author: Bloodworth, J.

text:
    7248.
    SAVANNAH AND NORTHWESTERN RAILWAY v. ROACH, administratrix.
    1. Every question of negligence in this case was clearly and correctly submitted by the court to the jury.
    2. The amount of damages found by the jury was authorized by the evidence and approved by the judge, and this court will not interfere.
    3. Where an employee of a common earlier was killed while both he and the carrier were engaged in interstate commerce, and an action against the carrier for damages on account of his death was brought under the State law by his administratrix, and at the term of court at which the case was tried the defendant amended its plea and alleged that at the time the decedent received the injuries that resulted in his death both lie and the defendant were engaged in interstate eommree, and that the “case comes within the terms of, and is to be determined by, the provisions of the Federal statute” (the “employer’s liability act”), and the case was tried under the provisions of that act, and the entire charge of the court was based thereon, the defendant was not deprived of any right under the Federal law, and the court did not err in giving the defendant that for which it asked by its plea.
    4. The excerpts from the charge of the court,, embraced in the motion for a new trial, are not erroneous when read in connection with the entire charge.

      5. There was evidence to support the verdict.
    Decided February 16, 1917.
    Action for damages; from city court of Springfield—Judge Shearouse. December 31, 1915.

      Hitch & Denmark, Y. E. Bargeron, for plaintiff in error.

      Oliver & Oliver, contra.
   Bloodworth, J.

Mrs. Maggie Roach, as administratrix, brought suit for the benefit of herself and her child against the Savannah & Northwestern Railway, for the death of her husband. At the time of receiving the injury that caused his death he was an engineer in charge of an engine and tender going to where ears had been wrecked. One of the wrecked cars was loaded with coal and was en route from Danville, Yirginia, to Waynesboro, Georgia. The suit as originally brought consisted of two counts, the first being brought under the Federal “employer’s liability act,” and the second under the State law. Before proceeding to the second trial, at which the verdict now complained of was rendered, the plaintiff struck from her petition the first count and all the amendments thereto, and the case proceeded on the second count. At the second trial the defendant amended its plea and alleged that at the time of the injuries complained of, the engineer and the defendant were engaged in interstate commerce.

1. The charge of the court was comprehensive and correct, completely covering every issue of negligence; and questions of negligenee are peculiarly for the jury. The plaintiff in error insists that a new trial should be granted “because the injuries to and death of plaintiff’s husband were attributable not to the causes alleged in the petition, but to his voluntary use of liquors and to his intoxicated or semi-intoxicated condition at the time of the accident.” Whether or not the deceased was intoxicated was a question for the jury, to be considered along with all the evidence, to determine whether or not he exercised ordinary care, and his intoxication alone would not relieve the defendant of any negligence shown. In the case of Robinson v. Pioche, 5 Cal. 460, upon an exception to the charge in the court below to the effect that if the intoxication of the plaintiff was the cause of the injury he could not recover, Heydenfeldt, J., in delivering the opinion of the court for reversal, said: “If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the plaintiff can not excuse such negligence. A drunken man is as much entitled to a safe street as a sober one, and much more in need of it.”

2. Under the facts in this case we are not authorized to set aside the verdict as excessive. The evidence shows that at the time of the death of the engineer he was forty-seven years old, that he was in good physical and mental condition, and that “he gave the greater part of his earnings to his family.” If he earned $150 a month the wife got $125 of it. If he-earned $200 she got $175 of it, and sometimes over that. When viewed in the light of this and other evidence we do not see onr way clear to set aside the verdict as excessive, as there is nothing in the record to- show prejudice or bias on the part of the jury, and it has the approval of the trial judge. In this connection attention is called to the case of the Really Bond & Mortgage Co. v. Harley, ante, 186 (91 S. E. 254), in which this question is discussed at some length.

3. Plaintiff in error insists that the plaintiff in the court below did not prove her case as laid, the contention being that “the case, if any, that was proven was under the Federal statute,” and “the Federal count of the petition had been stricken on plaintiff’s motion,” and “the plaintiff had elected to proceed on the second count alone.” To support the contention stated above, plaintiff in error cites the case of St. Louis &c. Ry. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. 651, 57 L. ed. 1129, Ann. Cas. 19140, 156), and that of Moliter v. Wabash R. Co., 180 Mo. App. 84 (168 S. W. 250). The two cases above referred to are entirely different from the one under consideration. -In the Moliter case the plaintiff, who was a brakeman engaged in interstate commerce, sued for damage caused by one of the defendant’s cars passing over his foot. The petition stated a common-law action and the case was presented to the jury as such character of action, and the judgment was rendered as in such character of action. The 'court said: “Plaintiff’s insistence is that if the evidence showed his right of action was under the Federal statute, he could recover although no facts constituting such action were pleaded, and although he did not submit the case to the jury under that statute. . . Here, as has been stated, the plaintiff himself affirmatively proved that he was engaged in interstate commerce, and defendant, seeing that a case was proven which was exclusively cognizable under the Federal employer’s liability act, asked the peremptory instruction referred to. The court refused it and submitted the case under another law, and thus deprived defendant of a trial under the Federal statute.” It will be noted from the above that in the Moliter case the case was submitted under the petition as originally drawn, and this “deprived the defendant of a trial under the Federal statute.” In the Seale case the suit was brought by the widow and parent of the deceased employee, and was tried under the Texas statute, when it should have been “brought by deceased’s personal representatives under the Federal statute.” “When the evidence was adduced it developed that the real case was not controlled by the State statute, 'but by the Federal statute. In. short, the case pleaded was not proved, and the case proved was not pleaded.” It will be seen that there was nothing in the pleadings to show that the Federal statute was involved, that the case was not tried under the Federal statute, but under the State statute, and it was remanded “for further proceedings not inconsistent with this opinion, but without prejudice to such right as a personal representative of the deceased may have.” In the case under consideration the petition was under the State statute, but there was a plea that the deceased and the defendant were engaged in interstate commerce at the time the deceased received the injuries complained of, the plea concluding with the statement that “the above-stated case comes within the terms of and is to be determined by the provisions of the Federal statute.” In addition to this, the brief of plaintiff in error states that “the case was tried under the Federal law on the. State count.” In the brief of defendant in error it is stated: “It was conceded by both parties that the Federal employees liability act of 1908 applied, and the case was tried under that law.” In charging the jury the judge stated: “It is admitted by the attorneys for both parties that the deceased and the- railroad company for which he was working at the time he met his death were engaged in interstate commerce,—that is, both the deceased and the company were engaged in work connected with the carrying of freight and passengers into another State or in furtherance thereof, and the law of the Congress of the United States, known as the Federal ‘’employer’s liability act’ would be controlling;” and the judge based his charge on the Federal statute.

Before a reversal of the judgment of the court below can be obtained on the ground that there has been a denial of right under the Federal statute, the plaintiff in error must demonstrate that this right was denied. As illustrating the principle involved, attention is called to the following cases: The case of Nashville &c. Ry. v. Anderson, 134 Tenn. 666 (185 S. W. 677), was a suit brought in the circuit court of Davidson county, Tennessee, by a switchman. The declaration as originally filed was founded on the Georgia statute regulating the right of recovery for wrongful death, and contained no reference to interstate commerce. Among the pleas filed by the defendant was one setting out that it was a common carrier, ana that the deceased was a servant employed in operating a car engaged in interstate commerce when he met his death. In the decision it was said: “That deceased was not engaged in intrastate commerce, .hut interstate commerce, was fully made to appear by the aforesaid plea interposed to the declaration by the defendant below, and we-agree with counsel for the administrator that this plea of the railway company supplied the omission in the declaration and made the interstate character of deceased’s service obvious in the pleading. No issue was ever made on the facts alleged in said plea. . . Matters of substance omitted from a declaration may be cured by plea.” In the case of United States v. Morris, 10 Wheaton, 246 (6 L. ed. 314), the Supreme Court of the United States held that a defective plea might be aided by a replication, just as a defective declaration might be aided by a plea. “If a necessary allegation is omitted from a pleading and the missing allegation is either alleged or admitted by the pleadings of the adverse party, the defect is cured. . . Thus the defective statement or entire omission of a material fact hy the plaintiff in setting up his cause of action is cured by an allegation or admission of the fact in the plea or answer.” 31 Cyc. 714, 715. The case of White’s adm’x v. C. V. E. Co., 87 Vt. 330 (89 Atl. 618), is one where suit was brought against the railroad company for damages on account of the death of a brakeman, in which none of the counts contained -an averment showing that the train on which the intestate was injured was being operated as an interstate train; nor was it shown that he was employed by the defendant in such commerce, without which character of employment there could be no right of action under the Federal employer’s liability act. The defendant pleaded in bar, alleging that at the time of the injury complained of it was, and ever since had been, a common carrier engaged in interstate commerce. The plaintiff filed a replication, and averred that under the laws of the United States and of the State of Vermont, the court had full and complete jurisdiction of the matters and things set forth in the plaintiff’s deelaraion, to determine according to law. To this replication the defendant demurred alleging among other things: “The declaration purports to cover damages under the laws of the State of Yermont, while the replication contends that the action should be under the Federal employer’s liability law.” The court held that by this plea the defendant expressly supplied the omission in the declaration, essential to a good cause of action under the Federal statute, saying: “A declaration that is bad for lack of essential averments is made good by a plea that supplies those averments.” In the case of Southern Ry. Co. v. Ansley, 8 Ga. App. 325 (68 S. E. 1086), the petition was based upon the Alabama law and the case tried under the Alabama law, and the jury was instructed solely with reference to the Alabama law, yet the verdict was allowed to stand because of the fact that the defendant was not injured, Judge Bussell saying: “Mere error does not require the grant of a new trial. To set aside a verdict sustained by evidence, the error of which complaint is made must be shown to have been injurious to the complaining party, or at least appear to have affected some of his rights.” In the case at bar the court had jurisdiction, it was tried under the Federal statute, and no injury resulted to the plaintiff in error therefrom. “Paramount to every other consideration is the rule which requires that injury shall concur with error, before the finding of a jury should be set aside.” It will thus be seen that there is no merit in the contention of plaintiff in error that “the case that was pleaded was not proven, and the case, if any, that was proven, was not pleaded.”

4. The charge complained of in reference to the amount which plaintiff, could recover is but a part of the instructions given on this point. When all'of the charge relating to this subject is considered there is no error. The charge measures up to the requirements of the Federal law, and there are no objectionable additions thereto.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    7470.
    Beverly v. Wilson.
   Broyles, P. J.

1. While the mere right of possession of personal property, even if the holder has no valid title to it, gives him a right to maintain a suit in trover against a wrongdoer who has deprived him of that possession, yet where the plaintiff relies on his title to recover possession of the property, and his- evidence shows that a paramount outstanding title to the property is in a third person, he can not recover. Mitchell v. Georgia & Alabama Ry., 111 Ga. 760, 771 (36 S. E. 971, 51 L. R. A. 622) ; Central Bank v. Georgia Grocery Co., 120 Ga. 883, 885 (48 S. E. 325).

Decided February 16, 1917.

Rehearing denied February 28, 1917.

Trover; from city court of Tliomasville—Judge W. H. Hammond. April 5, .1916.

O. B. Hay, for plaintiff.

J. B. Burch, W. I. MacIntyre, for defendant.

2. The “pony” homestead having been excluded from the evidence, on motion of the plaintiff, he will not be heard to complain that the trial judge declined to approve the following reference to it in the brief of the evidence: “The defendant tendered in evidence a pony homestead, taken out by Mary Gaskins on August 15, 1915, in which said cow and calf were scheduled as her own property.” The judge struck the last four words, to wit, “as her own property,” ruling that they were not material in the case or in the brief of evidence for any purpose. Under the facts it would not have been error for the judge to strike from the brief of evidence the entire reference to the homestead.

3. In this case the trial judge was by consent exercising the functions of both judge and jury, and, the evidence not demanding a finding for the plaintiff, his judgment in favor of the defendant will not be controlled. Judgment affirmed.

Jenkins and Bloodworth, J.J., eoneur.


text:
    7505, 7561.
    LOGANVILLE BANKING COMPANY v. FORRESTER et al.; and vice versa.

    This case is controlled by the former decision of this court therein (17 Ga. App. 246, 87 S. E. 694).
    Decided February 16, 1917.
    Complaint; from city court of Monroe—Judge Stone. May 8, 1916.

      J. H. Fellcer, for plaintiff.

      R. L. Cox, 0. Roberts, for defendants.
   Broyles, P. J.

1. This suit as originally filed was an ordinary action on notes, brought against R. A. Forrester & Co. and S. N. Forrester. Subsequently the plaintiff amended its petition by striking out all prayers asking for a general judgment against the defendants, and praying for a special judgment against the land of S. N. Forrester only. The case was referred to an auditor, and his findings in favor of the defendant were excepted to. The exceptions of law were overruled by the trial judge; the exceptions of fact were submitted to a jury, and a verdict was rendered finding against them, and a judgment was entered for the defendant. A motion for a new'trial was overruled, and the case was brought to this court, where the judgment was reversed and the case sent back for a new trial. Upon 'the new trial the defendant made a motion to dismiss the entire case, on the ground that the city court of Monroe was deprived of jurisdiction by the plaintiff when it amended its original- petition as aforesaid, the contention being that the amendment left the cause a purely equitable one, of which the city court of Monroe had no jiirisdiction. This motion was overruled and the defendant filed exceptions pendente lite, upon which he assigns error in his cross-bill of exceptions. The question involved in this assignment of error is whether the trial court had jurisdiction to render the special judgment against the land, as prayed for in the amendment to the petition. When this court rendered its decision reversing the judgment of the lower court, the defendant in error, within the time allowed by law, made a motion for a rehearing of the case, and in that motion specifically called the attention of this court to this amendment to the petition, and pointed out the alleged lack of jurisdiction of the city court of Monroe to render the judgment therein prayed for. The rehearing was denied, and, although in the decision of this court on the motion for a rehearing, written by Judge Wade, this point is not discussed, nevertheless it must be held that when the court declined to grant the motion for a rehearing and adhered to its former ruling, it passed upon all the questions made in that motion, including this one of alleged lack of jurisdiction of the trial court. Consequently the judgment of this court, which became the law of the case, is that the lower court had jurisdiction to render the special judgment against the land" as prayed for in the amendment to the plaintiff’s petition. It follows that the court did not err in overruling the motion of the defendant to dismiss the cause. for the alleged lack of jurisdiction.

2. The other assignments of error in the cross-bill of exceptions are without merit.

3. When this case was formerly before us (17 Ga. App. 246, 87 S. E. 694), the matter of res judicata was (as it is now) the controlling point, and it was then held by this court that the defendant was estopped by the judgment of the United States district court for the northern district of Georgia, holding that the deed in question was valid, from thereafter asserting in the State courts its invalidity on the ground that it was infected with usury. When the judgment of this court was made the judgment of the lower court, counsel for both sides agreed in writing to try the case solely on the question of res judicata, and to confine the issues to exceptions of the law to the auditor’s report, numbered 1, 2, 3, and 10, and exceptions of fact numbered 15 and 21, these exceptions being the ones pertaining to the question of res judicata. Under the former decision of this court in this case, the question of res judicata was finally settled. The issue as to whether the deed in question was a valid conveyance,' although infected with usury, was concluded in favor of the validity of the deed, and it was distinctly hold that the bankrupt (who is the defendant in this case) was estopped by the judgment in the United States district court from asserting in this case the invalidity of the deed upon the ground of usury, although the question of usury was not passed upon by the Federal court; Judge Wade, who wrote the opinion for this court, saying: “No claim pf usury was in fact presented by the trustee in bankruptcy in the proceedings brought by him in the Federal court to set aside and cancel the security deed therein attacked, and which it is now sought to avoid in the State courts on that ground. This fact is, however, immaterial, in view of the ruling made by this court, that the claim of usury was one which the trustee in bankruptcy’' could have advanced in the proceeding' brought by him in the bankruptcy court to set aside the deed given to secure the debt due to- the Loganville Banking Company by Forrester et ah, since it is well settled that in this State judgments conclude the parties not only upon matters expressly involved in the litigation, but also upon all that might properly have been called in question under the pleadings in the case. ... As the trustee stood in the place of the bankrupt and could have availed himself, as fully as the bankrupt himself could have done, of the defense of usury, in attacking the security deed made by the bankrupt to the Loganville Banking Company, the fact that he failed to urge this legal objection to the deed under attack can not inure to the benefit of thd bankrupt he represented, since in the suit brought by him to set aside this deed there was an adjudication of every issue that was raised or could properly have been raised in that proceeding. The defense of usury, though not presented by the trustee in that proceeding, would be res adjudieata as to him in a subsequent proceeding, brought under the laws of Georgia, and therefore the plea of res adjudieata would be good as against the bankrupt, now seeking to set up this defense'in the State courts.” It is clear from what has been said that the controlling question in this ease is one of law, and that it was definitely settled by this court in the decision just referred to, and has become the law of the case. The verdict and judgment-for the defendant were contrary to the law and the evidence, and the court erred in overruling the motion for a new trial. In view of this ruling it is unnecessary to consider the other assignments of error in the main bill of exceptions or in the motion for a new trial. It is -clear from a consideration of the case that the material parts of the exceptions of fact, numbers 15 and 21, to the auditor’s report, are really exceptions of law. It was therefore error for the court to submit these exceptions to the jury.

Under all the facts and the history of this case, and for the purpose of ending this long and expensive litigation, the controlling point in the case having been clearly and unequivocally passed upon by this court in its former decision, and no other legal result except a finding for the plaintiff-being possible, and there being no issues of fact to be passed upon by a jury, the judgment of the lower court is reversed, with direction that the aforesaid exceptions of law to the auditor’s report, and the so-called exceptions of fact thereto, be sustained, and that a special judgment against the land in question be entered up in favor of the plaintiff.

Judgment on the main hill of exceptions reversed, with direction; affirmed on the cross-hill of exceptions.

Jenkins and Blood-worth, JJ., concur.


text:
    7536.
    SEABOARD AIR-LINE RAILWAY v. VAUGHN.
    1. In the brief of counsel for the plaintiff in error no reference is made to the assignment of error based upon the ruling on the demurrer; and therefore this will be treated as abandoned.

      2. (a) In several of the grounds of the motion for a new trial error is alleged on the refusal of the court to allow a witness to be asked certain questions. Before such refusal will be held to be error, it must appear what answers were expected, and that the trial judge was informed thereof at the time the questions were propounded. (&) Others of the grounds were rendered .“spineless” by the qualifications and •explanations of the judge in his approval thereof. (e) Still other grounds alleged that the verdict was against certain portions of the charge. This is equivalent to a complaint that the verdict was contrary to law; and “such an exception does not present for decision any legal question.” (d) There is no merit in any of the grounds of the motion for a new trial.
    3. The evidence abundantly authorized a finding for the plaintiff; and, though the verdict may be “large and generous,” this court does not feel authorized, under the law, to set aside the verdict on the sole ground that it is excessive, there being nothing in the record to indicate prejudice or bias on the part of the jury, and the verdict having been approved by the trial judge.
    4. Although there is no reason for the grant of a new trial in this ease, this court, exercising the discretion vested in it, declines to award ten per cent, damages against the plaintiff in error, as requested by the defendant in error.
    Decided February 16, 1917.
    Action for damages; from city court of Americus—Judge Harper. April 17, 1916.

      E. A. Ha-whins, for plaintiff in error.

      Shipp & Sheppard, contra.
   Bloodworth, J.

Defendant in error, S.’E. Vaughn, showed, by his petition, that he was employed by the Seaboard Air-Line Bailway, in the capacity of engine and tender carpenter at the round-house in Americus;'that while in the discharge of his duty as such carpenter he went under the tender of an engine to do some repair work on the safety chain attached to the brake-beam, near the rear trucks of the tender, and while engaged in this work the engine was moved by the hostler and his left hand was caught under one of the rear wheels, and his thumb and first finger were mashed off, that the flesh on the palm was mashed open and all the left hand and wrist mashed, and that one of the bones in his right arm was fractured; that he suffered excruciating pain and would continue to suffer; and that his injuries were permanent and his earning capacity was totally destroyed. Defendant denied all liability. The trial resulted in a verdict for the plaintiff for $15,000. The evidence of the plaintiff shows, that at the time of the accident he was fifty-one years old and was in perfect health; that he earned by his work for the road $100, and by outside work $50, monthly; that in addition to his pain and suffering, which still continued, he lost the thumb and index finger of his left hand, which was “crushed all to pieces;” that his right arm also was injured; that he was not able to use his left hand for any purpose, “not a thing in the world;” that his hand remained tender, and he could not bear to touch anything, and that he could not sleep without keeping the hand saturated with alcohol so as to relieve the pain; that he could not use his right arm any more—“not to amount to anything.” Dr. J. W. Chambliss testified, that some two or three .months after the injury the plaintiff came to him complaining that he was not able to use his arm at all. He further testified that the fingers which remained on the hand of plaintiff were in a stiffened condition; that “when the thumb and finger were gone the remaining fingers can not hold anything at all; it makes his hand useless;” that the injury was of such character, so far as carpenter or mechanical work was. concerned, as to make the hand remain hopeless, and that the future condition of his hand would probably remain the same. A. C. Guy testified, that plaintiff had not been able to do any work since the injury, and that after he came from the hospital he said his right arm was hurt, that something was the matter with the elbow and he could not use a hoe or saw. Dr. R. E. Cato, who was sworn for the defendant, testified, that he was surgeon for the Seaboard Air-Line Railway, and took off the finger and thumb of the plaintiff, and that he examined him at the time to see if there were other injuries, but found none; that he examined the plaintiff’s right arm and found no injury to it at all. Dr. E. L. Cato testified, that he was a brother to Dr. R. E. Cato, was a practicing physician, and assisted in taking off the thumb and finger of the plaintiff; that some time later, the plaintiff, in company with an insurance agent, came to him to examine the plaintiff’s right arm, and that he found no injury to that arm and there was not anything the matter with the condyle.

1. From the above it will be seen that the evidence is somewhat conflicting as to the injury to the right arm, but it was within the province of the jury to believe the evidence for the plaintiff, and, if this evidence is true, then both arms of the plaintiff are practically useless and his earning capacity, according to his testimony, almost entirely gone. While the verdict may seem large, yet, under the law, “the question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue'bias.” Civil Code, § 4399. In the case of Murphy v. Meacham, 1 Ga. App. 155 (57 S. E. 1046), the second headnote is as follows: “The court has no power to review the finding of the jury because their verdict is claimed to be excessive, unless it appear that their finding was due to prejudice or bias, or was influenced by corrupt means.” Section 6087 of the Civil Code is as follows: “The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidence, although there may appear to be some slight evidence in favor of the finding.” “Thus the judge of the superior court has by law conferred upon him the discretionary power to grant a new trial where the verdict is contrary to evidence and the principles of justice and equity, or is decidedly and strongly against the weight of the evidence; and it is his duty to exercise a sound discretion, and to grant new trials where it should be done. A court of errors has not the same discretionary power conferred upon it in this regard. When a case comes before the Supreme Court, after the refusal of a new trial by the judge of the superior court,' it comes not only with the presumption in favor of the verdict of the jury, but also stamped with the approval of the presiding judge, after a consideration of the evidence and the verdict and the use of the discretionary power of review which the law confides to him as a right, and imposes upon him as a duty. Thus we are confronted with the question, not as one of primary discretion, but as to whether the trial judge has abused his discretion in approving the verdict, and whether there is any evidence sufficient to support it, or whether this court can say that the damages are so excessive as to authorize an inference of gross mistake and undue bias, in spite of the verdict and in spite of its approval.” Southern Ry. Co. v. Brock, 133 Ga. 858, 863 (64 S. E. 1083). There is nothing in the record to authorize us to say that the verdict in this case is the result of prejudice or bias, unless it be the size of the verdict itself ; and as this is not necessarily so large as to “shock the moral sense,” or to authorize us to say that the jury was not impartial, or that the verdict was the result of “gross mistake and undue bias,” we must let it stand. See Realty Bond & Mortgage Co. v. Harley, ante, 186 (91 S. E. 354).

3. The headnotes as to the other assignments of error “speak for themselves.”

Judgment affirmed.

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


author: Jenkins, J.

text:
      7543.

    NAPIER v. STRONG.
    1. While parol evidence is not admissible to add to, take from, or vary the terms of a written agreement, the terms of an admitted collateral undertaking between the parties, which the writing does not purport to contain, may be proved by parol, if not inconsistent with the writing.
    2. A plaintiff must recover upon the cause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to sup-' port the cause declared on, even though a different cause of action may appear from testimony admitted without objection. But evidence, admitted without objection, which supports what is' in fact the same cause of action, although it might have been excluded, on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such-testimony relevant.
    3. Though it be shown that a special agent had authority as such to effect a fully’consummated sale of certain property, no presumption arises therefrom of continuing authority whereby at a date long subsequent to the date of the sale he would be authorized to make an independent and supplemental agreement relating, to the same subject-matter.
    4. The evidence warranted the verdict, and the judge did not err in overruling the motion for a new trial.
    Decided February 16, 1917.
    Action on contract; from city court of -Macon—Judge Hodges. April 38, 1916.
    Mrs. M. L. Strong brought suit against Mrs. D. S. Napier, alleging damages in the sum of $800, on account of an alleged breach of contract relating.to a policy of insurance bought by her of the defendant. It appears that Mrs. Napier sold to Mrs. Strong a house and lot in Macon, taking installment notes for the purchase-money and giving bond for title, obligating the seller to execute title upon the payment of the. notes. All the negotiations and transactions involved in the sale, except the execution of the bond for title, were between E. Tris Napier, husband of the defendant, and J. B. Strong, husband of the plaintiff; and when the trade was completed the parties to this case were not present. The bond for title had been prepared and signed by Mrs. Napier three days previously, to wit, on February 25, 1911, and carried by her husband to his office, where the sale was concluded on February 28, 1911. At the time of the sale Mrs. Napier held a fire-insurance policy for $800 on the house in question. The policy on its face covered a period of five years, beginning May 25, 1909, and therefore had been running one and three-quarters years and still had three and one-quarter years to run. In the trade as made by the husbands of the parties it was agreed that the purchaser of the house and lot should also- take over the unexpired term of the insurance policy, by paying the amount of the unearned premium, and should leave the policy in the possession of E. Tris Napier to protect Mrs. Napier as to the purchase-price of the property sold. This was done, and in furtherance of this agreement a loss-payable clause was entered upon the policy. The plaintiff alleged in her petition that in consideration of the sale of the property insured and of the payment by her to -the defendant of the unearned premium on the policy, the defendant agreed as follows: (1) to keep the property insured in the sum of $800 as long as she (the defendant) had an interest in the property; (2) to cause other insurance in that sum to be issued if the existing policy should lapse or be discontinued; and (3) in any event to notify the'purchaser should the property become uninsured.
    It was shown that nearly three years after this transaction, to wit, on January 27, 1914;, the insurance company cancelled the policy and returned to Mr. E. Tris Napier the unearned portion of the premium, amounting to $1.60, which was retained by him, and that no notice of the cancellation was ever given to the plaintiff. The policy, as actually written, would have expired at the end of four months from the-time it was cancelled; that is, on May 25, 1914-. In January, 1915, the property was destroyed by fire. The plaintiff introduced only one witness, J. B. Strong, her husband and agent. The substance of his testimony was that when he bought the policy from the defendant’s agent, E. Tris Napier, the latter told him that the policy had four and a half years to run, when in fact it had only three and a quarter years to run, and that had the p’olicy remained in force for four and a half years, the property would have been insured at the time of the fire. J. B. Strong further testified as follows: “I talked to Mr. Napier about this insurance after I bought the place and before the fire. I happened to be present after he had sold the last note. He sold it to a sister of his—the only way I know is by him calling her sister; I don’t know her name. I had a conversation with him at that time. I told him that I would like to get the insurance papers, as I had been there once before, and he said he was holding them to make him doubly sure of his money. I told him I wanted to strengthen my insurance, as they were building up all around mo and I was afraid of fire and would like to increase my insurance. He said that he would attend to that. ■ And again I asked him for it, as I had a good profit in the place and wanted to trade, and I called on him and he said ‘Call again, I am busy now.’ And I called later and he wheeled around and struck his fist on the desk, and said ‘I am going to hold you to our first trade.’ And then I asked him if I could get the fire-insurance policy, to have it strengthened, and he said he would look after that.” Whether this latter conversation was prior to the cancellation of the policy, or subsequent, the evidence does not disclose. A motion for non-suit having been refused, evidence was introduced for the defendant; and the jury found for the plaintiff in the amount sued for. The trial judge refused to grant a new trial, and the defendant excepted.

      Byals & Anderson, for plaintiff in error.

      E. 0. Powers, W. D. McNeil, contra.
   Jenkins, J.

1. It is ably contended by counsel for the plaintiff in error that no parol evidence regarding the insurance transaction should have been admitted, for the reason that the sale of the house and lot and the sale .of the unexpired term of the insurance policy were all parts of the same transaction, as shown by the petition; and that since the bond for titles is in writing, and by law required so to be, it can not be added to or varied by parol evidence. No principle of law is better settled than that which prohibits the admission of parol evidence to add to, take from, or vary the terms of a written contract; and in those cases where the contract must, under the statute of fraudsj be in writing, it has been held that such a contract can not be modified by a parol agreement, even if subsequently made. See Willis v. Fields, 132 Ga. 242 (63 S. E. 828). The principle invoked, however, can not have proper application where the, writing does not purport to contain the stipulations of an admitted collateral undertaking. ■ Under the facts of this case, while the'bond for title appears complete and unambiguous on its face, it in no wise purports to cover the admitted sale of the policy of insurance, as an incident to the sale of the realty. Since the answer itself admits an executed sale of the policy, not embraced in the writing, the sale of the policy must necessarily have been effected by a collateral agreement, and the plaintiff should be entitled to allege and prove the terms thereof unless they were inconsistent with the writing.

In order to render parol evidence admissible for the purpose of making complete an incomplete contract, the fact that the contract is incomplete need not necessarily appear upon its face. The surrounding facts and circumstances of a contract are always proper subjects of proof (Civil Code, § 5792), and when fro'm them or the admission of parties it is made to appear that the writing does not embrace all of the agreements, then collateral undertakings not inconsistent with the writing can be shown by parol. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (6), 206 (37 S. E. 485, 81 Am. St. R. 28). In the present ease the obligation assumed by the alleged parol undertaking of the defendant is not a new obligation added to the agreement made-by the bond governing the sale of the realty, but grows -out of and relates to’ the incidental sale of the policy of insurance. Section 5791 of the Civil Code provides: “If the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove .other portions thereof not inconsistent with the writing; so collateral undertakings between parties of the same part among themselves would not properly be looked for in the writing.” See also Carter v. Griffin, 114 Ga. 321 (40 S. E. 290); McCommons v. Williams, 131 Ga. 313 (62 S. E. 230); Shiels v. Stark, 14 Ga. 429 (4).

2. The evidence for the plaintiff having been accepted by the jury in its verdict, this court considers itself bound thereby. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230). The contention, however, as to whether the evidence in support of the petition conforms to the allegations therein made is one of law, and constitutes one of the questions we are called upon to determine. It is an elementary principle that there must be no variance bétween the cause of action declared upon and that proved. The rule is founded upon good reason; for not only is the opposite party entitled to have the basis of the plaintiff’s contention distinctly and specifically set forth, but good pleading serves the additional purpose of preserving an accurate record of the cause of action as a protection against another proceeding based upon the same cause.

In the present ease Mrs. Strong brought an action for damages alleged to have been sustained on account of a breach of contract on the part of Mrs. Napier, whereby the latter had agreed upon the purchase from her of the insurance policy, (1) to keep the property insured in the sum of $800 as long as she (the defendant) had an interest in the property; (2) to cause other insurance in that sum to be issued in case the existing policy should lapse or be discontinued; and (3) in any event to notify the purchaser should the property become uninsured. The sole proof, however, offered to sustain such contract and to show its breach was to the effect that when the sale of the policy of insurance was effected, it was understood and agreed by the parties to the sale that the policy had four and a half years to run, whereas in fact the unexpired period was only three and a quarter years, and that the property insured was destroyed by fire during the interval. It is manifest that there was here such a lack of correspondence between the allegations and the proof as would have rendered such evidence inadmissible, upon objection made on that ground. And if such testimony related to a new and distinct cause of action from that alleged in the petition, even its admission without objection would not suffice to sustain the verdict. In the ease of Central Railroad Co. v. Cooper, 95 Ga. 406 (22 S. E. 549), the court said: “No plaintiff can recover upon a cause of action, however just or well sustained by proof, which is totally distinct and different from that alleged in his declaration, and this is so although palpably irrelevant evidence may have been received without objection.” In Burdette v. Crawford, 125 Ga. 577 (54 S. E. 677), it is held: “The plaintiff must recover upon the cause of action laid in the declaration; and a verdict for the defendant is required when the cause of action thus laid is not proved, although another cause of action in favor of the plaintiff against the defendant may appear from the defendant’s testimony.” It will be noted, however, that in each of the eases just quoted from, the unauthorized evidence which was admitted (in the first case certainly without objection) was for the .purpose of proving a new and distinct cause of action from that sued on. A different rule would apply when evidence admitted without objection could have been rejected as not conforming to the allegations as laid, but in fact related to the cause of action declared on. In such a case our courts have repeatedly held that a party waives his objection to the pleadings by allowing such evidence to go to the jury without objection; the reason for this just rule in such a case evidently being that had objection been made, the party tendering such evidence might have amended his pleadings so as to conform thereto. One of the principal functions of amendments is to conserve this right. Haiman v. Moses, 39 Ga. 708 (3); Savannah, F. & W. Ry. v. Barber, 71 Ga. 644 (2 a); Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093).

It is, therefore, clear that the proposition before us resolves itself into the question-of. whether the evidence for Mrs. Strong related to the cause of action alleged in her petition, or whether it attempted-to prove a new and distinct cause from that alleged. If the former be true, then the jury had a right to consider the testimony which was admitted without objection, but if it related to a different cause of action, then, no-matter how admitted, it could not support a legal verdict in the plaintiff’s behalf. There has been an admitted lack of entire harmony in the decisions of our courts upon the difficult subject here involved. The settled rule upon this subject seems to have been admirably stated by Chief Justice Simmons, in the case of City of Columbus v. Anglin, 120 Ga. 785, 793 (48 S. E. 218), in which he says: “He may allege additional facts to show the existence of his primary right, as long as he does not undertake to set up another and distinct right. And he may allege additional facts to show that the defendant has been guilty of the alleged violation of plaintiff’s right. If there is substantial identity of wrong (which necessarily includes identity of the right violated) there is substantial identity of cause of action. This identity is not the same as that required between allegata and probata. A party is required to prove his material and essential allegations as lie has alleged them, and, in the absence of amendment, may fail because of a variance, though the facts proved show substantially the same cause of action shown by the facts alleged. The two sets of facts may show substantially the same cause of action, and yet the proof of one will not sustain the allegation of the other. Not so with the test of an amendment. To avoid a variance is not the least important of the offices of an amendment. Davis v. Hill, 41 N. H. 329. So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action.” In this opinion the early rule laid down by Judge Lumpkin in Maxwell v. Harrison, 8. Ga. 61 (52 Am. D. 385), is reverted to and approvingly quoted as follows: “The true criterion for determining whether an amendment is admissible, we take to be this —whether the amendment proposed is another cause of controversy, or whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof and the merits of his case. For, while the plaintiff can not introduce, an entirely new cause of action, he may nevertheless add a new count, substantially different from the declaration, provided he adheres to the original cause of action.” The identity of the cause of action can in any case be best determined by applying the test as to whether the same or a different wrong is involved. In the instant case the essential wrong complained of is the loss of the uninsured property at a time when, by the agreement of defendant, she had promised or guaranteed that the purchased policy would protect it. In the case of City of Columbus v. Anglin, supra, the following language is used: “A number of tests have been suggested for determining whether an amendment adds a new cause of action. One general test is said to be, ‘whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.’ 1 Enc. Pl. & Pr. 564. Other tests, some of them admittedly fallible, have been suggested in different cases, as (1) whether the original petition and the amendment would be sub ject to the same plea (Goddard v. Perkins, 9 N. H. 488); (2) whether the same evidence would support both (Scovill v. Glasner, 79 Mo. 449); (3) whether the same measure of damages is applicable to both (Hurst v. Railway, 84 Mich. 539 [48 N. W. 44]); (4) whether both could have been pleaded cumulatively in the same count (Richardson v. Fenner, 10 La. Ann. 600); (5) whether an adjudication upon one would bar a suit under the other (Davis v. Railroad Co., 110 N. Y. 646 [17 N R. 733]). Of these the last mentioned is probably the best and most useful, though even it comes back at last to the question whether the cause of action is the same.” Applying these tests, although in a measure they be admittedly fallible, the cause of action alleged and the one proved in the case at bar would appear identical.

3. The evidence shows that at a date not named, but manifestly long subsequent to the consummation of the sale of the house and lot and of the insurance policy, the agent of the purchaser made request of the agent who had negotiated the sale of the real estate and of the insurance, for the surrender of the policy, in order that it might be “strengthened,” and that the latter replied that he would “look after that.” We do not think the conversation as here outlined was sufficient to constitute a contract which could even be the basis of an action for a failure to increase the insurance, were the present suit maintained for that purpose. The subject-matter of the alleged agreement was in no wise entered into as to the period, rate, and amount of the insurance; and such would have been necessary in order to render a promise of this sort binding. But in no event do we think that such an agreement on the part of E. Tris Napier would bind his alleged principal, Mrs. Napier, unless his authority so to promise be specifically shown. Under the evidence it appears that E. Tris Napier was the special agent of his wife to deliver the bond for title and effect a sale of the policy of insurance. This is manifested by the testimony of the plaintiff’s agent when, at the time of the sale, he interrogated E. Tris Napier as to whether Mrs. Napier had personally signed the bond for title and was informed that she had. The plea and answer of the defendant having itself alleged the sale and transfer of the unexpired term of the insurance policy, thus' impliedly admitting the authority of her agent to make the same, the plaintiff is thus relieved from proving the authority of her agent in so doing. As a general proposition, however, those dealing with a special agent are bound to ascertain his authority; and while the agent of the defendant may have been authorized to execute a definite contract, which had been fully consummated, it does not follow that he had continuing authority to make an independent and supplemental agreement, though it might relate to the same subject-matter. The fact that E. J. Kinney, a witness for the defendant, testified that Mr. Napier was acting as agent for his wife throughout this transaction is not sufficient proof, of his authority so to act. In the case-of Neal v. Patten, 40 Ga. 363, the court held: “A witness may state that one acted as agent, but this does not show his power to act, nor the extent of the authority;” and further the court said: "The fact that he acted as agent does not prove his power to act any more than the fact that he sold proves his power to sell.” The evidence does not disclose any other proof than this of any authority on the part of defendant’s agent, except what may be presumed by the admission in her answer already referred to.

It is contended by counsel for defendant in error that the entire transaction shows such agency as should bind the defendant, but, as already stated, the mere fact that another may so act does not of itself prove the authority to act. The fact that the alleged agent in. this case is the husband of the principal does not in any_ wise alter the rule. In the case of Mickleberry v. O’Neal, 98 Ga. 42, 51 (25 S. E. 933), the court said: “A husband may be the agent of his wife. If he professes to act as her agent, those dealing with him are bound to inquire as to his authority to act for her.” Nor can agency be proved by declarations or conduct of the alleged agent. Americas Oil Co. v. Gurr, 114 Ga. 624 (40 S. E. 780). Therefore we are of the opinion that the ansswer of E. Tris Napier to the' request for the delivery of the policy for the purpose of strengthening it could in no event bind the alleged principal in the absence of proof of his authority to make the 'statement then made by him.

4. There is no reversible error in the portions .of the charge of the court complained of. It is not good practice for the judge, in his charge, to refer to contentions of the pleadings not supported by proof, for while such instructions may correctly state the law in the abstract, the jury might reasonably be misled thereby; but we think it apparent in the present case that the caution given in reference to such statement of the contentions made by the petition, some of which are' not supported as pleaded, was sufficient to prevent the jury from being misled. The language used by him, just referred to, was as follows: “I have thus submitted to you an epitome, an outline, a synopsis of the pleadings, the contentions of the parties to the case. . . You will not take the statement on the part of the court, of the pleadings in the case, as having any evidentiary force or value whatever.”

5. If, when the sale of the policy of insurance was effected, the defendant, by her agent, expressly stated that the unexpired term thereof extended for four and a half years, and accepted payment on that basis, we think the purchaser had a right to rely upon that statement as forming an integral part of the contract of purchase; it being shown that the seller retained possession of the policy, and it not appearing that the policy was present at the time. In Burge v. Stroberg, 42 Ga. 88, the court said: “While representations made at the time of sale may amount to fraud, the right of action on the breach exists under the law upon the contract, irrespective of such fraud on the part of the seller.” See also Terhune v. Dever, 36 Ga. 648. Nor does it matter that such misstatements on the part of the seller were unintentionally and innocently made (Newman v. Claflin Co., 107 Ga. 89, 32 S. E. 943); nor that they were' made by her agent when the agent was clothed with authority to effect such sale. Alpha Mills v. Watertown Steam Engine Co., 116 N. C. 797 (21 S. E. 917); Darks v. Scudder-Gale Grocery Co., 146 Mo. App. 246 (130 S. W. 430); First National Bank v. Robinson, 105 Iowa, 463 (75 N. W. 334) ; Miller Supply Co. v. Limestone Mining Co., 159 Ky. 696 (167 S. W. 889); Haynor Mfg. Co. v. Davis, 147 N. C. 267 (61 S. E. 54, 17 L. R. A. (N. S.) 193).

Where express representations constituting a part of the contract áre made by the seller as to the existence of a fact, in contradistinction to the statement of a mere opinion or judgment, the purchaser ordinarily has a right to rely thereon. Benjamin on Sales (7th ed.), § 613; North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. (N. S.) 235); Springer v. Indianapolis Brewing Co., 126 Ga. 321 (4), 323 (55 S. E. 53); Fletcher v. Young, 69 Ga. 591; Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E. 143); Cook v. Finch, 117 Ga. 541 (44 S. E. 95); Christian v. Knight, 128 Ga. 501 (57 S. E. 763); Burr v. Atlanta Paper Co., 2 Ga. App. 52 (58 S. E. 373). And the fact that the policy appears to have been cancelled and returned to the seller, together with the unearned premium thereon, prior to the expiration of the four and a half years, does not affect the defendant’s liability, where it is shown that she not only inadvertently retained the returned premium, but even failed to notify the plaintiff of such lapse or cancellation. Under the facts as outlined, the duty was certainly imposed upon her of at least giving notice to the plaintiff of such cancellation; and herein lies the strongest and most undoubted equity in her favor which the facts of the ease disclose.

Judgment affirmed.

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


text:
    7657.
    Grantville Oil Mills v. Hogansville Oil Mill Company.
   Jenkins, J.

1. Where a petition shows that by one contract the plaintiff agreed to deliver to the defendant fifty tons of cottonseed at a stated price, and, by a subsequent contract with the defendant, obligated himself to furnish fifty tons of cottonseed at an agreed price, each of the contracts must be construed as entire; and no compliance with the terms of either is shown where the allegations of the petition show that the seller 'tendered under the first contract forty-one and two thirds tons of cottonseed, and subsequently, under the second contract, tendered fifty-four and eight ninths tons. Under these facts, as disclosed by the'plaintiff’s petition, the provisions of section 4131 of the Civil Code of 1910 have no application, as the purchaser had the right to treat each of' the contracts as breached, and to refuse acceptance of both tenders. Brunswig v. East Point Milling Co., 11 Ga. App. 9 (74 S. E. 448) ; Cartersville Grocery Co. v. Rowland, 17 Ga. App. 42 (86 S. E. 402) ; DeVaughan v. Ohio Pottery & Glass Co., 12 Ga. App. 50 (76 S. E. 793) ; Green v. Freeman, 126 Ga. 274 (55 S. E. 45, 7 Ann. Cas. 1069); Central Georgia Brick Co. v. Carolina Portland Cement Co., 136 Ga. 693 (71 S. E. 1048).

2. Especially is this true under the facts of this case, where the petition shows on its face that the tender of the seed was accompanied by a draft for payment which included an overcharge of $343.06. Kaufman v. Austin, 57 Ga. 87; Johnson v. Latimer, 71 Ga. 470.

3. The fact that the contract may have provided that the weights were to be guaranteed by the seller does not alter the rule here followed as announced by numerous decisions of our courts. Such a provision would operate as an express warranty of the correctness of the weights of such shipments, but would not relieve the seller from a substantial compliance with the terms of the contract.

Decided February 16, 1917.

Action on contract; from city court of Newnan—Judge Post. June 16, 1916.

Hall & Jones, for plaintiff in error. W. G. Post, contra.

4. This case being controlled by the rulings cited, the judge erred in refusing to sustain the demurrer to the petition.

Judgment reversed.

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


text:
    7698.
    Christofield v. Street & Company.
    Decided February 16, 1917.
    Certiorari; from Laurens superior court—Judge Kent. June 15,-1916.

      Gamp & Twitty, for plaintiff in error.

      M. H. BlacJcsheaf, contra.
   Jenkins, J.

The clerk having informed the court, upon the call of this ease, that the costs had not been paid, and the case having been submitted upon briefs, subject to the condition that the costs be paid within ten days, and it appearing that they have not been paid, the writ of error is, in accordance with rule 17 of this court, dismissed.

Writ of error dismissed,

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


text:
    7743.
    Byrd & Company v. Interstate Chemical Company.
    Decided February 16, 1917.
   Bloodworth, J.

The defendant in execution having failed to make the sheriff of the county a party to the traverse, of the entry of service (Civil Code, § 5566),-and having failed to give the sheriff any notice whatever thereof, the entry of service appearing to haye been made by a deputy sheriff, who was made a party, the illegality proceeding could have had no other legal termination than in favor of the defendant in error. Georgia Railway & Power Co. v. Davis, 14 Ga. App. 790 (82 S. E. 387); Rawlings v. Brown, 15 Ga. App. 162 (3), 164 (82 S. E. 803); Citizens Bank of Bainbridge v. Fort, 15 Ga. App. 427 (83 S. E. 678) ; Southern States Phosphate & Fertilizer Co. v. Clark, ante, 376. While this fatal defect should properly have been reached by a timely motion to strike the traverse, yet under the facts of the case the court did not err in directing, upon motion, a verdict for the plaintiff in execution and against the affidavit of illegality. .

Judgment affirmed.

Broyles, P. J., and Jenhms, J., concur.

Affidavit of illegality; from city court of Nashville—Judge Christian. June 21, 1915. , .

J. D. Lovett, for plaintiff in error.' W. B. Smith, contra.


text:
    8222.
    CENTRAL OF GEORGIA RAILWAY CO. v. LARSEN.
    The verdict approved by the trial judge was not without evidence to- support it; there was no error in overruling the general demurrer, and the charge of the court correctly stated the rules of law applicable to the issues involved.
    Decided February 16, 1917.
    Action for damages; from Johnson- superior court—Judge Graham. December 15, 1915.

      Saffold & Jordan, for plaintiff in error.

      Hines & Jordan, B. H. Moye, W. W. Larsen, contra.
   Jenkins, J.

Mrs. Rebie Parkér Larsen brought suit against the Central of Georgia Railway Company, under sections 4424 and 4425 of the Civil Code of 1910, for the homicide of her husband, W. T. Larsen, who was killed by a collision with a passenger-train of the defendant at a public crossing while driving an automobile. The plaintiff alleged, in her petition, that the defendant failed to observe, any of the requirements of section 2675 of the Civil Code, known as the “blow-post law,” but that the engineer in charge of the train at the time of the collision, ran it over the said crossing at a high and reckless rate of speed, to wit, at the rate of forty miles per hour; that the servants in charge of the train did not blow the whistle of give any other signal of its approach to the crossing, from the time the blow-post was reached until the crossing was passed; and that the engineer in charge of the train did not, on arriving at the blow-post, check and continue to check its speed as required by law, so as to be able to prevent such a collision. The petition alleged that the plaintiff’s deceased husband was twenty-seven years of age at the time of his death, and was at that time earning $300 per month in the practice of law, and alleged the -full value of his life to be $39,725. The petition further alleged as follows: At the time of his death said W. T. Larsen was traveling in an automobile, going from Dublin, via Scott, Georgia, to Swainsboro, Georgia, and had to cross the railway of said company at the point where said public road, known as the National Highway, crosses the railway of said company after leaving Scott, Georgia. Where said railway crosses said public road is near the foot of a hill. To the right of said public highway, as a traveler approaches said crossing from the west, the hill is of such elevation as to prevent him. from seeing a train approaching from the point east of said crossing. Said public road whereon said Larsen was traveling and approaching said crossing from the west is in a cut three or four feet deep. The embankment of said cut and the elevation of said hill preclude travelers from seeing a train approaching said crossing from the east. Said railway to the east of said crossing is likewise in a cut for some distance; and this fact keeps a traveler, approaching said crossing from the west, from seeing and hearing an approaching train. There is likewise an embankment to the right of said public road as it approaches said crossing, which prevents a traveler approaching the same from seeing and hearing the approach of a train from the east. Said W. T. Larsen was not acquainted with the public road and with the location of said public road and said railway as to each other, not having traveled the same before said date. On approaching said crossing he was prevented from seeing and hearing the approach of said passenger-train of said company by reason of the facts hereinbefore stated. Said public road approaches said crossing in a cut with an embankment to its right, as already stated, and on the left there is a ditch, leading from said public road to the said ditch of the road-bed of said railway. This ditch at the point of intersection with the railway is about ninety feet from the crossing. Between said ditch and said crossing there are a stump, a branch, and other obstructions, on the left of said public highway. On the right of said public road and near to said public crossing are a telephone pole and said embankment. These obstructions on both sides of said public road, on the right of way of said railway and within fifty feet of said crossing, prevent a traveler in an automobile, or other vehicle, from turning to the left or the right to prevent a collision with any train of said company, passing over said crossing; and these obstructions prevented the said W. T. Larsen from cutting to one side in order to escape a collision with said west-bound passenger-train. Said W. T. Larsen was traveling at a rate of speed not exceeding twelve miles per hour until he got within eighty-nine feet of said crossing, when he discovered said' west-bound passenger-train rapidly approaching. ■ He immediately applied his brakes to his autombolie, and brought it almost to a stop as the train reached said crossing. He furthermore turned his automobile to the right, down the side of the track of said railway, and almost escaped entirely a collision with said passenger-train. The engine and tender of said passenger-train struck and collided with the left front wheel of said automobile and threw and hurled him from said automobile to the ground and under said train, whereby he was killed. His left arm and right foot were cut off by the wheels of said train, his body was torn and lacerated, and his skull crushed; from which wounds he shortly died.

The defendant filed a general demurrer, alleging, that the petition set forth no cause of action, and that it showed on its face that the plaintiff was not entitled to recover. There was also a special demurrer on various grounds. The court overruled the general demurrer, and sustained some of the grounds of the special demurrer and overruled others.

The evidence for the plaintiff appears to have fully substantiated all the material allegations of negligence herein mentioned. C. W. Turner, who was an occupant of the automobile, testified substantially to all the facts set forth in the petition. According to his evidence, the train, on passing the crossing where the collision occurred, maintained a speed of thirty or forty miles per hour, and despite the fact that the tender of the locomotive was derailed on account of the collision, the train continued to run for a distance of 800 feet from the crossing before it could be brought to a stop. He further testified that no signal of any sort was given by the locomotive before reaching the crossing. This witness testified that in his opinion the automobile, had it not collided with the tender of the locomotive, would have been brought to a stop within five or six feet beyond the crossing. On cross-examination' he stated, as his opinion, that the cross sign-post or danger signal at the crossing could have been seen at a distance of 150 yards up the road from the direction in which the crossing was approached, and that the automobile, running at the speed testified to, prior to the accident, could have been brought to a standstill within a distance of 100 feet.

The only other evidence offered, relating to the accident, was the testimony of Mrs. Anna Horton, who stated that she lived about 300 yards from the crossing where the collision occurred, and that she saw the train right after it had passed the signal-post on its approach to the crossing; that the whistle of the locomotive was not blown as it reached the blow-post, but was blown one time only,— about half way between the blow-post and the crossing; that the train was going unusually fast, probably at a rate of thirty-five miles per hour, and that she was attracted by its making a most unusual noise. Whether the signal referred to by her was given after the danger to the decedent had been discovered, and the unusual noise referred to was occasioned by an attempt to stop the train after that time, is a matter of conjecture only. There was evidence showing that the earnings of decedent at the time of his death, amounted to $2,500 per year, with the reasonable prospect of increased earning capacity, and that his health at that time was good.

No evidence was introduced on behalf of the defendant, and a motion for nonsuit having been made and refused, at the conclusion of the plaintiff’s testimony, the case was submitted to a jury, who found for the plaintiff in the sum of $15,000. Counsel for the defendant made a motion for a new trial upon the usual grounds, and upon the further ground that the court erred in charging conjunctively sections 4426 and 2781 of the Civil Code of 1910, the charge of the court being as follows: “No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agent of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.' If the plaintiff’s husband by ordinary care could have avoided the consequences to himself caused by the defendant’s alleged negligence, plaintiff is not entitled to recover, but in other eases the defendant would not be relieved, although the plaintiff’s husband may in some way have contributed to the alleged injury sustained.” Error is assigned on the ground that in charging these two sections together, the court confused and misled the jury, caused them to believe that the negligence or want of ordinary care on the part of deceased was to be considered only in the reduction of damages; that the jury, being misled by said charge, did not consider that if it appeared that the deceased, by the exercise of ordinary care, could have prevented the injury, although the railroad was negligent, the plaintiff could not recover, and that the stating of these two sections of the code in immediate connection and without explanation con-' fused two separate and distinct defenses, and was calculated to mislead the jury.

1. While at common law, if the negligence of the plaintiff contributed to the injury, he could not recover, in this State the liability of railroad companies for injury done by them to persons or property has been modified so that the law governing such liability is as follows: Under the provisions of section 3781 of the Civil Code, no person shall recover damages from a railroad company for injury done to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agent of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him. The doctrine usually referred to as that of contributory negligence is not the law of this State, inasmuch as that term, properly used, expresses not such negligence as would diminish, but only such negligence as would preclude a recovery. The doctrine which here obtains can be and is more accurately and properly designated as that of comparative negligence. Western & A. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S. E. 306, 54 L. R. A. 802); Christian v. Macon Ry. & Light Co., 120 Ga. 314 (47 S. E. 923); Ga. & Fla. Ry. v. Newton, 140 Ga. 463 (79 S. E. 142); Louisville & N. R. Co. v. Stafford, 146 Ga. 206 (91 S. E. 29). Thus, if the plaintiff and the defendant were both negligent, the former can recover, unless his negligence was equal to or greater than the negligence of the defendant; except that-this rule is further qualified by section 4426 of the Civil Code, in which it is provided that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Western & A. R. Co. v. Ferguson, supra; Georgia Railroad Co. v. Neely, 56 Ga. 540, 544; Central R. Co. v. Harris, 76 Ga. 501, 508; Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105); Briscoe v. Southern Railway Co., 103 Ga. 224, 227 (28 S. E. 638); Central Ry. Co. v. Dorsey, 106 Ga. 826, 828 (32 S. E. 873); Hopkins v. Southern Railway Co., 110 Ga. 85, 88 (35 S. E. 307); Atlanta &c. R. Co. v. Loftin, 86 Ga. 43, 45 (12 S. E. 186); Brunswick &c. R. Co. v. Gibson, 97 Ga. 489, 497 (25 S. E. 484); Cain v. Macon &c. R. Co., 97 Ga. 298 (22 S. E. 918); W. & A. R. Co. v. Bradford, 113 Ga. 276 (38 S. E. 823). The rule .stated in section 4426, however, applies only where the defendant’s negligence became apparent to the person injured, or where, by the exercise of ordinary care, he could have become aware of it, and he thereafter failed to. exercise ordinary and reasonable diligence to avoid the consequences of the defendant’s negligence. Brunswick R. Co. v. Gibson, supra; Central R. Co. v. Attaway, 90 Ga. 656, 661 (16 S. E. 956); Comer v. Barfield, 102 Ga. 485, 489 (31 S. E. 89); Macon &c. R. Co. v. Holmes, 103 Ga. 655, 658 (30 S. E. 563); W. & A. R. Co. v. Ferguson, supra; Atlanta &c. R. Co. v. Lovelace, 121 Ga. 487 (49 S. E. 607); Atlanta &c. Ry. Co. v. Gardner, 122 Ga. 82 (4), 98 (49 S. E. 818); Central Ry. Co. v. Pelfry, 11 Ga. App. 119, 122 (74 S. E. 854); Collins v. Augusia-Aiken Ry. &c. Co., 13 Ga. App. 124, 128 (78 S. E. 944); Williams v. Southern Ry. Co., 126 Ga. 711 (55 S. E. 948).

Thus, it will be seen that a plaintiff can recover partial damages for injuries caused by the negligence of a railway company, notwithstanding his own fault, which might in some less degree have contributed thereto, provided that he exercised ordinary and reasonable caution to avoid the consequences of the defendant’s negligence, after it had or should have become apparent. Ordinarily the question of negligence, both on the part of the plaintiff and the defendant, is an issue to be determined by'the jury, but where the plaintiff’s petition shows on its face that he has no right to recover-, and this question is raised by general demurrer, it is the duty of the court to sustain the demurrer and dismiss the petition. Ga. Pacific R. Co. v. Richardson, 80 Ga. 727 (7 S. E. 119); 2 Hopkins on Personal Injuries (2d ed.), 1074, § 521, citing Hill v. L. & N. R. Co., 124 Ga. 243 (52 S. E. 651); Freeman v. Savannah Electric Co., 130 Ga. 449, 451 (60 S. E. 1042). If, therefore, the allegations of the plaintiff’s petition should themselves disclose the fact that the collision was brought about by th? violation, on the part of the decedent, of the statute of this Stat« governing the operation of automobiles, such fault on Ms part would constitute negligence per se, and, if such negligence was the proximate cause of the injury, would bar a recovery in a suit by his widow.

The act of 1910, governing the operation of automobiles in this State (Acts 1910, p. 90, sec. 5), provides, that “no person shall operate a machine on any of the highways of this State as described in this act at a° rate of speed greater than is reasonable and proper, having regard for the traffic and use of such highway,.so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent, or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour.” It is insisted by counsel for the plaintiff in error that the petition of the plaintiff shows on its face that the injury was occasioned by the violation on the part 'of the decedent of these provisions of the act, and that he was guilty of negligence per se in driving the automobile down the descent referred to, without having it under control, and at a rate of speed greater than six miles per hour; and further, that he was guilty of negligence per se under the statute in that he in like manner approached the railroad crossing where the accident occurred. The act of 1910 regulating the driving of automobiles on the public highways in no wise supersedes the law governing the liability of a railway company for injuries to persons driving such machines, other than to render the nonobservance of certain duties therein imposed negligence per se. The act recognizes that the drivers of automobiles have equal right to the-use of public highways with other persons, but it provides that this right shall be exercised in the manner by it prescribed, and the failure to comply with the requirements prescribed by the act constitutes negligence as a matter of law. Sheppard v. Johnson, 11 Ga. App. 280 (75 S. E. 348). But we know of no distinction recognized by law whereby the plaintiff’s right to recover is affected in a greater or less degree according to whether negligence on Ms part follows as a matter of law from a fact proved, or whether the question of negligence as well as the fact itself is a matter to be determined by a jury. The difference between negligence per se and other negligence is in the mode of establishing negligence. In the one ease the law itself establishes negligence when a certain act or omission is proved, while ordinarily the question whether a proved fact constitutes negligence is left to the determination of a jury. Whether negligence be established in the one mode or in the other makes no difference in its legal effect when established.

Analyzing the provisions of section 5 of this law regulating the driving of automobiles, we find the requirements of that section to be as follows: (1) No person shall operate a machine on any of the highways of this State at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway. (2) No person shall operate a machine on any highway of this State so as to endanger the life or limb of any person or the safety' of any property. (3) On approaching a bridge, dam, high embankment, sharp curve, descent, or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under qontrol and operate it at a speed not greater than six miles per hour. It is manifest that in the first two provisions of this section, as we have divided it for the purpose of discussion, it is a question of fact for the jury, and not one of law for the court, whether a person is op'erating such a machine at a rate of speed greater than is reasonable and proper, or so as to endanger life, limb, or property. In the cases of Empire Life Ins. Co. v. Allen, 141 Ga. 413 (81 S. E. 120), and Hayes v. State, 11 Ga. App. 371 (75 S. E. 523), these provisions are declared to be too uncertain and indefinite in their terms to be capable of penal enforcement, although the measure of care prescribed in the act is sufficient to furnish a rule of civil conduct. Strickland v. Whatley, 142 Ga. 802 (83 S. E. 856). Coming now to the third division of section 5, we find it provided, among other requirements, that the driver of an automobile, in approaching a descent or railroad crossing, shall have his machine under control, and operate it at a rate of speed not greater than six miles per hour. The statute being penal,, a strict construction is required. See Renfroe v. Colquitt, 74 Ga. 618; Mayor &c. of Atlanta v. White, 33 Ga. 229. It will be observed that the statute provides that on approaching a descent in the road, or a railway crossing, the rules prescribed must be observed. The statute does not in fact require that a speed of six miles per hour shall be maintained while the machine is making the descent of a hill or incline; and we think this construction is based upon good reason; the object of the statute, in this respect, being to require the traveler, on approaching the crest of a hill, and before commencing the descent, to slow down his car in order to ascertain whether some other person, whom he could not theretofore discern, might be using the highway on its incline. If, however, this requirement of the law be complied with, there is nothing therein that makes it necessary to maintain such a reduced-speed down the incline, in the absence of some special cause therefor. We therefore do not think that as a matter of law the fact that the decedent might have descended the incline just prior to the accident at a greater speed than six miles per hour could be adjudged negligence per se. The statute, however, further requires that in approaching a railway crossing, such reduced speed shall be maintained, and that the driver of the machine must in such case have his car under control.

Counsel for the plaintiff in error analogizes these requirements of the automobile statute to those governing railroads under the blow-post law (Civil Code, § 2675). That section provides as follows: “There must be fixed on the line of said roads and at a distance of four hundred yards from the center of each of such road crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road.” It is argued by counsel that the clear intent of the automobile statute necessarily requires the driver of such a machine, in approaching a railroad crossing, to be able to stop his car before reaching the crossing, should it at any time be necessary to do so to prevent a collision, just as it is specifically provided in the case of trains. It will be observed that the statute applying to railway companies prescribes the exact distance at which the engineer shall commence to check his train, and specifically requires him to be able to stop it before reaching the crossing, should circumstances require, whereas the statute for the regulation of the approach of automobiles to such crossings is indefinite as to the point at which the speed shall be reduced, and does not by its terms require that the driver shall be able to stop the automobile before reaching the crossing. It is strongly insisted, however, that the only reasonable purpose of the statute in regulating the speed of the car and requiring it to be under control on approaching ^a crossing must be to require the driver to be able to stop it before reaching the crossing, should emergency require.

Under the petition in the instant case the car was driven at a rate of speed of about twelve miles per hour until it approached within eighty-nine feet of the railroad track, after which, it appears, the driver of the car used every possible endeavor to avoid a collision with the train, and so reduced the speed of the automobile as to almost prevent the collision. The contention of the plaintiff in error is that the speed should have been reduced in approaching the crossing at a distance greater than eighty-nine feet, for the reason that the facts set forth show that eighty-nine feet was not a sufficient distance in which the ear could be brought to a stop, and therefore, as a matter of law, the court should have held that the car approached the crossing at an excessive, speed, and was not at that time under the control of the driver. This contention is earnestly and ably presented by counsel, and the conclusion we have reached has not been arrived at without difficulty. If, however, we should accept the reasoning of counsel in this contention and decide that the petition should have been dismissed, because, as a matter of law, the conduct of the plaintiff constituted such negligence per se as would bar his recovery, then it would indeed be difficult to conceive where, under this principle, the driver of an automobile would be entitled to recover by virtue of any degree of negligence on the part of the railroad in violating its duties pertaining to the approach of trains to public crossings. The logic of such a ruling would be to require such a driver in all cases and at all times to be in a position to bring his car to a stop before arriving at a crossing, and in fact actually so to do whenever necessary to avoid the consequences of the company’s negligence. Such a construction takes into account nothing of the doctrine of comparative negligence, takes from the jury all right to determine whether the negligence of the decedent constituted the proximate cause of the injury, and leaves out of account all question as to. the exercise of proper prudence on the part of the decedent after the negligence of the defendant had been, or should have been, discovered.

We are therefore brought to the conclusion that the opinion rendered on November 18, 1916, by our Supreme Court, in the case of L. & N. R. Co. v. Stafford, supra, must control our decision in the present case. In the case just referred to the facts outlined are in many respects identical with those of the instant case. In that case error was assigned on a refusal of the CQurt to charge as follows: “If you find, from the evidence in this case, that the plaintiff did not have his automobile under control, or was operating it at a rate of speed greater than six miles per hour, at the time he approached the railroad crossing, then I charge you that in either event he would not be in the exercise of ordinary care for his safety, and would not be entitled to recover in this case, and your verdict would be for the defendant.” Mr. Justice Atkinson, in the opinion, speaks as follows: “The request to charge does not properly apply these principles to the facts of the case. The railroad company might be negligent per se in violating the city ordinance and the statute 'in regard to running trains over public crossings, and the plaintiff might be negligent per se in violating the statute in regard to running automobiles while approaching and crossing railroad tracks, but it would not necessarily follow that the negligence of the plaintiff would bo the proximate cause of the injury, or that it would be as great as that of the defendant, or that the plaintiff by the exercise of ordinary care could have avoided the consequence of the defendant’s negligence after it commenced or became apparent, or the circumstances would have afforded reason to apprehend its existence. The question of negligence and the degree of negligence of the respective parties would be for the jury under the particular facts. The railroad company could be guilty of negligence per se, under the city ordinance, in failing to toll thé bell and in running its train over the crossing at a speed slightly over five miles per hour; but the jury could say that it would be .guilty of a greater degree of negligence by failing to toll the bell, and in running the train over the crossing at twenty-five or thirty miles per hour. And the plaintiff would be guilty of negligence per se in approaching the crossing at a greater rate of speed than the statute prescribed, but the degree of' his negligence would in all cases depend on the circumstances. If there was no train in the vicinity, no danger from disobeying the statute would exist. If not otherwise negligent, his negligence would consist in disobeying the statute. As the circumstances -might enhance the danger his negligence would increase; but whether it should bar a recovery under the circumstances must be left to the jury. So also the time when the negligence of the defendant came into existence and was apparent or should have been apprehended, and whether after -it became so the plaintiff by the exercise of ordinary care could have 'avoided the consequences- thereof to himself, were questions for the jury. The evidence reported in the statement of facts, concerning the circumstances in which the injury was committed, was not sufficient, under the application of the foregoing principles, to take .the case from the jury. As the requested charge, if given, would have invaded the province of the jury, it was properly refused.” For the reasons which we have stated and in the light of the decision of our Supreme Court just quoted from, we think the trial judge did not err in overruling the general demurrer. The request of counsel, under the provisions of section 6355 of the Civil Code, that the Supreme Court be asked to overrule or modify its ruling in the case of L. & N. R. Co. v. Stafford, supra, is denied.

2. The error complained of in the matter of overruling the special demurrers not having been in any wise argued by counsel in their briefs, under the rulings of this court these contentions must be treated as abandoned.

3. There was no error commuted by the trial judge in the charge complained of in the fourth ground of the amended motion for new trial. Mr. Justice Hill, in the case of the Central of Ga. Ry. Co. v. Brown, 138 Ga 107 (3); 110 (74 S. E. 839), has thoroughly discussed the question there raised, and, after distinguishing certain earlier decisions of the Supreme Court, has shown such a charge to be without error.

4. The testimony amply supported the verdict, and there was no error in refusing to set same aside for lack of evidence, or on the ground that the amount of the recovery was excessive.

Judgment affirmed.

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