (50 S. E. 979). So far as the decision in the case of Southern Railway Co. v. Diseker, 13 Ga. App. 799 (81 S. E. 269), conflicts with what is here held, it is not in harmony with decisions of the Supreme Court and other decisions of this court. The burden is upon the plaintiff to show himself free from negligence; for contributory negligence, under the rules of the common law, would defeat his recovery. Further, the burden is upon the plaintiff, under the rules of the common law, to show that the defendant was negligent. If the negligence was that- of a fellow servant there could be no recovery, or if the injury resulted from one of the ordinary and usual risks of employment there' could be no recovery, at common law. It is by no means clear that the plaintiff himself was free from fault or negligence. He had been working in the open and entered the ear, always more or less dark, upon a cloudy day, and, without taking any precautions, ¡proceeded to the rear end of the car for the bag of cement. There was a large pair of scales on the floor of the car, and under usual conditions any ordinarily prudent person would have discovered the presence of the scales. According to the petition the plaintiff himself would have observed the scales but for the lack of sufficient light within the car. The only reason given for the unusual darkness within the car is that the day was cloudy; and such a condition itself would seem sufficient to require of the plaintiff some additional precautions, in the exercise of ordinary care, before attempting to carry the heavy sack of cement out of the car. It does not appear that the defendant was negligent. It was under no duty to arrange the cement in the car in any particular fashion or in any particular part of the car. It was not improper that such a thing as a pair of scales should be in the car. The accident which befell the plaintiff, if not the result of his negligence, might properly be classified as a risk of his employment. Certainly it is a risk of the employment that the servant who is required to carry a heavy load may stumble over some article not improperly in the place where he is required to work. His means of knowing the condition of the car upon the occasion of his injury were equal to those of the master. Ordinarily and under usual conditions there would have been no danger in entering the car and carrying out the cement. The clouds of the heavens cut off from the car the ordinary and natural supply of light, and the plaintiff entered the car with full knowledge of these existing conditions.

There is not a line in the petition to indicate that the foreman under whom the plaintiff was working occupied any other relation than that of a fellow servant to him. Both the plaintiff and the foreman were engaged in a common duty owing to the master, and the foreman, under the facts alleged in this petition, must be considered as the fellow servant of the plaintiff. The ground of negligence alleged against the defendant in failing to warn the plaintiff of the presence of the scales within the car is based upon the failure of the foreman, his fellow servant, to so advise him. If this negligence be the cause of the plaintiff’s injury he can not recover, because his petition is proceeding under the rules of the common law, in so far as they govern' the relations of master and servant. His injury, however, was due to the presence of the scales in the ear, combined with the darkness therein caused by the intense cloudiness of the day. The master presumably was at a distant point when the clouds spread over the sky, and the plaintiff himself was upon the ground, knew the conditions, and must' be held to have assumed the risks ordinarily incident to the particular work required of him at that time. Certainly the failure to warn him of the presence of the scales must be considered negligence of his fellow servant, the foreman, no one else being present. The plaintiff was not free from fault; he seems to have assumed the risk incident to the work in hand; the place where he was at work was in no sense a permanent one, and the only negligence charged in the petition is the failure of the master to advise him of the presence of the scales, the condition as to light in the car being considered. The petition expressly complains that the failure to give the warning was chargeable to the foreman, a fellow servant engaged in the same work with the plaintiff and under the control of a common master, and who, so far as the-facts stated in the petition show, had no more authority in the premises than the plaintiff himself. The court did not err in sustaining the demurrer.

Judgment affirmed'.

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


author: Georoe, J.

text:
    7777.
    Simmons v. Southern Railway Company.
    Decided March 20, 1917.
    Action for damages; from city court of Zebulon—Judge Dupree. June 30, 1916.

      J. B. McDonald, Robert L. Berner, for plaintiff.

      Battle & Hollis, for defendant.
   Georoe, J.

“In order for a servant to recover for an injury on the ground that it resulted from liis compliance with a direct order of his master, or of his master’s representative, the servant must show that the order was a negligent one under the circumstances. If the order was negligent, and the servant knew of the peril of complying with it, or if he had equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he can not recover for an injury received in complying with the order.” Hightower v. Southern Ry. Co., 146 Ga. 279 (91 S. E. 52). There was no error in dismissing the petition on general demurrer. See Cowart v. Southern Marble Co., 144 Ga. 254 (87 S. E. 282). The special demurrer is also meritorious.

Judgment affirmed.

Wade, C. J., and Luhe, J., concur.


text:
    7796.
    Newsome v. Sheppard.
    Decided March 20, 1917.
    Certiorari; from Jefferson superior court—Judge Hardeman. July 31, 1916.

      J. 0. Newsome, for plaintiff in error. M. G. Barwiclc, contra.
   George, J.

A petition for certiorari, setting out the testimony introduced

in a possessory-warrant ease, and assigning error only in the following sentence: “Bach side closed and the court made a judgment awarding the said corn to the plaintiff, Sheppard, which judgment the defendant assigns as error, ” presents no question for determination by the 'court, and the judge of the superior court properly dismissed the petition for lack of a sufficient assignment. Civil Code of 1910, § 5183; Papworth v. Fitzgerald, 111 Ga. 54 (36 S. E. 311) ; Harrell v. Quitman, 17 Ga. App. 299 (86 S. E. 662), and cases there cited. Nothing in Birdford Supply Co. v. Edwards, 16 Ga. App. 518 (85 S. E. 687); or in Patterson v. Beck, 133 Ga. 701 (66 S. E. 911), conflicts with this ruling.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


text:
    7840.
    Albright v. University School of Medicine.
   George, J.

A medical college brought suit in a justice’s court, upon a promissory note. The defendant filed an answer, admitting the execution of the note, but alleging a total failure of consideration, for the following reasons: That “defendant entered said school for the purpose of getting all the benefit of the profession; that he spent several years there, and paid plaintiffs large sums of money for tuition up to January, 1911; that up to said date he had the use and advantages' of large equipments of said college; that he was required to furnish dental supplies and equipments necessary to his profession, and that he bought said instruments, -and paid for them, and that said plaintiff required him to keep same in their college building; that on or about January 6, 1911, the building in which he was required to keep said instruments was totally destroyed by fire, same being caused, or said to have been caused, by the negligence of the officers of said college in allowing combustible material in said building, and that defendant suffered the total loss of all his instruments and books, which were worth $140.00. . . Defendant says that during the spring term, 1911, he was compelled to follow the faculty of said college around from building to building in the City of Richmond, Va., and from room to room, in order to finish the term, which defendant says was of very little, if any, benefit to him, and that he does not believe he was benefited at all thereby. Wherefore defendant prays that said note be can-celled and that he have judgment against plaintiff for the sum of $65.00 and cost of suit.” Held: The answer was properly stricken oh general demurrer, and the judge of the superior court did not err in dismissing tlie certiorari sued out by the defendant, and in awarding judgment against him for principal, interest, and cost.

Decided March 20, 1917.

Certiorari; from Fayette superior court—Judge Searcy. August 12, 1916.

W. B. Hollingsworth, Lester C. Diclcson, for plaintiff in 'error.

J. W. Culpepper, contra.

Judgment affirmed.

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


text:
    7856.
    ANDERSON, administrator, v. DANIEL.
    Where the word “administrator” alone is added to the name of the defendant in a suit in a justice’s court, and he files an answer denying any indebtedness, and pleads a set-off, alleging that the plaintiff is due the estate of a named person, the court may treat the suit as an action against the administrator of that estate; and the allowance of an amendment offered by the plaintiff, inserting the word “as” before the word “administrator,” after the name of the defendant, will not be ground for1 reversal, notwithstanding the plaintiff’s omission to mention the estate of which the defendant is administrator; and a judgment binding the estate may be rendered in the action.
    Decided March 20, 1917.
    Certiorari; from Murray superior court—Judge Fite. August 23, 1916.

      H. II. Anderson, for plaintiff in error. W. W. Sampler, contra.
   Wade, C. J.

1. According to the allegations in the petition for certiorari, which were admitted by the answer of the magistrate to be correct, suit was brought in a justice’s court on an account against “H. H. Anderson, administrator,” which was by permission of the court amended to read, against “H. H. Anderson, as administrator,” without more; and “at the appearance term defendant filed a plea denying any indebtedness, and a plea of set-off, alleging that the plaintiff was due the estate of Mrs. J. C. Morris.” Judgment was apparently rendered against H. H. Anderson as administrator of the estate of the said Mrs. Morris. The court did not err in permitting the suit to be amended by inserting “as” before “administrator.” Civil Code of 1910, §-5690. “Strict pleading is not required in the justice courts, and the omission of the word ‘as’ before executor, in a suit there against such executor, or in the verdict or judgment against him, does not vitiate the proceeding.” Dorsey v. Black, 55 Ga. 315 (3). While the amendment allowed by the court did not by itself sufficiently indicate that the suit was brought against Anderson as administrator of a particular estate, nevertheless the plea filed by the defendant treated the demand as one against the estate of the intestate, and sought to set up a counter demand in behalf of the said estate against the plaintiff, and therefore the estate was concluded by the judgment rendered. “While it is a well-established rule of law that a judgment rendered against one sued as an individual is not conclusive of any right he may have in a representative capacity, such as executor, administrator, or guardian, yet where, in defense to an action brought against one as an individual, he files an answer which practically, though not in express terms, makes him in his character as administrator of a deceased person a defendant to the action and defends in the right of his intestate’s estate, the estate is concluded by the judgment rendered in that action.” Braswell v. Hicks, 106 Ga. 791 (32 S. E. 861). See also Lamar v. Lamar, 118 Ga. 684, 688, 689 (45 S. E. 498); Wadley v. Oertel, 140 Ga. 326, 330, 331 (78 S. E. 912). In this case the answer by its express terms made the administrator of the deceased person a-defendant to the action, and the defense interposed was in the right of the intestate’s estate.

Where 'suit is brought in a justice’s court by summons against an administrator, which is substantially against him in his representative capacity, as appears therefrom, and as also appears by the express terms of the plea filed by the defendant in behalf of his intestate’s estate, the judgment, if entered against the administrator without providing for collection out of the property of the intestate, would be irregular but not void, and would be amendable, the rights of third parties not being affected.. Humphrey v. Johnson, 143 Ga. 703 (5), 705 (85 S. E. 830); Pryor v. Leonard, 57 Ga. 136. This ruling, however, may not be required by the facts of this case, since the exact form of the judgment against the administrator is uncertain, from the récord.

2. It does not appear that objection was interposed to any testimony delivered by the plaintiff in support of his demand against the estate of the decedent, or relating to his transactions with the decedent. The objection urged to the testimony of one Pierce touching his knowledge as to transactions between the plaintiff and the decedent was property overruled, so far as the record discloses, since it nowhere appears therein that Pierce was the agent of the surviving party or was interested in the result of the suit, or was for any other reason disqualified under the provisions of the Civil Code (1910), § 5858, and subdivisions thereof. In the brief of counsel for the plaintiff in error it is insisted that the judgment should be reversed because “the only evidence going to prove the account sued on was the testimony of the plaintiff in the court below,” and his testimony was inadmissible as to transactions between himself and the deceased party. The petition for certiorari sets forth the testimony of the plaintiff without showing that any objection whatever was interposed thereto, and further recites that objection was made to the testimony of Ellis Pierce, and error is assigned thereon because the court admitted Pierce’s testimony as to transactions with the decedent, but no reason is'alleged why Pierce was not a competent witness as to such transactions.

Other alleged errors complained of in the petition for certiorari, not being referred to in the brief of counsel for the plaintiff in error, will be treated as abandoned. The judge of the superior Court did not err in overruling the certiorari.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Ltjke, J.

text:
    7882.
    Rutland et al. v. Hill.
    Decided March 20, 1917.
    Certiorari; from Troup superior court—Judge E. W. Freeman. August 19, 1916.

      Meadors & Wyatt, for plaintiffs in error. B. H. Hill, contra.
   Ltjke, J.

1. Where an attachment has been dissolved by the giving of a replevy bond, and on the trial a judgment is rendered in favor of the plaintiff for the amount of his claim, it is lawful for the plaintiff to take judgment against the surety upon the replevy bond. Civil Code, of 1910, § 5113; Watters v. Southern Fixture &c. Co., 13 Ga. App. 468 (79 S. E. 360).

•2. The court is bound by the answer of a justice of the peace to the petition for certiorari, where the answer is neither traversed nor excepted to as provided by law.

3. The court did not err in not sustaining the certiorari.

Judgment affirmed.

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


text:
    7890.
    WESTBERRY et al. v. HAND.
    1. Under the plaintiff’s allegations he had á cause of action against the deputy sheriff and the surety on the official bond of that officer, on account of the officer’s failure to use due care and diligence as to the mule he had levied on, belonging to the plaintiff, which was in the officer’s custody under the levy when it broke its neck by running against a wire fence in the field in which the officer had placed it. The- court did not err in overruling the demurrer to the petition.
    2. (a) The defendants were not entitled to complain that the verdict against them was for a sum lower than the valuation placed upon the mule by the testimony.
    (6) Jurors are not required to accept as correct the uncontradicted opinion.or estimate of a witness as to the value of property, and may by their verdict place a lower value upon the property.
    Decided March 20, 1917.
    Action for damages; from Wayne superior court—Judge High-smith. September 9, 1916.

      James W. Poppell, James B. Thomas, for plaintiffs in error.

      D. M. Parlcer, Gibbs & Turner, contra.
   George, J.

Hand sued- Westberry, deputy sheriff, and his bondsman, Bennett, for $175, the value of a mule. The jury returned a verdict for the plaintiff for $125. The defendants made a motion for a new trial, and the judgment overruling the motion is assigned as error. Hand was the owner of a mule'levied upon by the deputy sheriff, Westberry. The deputy sheriff refused to accept a bond, and carried the mule a distance of several miles into a strange community. When Westberry refused to accept bond and carried the mule away, Hand expressly cautioned him to put the mule in a barn or stable, and not to turn it into a lot or put it under wire fence, because it would jump and would not stay under wire fence; he particularly advised Westberry of the danger to the mule if it should he placed under wire fence. Westberry carried the mule home and placed it in his stable, and later turned it into a field surrounded by an ordinary wire fence, securely and properly built. In this 'field was a cross-fence made of wire, which was for temporary purposes only and was not substantial. The wire was of small size and was, by reason of its construction (fully set forth in the petition), liable to injure or damage stock. According to the evidence of an eye-witness, who was living with and working for the deputy sheriff, the mule belonging to the plaintiff, with other stock, was turned into this field and began running rapidly as it entered the field. On the first round of the field it ran into the cross-fence made of wire which was insecurely strung on insufficient stakes and was liable to injure and damage stock, and broke its neck.

Sheriffs and deputy sheriffs are liable to suit in respect to certain things specified, and “for or in respect to any other matter or thing whatever relating to or concerning their respective offices,” under the Civil Code of 1910, § 5341. “A sheriff, with regard to care of property in his possession under judicial process, is- a bailee for hire, and as such is required to use reasonable care and diligence in the preservation of the property.” 35 Am. & Eng. Enc. Law (3d ed.), 713, citing Gilmore v. Moore, 30 Ga,. 628, and Gape Fear Steam Boat Co. v. Bartholomess, 67 Ga. 452. “The sheriff who has property in his custody is liable for the loss thereof or injury thereto resulting from his failure to use due care and diligence to preserve the same.” 35 Cyc. 1688, citing Johns v. Robinson, 119 Ga. 59 (45 S. E. 737), and Gilmore v. Moore, supra. Without question, we think that an officer entrusted by law with the possession of personal property is liable -to the owner of that property for negligence in the performance of his trust or duty, or for fraud or neglect in the execution of his office. The petition set forth a cause of action, and was not subject to general demurrer. The acts of negligence were set forth with sufficient particularity, and the petition was not subject to any of the grounds of the special demurrer. The deputy sheriff was fully advised of the character and habits of the mule, and was directly warned that the mule would damage or injure itself if placed under wire fence. Disregarding this information and this warning, he intentionally placed the mule in the enclosure surrounded by a wire fence and across which a temporary wire was strung. It can not-be said, under the evidence in this case, which was not controverted by the deputy sheriff, that the mule was killed as the result of an unavoidable accident. The verdict, approved by the trial court, is clearly supported by the evidence.

The defendants were not entitled to complain that the verdict was for only $135, although in the opinion of. the plaintiff, as stated in his testimony, his mule was reasonably worth $175. Cooper v. Bowen, 140 Ga, 45 (3) (78 S. E. 413); Hides v. Walker, 17 Ga. App. 391 (3), 394 (87 S. E. 152). The question as to the value of an article is peculiarly for the jury, and that body is not absolutely bound by the opinions or estimates of the witnesses on that subject. Minchew V. Nahunta Lumber Co., 5 Ga. App. 154 (4) (63 S. E. 716).

There was no error in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    7896.
    Turner v. Johnson-Lund Co.
    Decided March 20, 1917.
    Certiorari; from Hart, superior court—Judge Worley. August 31, 1916.

      A. G. & Julian McCurry, Walter L. Hodges, for plaintiff in error. J. H. & Parlce Shelton, contra.
   Ltjke, J.

1. Where the answer of the justice of the peace to a writ of certiorari is neither traversed nor excepted to, the court is bound to determine the cause as made by the answer.

2. Upon the answer of the justice of the peace, the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    7911.
    CITY OF ATLANTA v. THURMAN.
    1. A municipal corporation is liable for negligent conduct of a county chain-gang in placing an obstruction upon a sidewalk of the municipality without protecting it by barrier, rope, notice, or other warning, where the chain-gang is engaged in the performance of a duty of the municipality, at the direction and with the knowledge and consent, and under the express authorization of the municipality.
    2. Where the charge given to the jury covers in general terms the law applicable to the contentions of the parties, more specific instructions, if desired, should be made the subject of a timely written request.
    3. The improper allowance of an amendment to a petition can not properly be made a ground of a motion for new trial.
    4. The evidence to which objection was made was properly admitted, under the pleadings in this case; the verdict is supported by the evidence, and there was no error in overruling the motion for a new trial.
    Decided March 20, 1917.
    Action for damages; from city court of Atlanta—Judge Eeid. September 30, 1916.

      J. L. Mayson, 8. D. Hewlett, for plaintiff in error.

      Walter A. Sims, contra.
   George, J.

The petition against the City of Atlanta alleged: that the plaintiff was walking, at night, along one of the sidewalks in that city, when'he stumbled and fell over some sacks of coal placed on the sidewalk by the city; that a steam-roller belonging to the city was used in paving the street adjacent to the sidewalk, and the sacks of coal were placed upon the sidewalk to' be used in operating the steam-roller; that the county authorities, employing a chain-gang, were doing the work for the city, with the knowledge and consent, and under the express grant, of the city; that in the performance of this work the county authorities were exercising a governmental function for and on behalf of the city; that the city had delegated to the county authorities the right to repair the said street, and in so doing it made the county chain-gang a part of its own system of government; and that the sacks of coal were actually left upon the sidewalk by some one of the county’s employees. The city was alleged to be negligent in placing the sacks of coal on the sidewalk and in the shadow of the steam-roller, and in failing to guard the same with ropes or lights, or by other notice or warning. There was no demurrer to the petition. The evidence disclosed that the city, by resolution, had requested the county authorities to do the work on the street where the plaintiff received his injury. The city was actually assisting the convicts in making the repairs on the street, and for that purpose furnished one of its steam-rollers, in the operation of which 'the coal alleged to have been negligently placed on the sidewalk was required. The court charged the jury that “if the county employees were engaged in this work for the city, and under the direction of the city, they would be, so far as this plaintiff is concerned, servants of the city.’’ This charge is alleged to be error, and it is contended that “if the. county employees’left sacks of coal upon the sidewalk in a negligent manner, the City of Atlanta would not be liable for this negligence.” An additional charge given by the court and containing substantially the same instruction is also complained of, upon the ground stated.

We think the evidence introduced by the plaintiff in support of the allegations of his .petition required these' instructions to the jury. A municipal corporation is liable for the negligent acts of county employees engaged in the performance of a duty required of the municipal corporation, when the employees also are working under and by virtue of instructions issued by the municipality. In legal contemplation the act of the county employees was the act of the defendant, and it can not escape liability on the ground that it did not have notice that the sacks of coal had been negligently placed upon the sidewalk, as alleged in the petition, and that it was therefore under no legal duty to protect and guard the same by rope or light, or by any other notice or warning. City of Atlanta v. Williams, 15 Ga. App. 654 (84 S. E. 139); City of Rome v. Davis, 9 Ga. App. 62 (70 S. E. 594); Jones v. Atlanta, 143 Ga. 151 (2) (82 S. E. 540).

Grounds 5, 6, and. 7 of the motion for a new trial complain of -the failure to give in charge to the jury certain principles of law. These charges are to the effect that, if damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery. The court charged the jury generally that before the city could be held liable, it must appear that the city was negligent in the respect' charged in the petition, and that it must further appear that its negligence was the proximate cause of plaintiff’s injury. This general statement of the rule, under the facts of this case, was sufficient. If more specific instructions were desired by the city they should have been the subject of a timely written request.

The witness Coggin, for the plaintiff, was allowed to testify as follows: “I found some coal lying on the sidewalk behind one of the wagons. It was so dark I stumbled over it myself on looking for it.”' This testimony was objected to on the ground that it was irrelevant and immaterial on any issue involved in the case. The testimony of the witness referred to the same sacks of coal over which plaintiff is alleged to have fallen, and related to the conditions existing on the night of the plaintiff’s injury. The evidence was both material and relevant. It was essential for the plaintiff to show not only the presence of the coal on the sidewalk, but that upon the night of his injury he could not, in the exercise of -ordinary caution, see -the obstruction. This issue was submitted to the jury, and if this evidence was objectionable upon any ground, it is certainly neither irrelevant nor immaterial.

The witness Dr. Green, for the plaintiff, testified, over objection, as follows: “There was a good deal of twisted condition of the muscles, and also some in the region of the kidneys, and he had some trouble with his kidneys, and I gave him some medicine and also some liniment.” The ground of objection to this testimony was that it injected into the case an element of damage of which the defendant did not have notice. The petition as amended alleged the following injuries: Plaintiff’s spine was wrenched and sprained; one of his ribs was fractured and dislocated on his right side; the sacrum bone on the right side was torn loose from the backbone; the muscles of his back and shoulders were wrenched and sprained, and, by reason of the injuries to his spine, back, and side, he suffered a partial stroke of paralysis; he has suffered excruciating pain “through his entire body since said injuries.” One item of damage is expense incurred for doctor’s bills and medicines. While no direct injury to the kidneys is alleged in the petition, we are of the opinion that the evidence was properly admitted. The probable effects of an injury may properly be admitted in evidence, and a symptom of the injuries alleged to have been sustained by the plaintiff may be shown. The testimony objected to is in part directly in support of specific injuries alleged in the petition, and if a part thereof referred to an injury not specifically pleaded, this fact would not be a sufficient reason for the rejection of the entire evidence. Dr. Green was further allowed to testify that “there was a dislocation there where the backbone joins the sacrum-—the lower part of the backbone, right in the center.” This testimony was objected to upon the ground that the original petition did not allege such injury. An amendment was offered and allowed, .alleging this specific injury. Counsel for the city objected to the amendment, on the ground that it enlarged the injuries described beyond the allegations of the notice served upon the city under section 910 of the Civil Code of 1910. It was admitted by counsel for the city that the notice required by this code-section had been given the city, and it is insisted that the description of the injuries in the notice served upon the city is not sufficient to include the particular injury set out in the amendment. We can not consider the assignment of error upon the ruling of the court in allowing this amendment, for two reasons: (1) The notice served on the city, under section 910 of the Civil Code of 1910, is not attached to the petition, and does hot appear in the record. It may have been broad enough to cover this identical injury. (2) The amendment was allowed April 18, 1916, and no exceptions pendente lite were taken to the order allowing it. The final bill of exceptions was presented and certified on October 5, 1916. The improper allowance of an amendment to a petition can not properly be made a ground of the motion for a new trial. We cite only the cases of Bullock v. Cordele Sash &c. Co., 114 Ga. 627 (40 S. E. 734); and Hammond v. George, 116 Ga. 792 (3) (43 S. E. 53). The original petition was demurrable because it did not allege that the notice required by section 910, supra, had been given. Since there was no demurrer to the petition, and since counsel for the city admit that the notice required by the code-section was served upon the city, there is no merit in the objection to the evidence. The amendment was allowed and is a part of the pleadings in this case, and the plaintiff had the right to prove, by any legal evidence, the injury alleged in the amendment. This ease was fairly and ably tried, and the verdict finding for the plaintiff has the approval of the trial court. The evidence supports the verdict and there was no error in overruling the motion for a new trial.

■Judgment affirmed.

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


author: Luke, J.

text:
    7912.
    Logan v. Daniel.
    Decided March 20, 1917.
    Certiorari; from Eulton superior court—Judge Bell. October 11, 1916.

      Gober & Jackson, W. I. Heyward, for plaintiff in error.

      Moore & Pomeroy, contra.
   Luke, J.

The petition for certiorari, together with the answer thereto,

presents simply a question of fact, and, the trial court having determined that issue against the plaintiff in certiorari, and, the superior court having overruled the certiorari, the judgment will not be disturbed. Judgment affirmed.

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


text:
    7924.
    BRYANT v. ATLANTIC COAST LINE RAILROAD CO.
    ■ 1. The plaintiff’s petition sets forth a cause of action, and the court erred in dismissing it on demurrer. Southern By. Go. v. Wood, 114 Ga. 159, 161 (39 S. E. 922); Central of Georgia By. Co. v. Gortatowsky, 123 Ga. 366 (51 S. E. 469).
    2. The suit is by a passenger against a railroad company, the alleged cause of action being the tortious and continuous failure to provide for the plaintiff’s comfort while a passenger, the journey commencing at a point within this State and terminating at a point without this State. Held: The county in which the transportation and the alleged injuries commenced is not a wrong venue for the action. Civil Code -of 1910, § 2798; Southern By. Co. v. O’Brien, 112 Ga. 127 (37 S. E. 161) ; Central of Georgia By. Co. v. Dorsey, 116 Ga. 719 (42 S. E. 1024) ; Atlantic Coast Line B. Co. v. Poioell, 127 Ga. 805 (56 S. E. 1006, 9 L. R. A. (N. S.) 769, 9 Ann. Cas. 553) ; Owens v. Nichols, 139 Ga. 475 (77 S. E. 635); Friedman v. Seaboard Air-Line By., 124 Ga. 472 (52 S. E. 763).
    3. Where a petition sets forth matter which it is not legally necessary to plead, but which is nevertheless pertinent to the alleged cause of action and which would upon the trial be proper matter for proof, such matter is not subject.to demurrer based upon the ground that it is irrelevant. What is germane can not be irrelevant, even though it may not be essential to plead it. The trial court therefore erred in sustaining the several grounds of demurrer not in accord herewith. Beese v. Beese, 89 Ga. 645 (15 S. E. 846) ; S. C. d Ga. B. Co. v. Augusta Southrn B. Co., 111. Ga. 420 _ (36 S. E. 593); Wilder v. Wilder, 138 Ga. 573 (75 S. E. 654).
    4. Where the ticket agent of a railroad company, while acting within the ' apparent scope of his authority, negotiates with a prospective passenger for transportation and for sleeping-car berths on one of the company’s trains regularly' affording such service and comforts to the public, the passenger may rely upon the agent’s apparent authority, and is not required to communicate with the principal and verify the agent’s actual authority. The petition in this case having alleged such a transaction between passenger and agent, it was not subject to demurrer on the ground that it-was not made to appear that the agent’s acts were in fact within the scope of his authority. Civil Code of 1910, § 3595; Milledgeville Water Co. v. Edwards, 121 Ga. 555 (49 S. E. 621); Central of Georgia By. Co. v. Gortatowshy, supra.
    5. The other grounds of the demurrer are without merit.
    Decided March 20, 1917.
    Rehearing denied April 4, 1917.
    Action for damages; from city court of Blakely—Judge Sheffield. October 30, 1916.

      Glessner & Collins, for plaintiff. Pope & Bennet, for defendant,
   Luke, J.

The suit was instituted in the city court of Blakely, in the county of Early. The defendant filed demurrer, which the trial judge sustained, dismissing the suit; and the plaintiff excepted. The petition shows the following facts: The defendant company operates a line of railroad from Montgomery, Alabama, to Jacksonville, Florida, passing through the town of Jakin, in Early county, Georgia, at which point the company maintains a station in the charge of a local agent, whose office is open during the day and closed at night. One of the regular passenger-trains operated by the company over this line of road, and scheduled to arrive at Jakin at 11:30 o’clock at night, carries a sleeping-car, wherein, upon paying additional fare, passengers are afforded additional comforts. The plaintiff, who was 61 years old, feeble and suffering from hay fever, hoped to improve his health by a trip to Homestead, Florida, provided he could obtain the additional comforts afforded by the sleeping-car from Jakin to Jacksonville in taking the contemplated journey; and he desired-like accommodations for his sister, 61 years of age, who was to accompany him as nurse. He applied to the local agent at Jakin for such transportation and accommodations, making known to the agent that he would not take .the trip unless he could obtain the additional comforts afforded by the sleeping-car. The agent replied that, as the train in question passed Jakin at night while his office was closed, he could not sell the desired tickets, but that if the plaintiff would make application in the forenoon, he (the local agent) would telegraph to the company’s agent at Montgomery, and have two berths in the sleeping-car reserved, and that the plaintiff could then pay the regular fare and the sleeping-car fare to the conductor on board the train. On the following morning 'the plaintiff made such an application, and the local agent telegraphed to the Montgomery agent, who replied that the two berths desired by the plaintiff had been reserved and would be held for him.. Relying on these assurances, the plaintiff and his sister boarded the train, which stopped only upon being flagged and only long enough for them to board it. He then gave the conductor his name, and told the conductor of the agreement with the local agent, tendered the stipulated fare, and demanded the two berths which he had been assured would be reserved for him. The conductor refused to accept the sleeping-car fare or to allow the plaintiff the benefit of its comforts, claiming that no berths had been reserved and that all berths were occupied by other passengers, which claims were untrue, the berths having in point of fact been reserved by the Montgomery agent, but having been sold by the conductor to other passengers while en route from Montgomery to Jakin. The plaintiff was accordingly forced to go into one of the ordinary day coaches of the defendant and sit up during the night and until the arrival of the train at Jacksonville, about eight o’clock on the following morning, and, as a result, suffered intense pain and agony during the long journey, his malady being greatly aggravated by the fatigue and exposure incident to the long ride in the day coach, without any opportunity for sleep or needful rest or composure. Other injuries are specially pleaded. It is alleged that the defendant’s wrongful failure and refusal to furnish the plaintiff with a berth in its sleeping-car, as it had through its said agents contracted with him to do, was not only the result of gross and inexcusable negligence on its part, but was due to the wanton, wilful, and malicious conduct of its said sleeping-car conductor.

The grounds of the demurrer were: (1) No cause of action is set out. (2) The petition fails to show that the court has jurisdiction of the cause of action sued on. (3) Various specified portions of the petition were demurred to as “irrelevant.” (4) The 11th paragraph, as to the plaintiff’s being forced to go into an ordinary day-coach, was demurred to on the ground that it is not alleged how or why the plaintiff was so forced. (5) The 16th paragraph, as to the defendant’s having through its agents contracted to furnish the plaintiff a berth, and as to negligence, was demurred to on the ground that it is not shown through what agent the contract was made, or what negligence is referred to; the allegation as to the conduct of the sleeping-car conductor being wanton was demurred to on the ground that it is not shown wherein said conduct was wanton. (6) It does not appear that the said local agent at Jakin was» acting within the scope of his authority. (7) It is not alleged where the transaction between the plaintiff and the sleeping-car conductor occurred.

1-5. The petition set forth a cause of action, and was not subject to demurrer on any of the grounds stated. Authorities in point appear in connection with the headnotes. The demurrer should have been overruled upon each and every ground thereof, and the court erred in sustaining the demurrer and dismissing the suit.

Judgment reversed.

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


text:
    7927.
    GEORGIA NORTHERN RAILWAY CO. v. WINCHESTER.
    There was evidence from which the jury could legitimately infer that one of the plaintiff’s dogs was killed and the other injured by the wanton and malicious conduct of the engineer in charge of the railway train, and the verdict for damages was therefore not unauthorized.
    Decided March 20, 1917.
    Certiorari; from Colquitt superior court—Judge Thomas. October 13, 1916.

      Shipp & Kline, L. L. Moore, for plaintiff in error.

      J. B. Fussell, contra. .
   Wade, C. J.

In this case it is unnecessary to consider whether the adoption by the legislature of the act of 1913 (Acts of 1913, pp. 46, 47), containing the provision that “all dogs are hereby made personal property and shall be given in and taxed,” authorizes a recovery against a railway company for negligently killing or injuring a dog; and in such eases creates a presumption against the company as in eases of injuries to persons or other property; since, under numerous decisions of this court and of the Supreme Court, an action is maintainable against one who wantonly, maliciously, or intentionally injures or kills his dog. From the answer to the petition for certiorari it appears that the plaintiff testified, in his own behalf, that he was the owner of two dogs, one of which was killed and the other injured by the train of the defendant company; that he witnessed the incident and “saw the engineer sitting in his proper place and looking ahead,” as the witness was on the same side of the train as the engineer, and.that “the track was straight for something 'like 180 yards from the point where the dogs were run over, back in the direction from which the train came, and the dogs were upon the track and running in front of the engine for a considerable part of this distance;” that in his opinion the engineer saw or by the exercise of diligence could have seen the dogs, but “the engineer made no effort to slacken the speed of the train or to frighten the dogs from the track; he did not ring the bell or blow the whistle or open the cylinder pocks.” The engineer testified for the defendant that he did not see the dogs until just before he ran over them, when they were about two feet in front of the pilot, and he was running about twenty miles an hour -and was looking out; that his attention was called by the fireman to them just as he saw them, and that there was no way in which to save them; that he liked dogs and would have stopped the train if he had seen them; that he was coming around a curve and was on the right side of the engine and therefore could not have seen them in any event.

Assuming that the jury accepted as true the evidence of the plaintiff in preference to that delivered by the engineer, the track was in fact straight, and not curved, and the dogs were plainly visible, and there was nothing to prevent the engineer from seeing them, and they must have been seen by him some time before they were struck, especially as the undisputed evidence shows that they ran along ahead of the engine for some distance, for the engineer himself said that he was looking forward all the time. The testimony was not disputed that no effort was made to slacken the speed of the train or to frighten the dogs from the track, or that the engineer did not ring the bell or blow the whistle or open the cylinder cocks. The jury was therefore authorized to find, from the testimony of the plaintiff as to the unobstructed character of the track, and from the admission of the engineer that he was looking ahead, that the latter did in fact see the dogs on the track some time before they were struck, notwithstanding his denial, and deliberately failed to slacken the speed of his engine or to make any effort to frighten them off of the track, but, in entire disregard .of the probable consequences to the dogs, continued to run his train at the same rate of speed, and hgnee that the resulting injury to one dog and the death of the other could be directly attributed to his wanton and malicious conduct. The case of Louisville & Nashville R. Co. v. Harris, ante, 502, rests upon very nearly the same facts; and the evidence in this case is measurably stronger than that in the case of Seaboard Air-Line Ry. v. Parrish, 16 Ga. App. 254 (85 S. E. 200). To repeat: According to the plaintiff, the engineer could and must necessarily have seen the dogs if he was looking down the straight track; and according to the'engineer he was in fact looking down the track before and at the time the injury occurred, notwithstanding his further statement that he could not then see the dogs. It was for the jury to say either that the engineer was prevented from seeing by a curve in the track, or did not in fact for any reason see the dogs, and hence that his failure to cheek the train was not deliberate, wanton, or malicious; or, on the other hand, that, the track being straight, he not only could but did see the dogs in ample time to prevent the injury, and hence his failure to make any effort to stop the train or to frighten the animals, from the track was deliberate, wanton, or malicious.- See, in this connection, Southern Railway Co. v. Keel, 7 Ga. App. 244 (66 S. E. 627). We can not set aside a verdict with-some evidence to support it; and we therefore hold that the judge of the superior court did not err in overruling the certiorari. Judgment affirmed.

George and Lulce, JJ., concur.