text:
    7949.
    CHRISTO v. MACON GAS COMPANY.
    Oil the material questions involved in this case the evidence was not in dispute, and the evidence introduced, with all reasonable deductions or inferences therefrom, demanded a verdict for the defendant; accordingly the court did not err in so directing.
    Decided March 20, 1917.
    Rehearing denied April 5, 1917.
    Action for damages; from city court of Macon—Judge Guerry. September 27, 1916.

      Hardeman, Jones, Parle & Johnston, for plaintifE.

      Hatcher & Smith, for defendant.
   George, J.

The facts alleged in the petition in this case appear in the opinion of this court reversing the judgment sustaining a demurrer thereto. Christo v. Macon Gas Co., 18 Ga. App. 454 (89 S. E. 532). At the conclusion of the evidence the defendant moved the court to direct a verdict in its favor. The motion was granted and the plaintiff excepted. On a careful consideration of this record we are convinced that the verdict was properly directed. The evidence did not prove the case as alleged, but on the contrary conclusively showed that the employees of the defendant did not turn the gas into the building,—that it was turned on by the tenant on the second, floor, without authority or knowledge of the defendant. The employees of the defendant, after connecting the gas with the premises of the tenant on the second floor, tested it for a few seconds only, and, detecting that there was a leak in the gas line at some point, in the building above the second floor, at once turned the gas off by means of a cock placed within the building and between the meter and the defendant’s gas line outside the building. According to the witness Miller, sworn for the plaintiff, this was “a perfectly safe method of turning off gas. That is the system which has been in use for the past 25 years, the kind that is commonly used.” There were esome circumstances in the plaintiff’s ..evidence which, unexplained, would indicate that the defendant could have cut off the supply of gas from its pipe at the service cock in front of the building. The evidence for the defendant clearly shows that there was in fact no service cock on its gas line outside of and in front of the building. The testimony for the defendant on this point is positive, and the witness for the plaintiff admitted that he made no examination for the purpose of ascertaining, and did not in fact know, whether a service cock had been placed by the defendant on the outside of the building. The gas was completely cut off by means of the meter-cock placed within the building, and while this cock could be turned with a nail, spike, or wrench, some strength was required to open it. It is uncontradicted that the gas was cut off by the employees of the defendant, and the tenant on the second floor knew that the gas had been cut off because the agents of the defendant had discovered 'a leak in the building and above the second floor. This tenant, without knowledge, sanction, or authority of the defendant, but for his own convenience, with knowledge of all the facts, turned the gas into the building. He denied that defendant’s servants warned him not to use the gas until the leak in the gas line above the second -floor was located and remedied, but admitted that he knew of such leak. On one possible theory only is there color for the contention that the defendant was negligent. It is insisted by the plaintiff that the defendant was negligent in-failing to cut off the supply of gas at a point outside the building, or by means of a cap at some point in the building, and, if no means had been provided for this purpose, that the failure to provide such means was itself an act of negligence.

The plaintiff relies on the decision in Chisholm v. Atlanta Gas Light Co., 57 Ga. 28. That case is distinguishable from this case on its facts. There the plaintiff, the owner of a house in the city of Atlanta, had notified the gas company that the house was vacant, and that the gas was no longer needed, and had ordered the defendant to cut off the gas, which was done on a date named by means of a meter-cock in the plaintiff's cellar. Several days thereafter the plaintiff rented the house to some colored people for the purpose of having a supper there, and they did not use the gas, but used candles. An explosion followed, and it was thereafter discovered that the meter-cock had been tampered with by somebody. The plaintiff in that case had no reason to suppose that any of the defendant's gas was on his premises after the defendant was notified to cut it off. If it had been cut off at the service cock under the curbstone, the gas company having in fact such service cock on its line, the explosion in the house could not have occurred. One essential difference between the facts in that case and the facts in the case at bar is this: In that case the gas company was ordered, and did undertake, to permanently cut its gas out of the plaintiff's house. In the instant case, in the late afternoon or evening of the day preceding the day of the explosion, the defendant installed certain fixtures for the tenant, Johnson, who occupied a room on the second floor of the building. The meter indicating a leak in the gas pipes, above the second floor, the defendant's servants, not having access to the rooms in the building above the second floor, temporarily cut off the supply of gas by the use of an available and perfectly safe means. The gas was cut off for the purpose of enabling the defendant to locate and remedy the leak in the pipe. The defect had not been remedied, and the tenant, Johnson, who turned on the gas, had not been authorized by the defendant to use the gas. In the Chisholm case the,defendant was under a duty to cut off the gas from the plaintiff’s building; in the case at bar, the defendant was under the’ duty to turn the gas into the building occupied by the plaintiff. There were no facts in the evidence to warrant a finding by the jury that Johnson, the tenant on the second floor, was at liberty to use the gas at the time when he turned it on, nor would the facts in ’ this ease warrant the inference that the defendant was negligent in failing to make the necessary repairs to the gas line prior to the explosion. The defendant company had the right to use the meter-cock, which, so far as thé evidence in. this case shows, effectively and absolutely stopped the flow of gas into the building, and which afforded an available means of cutting the gas out of the building, and which was being used temporarily until the leak in the gas-pipe could be remedied. It was not, under the evidence, responsible for the unauthorized act of the tenant, Johnson, in turning the meter-cock. Under the uncontradicted evidence in this case upon the material and controlling questions, no finding of negligence on the part of the defendant could be upheld. Even if the plaintiff, under the facts of this case, was not guilty of such contributory negligence as would bar a recovery by him, the facts proved by him, with all reasonable deductions therefrom, are insufficient to support a verdict against the defendant. The court did not err in directing a verdict for the defendant.

Judgment affirmed.

Wa.de, C. J., and Lulce, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
      7952.

    Southern Railway Company et al. v. Williams.
   Luke, J.

1. Exceptions pendente lite upon which no assignment of error is made in the main bill of exceptions or by counsel in this court before argument of the case will not be considered by this court, even though duly allowed by the trial judge or ordered filed as a part of the record. Shaw v. Jones, 133 Ga. 446 (66 S. E. 240) ; Jones v. Ragan, 136 Ga. 653 (7), 655 (71 S. E. 1098) ; Gainesville &c. R. Co. v. Galloway, 17 Ga. App. 702 (87 S. E. 1093) ; Kent v. State, 18 Ga. App. 30 (88 S. E. 913) ; Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668).

2. In an action against a railroad company for personal injuries to the plaintiff, occasioned by the negligent' running of a train,- where the company pleads that he released the company in consideration of a draft on its treasurer for $250, as an accord and satisfaction, it is competent for the plaintiff to allege and prove that the release was procured by fraud and at a time when he was not mentally capacitated to contract, and that he did not collect the draft, but tendered it back to the company before suit, and made a continuing tender of the unpaid draft. Southern Ry. Co. v. Nichols, 135 Ga. 11 (68 S. E. 789) ; Georgia Southern &c. Ry. Co. v. Adeeb, 15 Ga. App. 831 (84 S. E. 323).

3. Where error is assigned upon the admission of evidence, the evidence must be set out with the objection to it in the assignment of error, and it must be shown that the objection was raised at the time the evidence was offered. Pool v. Warren County, 123 Ga. 205 (51 S. E. 328) ; Franklin v. Fields, 13 Ga. App. 463 (79 S. E. 366) ; Gaskins v. State, 17 Ga. App. 807 (88 S. E. 592).

Decided March 20, 1917.

Action for damages; from city court of Hall county—Judge Wheeler. October 27, 1916.

E. A. Neely, J. 0. Adams, Ed. Quillian, C. B. Faulkner, for plaintiffs in error.

W. A. Charters, W. B. Sloan, W. N. Oliver, contra.

4. No ground of a motion for new trial which is not complete and understandable without resorting' to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by this court. Head v. State, 144 Ga. 383 (87 S. E. 273) ; Smiley v. Smiley, supra.

5. An assignment 'of error in the following words: “because, as movant contends, the court erred in refusing to charge the jury upon the written request of the defendants as follows: ” (setting out the charge requested) will not be considered by this court, for the reason that it is not Shown that the request was presented to the court before the jury had retired to consider the case. Civil Code of 1910, § 6084; Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (89 S. E. 383).

6. The ground of the motion for a new trial that the court erred in permitting the plaintiff to testify, “The train struck the automobile and killed my aunt, and carried my uncle on the front of it until it stopped,” is without merit, especially as the plaintiff was in the automobile with his uncle and aunt at the time the train struck it, and the court, in overruling the objection to this testimony, said: “The court will allow that evidence to go to the jury on the ground that it appears to be a part of the res gestie, happening at the time. I will caution the jury, however, that this plaintiff can not recover for any damages or anything that occurred to some one else; if he recovers at all he must recover on what was done to him.” As a general rule, whether statements claimed to be a part of the res gestae are such is a question of law for the court. Southern Ry. Co. v. Brown, 126 Ga. 1 (54 S. E. 911).

7. No error of law in the trial of the case is shown by any of the assignments of error, and the evidence abundantly authorized the verdict.

Judgment affirmed.

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


author: George, J.

text:
    7960.
    WILSON v. GRAND LODGE BROTHERS AND SISTERS OF LOVE.
    The objection to the introduction of the original insurance certificate as evidence is without merit, and the evidence authorized the verdict. There was no error in overruling the certiorari and refusing a new trial.
    Decided March 20, 1917.

      Certiorari; from Morgan superior court—Judge Park. November 6, 1916.

      M. C. Few, for plaintiff. Williford & Lambert, for defendant.
   George, J.

Wilson brought suit in a justice court against the Grand Lodge Brothers and Sisters of Love, a mutual benefit association, upon a certificate of life insurance, and claimed that he was 'entitled to the benefit of the certificate. The certificate was originally issued to Isabella Tripp and was payable “to Maria Tripp, the legal beneficiary of Isabella Tripp.” The plaintiff and Isabella Tripp were married in January, 1915, and she died in the following May. When they married she was a member of the local lodge of Brothers and Sisters of Love, located at Shady Dale, Georgia. 'She held a certificate of insurance issued by the defendant, payable as hereinbefore stated, and that certificate was surrendered to the association, on its request, and a new certificate was to be issued. The old certificate was recalled by the association for the sole purpose of having a by-law of the Grand Lodge printed on it, and no other change was to be made. The hew certificate was returned to the secretary of the local lodge, in accordance with the custom of the Grand Lodge, with the beneficiary left blank. The plaintiff testified that the insured had the right to direct the secretary of the local lodge to insert in the certificate the name of any beneficiary named by her, and that on the return of the new certificate his wife saw the president of the local lodge and directed that the plaintiff’s name be inserted as beneficiary in the certificate. It was admitted by the defendant that the insured had the right to have the secretary of the local lodge insert the name of the beneficiary in the certificate at her direction; but the president of the local lodge, in his evidence, denied that the insured saw him and directed that the name of the plaintiff be inserted as the beneficiary in the certificate. On the contrary, he testified that the certificate was delivered by him to.a friend of the insured, at her direction, with a blank left for the name of the beneficiary. This occurred just before her death. After her death the plaintiff obtained the certificate, and when the president again saw the certificate it had the name of the plaintiff inserted as beneficiary. The plaintiff testified that he did not know who caused his name to be inserted in the certificate.

Section 9 of the by-laws of the defendant was introduced in evidence, and is as follows: “Each member is required to have the name of. their legal beneficiary written plainly on their policy, and in case they fail to do so it is left to the Supreme Grand President, after hearing the evidence in the case, to choose the beneficiary.” It was admitted b'y both parties that the original policy, recalled by the company, was payable to the sister of the insured, Maria, and Maria Tripp testified that she and her sister were both members of the local lodge, at Shady Dale, and that by agreement between them when they joined the local lodge, each was made the beneficiary in the certificate of insurance issued to the other. Both the policies issued to Maria and Isabella Tripp were recalled by the company for the sole purpose hereinbefore stated, and at the time of the death of the sister who was the wife of the plaintiff, the new certificates were in blank as to the names of the beneficiaries. After her death the Supreme Grand President, in order to determine to whom the benefit provided for in the certificate should be paid, heard evidence in the ease, as provided in section 9 of the by-laws, and determined that the benefit was payable to Maria Tripp. Upon the trial of the case the plaintiff himself introduced the original certificate of insurance, for the sole purpose of showing the practice of the defendant to allow the insured to insert, through the secretary of the local lodge, the name of the chosen beneficiary. The defendant offered this original certificate for all purposes, and the plaintiff complains that the court erred in allowing it in evidence when offered by the defendant, for the reason that it appeared that it had been surrendered to and cancelled by the defendant. The evidence for the defendant further showed that the new certificate had to be accepted by the insured, and that the insured did not accept it. It is insisted by the plaintiff that the certificate in force at the time of the death of his wife was payable to her legal beneficiary, but it does not appear that the husband was the legal beneficiary of the insured. The evidence does not disclose whether the insured died testate or intestate, nor whether she left surviving her a child or children. It is contended by the plaintiff that the wife intended to name him as the beneficiary in the policy, and so instructed the president of the local lodge. This was disputed by the defendant, and the evidence was in sharp conflict. The evidence on this issue seems to preponderate in favor of the contentions of the defendant. The jury found in favor of the defendant. The plaintiff presented his petition for certiorari to the judge of the superior court and the certiorari was duly sanctioned. The magistrate answered, setting out substantially the -foregoing facts. On the plaintiff’s petition and the answer of the magistrate the court determined the issues against the plaintiff, and he excepted.

There was no error in admitting in evidence the original certificate of insurance; and the evidence authorized the jury to find against the plaintiff. The case is largely controlled by Smith v. Locomotive Engineers Mutual Life &c. Asso., 138 Ga. 717 (76 S. E. 44). The judge did not err in overruling the certiorari and in denying plaintiff a new trial.

Judgment affirmed.

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


text:
    7973.
    Dunn v. Fairbanks-Morse Company.
    Decided March 20, 1917.
    Rehearing denied April 4, 1917.
    Certiorari; from Fulton superior' court—Judge Bell. October 18, 1916.
    In the municipal court, of Atlanta an amendment converting a trover suit for the recovery of certain motors into a suit on an open account for a balance alleged to be due on the purchase-price of the property in question was allowed on the trial, over the objection of the defendant, and judgment was rendered against him for the amount sued for. This judgment and the allowance of the amendment were complained of by petition for certiorari. In the answer to the certiorari it was stated that the trial judge construed the act creating the municipal court of Atlanta as giving the plaintiff “a right to change his cause of action, provided he adhered to matters growing out of the same contract.” The act referred to provides as follows: See. 37. (c) “The trial judge shall, at any time, in the furtherance of justice, upon such terms as may be just, permit any claim, suit, process, proceeding, pleading, or record to be amended, in form or in substance, or material supplemental matter to be set forth in an amended or supplemental oral claim or pleading. The judge, at every stage of the proceeding, must disregard any error or defect in the proceeding which does hot affect the substantial rights of the parties, and amendments changing the cause of action, or presenting a new cause of action, arising out of the same transaction or subject-matter, shall be allowed, providing, however, for time to the opposite party, where, in the discretion of the court, it is deemed necessary to meet the new matter claimed by the amendment.” Acts 1913, p. 164.
   Luke, J.

1. The plaintiff having elected to sue in tort, by action of bail-trover, the action was not amendable by striking the trover suit and setting up a cause of action ex contractu. Croghan v. New York Underwriters’ Agency, 53 Ca. 109 (2) ; Teem v. Town of Ellijay, 89 Ga. 154 (2) (15 S. E. 33); Sharpe v. Columbus Iron Works, 136 Ga. 483 (71 S. E. 787); Hutchens v. Seaboard Air-Line Railway, 144 Ga. 312 (2) (87 S. E. 28).

2. The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

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

M. Eerzberg, for plaintiff in error,

cited: Civil Code (1910), §§ 4500, 5521; Board of Education v. Day, 138 Ga. 164; 15 Cyc. 359; Palmour v. Durham, Fertilizer Co., 97 Ga. 344 (3); Lamb v. Moward, 145 Ga. 847 (lj.

Thomas E. Scott, Walter McElreath, contra,

cited: Acts 1913, p. 164.


text:
    7998.
    Foster, Son & Harlan v. Whitten.
   George, J.

1. A suit upon a promissory note under seal, dated February 9, 1891, and due one day after date, was commenced July 30, 1915. The plaintiff alleged, that “while the note, the foundation of the suit, shows on its face to be barred by the statute of limitations, it in fact is not barred; that for a number of years following the signing of the note defendant resided out of the State of Georgia; that for twelve or thirteen years since said note was signed defendant has been incarcerated in the Georgia Penitentiary, being legally dead, and for the remainder of the time has been beyond the limits of the State.” Held, that there was no error in striking the allegation that “for twelve or thirteen years since said note was signed defendant has been incarcerated in the Georgia Penitentiary, being legally dead.” The criminal act of the defendant, followed by his legal imprisonment, did not postpone the plaintiff’s right to commence and prosecute his suit upon the note. The plaintiff was himself unfettered and could have sued, and the proper venue for the suit remained in the county of .the defendant’s residence at the time of his arrest and conviction.

2. The excerpts from the charge of the court to which exceptions are taken are not erroneous for any of the reasons assigned, and the evidence warranted the verdict.

Decided March 20, 1917.

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

G. W. Head, W. H. Mann, for plaintiffs.

George G. Glenn, for defendant.

Judgment affirmed.

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


author: Wade, C. J.

text:
    8017.
    Mosely v. King Hardware Company.
    Decided March 20, 1917.
    Certiorari; from Fulton superior court—Judge Bell. October 6, 1916.

      Lowndes Calhoun, for plaintiff in error.

      Anderson, Slate & D’Orr, contra.
   Wade, C. J.

1. There was no abuse of discretion on the part of the trial judge in denying the motion to set aside the judgment and reinstate the ease, on the ground that the judgment was rendered in the absence of the defendant and her attorney. The evidence was amply sufficient to support a finding that the defendant was lacking in diligence.

2. The objection that no declaration in attachment was filed is without merit. There was attached to the original attachment in this case a complete itemized statement of the account sued upon, as well as a copy of the contract of sale covering the various items enumerated. The trial judge not only directed the attention of movant’s counsel to this fact at the time of the trial, but. also referred him to the following rule of the municipal court of Atlanta: “The law relating to declarations in attachment shall be deemed to have been complied with when the plaintiff in attachment shall have filed with the clerk of this court, at the first term, an itemized statement of the account, if it be based on an account, or a copy of the note, if based on a note, or a1 written statement of an action for damages, if based on a claim for damages.”

3. The attachment was made returnable to the May “A” term of the municipal court, and the defendant was notified that it was the intention of plaintiff to ask for a general judgment, and the record shows that service was effected within the proper time, and the defendant filed an answer and. a counterclaim before that term, without raising any objection as to the term to which the attachment was made returnable. Held, that the defendant was estopped from attacking the judgment on the ground that the case was improperly made returnable to that term.

4. Other grounds of the motion to set aside the judgment are either without any substantial merit or are not argued in the brief of counsel for the plaintiff in error. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8048.
    YOUNG v. ANDERSON, administrator, et al.

    1. On the trial of an issue formed by objections of adult children of a decedent to a return of appraisers, setting apart a year’s support to the widow, the burden of proof is on the objectors.
    2. The exceptions to the charge of the court are without merit. The verdict is authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided March 20, 1917.
    Appeal; from Bibb superior court—Judge Mathews. June 23, 1916.

      L. D. Moore, for plaintiff.

      Minter Wimberly, Jesse Hams, for defendant.
   George, J.

Mrs. Young made application to the court of ordinary to have assigned to her a year’s support from the estate of her husband, T. E. Young. Appraisers were appointed and a return made, setting aside for the support and maintenance of the widow certain household and kitchen furniture and $2,000 in money; whereupon the children of the deceased husband filed objections to the report of the appraisers, alleging that the amount set apart was excessive. The issue was passed upon by the ordinary, and an appeal taken to the superior court. Upon the trial in the superior court the jury reduced the amount allowed for the year’s support to $1,020.83, and the applicant made a motion for new trial, which was refused, and she excepts.

The general grounds of the motion for new trial are without merit. The evidence is sufficient to support the verdict. Special exception is taken to the ruling of the court in allowing the objectors the right to open and conclude on the trial of the case. The record discloses, however, that Mrs. Young, the applicant for year’s support, had the opening and concluding arguments in the ease, but she insists that she obtained this right by failure to offer evidence, and that in order to obtain this privilege she was legally compelled to waive the important right to offer evidence on the trial of the case. As a matter of fact, the only witness sworn by the objectors was the applicant, Mrs. Young, and upon her evidence alone the case was decided by the jury. She did, therefore,have the benefit of her own evidence, and her counsel opened and concluded the argument of the ease. On the legal question made the decisions somewhat conflict. In Cheney v. Cheney, 73 Ga. 66, the Supreme Court held that the applicant was entitled to open and conclude the case, but in that case the objections were filed by the personal representative of the estate. In Lee v. English, 107 Ga. 152 (33 S. E. 39), the Supreme Court ruled that the objectors had the right to open and conclude the argument. There the objectors were certain creditors of the decedent, and the court distinguished the ruling in the Gheney case, supra, upon the ground that the application for year’s support in that case was resisted by the personal representative of the estate, who was also one of the distributees of the estate. Attention was there called to the case of Robson v. Harris, 82 Ga. 153 (7 S. E. 926), where the objector was a creditor, and where it was held that the burden was upon such objector, and that he therefore had the right to open and conclude the argument. It is insisted in the case at bar that the objectors were heirs at law of the intestate, and that they occupied the same relation to the estate as the administrator, and that the applicant was entitled to open and conclude. The case of Jones v. Cooner, 142 Ga. 127 (82 S. E. 445), seems to decide the precise question here involved. In that case an assignee of adult children of the decedent filed objections to the return of appraisers setting aside a year’s support to the widow and minor children, and it was expressly ruled that the burden of proof is on the objecting assignee. We conclude that the court rightly ruled that the objectors should open and conclude the ease. This conclusion seems to be demanded, both upon reason and authority.

The second ground of the amendment to the motion for a new trial excepts to the charge of the court, in which the jury are instructed that it was their duty “to determine whether or not the objection filed is good; in other words, whether or not the report is correct.” This exception is without merit, since the court, in very clear language in the charge, expressly instructed the jury that the report of the appraisers, fixing the amount of the support to be allowed the applicant, was prima facie correct, and the burden was upon the objectors to show that the amount found by the appraisers was in fact excessive. Neither was it error for- the court to charge the jury as follows: “The question is simply what is a reasonable amount to be set aside out of the estate to maintain her in the same manner in which she was maintained, according to her circumstances and standing in life.” Counsel insists that, the evidence disclosing physical disability of the applicant, brought on by attention given the decedent in his last illness, this charge was error, because it too much restricted the jury in determining the question of a proper allowance to be made to the widow as a year’s support. • Physical disability brought on by attention to the decedent in his last illness should be considered by the jury, but the -rule by which the allowance is to be determined remains the same, and this estimate must be made according to the circumstances and standing of the family previous to the death of its head; and in making it the solvency of the estate is to be kept in view. Cheney v. Cheney, supra. The charge of the court excepted to stated the correct rule -of law applicable to the issues in the case, and indeed is in the almost exact verbiage of the section of the code providing for a year’s support to the widow and minor children of a decedent. Special circumstances occurring and existing during the first year after the death of the head of the family, and illustrating the amount necessary for the support of the widow, should be considered by the jury, but the proper allowance to be made to her must finally be determined according to the circumstances and standing of the family previous to the death of the husband, due regard being had to the solvency of the estate. If the circumstances of the decedent and the standing of his family during his lifetime were such as to warrant reasonable medical attention to the wife in the event such were necessary, if such medical services are required by the widow during the year following the death of the husband they should be considered in fixing the amount to be allowed her as a year’s support. The whole amount allowed her should be sufficient to support and maintain her, including necessary medical service, in keeping with the circumstances and standing of the family previous to the death of the husband, due regard being had to the solvency of the estate. None of the reasons assigned by the plaintiff in error authorize this court to set aside the verdict of the jury, which, the size of the estate being considered, is ample, under the evidence in this record, for her support and maintenance. The verdict has had the approval of the trial judge, and his judgment denying the new trial is affirmed.

Judgment affirmed.

Wade, C. J., and Lulce, J., concur.


text:
    8053.
    JOHNSON v. SPENCE.
    1. “One who conducts a general farming business is included in a proper interpretation of that division of the Civil Code of 1910, § 4433, which declares that slander may consist in charges made in regard to another ‘in reference to his trade, office, or profession, calculated to injure him therein,’ and that in such a case it is not essential to show special damage in order to support the action.”
    2. The verdict is not excessive, and is supported by the evidence.
    Decided March 20, 1917.
    Action for slander; from Warren superior court—Judge Walker. January 21, 1916.

      M. L. Felts, F. P. Davis, for plaintiff in error.

      L. D. McGregor, contra.
   George, J.

The ruling stated in the first headnote was made when this case was before the Supreme Court at the March term, 1914 (Spence v. Johnson, 142 Ga. 267 (82 S. E. 646, Ann. Cas. 1916A, 1195). It was then held that dhe petition was sufficient to withstand a demurrer except in one particular noted. Upon the trial of the case the plaintiff proved his case as alleged, and this is not controverted. In the brief of counsel for the plaintiff in error this statement occurs: “Mr. Spence proved his case as he alleged it. . . Taking the case as made and the law as it is, we concede that the evidence was sufficient to carry the case against Johnson for a nominal amount and to recover costs, but we say that the large verdict of $400 is excessive and should be set aside and a new trial granted.” The motion for new trial is based only upon this ground and the usual general grounds.

Judgment affirmed.

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


text:
    8086.
    Stewart & Jones Company v. Griffin.
   George, J.

1. The term “vice-principal,” as generally used in the fellow-servant rule, is defined as including any servant who represents the master in the discharge of those personal or absolute duties which every master owes to his servants; such duties being generally referred to as the non-assignable duties of a master. Moore v. Dublin Cotton Mills, 127 Ga. 609 (2) (56 S. E. 839, 10 L. R. A. (N. S.) 772).

2. “Among the non-assignable duties of the master are, providing machinery and appliances, the place to work, the inspection and repair of premises and appliances, the selection and retention of servants, the establishment of proper rules and regulations, and the instruction of servants. This enumeration, however, is not exhaustive, but simply illustrative.” Moore v. Dublin Cotton Mills, supra. If the defect in the tool or appliance furnished the servant by the master should have been known to the master, he will be presumed to have known it. “Negligent ignorance is equivalent to knowledge. The patent and obvious character and apparent age of the defect may indicate that the master should have known it.” Ocean Steamship Co. v. Matthews, 86 Ga. 418 (12 S. E. 632).

Decided March 20, 1917.

Action for damages; from Habersham superior court—Judge' Jones. November 18, 1916.

J. L. Perlcins, J. 0. Edwards & Son, for plaintiff in error.

J. J. & Sam Kimzey, contra.

3. Under the evidence in this case it was for the jury to determine whether the master had knowledge of the defect in the appliance furnishd the servant, or in the exercise of ordinary care should have known of it; and it was likewise a question for the jury whether the servant, who did not have charge and control of the appliance, and who was inexperienced in the use of such appliance, knew of the defect, or had equal means with the master of knowing of it. The evidence authorized the jury to find that the appliance was defective, as alleged by the plaintiff, that the master knew or should have known of the defect, and that the servant did not know and had not equal means of knowing of the defect. The verdict (for $1,000) is not excessive.

4. Error was assigned on the following extract from the charge of the court: “This ease involves some of the doctrines of master and servant, and it becomes necessary for the court to give you certain rules of master and servant that you may understand these rules and know how to apply them.” This part of the charge is not subject to the criticism that “this case is wholly and entirely a master and servant case;” or that “it misled the jury into believing that there were issues in the ease other than master and servant.” The case did not involve all of the law on the subject of master and servant, and the en- ' tire charge contains only the principles of the law on the subject of master and servant applicable to the facts of this case. No complaint is made of any, erroneous instruction of law. The court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    8090.
    ATLANTA NORTHERN RAILWAY CO. v. GOODE.
    From the plaintiff’s testimony it appears that the proximate cause of the injury to her on alighting from the defendant’s railway-car .was her miscalculation as to the distance from the step of the car to the ground, and not the alleged negligence of the defendant; and the evidence did not authorize the verdict against the defendant.
    Decided March 20, 1917.

      Action for damages; from Cobb superior court—Judge Patterson. April 15, 1916.

      Colquitt & Conyers, for plaintiff in error.

      N. A. Morris, George D. Anderson, J. G. Roberts, contra.
   Luke, J.

The plaintiff’s petition (omitting certain parts which the court, on demurrer, struck by an order to which no exception was taken) alleges, in substance, that the defendant carries passengers for hire from Marietta to Atlanta; that in May, 1914, the plaintiff boarded one of the defendant’s cars in the city of Marietta for the purpose of going to Butlers, a station about one mile away, and paid the conductor the regular five cents fare, and at the time of 'paying her fare notified him that she wanted to get off at Butlers, but when the car arrived at Butlers it barely came to a stop, and she did not and could not get off the car; that she proceeded to the end of the car and called the conductor’s attention to the fact that she had notified him that she wanted to get off at Butlers; he said he was sorry he had not let her get off at Butlers) and he stopped, the car and notified her to get off where he had stopped it; that when he told her to get off the car she undertook to obey his command and went down to the last step, and stepped to the ground, lowering one foot first with the other on the last step; that the distance from the lower step to the ground was nearly four feet, but she did not realize this fact until she had stepped to the ground; that, the distance being so great and farther than she anticipated, when she stepped it severely jolted, jarred, shocked, and injured her (the injuries being fully set out); that she availed herself of the best opportunity afforded her by the defendant to alight frqm the car when she was told to get off;. that she did not realize that there was 'danger incident to getting off at that place on account of the distance from the lower step to the ground and the unsuitable place to alight from the car; that she was free from fault or negligence, and her injuries were due to the negligence of the defendant. The petition alleges that the defendant was negligent in failing to stop the car at Butlers a sufficient length of time for her to alight from it in safety; that “it was the duty of the defendant, after it carried plaintiff by said Butlers station, to run the car back to said station and stop and give her reasonable opportunity to alight from the same in safety; said defendant negligently failed to do this; said defendant and its conductor in charge of said car wilfully, wantonly, and negligently ordered plaintiff to leave the car at a place .that was unsafe and unsuitable for her to alight from the same; and defendant negligently, carelessly, and wantonly caused plaintiff to alight from said car at an unsafe place, at a place they knew and plaintiff did not know was unsuited and unsafe for passengers to get off of said ear; the distance from the lower step of the car to the ground was about four feet; the ground where she was ordered to alight from said car and where she did alight from said car was rough and unballasted; there was no platform or station at this point.”

The evidence of the plaintiff is in substance as follows: That she paid her fare to Butlers and notified the conductor that she wanted-to get off there; that she could not get-off at Butlers, and, after she had been carried by, she told the conductor that he had carried her by where she wanted to -get off, and he immediately stopped the car and told her to get off there; that she went to the rear of the car and did not notice whether she could get off on either the right or the left-hand side of the car, but chose the left-hand side to get off; that the conductor was in the car, apparently taking up tickets; the ground, just below the step, where they told her to get off was “kinder” rocky and rough; that when she got off she thought that .something in her right side “tore loose some way or give way,” and it made her feel extremely nervous, as if about to faint, and she suffered pain in her back and right side; that she was in bed for some time, and continued to suffer; that the car stopped at Butlers about one minute and remained standing about one minute, and then went on. She testified further: “I did not ask the conductor to take me any further. I did not ask him to move the car. The only thing I stated was what I detailed yesterday, that I wanted to get off at Butlers, and then in response to that he rang the car down. There are several stations between Butlers and Fair Oaks, I think; I suppose there are. I did not ask the conductor to carry me on and put me on another car and bring me back.” “When I stepped off from that bottom step to the ground it did not look to be as far as it really was. It did not look to me so far but what I thought I could step it. I misjudged the distance. It was so much farther than I expected. There is nothing the matter with my eyesight. All I know, I thought I could step it all right, and when I made the step it was further than I thought it was. The distance from the step down was farther than I thought it was. It did not look to me as far as it was. It was a clear day. After I told the conductor that I wanted to get off at Butlers he stopped the ear right there. I do not know whether that signal was in response to what I told him or not. He stopped the- car at once. He did not go to the back platform with me at all. Where the car stopped for me to get off it was standing still. It remained standing while both my sister and I got off. I was ahead of my sister. It was broad open daylight. I could see where I had to step. There wasn't anything to keep me from seeing. Being able to see where I was stepping and to where I'was going to step, I proceeded then to step off of the car while it was standing perfectly still. I looked, but I did not think it was as far as what it was to the ground. I could see, of course. My estimate of the distance was not exactly correct. I just selected which side to get off on when I walked back there. I did not look out on the right-hand side to see what kind of place was over there. I selected the left-hand side to get off, without anybody telling me which side to get off on:” The plaintiff was thirty-four years old. The jury found in her favor, and the defendant filed its motion for new trial, upon the general grounds, which was overruled; and error is assigned on that judgment.

The testimony of the plaintiff is clear that her miscalculation as to the distance from the step of the car to the ground, and not negligence of the defendant, was the proximate cause of her injury. The evidence did not authorize a verdict in favor of the plaintiff, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    8092.
    Rouche v. McCloudy.
   George, J.

1. _ The plaintiff and the defendant were traveling along a public road in the same direction. The plaintiff was driving a mule hitched to a buggy, and the defendant was in an automobile. The defendant undertook to pass the plaintiff, who was immediately in front of him. According to the plaintiff’s testimony, his buggy was standing still, on the right side of the road, and the road at that point was wide enough to permit the defendant’s automobile to pass him in safety, and the automobile, in passing, struck the buggy, throwing the plaintiff out and injuring him as set forth in his petition. According to the defendant’s testimony, the plaintiff suddenly jerked or turned his mule towards the ear just as the defendant was in the act of passing, and this sudden turning of the mule caused the collision, which resulted in only slight injury to the plaintiff. Both as to the cause of the injury and its extent the evidence is in sharp conflict. Held: The evidence warranted the jury in finding that the defendant was negligent as alleged, and the verdict for $75 in favor of the plaintiff is supported by the evidence.

Decided March 20, 1917.

Action for damages; from Cobb superior court—Judge Patterson. April 27, 1916.

Fred Morris, for plaintiff in error.

J. T. Dorsey, J. Z. Foster, contra.

2. The exceptions to the charge of the court are not of sufficient merit to warrant the grant of a new trial. The court did not err in overruling the motion for a new trial.


author: Jenkins, J.

text:
    7621.
    CITY OF ROME v. REESE.
    1. The act of the General Assembly of Georgia, approved August 4, 1914, providing for a commission form of government for the City of Rome, is mandatory in requiring, for the abolition of an existing municipal office, a recommendation of the first commissioner, and that all votes taken thereon shall .be by “aye” or “noj and shall so appear on the minutes of the commission; and where the minutes not only fail to show such a recommendation, but also fail to set forth the “aye” and “no” vote as prescribed, parol evidence of such recommendation and vote is not admissible.
    2. The evidence did not require a finding by the jury that the plaintiff had acquiesced in the attempted abolition of his office.
    Decided March 20, 1917.
    Complaint; from city court of Floyd county—Judge Nunnally. May 26, 1916.
    Eeese was elected, on the first Monday in April, 1914, by the mayor and council of the City of Eome, as tax-receiver for the term of two years. The General Assembly, by an act approved August 4, 1914, provided for that city, a commission form of government, to consist of five commissioners. Acts of 1914, p. 1140. ■ When these commissioners assumed the duties of their office on the first Monday in April, 1915, Eeese had served one year of his term of office as tax-receiver. The day after the commissioners went into office (April 6, 1915), they attempted to abolish the office of tax-receiver; thereby depriving the incumbent of the emoluments thereof; and on August 31, 1915, he brought suit against the City of Koine for compensation alleged to be due him as tax-receiver for that year. The act of 1914, supra, section 3, provides that the commission “shall have the right to abolish any office, under the charter, . . upon the recommendation of the first commissioner.” By section 7 it is provided that those holding office at the time the act becomes effective shall hold for the remainder of the -terms for which they were elected, unless the office is sooner abolishd by the commissioners under the authority given by the ■act. By section 9 the commissioners are required to “keep minutes of their proceedings,” and to “record all their actions thereon,” and it is provided that “all votes taken shall be by ‘aye’ or ‘no’, and shall appear on the minutes.” On the minutes of the commission, of April 6, 1915, appears the following: . “Present, Hon. W. M. Gannon, first commissioner, A. B. Arrington, P. V. Holbrook, J. P. Jones. On motion of commissioner Arrington, the office of tax-receiver was abolished.” This suit is based upon the contention that the office of tax-receiver was not legally abolished, and therefore that the plaintiff had not been legally ousted' as the incumbent thereof, under the terms of the power granted by the General Assembly in the act referred to-.

      Max Meyerhardt, for plaintiff in error. Barry Wright, contra.
   Jenkins, J.

(After stating the foregoing facts.) 1. Prom the above it will appear that the minutes of the commission did not conform to the statutory requirements laid down by the General Assembly. The legislature has seen fit to declare, in express terms, how any municipal action by this commission shall be taken, and to provide that the minutes must show a compliance with the requirements thus laid down. If such legislation be mandatory, any action on their part, not in substantial accordance therewith, is null and void. 28 Cyc. 333. To abolish an office or remove an incumbent, statutory requirements should be strictly followed. 3 Dill. Mun. Corp. § 468. The abolition of a municipal office should be accomplished by ordinance or resolution. 28 Cyc. 349 (9). The distinction between an ordinance and a resolution is usually considered t.o be that, while a resolution deals with matters of special or^ temporary character, an ordinance prescribes some permanent rule of government. Under the act with which we are here concerned, however,, in either case, the requirements we have set forth are applicable.

The decisions of the various judicatories are not in entire accord as to whether a statutory provision requiring the record by aye and no vote of municipal action is mandatory or merely directory; but we find the strong weight of authority, especially in the later and what we deem the.better considered cases, to uphold the doctrine that such a requirement is mandatory and constitutes an essential element to support the validity of an ordinance or resolution. In Shinall v. Cartersville, 144 Ga. 219 (87 S. E. 290), Presiding Justice Evans uses the following language: “The City of Cartersville is acting under what is popularly known as a commission form of government. _Its legislative functions are performed by three commissioners, and the manner in which they shall act in this respect is prescribed with great definiteness in the 16th section of the charter of 1911. . . The commissioners are without power to take any municipal action which requires municipal sanction, except as provided expressly or impliedly in the charter.” We have no doubt that the General Assembly, after conferring large and far-reaching powers upon the commissioners of the City of Eome, had an essential and important purpose in prescribing that all of their actions should be taken by aye and no vote, which should in all cases be recorded in that way upon the minutes. This purpose was doubtless, in part at least, to impress each member of the commission with his individual responsibility and to compel each to bear his share thereof by means of a permanent record of his action, incapable of dispute. We can not hold such a requirement to be non-essential and merely directory in its nature, for if the purpose indicated was in part the legislature’s intent, such purpose is not one of form, but of substance, which might theoretically affect 'the actual result of its action. Were such provision intended merely to render more certain what particular procedure had in fact been taken, then the rule might be otherwise, and it might properly come within the reasoning of Judge Broyles in the case of Moore v. Thomasville, 17 Ga. App. 285 (86 S. E. 641), relating to provisions requiring that ordinances shall be signed by the mayor.

In Steckert v. City of East Saginaw, 22 Mich. 104, the rule announced is as follows: “A charter which requires that the vote of a city council, in certain cases, shall be entered at large on their minutes is designed to accomplish an important public purpose; it can not be regarded as immaterial, nor its observance dispensed with. The record of a vote that it ‘was adopted unanimously on call/ the names of thosé voting not otherwise appearing than by the statement of those present at the opening of the session, is not a compliance with the statute. Neither the spirit nor the purpose of the act can be satisfied without entries on the minutes, showing who voted on each resolution embraced within the terms of the act, and how the vote of each was cast; in other words., the ayes and noes on each resolution must be entered at large on the minutes.” In the case of O’Neil v. Tyler, 3 N. D. 47, 48 (53 N. W. 434), the court said: “Section 13 of the charter of the City of Fargo, as amended in 1881, provides ‘that upon the passage of all ordinances the yeas and nays shall be entered upon the record of the city councils’ This provision is mandatory, and it appearing that an ordinance . . . was adopted in- violation of said provision, and that upon its passage by the council the yeas and nays were not entered upon the record, held, that said ordinance was not legally adopted, and hence never became a valid ordinance.” In Preston v. Cedar Rapids, 95 Iowa, 71, 76 (63 N. W. 577), Justice Elinne, speaking for the court, said: “It does not appear, nor is it claimed, that the charter of defendant city requires that upon the passage of an ordinance the yeas and nays shall be called and recorded. Bule 18 adopted by said city, and which was offered in evidence by it, provides that ‘all votes taken on the adoption of ordinances shall be taken by yeas and nays; each member upon his name being called, unless for special reasons he be excused by the council, shall declare openly and without debate his assent or dissent to the question.’ The record before us shows all of the aider-men voted for the adoption of this ordinancé. Inasmuch as there was no statute or rule requiring that the yeas and nays he recorded, we do not think that the ordinance can be successfully assailed because no record was made of the vote. It is true the record does not show that the yeas and nays were called, but it does show that all of the aldermen voted for the ordinance. Under such circumstances, we may well presume that the ordinance was adopted or passed in thé manner required by the rule.” In Brophy v. Hyatt, 10 Colo. 223, it was held that “Any mode by which the vote of each member is clearly and definitely ascertained for the purposes of the record is sufficient.” In Town of Olin v. Meyers, 55 Iowa, 209 (7 N. W. 509), it was said: “If the yeas and nays were not required to be called, and recorded we might presume that a majority of the members voted for the ordinance, ■ as was done in Brewster v. Davenport, 51 Iowa, 427 (1 N. W. 737). But upon the passage of such an ordinance no such presumption can be indulged, because the record must affirmatively show that the yeas, and nays were called. They must be recorded. Counsel for appellant insists that this omission was a mere irregularity, which did not affect the validity of the ordinance. It appears to us that the above provision is mandatory, and that its observance is necessary to give validity to the ordinances of a municipal corporation. Dillon on Municipal Corporations, vol. 1, sec. 229.”

It is contended, however, on the part of the city, that the court-erred in excluding parol evidence offered for the purpose of showing that the commissioners, in the attempted abolition of this office, substantially complied with the requirements of the act. Testimony of the secretary of the commission was offered to the effect that the abolition of the office was in fact upon the recommendation of the first commissioner, and that a yea and nay vote was had thereon, but that he, the secretary, failed to so state on the minutes. This court is of the opinion that the ruling of the trial judge in rejecting this testimony was in accordance with law. As will be seen from what we have already said, it is our opinion that the requirement of the legislature, that the minutes shall show the recommendation of the first commissioner and the aye and no vote taken thereon, is as much mandatory as the requirements that such, recommendation must be first made and that the vote thereon be taken in the mode prescribed. In the ease of Owens v. Dalton, 144 Ga. 656 (87 S. E. 913), our Supreme Court held that when a motion or resolution is adopted by a municipal council, but imperfectly recorded by the clerk, the same council has authority, by resolution made thereafter, to require the clerk to correct the minutes so as to make them speak the truth; but it is recognized in that case that such action reforming the resolution does not relate back so as to affect any intervening right which has arisen to a third person. While it may be true that the duty of actually setting forth, the proceedings of the commission devolved upon its secretary, still the requirement of the law making such record obligatory is mandatory not upon the official named, but upon the commission itself; and the proper remedy, in order to obviate the failure of such compliance, lay in its promptly taking the. necessary steps to reform its record of the proceeding, without which it would not be allowed to show by parol evidence that its minutes did not speak the whole truth. Indeed, this identical question was passed upon by the Supreme Court of Indiana in the case of City of Logansport v. Crockett, 64 Ind. 319, in. which it was held: “The yeas and nays must, in like manner, be taken and entered of record on the adoption of a resolution by the common council, fixing the salary of the city attorney. . . Parol evidence is inadmissible to prove the yeas and nays on the adoption of a resolution by the common council of a city, removing'the city attorney; the record, or a duly authorized copy thereof, being the only competent evidence of such fact. . . Where the city clerk has failed to keep the yeas and nays upon the adoption of a resolution by the common council, the proper remedy is for the common council to cause a nunc pro tunc entry of the yeas and nays to be made.” The Code of Georgia, § 5803, provides as follows : “Exemplifications of the records and minutes of municipal corporations of this State, when certified by the clerks or keepers of such records, under seal, shall be admitted in evidence under the same rules and regulations as exemplifications of the records of the courts of record of this State.” We think the rule of the Indiana court is sound, and that, in a case of this sort and for the purpose there intended, the admission of the minutes themselves, or the prescribed authenticated copy of such record, is the only competent method of proving the resolution. A decision by the Supreme Court of New York, in 16 Hun. 497, likewise holds, in a case similar to this, that such proof can not be supplied by evb denee aliunde.

2. It is insisted that the plaintiff acquiesced in the abolition of the office, and therefore is not entitled to recover in this suit. There is no merit in this contention. The plaintiff testified as follows: “I was tax-receiver of the City of Rome. -I was not present when the city commissioners undertook to abolish my office, on April 6, 1915. I was at my desk. My fiscal year began the first of April. Mr. McCrary came in. after the meeting and told me he was sorry, but that they had ousted me, had abolished my office. He is clerk or secretary of the commission. Since that time and for the balance of my term I was willing, ready, and able to perform the duties of my office. I was elected for two years, and had served part of my time on the second year, had no notice of the abolishment of the office, or anything of the kind. I was elected from the first Monday in April, 1914, for two years. I was there serving and had received some returns on that year. The commissioners had a meeting in the afternoon on Monday or Tuesday. I think it was the 6th day of April. From the 6th day of April, 1915, until this day I have never offered my services to the City of Borne. I have not performed any services for the City of Eome since the 6th day of April, 1915. I have done'nothing since that time in the shape of getting in taxes or anything of that kind. I did not perform any services for the city, because I was notified my office was abolished. I thought at that time it was. I received no written notice, but I know when a man tells me a plain thing. The only notice I received was a verbal notice from Mr. McCrary. As a matter of fact the next morning they employed Mr. Jenkins to take charge of the duties I was performing. I went up there the next morning and I told him, I says, ‘Tom, since they have gotten rid of me, I had rather see you here than anybody.’ I says, ‘Anything in the world I can show you, I will be glad to do it.’” Acquiescence is where a person knows, or ought to know, that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right. Acquiescence and waiver are generally questions for the jury, and we think it was properly such in® this case. In the case of Pence v. Langdon, 99 U. S. 578, Justice Swayne said: “There must be knowledge of fact which will enable the party to take effectual action. Nothing short of this will do. But he may not wilfully shut his eyes to what he might see and ought to have known.”

3. If the abolition of the municipal office was invalid and the incumbent in good faith was willing to perform the duties of the office, it follows that he is entitled to its emoluments. The verdict, is not contrary to law, and, being supported by the evidence, the trial judge did not err in refusing to grant a new trial.

Judgment affirmed-

Broyles, P. J., and Blood-worth, J., concur.


text:
    7641.
    ELLIS v. DUDLEY, receiver.
    The provision of the code of this State that non-negotiable choses in action are taken “subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable” (Civil Code of 1910, § 3653), permits the debtor to set up equities subsisting between the original contracting parties, but has no application to equities in favor of the debtor against an intermediate assignee.
    Decided March 20, 1917.
    Complaint; from city court of Americus—Judge Harper. January 29, 1916.
    G. E. Ellis filed a suit against A. W. Smith, as receiver of the Americus National Bank, returnable to the March term, 1915, of the city court of Americus, alleging that a. receiver was appointed for the assets of the Americus National Bank on February 9, 1914, at which time J. S. Bolton & Brother, a partnership composed of J. S. Bolton and J- F. Bolton, had on deposit in that bank, subject to check, the sum of $4,206.72; that there were no outstanding checks drawn against the deposit, and Bolton & Brother were not indebted to the bank in any "manner whatever at the" time of the appointment of the receiver, and no right of set-off against them or either of them existed in favor of the bank; that after the appointment of the receiver, to wit, on March 10, 1914, Bolton & Brother, for value, sold, conveyed, transferred, and assigned, the said deposit account to Mrs. Josey V. Warlick, who on March 27, 1914, sold, transferred, and assigned the same to the plaintiff; 'that the plaintiff was at the time of bringing the suit the owner and holder of the deposit account, and that he was not indebted to the Americus National Bank in any sum whatever; that on November 15, 1914, a dividend, of ten per cent, that had been declared was due to be paid to the deposit creditors of the bank; that the written transfers mentioned had been placed in-the hands of the receiver; that the plaintiff was entitled to have the said dividend of ten per cent, on the said deposit account, amount- ' ing to .$420.67, paid to him, and that the said A. W. Smith, as receiver, refused to pay the same and was therefore indebted to the plaintiff in said sum, with interest thereon since November 15, 1914, when the dividend became due and payable. Copies of the transfers referred to were'attached to the plaintiff’s petition. The record shows that A. W. Smith died and N. M. Dudley was appointed receiver of the Amerieus National Bank and made a party in this cause.
    The defendant answered, admitting the appointment of the receiver, but, for want of information, neither admitted nor denied the other allegations of the petition, and demanded proof; and for plea set up that Mrs. Josey V. Warlick, to whom (as appeared, from the allegations in the plaintiff’s petition) the deposit account of J.'S. Bolton & Brother at one time belonged, was at that time largely indebted to the Amerieus National Bank in a sum greater than the deposit account, and that she was insolvent and unable to pay her indebtedness, and any transfer or assignment by her to-the plaintiff was detrimental, to the defendant, and was not a legal transfer and assignment as against the rights of the defendant. At the trial of the case the written transfers from Bolton & Brother to Josey Y. Warlick, and from her to G. B. Ellis, were introduced in evidence. The plaintiff testified: that before taking the transfer from Mrs. Warlick he had a conference with Mr. Dunbar, who then had charge of the affairs of the- Amerieus National Bank, and was acting as its receiver; that Mr. Dunbar stated that Bolton & Brother had the account with the bank, subject to check, and had assigned it to Mrs. Warlick, and were not indebted to the bank in any manner whatever; that he stated to Dunbar, at the time of inquiring as to whether Bolton & Brother were indebted to the bank, that the inquiry was made for the purpose of ‘knowing whether there was a set-off against the account, as he contemplated trading for it with Mrs. Warlick, and Dunbar replied that there was no set-off against Bolton & Brother. On cross-examination the plaintiff stated that Dunbar did not tell him that Mrs. Warlick was indebted to the bank, and he did not ask him. Counsel for the defendant admitted that three dividends had,been paid, —two of ten per cent., and one of five per cent.,—and that one dividend of ten per cent, was paid before the suit was filed and the other dividends since, and that the receiver of the Amerieus National Bank had'refused to pay to the plaintiff any of the dividends on the deposit account of Bolton & Brother.. The defendant ' introduced in evidence, over the objection of counsel for the plaintiff, a promissory note for $6,324, signed by Mrs. Josey Y. War-lick, dated August 3, 1913, payable to the order of the Amerieus National Bank on November 1st after date. No evidence was offered as to the insolvency of the plaintiff’s assignor, Mrs. Warlick. -The court'directed a verdict for the defendant, and the plaintiff made'a motion for a new trial, which was overruled, and he excepted.

      Pilis, Webb & Ellis-, for plaintiff.

      W. A. Dodson, Shipp & Sheppard, for defendant.
   Jenkins, J.

(After stating the foregoing facts.)

1. No equity having existed in favor of the debtor against the original holder of the chose in action, and none being held against the present assignee, the sole question for our determination, therefore, relates to whether or not the defendant bank should have been allowed to ’set off against the plaintiff its indebtedness against Mrs. Warlick, the intermediate assignee of the bank deposit, and who was the assignor of the plaintiff. “Set-off is a defense which goes, not to the justice of plaintiff’s demand, but sets up a demand against the plaintiff to counterbalance' his in whole or in part.” Civil Code of 1910, § 4339. Ordinarily such a right inures only to the benefit of the. parties'themselves and in their own right. Civil Code of 1910, §§ 4340, 4341. But in section 3653 it is provided that title to non-negotiable choses in action is taken’ “subject to the equities existing between the assignor and the debtor at the time of the assignment, and 'until notice of the assignment is given to the person liable,” and under the interpretation of this provision of the code by our Supreme Court there can be no question but that it permits the defeat of such.an assignee’s ' claim by virtue of equities subsisting between the original contracting parties. But whether the equities of such debtor against an intermediate assignee can be set off against the final holder seems to be a question which has never been adjudicated by the courts of this State. So far as our search has enabled us' to ascertain, in none of our eases have the facts ever caused the determination of this question to become pertinent. It is true that our Supreme Court, in the case of Guerry v. Perryman, 6 Ga. 119, 123, uses the following language: “The rule with regard to the assignment of choses in action, not negotiable, we understand to be, that every person who takes an instrument, not assignable by the terms of it, must take it principally on the credit of him from whom he receives it, for it is always liable to be defeated by equitable circumstances subsisting between the original contracting parties, being-taken legally subject to all the equities of the original debtor.*’ This language was quoted approvingly in the ease of Third National Bank v. W. & A. Railroad Co., 114 Ga. 890 (40 S. E. 1016). In the later case of McGaw Mfg. Co. v. Felder, 115 Ga. 408, 411 (41 S. E. 664), our Supreme Court, speaking through Justice Cobb, uses the following language: “While as a general rule eset-off must be between the same parties and in their own right* (Civil Code [of 1895], § 3747) [Civil Code of 1910, § 4341], still the 1 transferee of a chose in action other than a negotiable security takes it subject to the equities existing between the original creditor and the debtor. Civil Code [of 1895], § 3077.*’ Civil Code of 1910, § 3653. But while the language of these decisions might seem to indicate that the equities which may be set up by the debtor against the final assignee are such only as subsisted between the original contracting parties, still, inasmuch as equities against intermediate assignees ■were not involved under the facts in any of those cases, we can not hold the language quoted to be conclusive in the determination of the question now before us.

Section 3653 of the Civil Code of 1910, referred to above, is as follows: “All choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable securities, subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable.” A literal construction of this section might seem to\ indicate that the final assignee takes such securities subject only to the equities existing between his immediate assignor and the debtor, but such a construction would he directly in conflict with each of the rulings already referred to. The question, therefore, which we are called upon to decide is whether such an assignment is taken subject not only to the right of °set-off existing between the present parties, by virtue of § 4340, and subject also to equities existing between the original parties, by virtue of the provisions of § 3653, supra, but whether such an assignment is taken subject also to the equities existing between the debtor and all intermediate assignees, or ■ at least subject to the equities against the immediate assignor of the holder. In arriving at the true intent of § 3653 it will be observed that while non-negotiable securities are taken subject to the-equities between “the assignor and debtor,” such limitation is expressly made to apply only to such equities against the assignor as existed “at the time of the assignment and until notice of the assignment is given to the person liable.” We think this provision as to notice can aid in determining the question before us,—that is, whether the words “the assignor” relate only to the original creditor, or whether they are intended to comprehend all intermediate assignees. At common law, such ehoses in action were not assignable, and the purpose of the law we are considering would seem to have been primarily to render such non-negotiable securities subject to assignment; but at the same time to hold the assignee thereof liable to any then-existing equities against the assignor in favor of the debtor, and further to even hold the assignee subjéct.to subsequently accruing equities against the qssignor until notice of the assignment had been given. It can admit of no question that, under the terms of the code provisions, any assignee of such a claim could not be defeated therein by the debtor attempting to set up an equity against his original creditor, if the claim arose subsequently to the notice given him of the assignment. This is true under the plain provisions of the law itself. If, then, the debtor could not be heard to defend in such manner, would the fact that an equity arising after such notice exists against -a new and different person than the original holder of the claim alter' the rule? We can not 'think so. The manifest intent of the quoted section seems to be that the notice prescribed is intended to fix the status of all equities, and that, after.such notice has been given, any equities subsequently arising are barred. If, then, it be taken as true that no counterclaim in favor of the debtor can arise, after notice to him of the original assignment, the language of the section, wherein it refers to equities existing between the assignor and the debtor “at the time of the assignment and until notice of the assignment is given,” would certainly seem to refer to the equities between the original contracting parties. While the suppositions used in the foregoing reasoning may not altogether correspond to the facts in the instant case, they are employed for the purpose of arriving at the correct meaning and intent of the code-section we are seeking to construe; and if the meaning of -the section before us has been thus correctly arrived at, then no further difficulty appears in applying its provisions to the present case.

Under the provisions of § 4344, the right of an assignee to set off equities. against the original payee of a negotiable paper received under dishonor is' applied under a somewhat different rule than the rule applicable where a non-negotiable chose in action is assigned. In e&ses where an overdue negotiable paper is'received, while the right of set-off is allowed against the “original payee” (§ 4344, supra), this right is limited to only such counterclaims as are in some way connected with the contract sued on. While this same distinction seems to obtain in other States as the more general rule, there appears to be considerable lack'of uniformity in this respect. 34 Cyc. 749 (6). Thus, when considering those cases in other jurisdictions where the right of set-off against an intermediate assignee is treated, we should bear in mind the distinctions pointed out, whenever the facts of such cases indicate that the attempted set-off was in an action upon a discredited note or bond; still we think that the courts of many jurisdictions have clearly laid down the governing rule, without reference to the special distinctions which we"'have pointed out in favor of notes and bonds, although taken when past due. The general proposition as stated in 34 Cyc. 748 (5) is as follows: “Defendant can not, as against plaintiff, set off demands against plaintiff’s intermediate assignees, unless there is an agreement between the parties allowing it. Thus a set-off against an intermediate assignee held as a general rule to be unavailable in an action on a note, and the same principle is held to be applicable where plaintiff sues upon a bond.” See also 25 Am. & Éng. Enc. of Law (2d ed.), 530. In McKenzie v. Hunt, 32 Ala. 494, it was held that in an action on a note by a remote indorsee, against the maker, a set-off against an intermediate indorser is not available. In Maury v. Jeffers, 12 Miss. (4 Smedes & M.) 87, it was held that where the payee of a note assigns it before its maturity, and on its dishonor takes it'up and sues .the maker, the maker is not entitled to the benefit of a set-off held by him against the assignee. In Blair v. Mathiott, 46 Pa. St. (10 Wright) 262, it was held that “an obligor in a bond can not defalcate, against the assignee of an assignee of a bond, a claim or set-off which he holds -against the first assignee.” In the opinion in that case it is said: “It seems to me that it would complicate a plain and beneficent principle much, were we to hold, where a b.ond,'without any right of defalcation between the original parties, is passed by half a dozen transfers, that the final assignee shall have to submit to a settlement of all accounts, great and small, which may have existed between the obligor and each successive assignee. To require inquiries as to the state of accounts between him and such assignees, or in default to have them all defalked as against the ultimate holder, would put an end to the transmission of such choses in action altogether—a thing which the law has no policy in discouraging.” In Perry v. Mayes, 2 Bailey (S. C.), 354, it was held that in an action on a negotiable note by the indorsee, under an indorsement after maturity, the maker can not set off a demand against an intermediate holder of the note, not the original payee thereof. In Savage v. Laclede Bank, 62 Miss. 586, it was held that “Under § 1124 of the Code of 1880, the acceptor, when sued upon a bill of exchange by the last indorsee thereof, can not set off against the same an account acquired against an intermediate indorser while the bill was held by the latter. This statute, which gives the defendant sued upon ‘any such assigned bill of exchange the benefit of all set-offs had' against the same previous to notice of the assignment, as though the suit had been brought by the payee/ has reference only to set-offs against the party with whom the defendant dealt.”-

A Missouri case very much like the case at bar, and relating to the assignment of a like chose in action, is that of Frowein v. Calvird, 75 Mo. App. 567; and as the statute.of .that State is very simliar to that of our own, we quote from the opinion of the court at some length, because we deem it to be directly pertinent to the case under review. “The admissions of the pleadings in the 'case are as follows, to wit: 1. That the Denton Brothers had a claim for a. call deposit amounting to $215.89 against’ the insolvent Henry County Bank, of which Calvird & Lewis, the defendants, were the assignees. 2. This claim was assigned to Sarah L. Den-ton and by the defendants allowed in her name for that amount and a certificate issued to her therefor. 3. That said certificate was for value by her assigned to the Frowein Brothers and was by them assigned for value to plaintiff. 4. That since the last-named assignment the said assignees have declared a dividend of ten per cent, on the hundred dollars, and that the plaintiff has demanded the same, which demand has been refused; that the Frowein Brothers, at the time of the assignment of. said certificate to them, as well as at the time of the assignment thereof by them to the plaintiff,' were indebted to said Henry County Bank, and consequently to said assignees, in an amount greatly in excess of that of the said certificate. The court below refused to make an order requiring the said defendants to pay over to plaintiff the said dividend and dismissed her petition. The question thus presented is whether or not the court gave the proper judgment on the pleadings. It will be seen that the defendants have no claim of set-off against the Denton Brothers, the creditor, or against Mrs. Denton, their assignee in whose favor the certificate of allowance was issued. But the right of set-off is asserted against the plaintiff on the’ ground that the Frowein Brothers, the intermediate assignees, •were, whilst such certificate was in their hands, indebted to the defendants in an amount in excess of that of the certificate. The remedy of set-off was unknown to the common law. It is the creature of statute. By the 2d George II, chapter 27, section 13, ■it was for the first, time enacted that where there were mutual debts between the plaintiff and defendant one debt might be set off against the other.. And afterward there was a difference of opinion between the King’s Bench and the Common Bench as to the setting off of debts of different natures which gave rise to the statute of 8 George II, phapter 24. By the sixth section of this latter statute mutual debts were authorized to be set off against each other, notwithstanding such debts were deemed in law to be of different natures.

“Section 8160 of our statute in relation to set-off is in substance the same as that of the English statute just referred to. It has been held by the English courts that the latter statute applies only when the debts between the plaintiff and defendant were mutual legal debts. Isberg v. Bowden, 22 Eng. L. & Eq. B. 551. Our statute says, ‘that where two or more persons are mutually indebted . . and one of them commences an action against the other, one debt may be set off against the other;’ while the English statute says that ‘where there are mutual debts between plaintif and defendant’ they may be set against each other. It is plain that the terms employed in the former are of similar import to those employed in the latter. The debts due, to be the subject of set-off, must be mutual between the person who sues and the one sued, or between the plaintiff and defendant. If there is no debt due from the plaintiff at all, as here, how can the statute apply? It is clear that there is a lack of that mutuality of indebtment between the plaintiff and the- defendants which is_ required to make the statute applicable. But it is contended by the defendants that section 8161, Revised Statutes, which provides, ‘in actions on assigned accounts and non-negotiable instruments, the defendant shall be allowed every just set-off or other defense which existed in his favor at the time of being notified of such assignment’ confers the right of set-off in a case like the present. In actions on as-' signed accounts and non-negotiable instruments by whom? Does it mean by any assignee whether the defendant have a claim against him or not? Or does it mean only such an assignee as against whom the defendant has a claim? Or does it mean that where theré have been successive assignments and the defendant has a claim against an intermediate assignee, such claim can be set off against that in the hands of the plaintiff, though the latter is not a debtor of the former ?.

“In Waterman on Set-Off, section 118, it is stated: ‘Although in an action by the assignee of a promissory note against the maker the defendant (the latter) may set off any proper demand which he may have held against the payee, at any, time previous to notice of the assignment to the latter, yet this right does not include demands subsisting against intermediate assignees, through whose hands such note or bond may have passed by blank indorsement or otherwise, unless there is an agreement between the parties to that effect, founded on some new consideration.’ And this statement of the law is supported by a number of adjudicated cases. Hooper v. Spicer, 2 Swan’s R. 494; Kennedy v. Manship, 1 Ala. 43; Stocking v. Toulmin, 3 Stew. & Port. 35; Blair v. Hathiott, 46 Pa. St. 262; Downey v. Thorp, 63 Pa. St. 322. While Harris v. Burwell, 65 N. C. 584, at first glance would seem out of line with the eases last cited,-yet when the facts of- the case and the terms of the statute which influenced the decision therein are considered it will be found not to be so. Applying the foregoing rule to the present case, it is clear that the defendants can not set off the plaintiff’s claim with that held by them against the Frowein Brothers, the intermediate assignee, through whose hands the plaintiff’s demand passed by indorsement.

“In an action on assigned account or non-negotiable note a set-off could not be allowed but for the provisions of section 8161. Under the English statute, and our section 8160, unless there be a mutual indebtedness, the right of set-off can have no existence. But section 8161 is a qualification of section 8160. Keeping in mind the provisions of the latter section, it will be seen that what is meant by the former is that where one of two mutually indebted parties is sued by the assignee of the other, he shall be allowed every just set-off that he had against the other at the time of the notice of the assignment. The latter of these sections places the assignee and the defendant on the same footing that the assignor and the defendant occupied under the former. But if the first assignee does not sue, but passes the claim by assignment to a second assignee, and the latter sues thereon, then the defendant will not be permitted to set off plaintiff’s claim with that he has on the intermediate assignee. The defendant’s right of set-off against a claim is recognized by the statute to exist between himself and the other party, between whom and himself there was a mutual indebtedness, and between himself and the. assignee of the latter. The statute does not go beyond this. As.has been already stated, the right is not a creation of the common law, but of the statute, and if it does not exist under the statute it does not exist at all.” • ’

If it be true that while the deposit was owned by Mrs. Warlick the bank had the right to apply it in extinguishment of its matured debt against her (7 Corpus Juris, 653, § 352; Bank of Lawrenceville v. Rockmore, 129 Ga. 582, 59 S. E. 292; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S. E. 589 ; Milhouse v. Citizens Bank of Valdosta, 14 Ga. App. 240, 80 S. E. 703), it nevertheless failed or refused so to do, and, under the view we have taken, it should not be allowed to set up such claim against m subsequent holder for value.

We are led to believe that the conclusion we have arrived at is sound, so far as the. facts of this particular case go, for the additional reason that under the ruling made in Nix v. Ellis, 118 Ga. 345 (45 S. E. 404, 98 Am. St. R. 111), Mrs. Warlick could not herself have set. off the deposit assigned to her as against her indebtedness due the bank; and, as we deem the right to the defense of set-off to be a mutual one, neither could the bank have set off its claim in an action by her on the indebtedness due by it. In the Nix case, supra, it was held that, while one indebted to a bank may ordinarily purchase a claim due by it, and use the same as a set-off, when subsequently sued on a debt due the bank, yet, where the bank becomes insolvent, such a right continues only up to the time of the filing of the petition for the appointment of a receiver, and that the receiver of the bank takes its choses in action in the same plight in which they existed at that time.

It is our opinion that the court erred in allowing the bank to .prove its claim against Mrs. Warlick, the intermediate assignee, in defeat of the plaintiff’s action.

Judgment reversed.

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