text:
    10720.
    Atlanta Coca-Cola Bottling Co. v. Danneman.
   Jenkins, P. J.

1. An accident may arise from a mere casualty for which no one is to blame, or it may be brought about by the acts or conduct of persons other than the defendant charged with the duty of providing or maintaining the instrumentality causing the injury, or it may be occasioned by reason of the conduct of the defendant himself, or by the joint action of the plaintiff and defendant. Whenever the allegations of the petition, or the facts shown in support thereof, are such as might reasonably support the inference that the ' accident might have been thus occasioned, no presumption can arise that the accident was occasioned by negligence or by the particular acts or omissions charged against the defendant. Chenall v. Palmer Brick Co., 117 Ga. 106 (43 S. E. 443). But where the event is unusual and extraordinary in its nature, and there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty of the particular acts dr omissions set forth by the plaintiff as constituting the actual cause, then the jury is authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur, in determining whether or not the accident must have been thus occasioned (Central Railway Co. v. Blackman, 7 Ga. App. 766 (5), 68 S. E. 339), and if the jury should decide that it had been thus brought about, and should further determine that such casual acts or omissions on the part of the defendant constituted negligence, then the plaintiff would be entitled to recover. Augusta Railway & Electric Co. v. Weekly, 124 Ga. 384 (2) (52 S. E. 442). The contention of plaintiff in error in this case, that the doctrine of res ipsa loquitur can not have application, unless, in the opinion of the jury, the circumstances are such as to exclude every other reasonable hypothesis as to the cause of the accident save the alleged negligence of the defendant, is met under the foregoing rule. Just as in civil cases facts are proved by a mere preponderance of evidence, so in the application of this doctrine, if in the opinion of the jury the most reasonable and most probable inference which can be drawn from the nature and character of such an extraordinary event is that it would not and could not have happened had not the defendant been guilty of the particular conduct charged, then there has been an exclusion in their minds of every other reasonable hypothesis, not by evidence, but by virtue of the peculiar nature and character of the event speaking for itself.

2. Where an action is brought to recover damages for an injury resulting in the loss of an eye, caused by the explosion of a bottle, the contents of which had been bottled and sold by the defendant as a harmless beverage, and where it is alleged and shown that the bottle had been properly handled in the usual and customary way after it left the defendant’s hands, and that it was not subjected to any unusual atmo? phoric condition, the jury would be authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur in establishing the allegation's of negligence charged against the defendant as constituting the cause of the accident, to the effect that the bottle was too highly and dangerously charged with gas, and that the bottle used and furnished by the defendant was of inferior material, and for that reason unable to withstand the pressure of the gas. Payne v. Rome Coca-Cola Co., 10 Ga. App. 762; (73 S. E. 1087) ; Commerce Bottling Co. v. Farabee, 17 Ga. App. 487 (87 S. E. 720).

3. Where the defendant undertakes to exonerate itself from the blame which the jury is thus authorized to infer, by showing to their satisfaction that the defendant had exercised on its part all the diligence which the law required of it (Palmer Brick Co. v. Chenall, 119 Ga. 837, 842, 47 S. E. 329), in that the bottle had been skilfully and properly charged in accordance with the most approved and scientific process, and that the bottle furnished to the plaintiff did not disclose any inherent defect or weakness, and had been purchased as a sound and suitable article from a reputable dealer, but where the evidence of the defendant entirely fails to thus account for the particular bottle causing the accident, and on the contrary it appears ■ that the bottle had not been thus purchased by the defendant from a reputable dealer, and Was in fact a refilled bottle originally purchased by some other bottling concern from persons unknown to the defendant, then, under the particular facts as thus disclosed, it can not be said that the defense sought to be interposed has been established.

Decided March 11, 1920.

Action for damages; from city court of Atlanta — Judge Eeid. June 14, 1919.

Candler, Thomson & Hirsch, for plaintiff in error.

Westmoreland, Anderson & Smith, Dorsey, Shelton & Dorsey, L. J. Grossman, contra.

4. Under the state of facts testified to, the plaintiff in this case was not dependent upon the application of the doctrine res ipsa loquitur in order to establish his case, since there was direct proof going to show the defective character of the bottle.

5. There was no substantial error in the charge of the court, which fairly and correctly submitted the issues in accordance with the rules of law above indicated.

Judgment affirmed.

Stephens and Smith, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    10728.
    Southern Railway Co. v. Bunch.
   Jenkins, P. J.

The petition as amended alleges, in substance, that two separate shipments of toys were sent from Chicago to the owner at Augusta, Georgia; that the goods were received by the defendant company as the last connecting carrier, and were held in its warehouse at Augusta for a stated long and unreasonable period, without notice to him, although it was the custom at Augusta for railroad companies receiving freight to notify consignees immediately after its arrival; that he was an old citizen of Augusta and had been a merchant there for the past eighteen years, and his name and address were in the city directory, and the defendant knew, or by the exercise of ordinary care and diligence could have known, his address; that after the arrival of this freight he was told repeatedly, in reply to inquiries, at the defendant’s freight office and depot, that it had not arrived; that he informed the defendant that one of the boxes of toys had been purchased by him for the Christmas trade; that when finally notified of its arrival he complained to the defendant of the long delay in giving him notice, and the defendant notified him that he could get the goods only by paying certain storage charges in addition to the freight. The petition further alleges, as to the second shipment, that had the defendant given him prompt notice of the arrival of the goods, he could have disposed of them at a profit; that the goods contained in the first shipment were not salable by him except for the Christmas trade; that the goods in the last shipment could have been sold by him had they been promptly delivered, but not later; that because of the alleged unreasonable delay the plaintiff refused to accept the goods, as they were at that time “valueless to him;” that the defendant was negligent because of the unreasonable delay in notifying him of the receipt of the goods, and not allowing him to receive his goods within a reasonable time after their arrival, and by reason thereof he was damaged in the sum of $450. To the petition as amended the defendant demurred, upon the ground that it failed to set out a cause of action, the trial court overruled the demurrer, and the defendant excepted. Held:

Decided March 11, 1920.

Action for damages; from Richmond superior court — Judge Henry C. Hammond. ' June 14, 1919.

Cumming & Harper, for plaintiff in error.

Henry C. Roney, contra.

1. “The general rule is that the measure of damages for unreasonable delay by a common carrier in the delivery of goods shipped is the difference between their market value when they should have been delivered and their market value when they were delivered, with interest from the former date, less the freight, if unpaid” (Southern Express Co. v. Hanaw, 134 Ga. 445, 459, 67 S, E. 944, 137 Am. St. R. 227; Civil Code of 1910, § 2773; Southern Railway Co. v. Bloch, 18 Ga. 2pp. 769, 90 S. E. 656) ; and in the absence of a special contract, this measure of damages by delay is exclusive. Wilenski v. Central Railway Co., 136 Ga. 889, 893, (72 S. E. 418, Ann. Cas. 1912 D, 271) ; Columbus & Western Railway v. Flournoy, 75 Ga. 745. If the delivery of goods has been, unreasonably delayed by the carrier, the owner must sue for the damages prescribed in section 2773 of the Civil Code, since mere unreasonable delay in transporting does not amount to conversion, so as to authorize the consignee, upon the arrival of the goods, to reject them and sue for their value on that theory. Southern Express Co., v. Hanaw, supra; Wilenski v. Central Railway Co., supra.

2.. As held by this court in a former suit between the same parties respecting the same transaction (Southern Railway Co. v. Bunch, 22 Ga. App. 42, 95 S. E. 323), the suit as now brought is for damages for an unreasonable delay in delivering shipments, and not for a conversion. The petition having alleged the contract of carriage, the duty owing by the defendant to the plaintiff, the breach of the contract, and the resulting breach of duty, and alleging generally that the plaintiff was damaged in the sum of $450 by reason of such breach, it was sufficient to sustain at least a recovery for nominal damages, and the court did not err in overruling the general demurrer thereto. That the plaintiff went further and undertook specifically to state what would be erroneous elements of such damage, and how and wherein they accrued; was matter for special demurrer. Moss v. Fortson, 99 Ga. 496, 499 (27 S. E. 745) : Sutton v. Southern Railway Co., 101 Ga. 776 (29 S. E. 53) ; Graham v. Macon, D. S. R. Co., 120 Ga. 757 (49 S. E. 75).

Judgment affirmed.

Stephens and Smith, JJ., concur.


author: Smith, J.

text:
    10750.
    Smith v. Jones Brothers.
    Decided March 11, 1920.
    Levy and claim; from city court of Carrollton — Judge Beall. June 23, 1919.

      Smith & Smith, for plaintiff in error.

      Boykin & Boykin, contra.
   Smith, J.

The evidence supported the verdict, and, there being no error of law committed, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and, Stephens, J., concur.


text:
    10754.
    Atkinson v. Sommer.
    Decided March 11, 1920.
    Trover; from Pulaski superior court—Judge Graham. June 21, 1919.

      H. G. Coates, for plaintiff in error.

      H. F. Lawson, contra.
   Jenkins, P. J.

1. Considering the alleged newly discovered evidence set out in the only special ground of the motion for a new trial, in connection with the defendant’s own testimony, it is clearly apparent that by the exercise of proper diligence its existence would have been revealed ‘ to the defendant prior to the time of the trial; and it therefore furnishes no sufficient ground to set aside the verdict. Rothschild v. Arenson, 22 Ga. App. 337 (96 S. E. 14).

2. There being sufficient evidence to support the verdict, which has the approval of the trial judge, his judgment overruling the motion for a new trial can not be disturbed.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10760.
    Quinan v. Standard Fuel Supply Company.
   Jenkins, P. J.

1. Where a corporation contracts with an individual exercising an independent employment, for him to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor’s own methods and not subject to the employer’s control or orders except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or of his servants (Civil Code of 1910, § 4414; Atlanta & Fla. R. Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231; Fulton County Street R. Co. v. McConnell, 87 Ga. 756, 13 S. E. 828; Ridgeway v. Downing Co., 109 Ga. 591, 34 S. E. 1628) ; and the mere fact that the employer may have had an agent who supervised the work for the purpose merely of seeing that it was done in conformity to the contract, without interfering as to the particular method in which it was to be done or the means by which the given result was to be accomplished, would not in law be such control and direction of the work by the employer as would render him responsible for the manner in which the work was done. Harrison v. Kiser, 79 Ga. 588 (4 S. E. 320) ; Louisville v. Nashville R. Co. v. Hughes, 134 Ga. 75 (67 S. E. 542). But the employer is liable for the negligence of the contractor if he retains the right to direct or control the time and manner of executing the work, or interferes and assumes control, so as to create the relation of master and servant. Civil Code (1910), § 4415; Savannah &c. R. Co. v. Phillips, 90 Ga. 829 (17 S. E. 82); Johnson v. Western & Atlantic R. Co., 4 Ga. App. 131 (60 S. E. 1023); International Agricultural Corporation v. Suber, 24 Ga. App. 445 (101 S. E. 300).

Decided March 11, 1920.

Action for damages; from city court of Savannah — Judge Freeman. May 27, 1919.

W. J. Quinan sued the Standard Fuel Supply Company, a corporation, for damages on account of personal 'injuries, alleged to have been caused by negligence of one Powers, who it was alleged was the vice-principal and alter ego of the defendant, and the negligence of others working under his orders. It appears -that the plaintiff was an employee of the American International Shipbuilding Corporation, and at the time of the injury was engaged in checking certain piling which that company had contracted with the defendant to unload from cars, the alleged improper and negligent unloading of which the plaintiff contends caused the injury. The defendant contended that Powers, its alleged vice-principal, was not in fact such, but was an independent contractor on the work and in the exercise of an independent business, and was not subject to the immediate direction or control of the defendant, and therefore that the defendant was not liable for negligence on the part of Powers or his servants. Upon this issue the following evidence was introduced: The plaintiff testified : “Mr. Powers was looking after the work there as foreman for the Standard Fuel Supply Company. The contract was taken away from Eamsey and given to the Standard Fuel Supply Company and Mr. Powers came there as foreman of the job. The men were working under his direction. . . The Standard Fuel Supply Company were doing this work. I knew Mr. Powers was in charge as their foreman. I knew Powers was foreman because Mr. Eoss, chief in charge of the American International Shipbuilding Corporation that I reported to, he told me the Standard Fuel Supply Company had taken over the contract. The darkies were all under his direction. He was the man who gave them directions. Mr. Salas [president of the defendant company] visited the dock two or three times a day and conferred with Mr. Powers. Mr. Salas was not giving the darkies any directions. I never saw Mr. Salas give anybody instructions. Mr. Powers was the only man giving instructions to men on that particular work. . . I knew Mr. Powers as a wharf builder and contractor all my life. I knew he had taken other jobs for Mr. Salas, and that he had taken jobs for himself. I know the relations between them by the pay-roll of the Standard Fuel Supply Company showing Mr. Powers as their foreman. I did not know so definitely at the time. I knew Mr. Powers was in control of the work, but I was not told that the contract was turned over to Mr. Powers, but to the Standard Fuel Supply Company.” W. II. Patterson Jr. testified: “I was with the government. . . That is my signature to a contract between the government and Mr. Salas for unloading this piling and loading the vessel. Mr. Powers was down there as Mr. Salas’ foreman, and when I had any instructions for Mr. Powers, I was compelled to communicate them through Mr. Salas. When I went to him he would say ‘Tell Mr. Salas and he will tell me.’ I knew Mr. Powers in the contract as Mr. Salas’ foreman. I made this contract on behalf of the United States Shipping Board with the Standard Fuel Supply Company. I knew Mr. Powers was in charge of the work. I saw him there every day. I knew nothing about the arrangement between him and Mr. Salas except as stated in the bill. My information is that he was not an independent contractor. I. don’t know the arrangement between them for doing this work. I knew nothing about their private arrangement. Mr. Powers actually directed the work. I had no contract with Mr. Powers. I know absolutely nothing about the contract or relation between Mr. Salas and Mr. Powers. I have known Mr. Powers probably twenty-five years. I have known him as a contractor. When I would approach Mr. Powers he would tell me to see Mr. Salas. Mr. Salas told me nothing about the arrangement. . . I had supposed Mr. Powers was foreman at all times. If the contention is that Mr. Powers was doing the work as a subcontractor, I see no reason why they should put him down as foreman. . . This bill was rendered by the Standard Fuel Supply Company. I 0. K.’d that bill as correct according to his say so. . . This contract provides for compensation to the Standard Fuel Supply Compa-at $1.37% a piling by the piece. . . This bill for 2,000 or 1,800 represents Sunday work. The Standard billed us for $1.37% plus one-half of that, and I objected to it. I told him I wanted the bill based on the actual cost of the labor. I paid the Standard for it. It was charged for at the rate of $12 a day, but that was after the work was over. . . I don’t think he [Powers] would be put down as foreman if he- was a subcontractor. If he was put down as subcontractor I don’t suppose his time would have been paid for, but they might have used some other method. I have no interest in it at all. I am speaking of the bill in black and white. I understood Mr. Powers as foreman, first, last, and all the time. If I thought the work was not going fast enough, or wanted a little extra work done, and if Mr. Salas happened to be in New York, I had to wait to see him. Mr. Salas did not give any orders within my hearing as to the mechanical details, as to how the work should be done. When he came there I was not with him. When I complained about the work not being fast enough, Mr. Powers would tell me to see Mr. Salas.” The plaintiff introduced in evidence the contract between the defendant and the United States Shipping Board, and a bill rendered by the defendant to. the American International Shipbuilding Corporation for work performed on Sunday, containing an item as follows:

2. Applying the foregoing rulings to the proof submitted in this case, together with all reasonable deductions and inferences to he drawn therefrom, it was a question for the jury to determine whether or not the alleged foreman and alter ego of the defendant was in fact such, or whether he was, as contended by the defendant, an independent contractor; and if the latter, whether the defendant retained, or interfered and- assumed, the right to direct- and control the time and manner of executing the work. The court therefore erred in directing a verdict for the defendant upon the theory that the alleged injury was inflicted by an independent contractor.

Judgment reversed.

Stephens and Smith, JJ., concur.

“D. Power, foreman, two Sundays at $12.00, $24.00.”

David Powers,, in behalf of the defendant, testified: “I am pile-driver, wharf builder, and sometime stevedore. I have been in business for myself some twenty-one or twenty-two years. I recall this particular contract under which I was working at this dock with Mr. Salas. The contract was that Mr. Salas would furnish the money and two big lighters, I to furnish everything else, on a fifty-fifty basis, I to get half the profits and bear half the losses if any. I employed the men. I discharged them. The Standard Fuel Supply Company didn’t have a thing to do with that. All correspondence was done with Mr. Salas, Standard Fuel Supply Company. I paid the men off on Saturday, either at the dock or at Tom Curry’s. They did not state who I was to hire or discharge; I had full right of way on that. On this bill on which I am put down as foreman I did not get that money. I have not settled up on this case yet. I am to get one-half. We worked on a fifty-fifty basis. . . I am not Mr. Salas’ foreman. I never -was his foreman in any of this work ■—• that’s according to my contention. At no time was I foreman from the time I took this subcontract with the Standard Fuel Supply Company up to the time this man wras hurt, except it was stated on that bill. I ought to have something for my services. He billed the government per piling first, and they objected to that, and said to send in actual labor. He put me in as foreman. . . He told me that he was going to furnish the money and turn the balance over to me. He had nothing to do with anything else. We did things for Mr. Patterson until I found him undermining me with another stevedore, and after that I says, ‘Mr. Patterson, you go to Mr. Salas — he is the boss of this proposition.’ He was fixing up that I was not competent, and wanted 'to get somebody else. I did that after I found him out.” E. S. Salas, sworn in behalf of the defendant, testified: “I am president of the Standard Fuel Supply Company. I made this contract with the Hnited States Shipping Board. . . I talked with Powers, and he said he would take the job on a fifty-fifty basis. He has been in the contracting business for twenty years to my knowledge. Not in years has he been foreman for me. He has done joint contract work of this kind. Hnder the contract I furnished two lighters and the money. I had nothing to do with the employment or discharging of the men. I had nothing to do with the actual work. I went there once or twice a day to keep Patterson straight. He was very contentious. It was the only way to keep the bill correct for the government to put him in as foreman on Sunday. They would not work on Sundays for the wages they got every day in the week. There was no way except to charge for every man actually engaged on the work. Mr. Powers was one of the men. Our contract calls for fifty-fifty, and that goes into the general fund of the earnings and losses of the transaction—-it was absolutely fifty-fifty. Powers was to get half the profits and bear half the losses. He was a partner of mine. .1 financed and let him have the two lighters. . . I had to put him on there as foreman. I could not get pay for his work on Sunday otherwise. How could I do otherwise? How am I going to let men work' there and not charge for it? It was a verbal agreement for Sunday work; this was extra work. That contract is for week-day work-—'there is nothing in there about it.- The Shipping Board called for Sunday work. They said, ‘We will pay you for all men working there Sundays.’ I made the contract with Patterson — United States Shipping Board. . . The contract was based on

the piling and this was based on the work. That contract did not cover Sunday work. Patterson said, ‘The only way I will settle is per hour for each man.’ ”

At the close of the evidence the court directed a verdict in favor of the defendant, on its motion based upon the ground that the evidence showed that the injury in question was inflicted by an independent contractor and the defendant was not liable.

Shelby Myrick, for plaintiff.

Lawton & Cunningham, for defendant.


text:
    10849.
    Southern Express Co. v. Cummings.
   Smith, J.

1. The petition set out a cause of action, and the court properly overruled the demurrer interposed thereto.

2. Under the facts developed, in this case, which was a suit for personal injuries, the principle of law, that if both the plaintiff and the defendant were equally negligent in causing the injury there can be no recovery (Pickett v. Central Railway Co., 138 Ga. 177, 181, and cit., 74 S. E. 1027, Ann. Cas. 1913 C, 1380), was germane, and the trial judge erred in refusing to give the timely requested instruction embodying this legal doctrine, which was couched in appropriate form and language, and was not covered by his charge to the jury.

Decided March 11, 1920.

Action for damages; from city court of Bichmond county — Judge Black. July 30, 1919.

The petition of Cummings against the Southern Express Company alleged, in substance: On September 19, 1917, the plaintiff was in the employ of the Union Station Company in the City of Augusta, as truckman for unloading baggage from incoming trains and loading baggage on outgoing trains. Shortly before 5 o’clock on that day he and a coemployee of the Union Station Company, named Jim Berry, took out a truck and put it in the proper and usual position on the cement platform in the said station, between the tracks, in order to remove the baggage from train No. 4 of the Georgia Bailroad, due to arrive about that time. While waiting for the train he took his seat, as usual and customary, on his truck, the truck being so placed as to allow ample space for the passage of any other truck on the cement pave-: ment between the tracks; and while so seated on his truck, in the line of his business and duty, his leg was badly injured and cut by the defendant’s truck, which was being pulled along the said cement pavement by a man employed as truckman by the defendant and at the time engaged directly in the defendant’s business. This truckman (whose name is unknown to the plaintiff) was a new hand at such work, and was pulling his truck and not looking behind to see how close he was coming to the truck on which the plaintiff was sitting, and negligently ran the wheel of his truck against the plaintiff’s leg while the plaintiff was seated on the platform of his own truck. The plaintiff did not have opportunity or time to remove his leg after seeing the imminent danger of being struck by the wheel of the defendant’s truck, and had no reason to suppose that the defendant’s truckman would run his truck so close to the truck' on which the plaintiff was sitting as to strike the plaintiff’s leg, inasmuch as there was ample passageway for the defendant’s truck if the defendant’s .truck-man had noticed what he was doing. The plaintiff’s leg was badly cut and injured, and by reason of the injury he was unable to work for several weeks, and suffered intense pain. The injury was caused without negligence on his part, and by' the negligence of the defendant’s employee. It was negligence on the part of the said employee to pull his truck so close to the truck on which the plaintiff was sitting, the plaintiff’s position on the truck being in full view of the defendant’s truckman; and it was negligence on the part of the defendant’s truckman to come hurriedly down the said cement platform between the tracks, pulling his truck, without looking back to see that the truck should not come in contact with the plaintiff’s truck, which was standing still, with the plaintiff seated on it. By reason of the injury the plaintiff has been damaged in the sum of $500,'for which he prays judgment.

3. The other assignments of error contained in the amendment to the motion for a new trial are without substantial merit, as the written requests to charge set out therein are sufficiently covered by the general charge of the court.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

The defendant demurred on the grounds: (1) No''cause of action is set out in the petition. (2) No act of the defendant or its employees was the proximate cause of the injury. (3) It appears that the plaintiff’s own act was the proximate causé 'of the injury. (4) The plaintiff’s failure to exercise due care for his own safety, commensurate with the circumstances, was alone responsible for the injury. The court overruled the demurrer. The trial resulted in a verdict for the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted.

William K. Miller, for plaintiff in error.

William H. Fleming, contra.


text:
    10850.
    Higdon v. Bell.
   Jenkins, P. J.

1. While any act of the creditor, either before or aftei judgment against, the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge the surety (Civil Code of 1910, § 3544), the mere fact that the holder of a note in good faith accepts payment thereof from the maker at a time when the maker is insolvent, so that such payment is voidable in the event of the maker’s bankruptcy, and is thereafter actually avoided by his trustee or voluntarily surrendered to the trustee by the holder, will not discharge the nóte or release a surety thereon. That the creditor, at the time such payment was made and accepted, may have known of the maker’s insolvency will not alter the rule; for there might never be any bankruptcy proceeding instituted against the maker, and in that event the payment would be a valid one; and a refusal upon the part of the creditor to accept it might in fact release the indorsers. Harner v. Batdorf, 35 Ohio St. 113; Second National Bank v. Prewett, 117 Tenn. 1 (96 S. W. 334, 119 Am. St. R. 987, 9 L. R. A. (N. S.) 581, and note). The excerpt from the charge of the court complained of in the 5th special ground of the motion for a new trial, being in substantial accord with the ruling here announced, is not erroneous.

2. Nor would failure of the holder of the note to prove his debt in bankruptcy against the principal debtor, after having surrendered such a payment as that referred to above, operate to discharge the surety. This is true for the reason that the creditor’s mere non-action or failure to prosecute with vigor his legal remedies will not release the surety, unless based upon a consideration paid by the principal debtor to the creditor, or unless the creditor is notified under the statute to collect the debt. Civil Code (1910), § 3544; Jordan v. Farmers & Merchants Bank, 5 Ga. App. 244 (5) (62 S. E. 1024); Yerxa v. Ruthruff, 19 N. D. 13 (120 N. W. 758, 25 L. R. A. (N. S.) 139, 141, and note); Lumsden v. Leonard, 55 Ga. 374; Williams v. Kennedy, 134 Ga. 339, 344 (67 S. E. 821) ; McMillan v. Heard National Bank, 19 Ga. App. 148, 153 (91 S. E. 235).

3. While, under the provisions of the Civil Code (1910), § 3566, “A surety suing for contribution must first account for all money or other thing received from the principal to indemnify him against loss,” under the evidence adduced xrpon the trial of this case the jury were authorized to find that the plaintiff had in fact accounted for everything of value that he had received; and under the rulings announced in this and the two preceding paragraphs, the 1st, 2d, 3d, 4th, and 7th grounds of the amendment to the motion for a new trial, which are merely amplifications of the general grounds, are without merit.

4. At common law contribution could be enforced only for the aliquot share of each, reckoned as if all were solvent (13 C. J. 825, § 10; Hall v. Harris, 6 Ga. App. 822, 826, 65 S. E. 1086), and the doctrine of the common law, not expressly repealed by statute, is still of force in this State. Park’s Ann. Code, § 1 (3), and note; Westmoreland v. Powell, 59 Ga. 256 (3). The only amendment or modification of this common-law rule, governing the amount which each of the cosureties must contribute to the one who has paid more than his equal share of the. indebtedness, is found in the Civil Code (1910), § 3564, which provides that If one of the cosureties be insolvent, the deficiency in his share must be borne equally by the solvent sureties.” While the opinion in the case of Hall v. Harris, supra, contains the following quotation from 9 Cyc. 800: “ Each c'o-obligor is liable to contribute in proportion to his share of the common debt or obligation, but in determining the proportion which a debtor should contribute, regard will be had to only the solvent debtors, and to those within the jurisdiction of the court called upon to enforce contribution” (italics ours), and while this appears to be the rule in some jurisdictions, such, under the doctrine of the common law as of force here, is not the rule in this State; and the statement quoted, that regard will be had only “ to those within the jurisdiction of the court called upon to enforce contribution,” was merely obiter, since no such question was involved in that case.

Decided March 11, 1920.

Complaint; from Grady superior court-—Judge Harrell. June 25, 1919.

The Higdon Trading Company, a corporation of the State of Florida, executed a promissory note for $2,000 to the Dutton Bank of Gainesville, Florida, indorsed by the plaintiff W. S. Bell and T. J. Terry, residents of that State, and by the defendant, Joe Higdon, a resident of Grady countj', Georgia. When the note became due it was protested for non-payment, and on demand the plaintiff paid to the bank the principal sum of $2,000 and $21.60 interest and took up the note, and this suit was brought in the superior court of Grady county to recover a half of the amount thus paid, with interest thereon, less a credit of $75 which the plaintiff had realized from certain collateral. From the evidence on the trial it appeared that shortly after paying the note, the plaintiff received from the maker certain live stock, goods, and merchandise of the value of about $1,500, and notes 'and mortgages aggregating about $2,600, constituting assets of the corporation, which were to be applied by the plaintiff to his reimbursement as realized upon; that afterwards the Higdon Trading Company was adjudicated a bankrupt, and, in settlement of proceedings in the bankruptcy court to recover of the plaintiff the assets turned over to him by the bankrupt, he paid to the trustee in bankruptcy $900, which he testified represented all he ever realized from the sale of the property turned over to him by the bankrupt. He testified that the only sum realized from the notes and mortgages was the $75 credited on the note, and that the remainder of the notes' and mortgages turned over to him were worthless, being either barred by the statute of limitations when he received them or against insolvent persons, and therefore uneollectable. The verdict was in favor of the plaintiff, for the full amount sued for. The defendant made a motion for a new trial, contending therein that the verdict was contrary to law and the evidence, for the reason that the act of the plaintiff, which was without the defendant’s knowledge or consent, in demanding and receiving from the maker of the note $4,000 worth of its assets, rendered the maker insolvent, and caused it to commit an act of bankruptcy, thereby increasing the defendant’s risk as surety and exposing him to greater liability, and that he was therefore discharged from liability ; that the $4,000 worth of assets were delivered by the maker of the note to the plaintiff in payment of the note, and the 'defendant was thereby discharged from liability to make contribution; that the plaintiff failed to account to the defendant for any of the property received by the plaintiff, and therefore could not maintain the present suit for contribution; and that the failure of the plaintiff to prove his claim against the bankrupt’s estate, after having surrendered to the bankruptcy court the value of the property received by him, increased the defendant’s risk as cosurety and discharged him.

(a) In this case there was no evidence whatever tending to show that the non-resident surety was insolvent, and the court therefore erred in charging the jury as complained of in the 6th special ground of the motion for a new trial. The verdict in favor of the plaintiff against the defendant, who was one of the three sureties, ■ being for $973.35 principal and $545.06 interest, one half of the amount paid by the plaintiff in discharge of the principal’s indebtedness, together with interest thereon, is therefore contrary to law; but if the plaintiff will, at the time the remittitur is made the judgment of the court below, write off from the judgment rendered the sum of $506.14, thus reducing the judgment to $1,012.27, principal and interest, nr to one third of the amount paid by the plaintiff, together with interest thereon, there being sufficient evidence to authorize a verdict for the plaintiff for that amount, the judgment will stand affirmed; otherwise it is reversed. It is further ordered that the costs of the writ of error be taxed against the defendant in error.

Judgment affirmed, on condition.

Stephens and Smith, JJ., concur.

In the 5th special ground of the motion' for a new trial the defendant excepts to the charge of the court to the effect that if the maker of the note, while insolvent, paid to the plaintiff any amount, either in goods or money, as a payment on the note, and the plaintiff was thereafter compelled to pay over to the bankrupt court any such amount thus received from the maker, the amount so paid should not be credited as a payment on the note, and would not release or discharge the indorsers from their liability to contribute to tbe plaintiff.' In the 6tli special ground the defendant excepts to the charge of the court to the effect that if the jury should find that T. J. Terry resided without the’ State of Georgia, the fact that he may have been an indorser on the note should not be considered by the jury in determining what would be the liability, if any, of Higdon to contribute to the plaintiff. The court overruled the motion for a new trial, and the defendant excepted.

Titus, Dekle & Hopkins, Ledford & Christopher, for plaintiff in error.

Chris Mathewson, Bell & Weathers, contra.


text:
    10855.
    Central of Georgia Railway Co. v. Poole.
   Jenkins, P. J.

1. This court has held as the law of the ease that the petition sets forth a cause of action. See Poole v. Central of Georgia Ry. Co., 23 Ga. App. 285 (97 S. E. 886), in which the main allegations of the petition are set forth. The .defendant now seeks to have a judgment in the plaintiff’s favor set aside on a motion containing the general grounds only.

2. While it is a well-settled rule that where the evidence of a plaintiff or a defendant is contradictory within itself, vague, or equivocal, it must be construed most strongly against him (Watkins v. Woodbery, 24 Ga. App. 80, 100 S. E. 34 (5)), this principle of law does not govern or control this case under its facts. While in one instance the plaintiff swore on cross-examination, “I don’t know what struck me,” every fact and every circumstance testified to both by the plaintiff and by every other witness tends abundantly to show that the plaintiff was struck at night by a backing freight car, and was, as he says, “ dragged by the ‘car ” along the track a considerable distance, mashing his foot to such an extent as to necessitate its amputation. The one instance in which he used the words first quoted, when construed in connection with the entire evidence in the case, including the plaintiff’s own evidence, and with especial reference to the plaintiff’s evidence as given in immediate connection with the expression quoted, must necessarily be taken to mean that'he did not know what hit him in the sense that he did not directly see the impact at the time it unexpectedly occurred. The same reasoning applies to the plaintiff’s expression, in answer to a propounded question, “ The one next to. the depot was the side-track upon which I stood.” The plaintiff had specifically fixed his position at the time of the accident as being one foot or two feet from the sidetrack,” and in answer to another question stated, “I was nearer to the track than 1 was to the door.” The answer first quoted must, therefore, in fairness, be taken to have special reference to which track was being testified about) rather than to his exact position in reference thereto. The plaintiff repeatedly testified in substance that he was standing somewhere near in front of the waiting-room. The fact that while testifying to this fact, and insisting that such was the case, he may have failed to designate such position correctly by indicating it with a cross-mark on a rather small photograph of the locality, when requested, to do so by the defendant’s counsel, need not necessarily bring the evidence of the plaintiff within the application of the legal rule above stated, especially as the plaintiff, an old man, protested his inability to thus correctly designate his position, for the reason that he could not well see the photograph.

Decided March 11, 1920.

Action for damages; from city court of Oglethorpe —Judge Moon presiding. July 22,1919.

Yeomans & Wilkinson, for plaintiff in error.

Hatcher & Smith, contra.

3. The plaintiff could not, under any view of the testimony given in this case, be accounted as a trespasser; the verdict is not without evidence to support it; it has the approval of the trial judge, and this court does not feel authorized to set it aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10862.
    Smith v. Savannah Electric Company.
   Smith, J.

1. Where in an action for damages against a street-railway company, brought by a passenger claiming an unlawful eviction from a street-car, the defendant filed an answer admitting that the plaintiff was a passenger on its ear and that she was evicted therefrom, but claiming that the eviction was fully justified because she refused to move to the proper place in the car, and acted in such- a disorderly-manner that the defendant was compelled, in the interest of decency and good order, to remove her from the car, this was-a good plea of justification, which admitted a prima facie ease in favor of the plaintiff, entitling the defendant to the opening and conclusion of the argument. Civil Code (1910), §§ 4488, 5746.

2. The court did not err in overruling the objection to the evidence of Robert H. Davis, a witness for the defendant, as set out in the 5 th ground of the motion for a new trial. The evidence of this witness tended to show that the plaintiff was present at the time of the conversation about which the witness testified, and that she heard it or could have heard it.

3. The court did not err in sustaining the objection to the-question propounded to tlie witness Hodges, “ Did you see this darkey [referring to plaintiff] doing anything annoying?” This question called for a conelusion of the witness, and it does not appear from the exception taken what the answer of the witness would have been.

Decided March 11, 1920.

Action for damages; from city court of Savannah — Judge Rourke. June 4, 1919.

4. The court did not err in refusing to allow the witness Fountain, on cross-examination, to testify as to the contents of a written report. The writing was the best evidence of its contents.

5. The assignment of error upon the admission of the evidence of the witnesses Fountain and Davis will not be considered, as the. evidence alleged to have been illegally admitted was not set forth literally, or its substance clearly stated, either in the motion'for a new trial or in the bill of exceptions. See Civil Code (1910), § 6083; Pearson v. Brown, 105 Ga. 802 (1) (31 S. E. 746) ; Hicks v. Mather, 107 Ga. 77 (1) (32 S. E. 901) ; Georgia Nor. Ry. Co. v. Hutchins, 119 Ga. 504 (5) (46 S. E. 659) ; Hicks v. Webb, 127 Ga. 170 (5) (56 S. E. 307).

6. The court did not err in not charging the jury as follows: “The defendant has admitted a prima facie case; which means in law that defendant has admitted all the facts in plaintiff’s petition except its liability, which admission entitles plaintiff to a verdict unless defendant by a preponderance of the evidence shows that it was justified under the law in doing the acts complained of.” There was no written request so to charge; and besides, to have charged in this language would have been error. The plea of justification does not admit all the facts in the plaintiff’s petition, but admits only a prima facie case, and claims justification on the part of the defendant. To have admitted all the facts set out in the petition would have excluded the defendant from any defense. This the law does not require.

7. The principles of law embodied in the requests to charge set out in the 10th and 11th grounds of the motion for a new trial, in so far as they were applicable to the facts in this case, were covered by the charge of the court.

8. The excerpts from the charge of the court complained of in grounds 12, 13, 15, and 16 (designated as 17), taken in connection with the remainder of the charge, contain no reversible error.

9. It is immaterial whether the alleged ordinance of the City of Savannah, referred to by the judge in his charge, was legally in evidence or not, inasmuch as it is admitted by the plaintiff, in her own evidence, that the rule made by the alleged ordinance was known to and recognized by her. The 14th ground of the motion for a new trial is therefore without merit.

10. There was evidence to sustain the verdict, the charge of the court fully submitted to the jury all the material issues in the case, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

W. B. Stubbs, F. A. Tuten, for plaintiff. .

Osborne, Lawrence & Abrahams, for defendant.


text:
    10871.
    Cochran v. Meeks, et al.

   Jenkins, P. J.

This was a suit to recover back the purchase-price paid for a number of bales of cotton, the plaintiff contending that in his purchase he was defrauded by reason of the seller’s false and fraudulent substitution of samples, on the basis of which the purchase was made. The plaintiff alleged that promptly upon discovering the fraud he offered to restore the property to the defendant, and that he held it as the property of the defendant, for the use and benefit and subject to the order of the defendant. Held:

1. While a mere “breach of warranty does not annul an executed sale, but gives the purchaser a right to damages where the contract price has been fully paid; or he may plead in abatement of the purchase-money when sued therefor” (Pound v. Williams, 119 Ga. 904 (47 S. E. 218) ; Civil Code of 1910, § 4136), still, if the sale has been induced by fraudulent representations on the part of the seller as to existing conditions, a contract may be rescinded at the instance of the purchaser, upon his promptly restoring or offering to restore the property received by virtue of the contract; and, upon this being done, the purchaser, without taking any independent proceeding in equity to rescind the contract, is entitled to recover the amount of the purchase-price actually paid by him. Civil Code (1910), §§ 4305, 4306; Fudge v. Kelly, 4 Ga. App. 630 (62 S. E. 96); 39 Cyc. 1997 (b). The demurrer to the petition was properly overruled.

2. The evidence objected to in the first special ground of the motion for a new trial was admissible, in connection with other testimony in the case, as tending to throw light on the main contention of the plaintiff; the evidence of the plaintiff objected to in the second and fourth special grounds of the motion was inadmissible as being hearsay, but since the same fact was testified to by the person thus quoted, and the letter quoted from was afterwards itself introduced, a new trial will not be granted on these grounds. Daughtry v. Savannah &c. Railway Co., 1 Ga. App. 393 (3) (58 S. E. 230). The evidence objected to in the third special ground was admissible as a part of the history of the transaction; but even if it were irrelevant, it could not have been harmful to the defendant.

3. The excerpts from the charge of the court complained of in the sixth and seventh special grounds of the motion for a new trial, in which were given certain principles of law relative to fraud as embodied in the code, were not erroneous, but were applicable to the case.

4. The portions of the charge complained of in the eighth and ninth special grounds of the motion do not afford ground for a new trial, since the plaintiff, if entitled to recover at all, was entitled to recover the full amount sued for.

Decided March 11, 1920.

Action of deceit; from city court of Waycross — H. M. Wilson, judge pro hac vice. April 28, 1919.

A. E. Cochran, W. A. Milton, for plaintiff in error.

Parker & Parker, A. B. Spence, contra.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10883.
    Truitt v. Rust & Shelburne Sales Co.
    Decided March 11, 1920.
    ' Attachment; from city court of LaGrange — Judge Moon. March 11, 1920.

      M. U. Mooly, for plaintilf.

      Hatton Lovejoy, Little, Powell, Smith & Goldstein, for defendant.
   Jenkins, P. J.

1. In a purchaser’s suit for damages because of the failure of the seller to deliver the goods in accordance with the terms of the contract of sale, generally the measure of damages is the difference between the contract price and the market price at the time and place of delivery. Sizer v. Melton, 129 Ga. 143 (7) (58 S. E. 1055); Harwood Lumber Co. v. Adam, 134 Ga. 821 (1) (68 S. E. 725) ; Civil Code (1910), § 4131. “The purchaser of goods cannot recover of the seller damages for non-delivery measured by Ms profits on a particular contract of resale and by his losses on account of inability to perform that contract, unless the seller at the time of making the contract of sale had notice of such contract of resale.” Wappoo Mills v. Guano Co., 91 Ga. 396 (18 S. E. 108; Hardwood Lumber Co. v. Adam, 134 Ga. 821, 825 (68 S. E. 725, 32 L. R. A. (N. S.) 192).

2. Where the petition cannot be construed as asking for general or nominal damages, but is expressly limited to a prayer for special damages only, and these are not recoverable, the suit is not maintainable, and is subject to be dismissed on demurrer. Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728 (72 S. E. 179) ; Hadden v. Southern Messenger Service, 135 Ga. 372 (69 S. E. 480).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10889.
    Hines, director-general, v. Wilson, by next friend.
    Decided March 11, 1920.
    Action for damages; from Henry superior court — Judge Searcy. August 2, 1919.
    Application for certiorari was denied by the Supreme Court.

      Harris, Harris & Witman, E. M. Smith, Paul Turner, for plaintiff in error.

      Reagan & Reagan, contra.
   Smith, J.

• 1. The petition as amended was good as against both the general and special demurrers, and the court did not err in overruling the same.

2. Every thoroughfare which is used by the public and is common to all the public, and which the public has the right to use, is a highway.” Southern Ry. Co. v. Combs, 124 Ga. 1004 (53 S. E. 508).

3. “ A highway may have its origin in a .legislative act, or in the order of a court of competent jurisdiction, or may come into existence by dedi-. cation or by prescription.” Southern Ry. Co. v. Combs, supra.

4. “ While in some particulars certain excerpts from the charge of the court which were assigned as error in some of the grounds of the motion for a new trial are subject to criticism, yet when the charges to which exceptions were taken are read in connection with the evidence and the entire charge, none of them contain errors requiring a reversal; nor are they of a character which renders their separate discussion necessary or beneficial. Mere space-consuming elaboration is not always necessary or desirable.” Ferguson v. Westcott, 145 Ga. 276 (1) (88 S. E. 932).

5. In view of the charge given by the court and in the light of the evidence, the court did not err in refusing to give the several instructions requested by the defendant.

6. Where a passenger in an automobile is injured by reason of the negligence of a railway company in failing to keep its crossing in repair, the mere fact that the vehicle has not been registered in the office of the secretary of State, and a license obtained, and a license fee paid as required by law (Ga. L. Ex. Sess. 1915, p. 107), will not render the person so injured a trespasser, and bar her right of recovery against the railway company for negligence. See Central of Georgia Ry. Co. v. Moore, 149 Ga. 581 (102 S. E. 168).

7. The evidence was sufficient to support the verdict, and there was no error in refusing to grant the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10888.
    Hines, director-general, v. Swint, by next friend.
    Decided March 11, 1920.
    Action for damages; from Henry superior court —Judge Searcy. August 2, 1919.

      Harris, Harris & Witman, E. M. Smith, Paul Turner, for plaintiff in error.

      Reagan & Reagan, contra.
   Smith, J.

The ruling in the ease of Hines v. Wilson, ante, 63, is controlling in this case.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10917.
    CITY OF SANDERSVILLE v. MOYE.
    Decided March 11, 1920.
    1. A cause of action against the city was stated hy the petition as amended, from which it appeared that the plaintiff’s minor son, when riding a bicycle on a sidewalk near the entrance of public-school grounds, was killed by electricity on coming in contact, with an electric-light post charged with the current from wires insufficiently insulated, which it was alleged had been allowed to remain in that condition an unreasonable length of time. The trial judge did not err in overruling the general and special demurrers to the petition.
    2. The excerpts from the charge of the court which are complained of contain correct statements of law applicable to the,case; and if any further or additional instructions were desired, the trial judge should have been presented with appropriate written requests so to charge.
    3. The failure of the court to give certain instructions to the jury, as complained of in the motion for a new trial, is not cause for a new trial, as there was ho appropriate written request for such instructions, and, in the charge of the court all the substantial issues in the case were fully and fairly submitted to the jury, with the law applicable thereto.
    4. The court did not err in admitting the testimony of. W. M. Goodman, counsel for the defendant, and in permitting counsel for the plaintiff to examine into the qualifications of jurors about to try the case. The note of the judge in approving the motion for a new trial clearly and fully explains the matter and shows that upon an examination as to the qualifications of the jurors, some of them were found to be disqualified.
    5. The evidence, while conflicting, was sufficient to authorize the verdict, and the court did not err in overruling the motion for a new trial.

      Action for damages; from city court of Sandersville — Judge Jordan. August 6, 1919.
    Headnote 4 relates to a ground of the motion for a new trial in which it is alleged that the court erred in calling to the stand W. M. Goodwin, counsel for the defendant, and requiring him to testify in the presence of the jury to the effect that the United States Fidelity & Guaranty Company was interested in the defense of this case, and had aided in the employment of counsel for the defense; “the error being that the minds of the jury were improperly affected by such conduct on the part of the court as to who the true defendant was, and a further error being that if the facts elicited from said counsel . . were true, it was
    improper to have the same appear from the testimony of counsel representing the defendant.” As to this ground the trial judge, in a note to the motion for a new trial, says: “When the case was sounded for trial, counsel for plaintiff asked counsel for the defendant whom they represented, the reply being they represented the City of Sandersville; whereupon counsel for plaintiff asked counsel for defendant by whom they were employed, intimating that a bond company or surety company was the real client. The court sent the jury out, as the court wished to exclude from the jury the fact that the City of Sandersville had a bond in a surety company protecting them from liability. The proposition then came up as to purging the jury of all disqualified jurors, counsel for plaintiff insisting that in order to obtain a qualified jury it was necessary to ascertain if any jurors were stockholders, employees or relatives of stockholders in the bond company. The court then ordered the jurors that had been sent out to return to the court-room. At this juncture counsel for defendant made the point that it did not appear to the court that any parties were interested in the case except the plaintiff and .the defendant (the court knew by rumor only that the United States Fidelity & Guaranty Company had by a bond indemnified the City of Sandersville from liability such as the suit sought to establish), and still objected to the court propounding any questions to the jury to ascertain if there were stockholders or relatives of stockholders of this party on the jury; whereupon counsel for plaintiff offered to prove, and called W. M. Goodwin and did prove, that the United States Fidelity & Guaranty Company had written a bond to indemnify the defendant from liability against injuries inflicted by its lighting plant ox electric wires. This evidence was brought out for the sole purpose of making it appear to the court legally and by evidence that the United States Fidelity & Guaranty Company was interested, in order for the court to ascertain by inquiry from the jurors in court that they were disqualified to sit on the case. The court called over a list of resident stockholders in this company, and purged the jury of all relatives, some of whom disqualified, is the recollection of the court, as well as all stockholders. The jury, at the instance of the defendant, was put upon the voir -dire, and the parties thus exercised their privilege of striking. No challenge of any kind was made to the' qualifications of the jurors, nor was any objection made at the tirhe to the evidence of Mr. Goodwin being delivered in the presence of the jury. From inquiry made from the jurors since the trial, three state that the testimon3r of Mr. Goodwin was not delivered in their presence, while one states that he heard Mr. Goodwin testify.”

      W. M. Goodwin, J. E. Hyman, Rawlings & Wood, Ryals & Anderson, for plaintiff in error.

      A. R. Wright, J. J. Harris, contra.
   Smith, J.

S. M. Moye brought suit against the City of Sandersville to recover damages for the homicide of his minor son, alleging that the deceased, while riding a bicycle upon one of the sidewalks of said municipality, came to his death by reason of coming in contact with an electric-light post, commonly known as a “white-way” post, which post was located at the entrance of the public-school grounds, immediately adjacent to the sidewalk, and that it was an improper instrumentality to support electric wires charged with approximately 2300 volts; that the wires were insufficiently insulated, the insulation thereon being old and worn and inadequate to prevent the passage of the dangerous current therefrom in the event any person or thing came in contact therewith; that the defendant was negligent in stringing along the public highway, and over grounds where the public was invited to be, at a height of between 10 and 11 feet only, wires charged with the high voltage referred to; that the defendant permitted a “ground” to continue in its system an unreasonable length of time, without detecting or curing the same, and that it was 'also negligent in failing and refusing to cut off its current for an unreasonable length of time after notice that the deceased was in contact therewith. We will briefly state the evidence supporting each of these several alleged acts of negligence and the law applicable thereto.

The following evidence will suffice to indicate whether or not the defendant had knowledge of the defective condition of the post: “Mr. Porter (superintendent of the city’s electric plant) reported to the council that this was a defective post. . . He made this report in the council-room, at the time the city council were present. . . He advised the removal of those posts, and that he did not consider them safe. . . That was some months previous to the death of young Mr. Moye.” Another witness testified to the same effect and import in the following language: “My understanding is that he (Mr. Porter) reported we had a post there charged with electricity at the time, and that it was dangerous.” Still another witness testified that he erected the post, and at the time it was being put up' he protested to Mr. Porter against the manner in which it was erected and told him that it was dangerous. Having, therefore, actual knowledge of the defective condition of this post, which was located on the premises of a public school, a place where children were continually at play, the law required the defendant to cease sending its current through the wires strung ■ thereto until the same was repaired. Atlanta Consolidated Street Ry. Co. v. Owings, 97 Ga. 663 (1) (25 S. E. 377, 33 L. R. A. 798).

The allegation that the wires attached to the defective post conveyed an unnecessarily high and dangerous electric current, and that an innocuous current could have been used, was supported by the evidence of the witnesses Harrison and Eager. The former testified that “by using the transformer, that current there could have been reduced to 110. . and not have been dangerous at all. I directed Mr. Porter’s attention to that fact at the time. He directed me to carry it on with the regular voltage.” The latter testified, “there is no danger in 110 voltage unless some other contact is made.” This statement was corroborated by another witness, an electrical engineer, who testified that a current of 110 volts was harmless. The defendant company having elected to use an extremely powerful and dangerous and unnecessary current, it should have used a “transformer,” or other known and approved appliance to reduce the current to a safe voltage. In Heidt v. Southern Bell Telephone Co., 122 Ga. 474-478 (50 S. E. 361), it was said by Evans, J.: “Persons or companies operating telephone and electric-light systems for the transmission of electricity upon and over public highways owe to the public the duty of properly constructing and maintaining their respective wires and poles; they are bound to provide such safeguards against danger as are best known and most extensively used, and all necessary protection must be afforded to avoid casualties which may be reasonably expected.” See also, in this connection, Higgins v. Cherokee Railroad, 73 Ga. 149; Davis v. Augusta Factory, 92 Ga. 712 (18 S. E. 974); Columbus Railroad Co. v. Kitchens, 142 Ga. 677, 679 (83 S. E. 529, L. R A. 1915C, 570).

The evidence as to the alleged negligence of the defendant in insufficiently and improperly grounding the post was as follows: “The effect of a permanent ground is to keep the current going into the ground. Then the post would not be dangerous; it would carry it into the ground. By that means you can render it harmless. . . The effect of a permanent ground is to carry the current in the ground. No effort was made to put a ground of this character there. . . It could have been done by running the wires down seven or eight feet, depending upon the depth of the moisture. That would have rendered the post not dangerous, if they had done that.” There was positive evidence that this post was insufficiently grounded, since a witness testified that he had, prior to the death of plaintiff’s son, received a shock from the post without coming in contact therewith, The law imposed upon the defendant, who was using the public highway for electric wires carrying a powerful and dangerous current,* “a very high degree” of care in the construction, use, and repair of the post in question. Southern Bell Telephone Co. v. Davis, 12 Ga. App. 34 (76 S. E. 786); Eining v. Georgia Ry. Co., 133 Ga. 458, 461 (1, 2) (66 S. E. 237).

The testimony with reference to the negligence charged against the defendant in not sufficiently and properly insulating its wires, so as to prevent the escape of the current therefrom should any person or thing come into contact therewith, was in part as follows: “It would have been best to have constructed this post there with insulation that would prohibit the escape of current from those wires. That kind of wire was not used there. These were old wires they had there.” In the case of Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (3) (70 S. E. 892), this court, in referring to the duty of insulating wires, said: “An electric-light company, engaged in conveying electricity by overhead wires over the streets of a city, is under the duty of keeping its wires so insulated as at all times to prevent, or at least to safeguard against, the effect of objects coming in contact with them, regardless of the cause which brings about the contact.”

To sustain his ground of negligence that the defendant wilfully refused to shut off its current after notice that the deceased was in contact with the post, thereby permitting the current to pass through him for a period of 8 to 10 minutes, the plaintiff introduced the following evidence: “I knew Phil Moye. He is dead now. I don’t remember the date he died. I remember the occasion. I was going home. It- was after dark and drizzling rain. Just as I crossed down there, right at the depot, I met a negro. I suppose that was 125 yards from the place where he was killed. I met this negro coming from that direction running; he came running from the direction where I found Phil Moye. After meeting that negro I went on up to the place where Phil Moye was killed. I ran on up there and I saw Phil lying on the sidewalk on his back. . . I ran into preacher Kerr’s house and telephoned the power-house and told them what had occurred, and to turn off the current. . I waited until I thought they had time to turn the current off, and it didn’t go off, and I went back and called Mr. Porter’s house. . Mr. Porter came to the phone and I told him what had occurred and he got there almost by the time the lights were cut off. . . I suppose it was six, seven, or eight minutes. I called up the power-house and told them to cut it off; . . that current was going through his 'body all of this time.” “The duty of shutting off the current when necessary involves the duty of having a person at the power plant competent to turn off the current. If search discloses that there is no one at' the plant with authority to do so, the company will be charged with injuries resulting from the continuance of the electric current.” Curtis on the Law of Electricity, pp. 713, 714. Clearly, therefore, when we view the above facts in connection with the duty placed upon the defendant by rules of law, we are precluded from holding that the verdict was without evidence to support it and contrary to law.

It is true that there was evidence introduced in behalf of the defendant to the effect that about 10 days before the homicide, the deceased threw a metal hoop over the top of this white-way post, which hoop rested both upon the wires on either side of the post and the post itself; and it is upon this proof that the defendant sought to avoid the consequences of its negligence, contending, of course, that the intervening agency of the hoop brought into play by the deceased was the proximate cause of the tragedy. The proximate cause of the death in this case was, as we view the facts developed upon the trial, peculiarly a question for solution bjf the jury. They, no doubt, rejected the defendant’s contention that the intervening agency of the hoop, thrown over the post by the deceased, was the proximate cause of his death, on the idea that this act would have been without dangerous effect but for the antecedent negligence of the defendant in improperly grounding the post, and in conveying an unnecessarily high and dangerous current .through the insufficiently insulated wires strung thereto, for they had before them the testimony of an expert who said that if this “same hoop had been thrown over a single one of these lights out here on the public highway, and a man had come in contact with it in that manner, there would not have been the slightest danger. The difference in that post and these posts is in the voltage, there is also a difference in the method of construction. Even if the hoop had been up there like Judge Raw-lings said, if that post had been constructed like the white-way posts, and this boy [the deceased] had lifted it up and got hold of it, he would not have been hurt.”

The defendant sought also to avoid liability on the ground that the deceased was a trespasser, it being contended that on the night of the homicide he tried to climb the post to remove the hoop, and in this manner met his death. The jury were amply warranted in not agreeing with the defendant in this particular, for the only eye-witness to the tragedy testified that he saw the deceased, who was riding a bicycle, enter upon the sidewalk, and that when the deceased came opposite the post he fell from his machine. This witness further testified that he attempted to pick the boy up, but was himself knocked down by the current. Another witness testified in this connection, that when he reached the scene of the homicide the boy was lying across his bicycle on the sidewalk, with his head towards the center of the street and his right foot across the cement curb, with the heel of his shoe against the post, and that there was an arc between the post and the heel.

What is hereinbefore said deals only with the general grounds of the motion for a new trial, since the other questions .presented for review are sufficiently ruled upon in the heaclnotes.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10984.
    Armstrong et al. v. Harper et al.

    Decided March 11, 1920.
    Complaint; from city court of Reidsville — Judge Cowart. September 2, 1919.

      W. T. Burkhalter, for plaintiffs.

      A. S. Way, for defendants.
   Smith, J.

1. A dormant judgment is a chose in action. Where an administrator .in his representative capacity obtained a judgment against several defendants, the right to revive the judgment after it became dormant was in the administrator, and not in the heirs at law. See Hill v. Maffett, 3 Ga. App. 89 (59 S. E. 325) ; Moughon v. Masterson, 140 Ga. 699, 704 (79 S. E. 561).

2. Under the above ruling the court did not err in rejecting the amendment which sought to change the petition so that the suit should proceed in the name of the plaintiff as administratrix of the estate of J. W. Olliff, deceased, for the use of herself as one of the “ sole heirs at law,” and as guardian of her ward, who was the other of the " sole heirs ” of the estate.

3. The case was properly dismissed on general demurrer; and this is true although only one of the defendants filed a demurrer. Funderburk v. Smith, 74 Ga. 515.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11000.
    Alexander v. Easterling.
   Smith, J.

1. The only special ground of the motion for a new trial (other than mere amplifications of the general grounds), to be treated at all, must be considered as in the nature of a motion based on newly discovered evidence; and a new trial cannot be granted for newly discovered evidence, where it is not made to appear by affidavit of the movant and his counsel that they did not know of such evidence before trial and that the same could not have been discovered with ordinary diligence. Park’s Ann. Code, § 6086, and note.

Decided March 11, 1920.

Complaint; from city court of Reidsville — Judge Cowart. August 15, 1919.

S. B. McCall, W. T. Burkhalter, for plaintiff in error.

A. S. Way, contra.

2. While the evidence in this case is not at all satisfactory to this court, there is some evidence to support the verdict; and the verdict having been approved by the trial judge, this court is compelled, under the limitations of the constitutional amendment creating it, to affirm his judgment overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11004.
    Hughes v. Jefferson Standard Life Insurance Co.
    Decided March 11, 1920.
   Smith, J.

1. Section 3 of the act creating the city court of Camilla (Ga. L. 1905, p. 184) is broad enough to vest that court with jurisdiction to establish liens on real estate, that section being as follows: “The city court of Camilla shall have jurisdiction to try and dispose of all civil cases of whatever nature of which the superior court of Mitchell county has jurisdiction, except in those cases over which the exclusive jurisdiction is vested in the superior court by the constitution and laws of this State.”

2. In a suit upon promissory notes a prayer for the establishment of a special lien on real estate, conveyed as security for the payment of the debt evidenced by the notes, does not render the proceeding a “ case respecting title to land;” and in such a suit the city court of Camilla has jurisdiction to declare a special lien on the realty. Dixon v. Bond, 18 Ga. App. 45 (1) (88 S. E. 825). See also Edenfield v. Bank of Millen, 7 Ga. App. 645 (7 S. E. 896).

3. Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the suit, will not bar an action for foreclosing and enforcing the statutory lien. Thurman v. Willingham, 18 Ga. App. 395 (89 S. E. 442), and cit.

4. For the reasons given above, the trial judge did not err in sustaining the demurrers to the affidavit of illegality and ordering the levy to proceed.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

Affidavit of illegality; from city court of Camilla — Judge Bur-son. July 30, 1919.

M. A. Warren, A. S. Johnson, for plaintiff in error.

Bryan & Middlebrooks, Peacoch & Gardner, contra.


text:
    11008.
    Bibb Manufacturing Co. v. Thornton, by next friend.
   Smith, J.

The plaintiff’s petition as amended shows that she was 15 ■years old, and that prior to July 24, 1918, she was an employee of the defendant company, engaged in weaving, her duties being to place raw cotton on frames, but that on that date E. W. Morel, the alter ego of the company, put her to work dusting and rubbing off carding machines while they were in operation, — a much more dangerous work than the work she had been doing previously, — and that on that date, while she was in the performance of her new duties, the door of on'e of said machines was negligently left open by “ each and all of the officers, agents, and employees” of the defendant, and in dusting and rubbing off the machines the piece of waste she was using was caught by “pinnacles ” of one of the machines, causing her right hand to be suddenly drawn into the opening and mangled so that it became necessary to amputate her hand. ■ It is alleged that the defendant was negligent in putting her to such dangerous work without giving her any instruction, warning, or information, and in not having the place and machinery about which she was put to work reasonably safe, in that the door of one of the machines was left open. It is further alleged that she was young and inexperienced at such work and unfamiliar with the danger incident thereto. Held-.

1. The petition as amended set forth a cause of action and was not subject to general demurrer.

2. “There is no presumption of law that a minor over 14 years of age, who applies for a position involving dangerous service, is aware of the dan'gers and needs no instruction. The obligation to instruct an employee, before putting him to work, as to any of his duties which are dangerous, does not necessarily follow, as matter of law, from his minority when employed, his inexperience, the fact that the service is dangerous, and the fact that his inexperience is known to the employer. In a ease like the present, it is a question for the jury whether the particular service was so dangerous, and its dangers so obscure, or whether the information of the employee was so limited or his mind so immature, at the time he was injured, as to render it needful and proper that instructions should have been given when he was employed or at some time previous to the injury.” Atlanta &c. R. Co. v. Smith, 94 Ga. 107 (1, 2) (20 S. E. 673).

.3. “It is the duty of the master to provide for his servant a reasonably safe place in -which to work, and to that end he is hound to make reasonable provision for the protection of the servant against dangers to which he is exposed while engaged in the work he is employed to perform. For a failure to discharge such duty the master is liable to the servant for injuries caused thereby, and this is true though the injuries result from the concurrent negligence of the master and a fellow-servant of the one injured, where the injury could not have been sustained but for the failure of the master to perform such duty.” Jackson v. Merchants Trans. Co., 118 Ga. 651 (45 S. E. 254). In the instant case it was, under the facts alleged, for the jury to say whether or not the plaintiff would have been injured had the defendant properly instructed and warned her of the dangers incident to her work.

Decided March 11, 1920.

Action for damages; from city court of Macon — Judge Guerry. September 26, 1919.

Miller & Jones, for plaintiff in error.

John R. L. Smith, Grady C. Harris, contra.

4. Whether the moving of the plaintiff to a more hazardous occupation without giving her instruction, warning, or information as to the dengers incident thereto, or whether the failure to exercise ordinary care and diligence to provide her a reasonably safe place to work and rea-, sonably safe machinery to work with, or whether the negligence of a fellow servant in opening the door of the machine at which she was injured was the proximate cause of her injury, and whether the dangers surrounding her work were so obvious as to preclude a recovery, are, under the circumstances alleged, all questions of fact for determination by a jury. See, in this connection, White v. Seaboard Air-Line Railway, 14 Ga. App. 139 (1 b) (80 S. E. 667).

5. The special demurrers to the petition were properly overruled.

(a) A petition against a corporation for personal injuries which set forth the time when, the place at which, and the circumstances under which the injury occurred, and alleged that it was the result of the negligence of the officers, agents, and employees of the defendant, was not subject to a special demurrer raising the objection that the names of such officers, agents, and employees were not set forth in the petition. See, in this connection, Pierce v. Seaboard Air-Line Railway, 122 Ga. 664 (2) (50 S. E. 468).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11016.
    Godwin v. Allman.
   Smith, J.

1. Where the relation of landlord and cropper exists, the title to the crop raised upon the premises is in the landlord, and under the law the cropper cannot without the consent of the landlord sell or-otherwise dispose of any part of the crop grown by him before the landlord has received his part of the entire crop.

Decided March 11, 1920.

Complaint; from Chattooga superior court — Judge Wright. September 9, 1919.

Allman, a former cropper of Godwin, sued him in the county court, and on appeal the case was tried in the superior court and a verdict rendered against the defendant; his motion for a new trial was overruled, and he excepted to that judgment and to other rulings here stated.

2. In the original petition it was alleged: (Paragraph 1) The defendant is indebted to the plaintiff in the sum of $115.25 principal and $3 accrued interest, and payment of, the same has been demanded and refused. (Paragraph 2) The defendant is indebted to the plaintiff in the sum of $106.22 1-2 for money had and received by the defendant, belonging to the plaintiff, said sum being the price of cotton belonging to the plaintiff and sold by the defendant, and the money arising therefrom being withheld from the plaintiff by the defendant; and also $9.22 1-2 cents which plaintiff paid for guano and at the instance of defendant, which sum plaintiff fails and refuses to pay back to plaintiff. Plaintiff prays for judgment for said sums. By amendment the plaintiff struck paragraph 2 (to which the defendant had demurred), and added to paragraph 1 (to which the defendant had demurred as being too indefinite) the following facts “by way of amplification:” (1) Plaintiff became the tenant of defendant in the year 1917, by contract to work certain lands belonging to defendant on halves,—that is, a half of the products of the lands to be the property of plaintiff and the other half the property of the defendant; also a part of the contract of tenancy was that plaintiff should pay for half the guano used to fertilize the crop and the defendant should pay the other half. Plaintiff made the crop and cultivated the lands according to contract, and on December 26, 1917, the defendant seized and took away-from the premises of plaintiff, without leave, warrant, or authority, two bales of cotton raised on said lands by plaintiff under the contract of tenancy as set out, said bales of cotton weighing the aggregate of 770 pounds and being of the value of $238.72, which was the sum received by defendant for said cotton, a half of the cotton being the property of plaintiff, and a half of the amount received for the same, to wit, $119.36, being the money of plaintiff. The defendant received and has this sum of $119.36 belonging to plaintiff, and fails and refuses to turn it over to plaintiff, and illegally and wrongfully holds it to the use of'plaintiff.' (2) Also, on December 13, 1917, plaintiff paid to the Trion Company $18.44 for guano used in the fertilization of said crop and cotton, and by the terms of the contract of tenancy the defendant was to pay a half of this guano debt, or, more strictly stating the terms of the- contract, plaintiff was to pay the whole sum and retain sufficient funds from the products of the land to reimburse him for a half of the cost of the guano used; and this the plaintiff did pay, at the instance and for the account of the defendant; and the proceeds from the sale of the two bales of cotton taken away and sold by the defendant, as set out, are now due. The plaintiff is entitled to recover also $9.22 of the money received by the defendant for said cotton, to cover the sum which the plain-, tiff paid for said guano on account of the defendant; and to the extent of this sum of $9.22 said cotton was the property of plaintiff, and this amount of the proceeds of its sale is money of the plaintiff, illegally and wrongfully held by the defendant and to the use of plaintiff. The plaintiff prays for judgment for said sums.

2. The court did not err in allowing the two amendments to the plaintiff’s petition.

3. Nor did the court err in striking subsections a, d, f, and g of paragraph 5 of the defendant’s answer, as these sections were subject to the demurrer interposed.

4. The excerpts from the charge of the court complained of in the 2d and 3d grounds of the, amendment to the motion for a new trial do not contain reversible error.

5. The court did not err in refusing to give the requested charge set out in the 4th ground of the amendment to the motion for a new trial.

6. There was evidence to support the verdict; but the judgment entered by the plaintiff’s attorney was not in accordance with the verdict, as it included “ legal interest accrued,” in addition to the sum found by the jury. It is therefore ordered that the judgment he affirmed, with direction that it be amended by writing off the “ legal interest accrued.”

Judgment affirmed, with direction.

Jenkins, P. J., and Stephens, J., concur.

In addition to the general and special demurrer to the original petition, the defendant demurred to the amendment, as follows: The amendment sets out a new cause of action. It is not germane to the issue. It fails to set out with sufficient certainty the contract, and fails to show that the plaintiff complied with his obligations under it. It appears that he was not a tenant, but a cropper, and that the title and possession of the property were •in the defendant. The plaintiff seeks to join two causes of action, tort and account, and “claims both an account and because $9.22 of said cotton was plaintiff’s property.” The defendant’s demurrers were overruled.

3. In the answer the material allegations of the petition were denied, and it was alleged that ■ the defendant and the plaintiff entered into a contract for the year 1917, under which the plaintiff became the defendant’s cropper and obligated himself to cultivate and gather in that year a crop of between 15 and 20 acres in cotton and between 12 and 15 acres in corn on designated lands of the defendant, for which work he was to have a half of the proceeds of the crop, and the defendant the other half, the defendant agreeing to furnish the lands and two mules to cultivate them, and to furnish feed for the mules; that it was agreed that the plaintiff, when using the mules in the cultivation of the crop, was to keep them on the place, where the crop was being cultivated, and when they were not in actual use he was to return them to defendant’s place near by, for the defendant’s use. It was alleged that the'defendant carried out his obligations to the plaintiff, and that the plaintiff failed to perform his obligation under the contract; to the injury and damage of the defendant, as set out in various subsections of paragraph 5 of the petition. The court, on demurrer, struck subsections a, d, f, and g. In subsection a it was alleged that the plaintiff failed to plow and hoe the crops at reasonable and proper times and in a proper manner, and on account of this neglect grass and weeds grew in the crops, the lands became hard and crusty, and the crop of cotton was only four bales when it should have been eight, and the crop of corn only 250 bushels when it should have been 400 bushels; and by this shortage of cotton the defendant was damaged in the sum of $400, and by the shortage of corn was damaged in the sum of $150. In subsection d it was alleged that, contrary to the defendant’s will and instruction, the plaintiff plowed up about two thirds of an acre of the cotton after it was fertilized and growing, and planted it in sweet potatoes, to the defendant’s damage in the sum of $10. In subsection g it was alleged that the plaintiff, without the consent of the defendant, removed from the premises the manure which had accumulated thereon during the year, largely the excrement of the defendant’s mule, which manure was of the value of $30, and he is indebted to the defendant in that sum.

The remaining allegations of paragraph 5 of the answer are, in substance: that the plaintiff failed to gather 400 pounds of seed-cotton and left it to rot in the field, to the defendant’s damage in the sum of $20; that on leaving the premises in December, 1917, he left unprotected in an open pen about 2500 pounds of seed-cotton and failed to prepare it for market, and on account of this about 400 pounds of it was stolen and the defendant thereby damaged in the sum of $20, besides being compelled to incur an expense of $8 to protect and prepare for market what was left; that, contrary to the contract and the will of the defendant, the plaintiff used the mules for himself and for others 30 days when not engaged in the crops, and on this account he is indebted to the defendant the value of the hire of the mules, $3 a day, aggregating $90; and that he is indebted to the defendant in the sum of $8 for labor which at stated times was performed at the plaintiff’s request, in making the crop. It is alleged that the plaintiff is insolvent, and it is prayed that the several sums stated above be recouped and set off against his demand.

4. The court charged the jury: "If you believe, from the evidence, that any amount of the cotton was removed from the cotton pen as alleged by the defendant, you could not find the value thereof in favor of the defendant for the reason that plaintiff was negligent in leaving it there as alleged, but you could only so find in case you believe that plaintiff took it himself.” Also: " The defendant could not recover of the plaintiff for the time mules stood up in the lot not used. He could only recover for the time the plaintiff put the mules to his private use.” These are the instructions referred to in paragraph 4 of the foregoing decision.

5. Paragraph 5 of the decision relates to the refusal of the court to charge the jury that “if the plaintiff failed to carry out the terms of his contract, he would not be entitled to recover at all.” It is alleged that in refusing to give this instruction the court erred because “the plaintiff’s case as amended was laid upon his right to recover upon contract, and the refusal of the court to charge as requested left the jury to find for the plaintiff, if they saw fit to do so, upon quantum meruit or other theory of the case.”

6. The verdict was “for plaintiff $112,” and the judgment entered thereon was for that sum “and legal interest accrued.” It was alleged that the judgment “is error in that the jury found no accrued interest, and the same is not in terms of said verdict.”

Wesley Shropshire, for plaintiff in error,

cited: Civil Code 3705, 3707, 5514, 5683; 10 Ga. App. 679; 12 Ga. App. 399 (4); 13 Ga. App. 25; 15 Ga. App. 355 (2); 143 Ga. 464; 145 Ga. 588-9; 128 Ga. 447 (5); Civil Code (1910), §§ 3467-3470; 9 Ga. App. 265; 135 Ga. 387; 94 S. C. 216 (77 S. E. 933).

Lee J. Langley, contra,

cited: Penal Code (1910), § 729; 92 Ga. 436; 114 Ga. 921.


text:
    11036.
    Carter v. Norton.
    Decided March 11, 1920.
   Smith, J.

1. Where a defendant in a suit for slander pleaded justification, admitting that he used substantially the language set out in the plaintiff's petition, and there was evidence to sustain the plea, the court did not err in submitting that issue to the jury.

2. “In all civil cases the preponderance of testimony is considered sufficient to produce mental conviction.” Civil Code (1910), § 5730.

(a) “In an action for slander, where the language alleged to have been used imputes to the plaintiff guilt of an indictable offense, he establishes a prima facie case upon proof that the slanderous language, substantially as alleged in the petition, was used by the defendant; and, without more, the plaintiff is presumed to be innocent of the crime charged.” Redfearn v. Thompson, 10 Ga. App. 550 (1) (73 S. E. 949).

(5) Therefore, in order to sustain his plea of justification, it was not incumbent upon the defendant to prove beyond a reasonable doubt the truth of the language set out in the petition, but it was sufficient to authorize a verdict in his favor if he substantially proved by a preponderance of the testimony the truth of the language alleged as slanderous; and it was not error for the court so to charge the jury.

3. The preceding rulings having decided adversely to the plaintiff in error all the points made and insisted upon in special grounds of his motion for a new trial, and there being some evidence to sustain the verdict, the judgment refusing a new trial must be

Affirmed.

Jenkins, P. J., and Stephens, J., concur.

Action for slander; from city court of Valdosta—-Judge Cranford. October 4, 1919.

Dan R. Bruce, for plaintiff.

E. K. Wilcox, for defendant.


text:
    11046.
    LIGHTFOOT et al. v. KING et al.

    Decided March 11, 1920.
    1. Because of indefiniteness and uncertainty in the terms of payment, -no binding contract was made in a written agreement for the purchase of property to be paid for as follows: “$2,000 cash and the balance of $1,300 in monthly payments,” the amounts, the number, or the times of the monthly payments not being indicated therein. There being no contract or purchase, the agents named in the writing, with whom a certain sum of money was deposited by the intending purchasers, as “part of the named purchase-money to bind the trade,” had no legal right to retain it, either under the terms of the alleged contract or for services leading up to the same.
    2. An action for the recovery of the amount of the deposit, by the parties from whom the agents received it, could properly be brought against the agents instead of against the principal, to whom it had not been paid over.
    3. The court did not err in directing a verdict in favor of the plaintiffs.
    Certiorari;, from Fulton superior court — Judge Pendleton. October 14, 1919.

      Robert C. & Philip H. Alston, Blair Foster, for plaintiff in error,
    cited: As to contract: Hanan v. McNicol, 82 Calif. 122 (23 Pac. 272); 39 Cyc. 1336; (time of payment where not fixed) Chandler v. Chandler, 62 Ga. 612; Poole v. Trimble, 102 Ga. 773; Crawford v. Williford, 145 Ga. 550 (distinguished). As to action against agent: McDonald v. Napier, 14 Ga. 89 (2), 95-7, 99; 2 Corpus Juris, 821, sec. 495; Park’s Code, § 3608; Simmons v. Long, 23 L. R. A. (N. S.) 553, 554, and cit.; Tripple v. Littlefield, 45 Wash. 156 (89 Pac. 493); Bogart v. Crosby, 80 Calif. 195 (22 Pac. 84); Levine v. Field, 114 N. Y. Supp. 819; Fisher v. Meeker, 103 N. Y. Supp. 261; Rogers v. Durrence, 10 Ga. App. 657 (distinguished); Great Southern Accident &c. Co. v. Guthrie, 13 Ga. App. 288 (4), 290 (distinguished).

      Weltner & Cheatham, contra,
    cited: As to contract: Crawford v. Williford, supra. As to action against agent: Rogers v. Durrence, supra; Great Southern Accident &c. Co. v. Guthrie, supra;
      Buchanan v. McClain, 110 Ga. 480; Rhodes v. Jenkins, 2 Ga. App. 475 (1); Clark & Skyles, Agency, sec. 519 G; Mechem, Agency, see. 1445, and cases cited; McDonald v. Napier, supra (distinguished) ; Burroughs v. Skinner, 5 Burr. 2639.
   Smith, J.

P. G. King and Louie Economy brought suit against T. J. and W. E. Lightfoot, a partnership doing business under the name of “Lightfoot Business Opportunities,” to recover $170, alleging in their petition that they had entered into a contract with the defendants, agreeing to purchase through them a certain named soda-water business, and deposited with the defendants the above amount as earnest money, which was to be paid to the defendants as a commission in the event that through any fault of the plaintiffs the trade should not be completed. It was also agreed that the trade was to be made on term- of “$2,000 cash and the balance of $1,300 in monthly payments.” The’ trade was never consummated, because the plaintiffs and the defendants’ principal could not agree on the amount to be paid monthly. The defendants refused, 'on demand, to refund the $170 deposit and this suit was brought to recover it. The trial judge directed a verdict in favor of the plaintiffs.

L Although the amount of the cash payment agreed upon in the contract is a definite, certain amount, the terms of the payment of the balance of the purchase-price are indefinite and uncertain, since the writing fails to indicate the amount, number, or time of such deferred payments. For these reasons the writing was not a contract, and imposed no rights or liabilities, and therefore the defendants had no legal right to retain the deposit, either under the terms of the alleged contract or for services leading up to the same.

2. “Payment to an authorized agent is in law payment to his principal, and if the money ought in equity and good conscience to be returned, an action for money had and received may be maintained, at the option of the owner ■ of the money, against either the agent or the principal or both, if the agent failed to pay over the money to his principal.” Great Southern Accident &c. Co. v. Guthrie, 13 Ga. App. 288 (4) (79 S. E. 162). There is therefore no merit in the contention that this suit could not proceed against the defendants, but should have proceeded against their principal. The evidence is clear that the principal never received the money in dispute, and that the defendants did receive it and refused to refund it to the plaintiffs.

3. The trial judge properly directed a verdict for the plaintiffs, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11057.
    RUSHIN v. MASSEY.
    Decided March 11, 1920.
    The charge of the court should cover the substantial issues made by the pleadings and the evidence; but there was no issue that required instructions such as it was contended the court erred in omitting in this case.
    It not being contended in the motion for a new trial that there was any other error of the court, and there being evidence to support the verdict, the refusal to grant a new trial was not error.
    Complaint; from city court of Cairo — Judge Rigsby. September 8, 1919.

      Ledford & Christopher, for plaintiff in error.

      Ira Carlisle, contra.
   Smith, J.

1. It is the duty of the presiding judge to give appropriate instructions to the jury covering all the substantial issues made either in the pleadings or in the evidence.

' 2. In the instant case the only special ground of the motion for a new trial does not show reversible error. The evidence set out in this exception, taken together with the other evidence in the ease, does not present any substantial issue as to the money taken from the safe of the defendant by Raymond Rushin, the son of the defendant, with the knowledge of the plaintiff. In fact Raymond Rushin’s testimony in the brief of evidence clearly shows that the money which he took from the safe was paid back by charging it to his individual account.

3. There was evidence to support the verdict, and the- court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.