author: Bloodworth, J.

text:
    8339.
    BRYANT v. ELBERTON & EASTERN RAILWAY Co.
    1. In order for a defendant to sot aside a verdict and judgment on account of illness of a member of his family, he must not only show to the court that he had a meritorious defense to the action, but must go further and show the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the verdict might be different on another trial.
    2. An attorney employed in two different suits which involve the same issues, and in which the different interests of his clients are of the same character, may stipulate that the trial of one shall determine the issues in the other.
    Decided July 23, 1917.
    Motion to vacate judgment; from city court of Washington— Judge Wynne. December 9, 1916.,

      O. B\ Sutton, for plaintiff in error. W. Á. Slaton, contra.
   Bloodworth, J.

Z. T. Bryant filed a petition in which he prayed that certain judgnient against him in favor of the Elberton & Eastern Railway Company be “vacated and set aside,” because of the following facts: At the appearance term of the court in which the original case was pending, the defendant, by his attorneys of record, filed his plea and answer in which he denied all counts of the plaintiff’s suit, and demanded a trial by jury on the issues involved. He was not present when said case was called for trial, his attorney having told him that his case would not be tried. In his absence, and without his consent, his attorneys agreed for a jury to find a verdict against him, and agreed that his case should take the direction of a similar suit pending in said court, which it was expected would be carried to a higher court as a test case. Said agreement as entered into by his attorneys was beyond their authority. Said test case, which it was intended should be carried to a higher court, was “dropped as soon as judgment was rendered in the lower court.” He had a good and valid defense to said suit; and as soon as he learned of said judgment and execution against him he took steps to have the same set aside.

The Elberton & Eastern Bailway Company answered, admitting that a verdict was rendered and judgment entered against petitioner as alleged, and alleging that the same was done under a written agreement that the case of petitioner should abide the result of a test ease pending in said court; that judgment was rendered against the defendant in the test case, and the defendant in that ease “having taken his case to the Court of Appeals of Georgia, for some reason unknown to this defendant, dismissed the same without any request on the part of this defendant, and without any consideration flowing from this defendant,” and that it is proceeding in the instant case under its judgment and by reason of said agreement, which agreement was made by the attorneys of record for petitioner, who, “under the laws of Georgia, in view of the facts, had authority to make said agreement, and can not now avoid the results to him of the same.” The court overruled the motion to set the judgment aside, and the defendant excepted.

On the trial of this motion to set aside the verdict the movant, Z. T. Bryant, testified as follows: “I employed Messrs. Colley & Colley of Washington, Ga., to represent me in the case, and they filed- an answer for me. I told them I wanted a trial by a jury, and they asked for one in their pleadings. The case hung up in court for some time. I came to court regularly every term, expecting it to be tried. In September, 1915, on first Monday, being court day, I had a daughter seriously ill, at the point of death. My son and me both had a case in court. I left him at home in charge of my daughter, and to wait on the two physicians there, and came to town to court. I found that court did not open until 10 o’clock a. m., and so’ about 9:30 a. m. I saw my lawyer, Mr. Colley. I explained to him that I had a daughter at home seriously ill, and to see the judge and get me and my son excused. He advised me to go back home, as I would be certainly excused under the circumstances; and he promised- to look out for the case and get it put off. I told him I wanted a trial by jury all the time, and never consented for anything else.” Witness further testified: “As soon as the Wansley case [the test case] was settled, the railroad company notified me that they had an execution against me. I immediately went to see my lawyer about it. Mr. Colley was disqualified by his agreement with the railroad company, made in September, and I employed Mr. C. E. Sutton, who brought this motion to vacate the judgment. Mr. Sutton obtained leave of absence from Judge Wynne of the city court until this fall; and this accounts for the delay in bringing the motion to vacate the judgment.”

In the case of Phillips v. Taber, 83 Ga. 565, 571-572 (10 S. E. 270), the following rule is laid down: “In order for a defendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick and unable to attend the court, and unable to give the court notice of his condition, but he must go further and show to the court that he had a meritorious defense to the action, and show by his affidavit or the affidavits of others, such facts as would render it improbable or at least doubtful that the plaintiff would be entitled to recover. It is not enough for him to swear that he has a meritorious defense to the action, without going further and showing the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial; because it would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury. Beall v. Marietta Paper Mill Co., 45 Ga. 28; Cheney v. Walton, 46 Ga. 432; Massey v. Allen, 48 Ga. 21; Peacock v. Usry, 52 Ga. 353; Lumpkin v. Respess, 68 Ga. 822; Perrill v. Marks, 76 Ga. 21.” This rule is quoted with approval in the case of Jewell v. Martin, 121 Ga. 325 (48 S. E. 929), where it is said, “The facts constituting such defense must be set forth distinctly.” In the instant case the proof of petitioner did not measure up to requirements of the above rule; he did not show “such facts as would render it improbable or at least doubtful that the plaintiff would be entitled to recover;” nor was there any evidence “showing the facts upon which such defense is based, so that the court could determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial.” See also, Pryor v. American Trust &c. Co., 15 Ga. App. 822 (84 S. E. 312); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444).

Section 4955 of the Civil Code of 1910, relating to attorneys • at law, is as follows: “They have authority to bind their clients in any action or proceeding, by any agreement in relation to the cause, made in writing, and in signing judgments, entering appeals, and by an entry of such matters, when permissible, on the dockets of the court; but they can not take affidavits required of their clients unless specially permitted by law.” In the instant case Bryant insists that his attorney acted against his expressed desire and in his absence. In Adkins v. Bryant, 133 Ga. 465 (66 S. E. 21, 134 Am. St. R. 211), the first headnote is as follows: “A verdict and judgment rendered with the consent of counsel is binding upon the client, in the absence of fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered.” In Williams v. Simmons, 79 Ga. 649, 654 (7 S. E. 133), Chief Justice Bleckley said: “When a suitor comes into court, competent to select counsel, and does select counsel, no matter who the suitor may be, or how much married, the counsel is there for the purpose of representing the client, and whatever the counsel assents to, the client assents to. There is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person; and it is no answer to a decree, a solemn judgment of a court, for the client to come in and say that the counsel misrepresented the client’s interests, or did not represent the client’s wishes. Let the client see that the counsel conforms to instructions, and if there is any injury by failure to do it, let the counsel answer for it, and not the other party.” In the case of Chapman v. Chattooga Oil Mill Co., 146 Ga. 91 (90 S. E. 713), the Supreme Court of Georgia said: “In an action upon a promissory note, the defendant filed a plea, but omitted to swear to it. At a term subsequent to the trial term, the defendant being absent, the plea was stricken, and judgment was rendered for the plaintiff. Twelve days after the court had adjourned for the term the defendant filed a motion to set aside the judgment and to reinstate the case. In the motion it was alleged, that the defendant had employed an attorney to represent him, that he had been informed by his attorney that his presence would not be necessary, and, being so advised, he did not attend court, on account of the illness of his wife, and that the attorney neglected the- case and did not appear and represent the defendant at the trial. The ■prayer was that the judgment be set aside, that he be allowed to swear to his plea, and that the case be reinstated upon the docket for trial. Held, that the motion was properly overruled.” In the case of the Commercial Union Assurance Co. v. Chattahoochee Lumber Co., 130 Ga. 191 (60 S. E. 554), the first headnote is as follows: “An attorney employed in two different suits against different parties, but involving the same issues, and the interest of his clients being of the same character in each, may stipulate that the trial of one may determine the issues in the other.” In the case of Jarrett v. McLaughlin, 123 Ga. 256 (51 S. E. 329), it appears that all the claimants were represented by the same counsel, and they agreed with the plaintiff in fi. fa. that one only of the claim eases should be tried, and the other should abide its result. The Supreme Court held the parties to this agreement, saying: “The plaintiff in error voluntarily chose to consent that his case should abide the result of that brought to trial and final judgment, whatever that result might be or however erroneously or through whatever misfortune it might be reached; and therefore he stands in no better position than does the losing party to that case, as to whom the judgment therein is certainly final.”

The attorneys employed by the petitioner having agreed in the original case to abide the final result of the Wansley case, he is bound by the result of that case, whatever that may have been. As when a woman marries a man she takes him “for better or for worse,” so when the agreement was entered into to abide the result in the Wansley case, the defendant and' his counsel took all chances of what that result might be. Counsel for the plaintiff in error insists that, his client never having consented to the agreement made, and it being in violation of his express consideration, the rule in Longman v. Bradford, 108 Ga. 572 (33 S. E. 916), should apply. Examination of that case will show that the attorneys who made their client a party to the litigation were neither expressly nor impliedly authorized to do so.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    8452.
    ROBERSON v. BENNETT.
    1. Jurisdiction in matters of partition is in the superior courts alone; and a petition to a city court for a partition of personal property is therefore a nullity, and not amendable.

      2. An amendment changing a petition for partition of personalty into an action for conversion is not allowable.
    Decided July 23, 1917.
    Petitipn for partition; from city court of Jesup—-Judge Clark. January 23, 1917.

      James B. Thomas, for plaintiff in error.

      Parker & Parker, contra.
   Bloodworth, J.

A petition was filed in the city court of Jesup by certain persons who alleged that they were “members of what is known as Old Bethel Church,” against certain other persons, designated as “trustees of what is known as New Bethel Church.” The petitioners alleged that they were owners of certain property consisting of organ, Bible, benches, etc., and that each of the petitioners, “as members of Old Bethel Church,” owned a thirty-eighth undivided interest in said property. The prayer of the petition was for the partition of the property. To the petition the defendants filed a demurrer, a portion of which is as follows: “(1) Plaintiffs’ declaration does not set forth a cause of action. (2) Plaintiffs’ petition shows upon its face that they are seeking a remedy and relief which can only be had' in the superior court, and for which this court has no jurisdiction. . . (6) Because the remedy sought can only be had in a court with equitable jurisdiction, which jurisdiction this court has not.” The plaintiffs then offered to amend the declaration as follows: “ (1) Plaintiff amends by striking from paragraph three of -said petition, the allegations that say that said property can not be equally divided in kind, but the same can be partitioned, and alleging that defendants are in possession of said personal property, and refuse to. deliver the same to the defendants [plaintiffs?]. (2) Plaintiff amends by striking all reference in said petition to or for a partition of the property, and asks the recovery of the value thereof, which has been wrongfully and illegally converted.” The court refused to allow the amendment. The demurrer was sustained and the suit dismissed.

These rulings were right. Only the superior court has jurisdietion in matters of partition. Civil Code 1910, §§ 3726, 5358, 5370. “A suit in a court having no jurisdiction is no suit at all; it is simply a nullity.” Gray v. Hodge, 50 Ga. 262-263; Powell v. Cheshire, 70 Ga. 357 (48 Am. R. 572); Western Union Tel. Co. v. Taylor, 84 Ga. 408 (2) (11 S. E. 396); Cutts v. Scandrett, 108 Ga. 620 (2, 3), 625 (34 S. E. 186). As the original suit was a nullity, the amendment was properly refused. Besides, the amendment sought to set up a new and distinct cause of action. The court did not err in dismissing the suit.

Judgment affirmed.

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


text:
    8458.
    Skelton v. Callaway, administrator.
    Decided July 23, 1917.
    Complaint; from Henry superior court—Judge Searcy. December 23, 1916.

      Brown & Brown, for plaintiff in error.

      E. J. Reagan, E. M. Smith, contra.
   Bloodworth, J.

1. The court fully and fairly submitted to the jury, all issues madé by the pleadings and supported by testimony. Error can not be successfully assigned upon the court’s failure to submit to the jury instructions as to defenses which are so unsupported by evidence as that a finding against them is demanded.

2. The verdict was amply supported by the evidence.

Judgment affirmed.

Broyles, P. J., and Jenlcms, J., concur.


author: Broyles, P. J.

text:
    8497.
    BROWN, administrator, v. AARON, administrator.
    Where a duly attested mortgage on realty has been properly filed for record, the filing is notice to all persons, without regard to whether the mortgage is so defectively recorded that the record itself is not such notice; and where such a mortgage, attested by a notary public and another witness, with proper evidence of such filing, and without any entry of satisfaction or cancellation thereon, had been introduced in evidence by the mortgagee, its elfeet could not be impaired by proof that the record of the mortgage did not show attestation by two witnesses, and contained an entry tending to show cancellation; and the court did not er.r in refusing to admit in evidence a certified copy of such a record.
    Decided July 23, 1917.
    Foreclosure of mortgage; from Jenkins superior court—Judge Henry C. Hammond. .September 14, 1915.

      Saffold & Jordan, James K. Hines, for plaintiff in error.

      R. P. Jones, G. W. Lankford, contra.
   Broyles, P. J.

1. A mortgage on realty must be attested by two witnesses, one of whom must be an officer authorized by law to attest it. Civil Code (1910), § 3257.

2. Although a mortgage on realty may have been properly attested by two witnesses, yet where it is so imperfectly recorded as to show attestation by one witness only, such record is no record and is no notice to third persons without notice. Civil Code (1910), § 3262, Shepherd v. Burkhalter, 13 Ga. 443 (58 Am. D. 523); Smith v. Jordan, 25 Ga. 687; Gardner v. Granniss, 57 Ga. 539; Andrews v. Mathews, 59 Ga. 466; Donalson v. Thomason, 137 Ga. 848 (74 S. E. 762).

3. Since the passage of the act of 1889 (Acts 1889, p. 106), now embodied in the Civil Code (1910), •§ 3320, the filing for record of a mortgage which on its face is entitled to be recorded is notice to all third persons without notice, although the mortgage may be afterwards so defectively recorded that the actual record is not such notice. In such a case the filing for record is sufficient notice to all third persons without notice. Durrence v. Northern National Bank, 117 Ga. 385 (43 S. E. 726); Greenfield v. Stout, 122 Ga. 303 (50 S. E. 111); Wadley Lumber Co. v. Lott, 130 Ga. 135, 141 (60 S. E. 836);. Blakely Artesian Ice Co. v. Clarke, 13 Ga. App. 574 (4), 578 (79 S. E. 526).

4. Where a mortgage entitled to record is duly filed for record, and where it afterwards is so defectively recorded that the record is no notice to innocent third persons, the filing for record is the only notice binding on such pérsons, and the actual record of the mortgage, in the mortgage book of the clerk of the superior court, is not such notice, and is a mere nullity. This being true, it follows that a certified copy of such defective mortgage-record, with entries thereon tending to show a cancellation of the mortgage, offered in a case for the purpose of showing that the mortgage-records power of notice to third persons had been destroyed, is of no probative value whatever, since the defective record never possessed any such power of notice. Under’such circumstances, the certified copy of such record should be excluded from the evidence.

5. This was a contest between three .mortgages of different dates, covering the same realty. The plaintiff introduced in evidence his mortgage, which showed that it had been properly attested by two witnesses, one of whom was a notary public, and that it had been duly and properly filed for record. The execution and filing for record of this mortgage antedated the execution of the other two mortgages. There was not on this mortgage any entry showing that it had ever been satisfied or cancelled. The only evidence offered by the defendant was a certified copy of the record of this mortgage, with certain entries thereon tending to show a cancellation of the mortgage. This certified copy showed that the mortgage had been defectively recorded, in that the record showed that the mortgage had been attested by one witness only. The court properly held that this certified copy had no evidentiary value and was inadmissible as evidence. After this certified copy had been excluded from the evidence, the defendant offering no further evidence, the court did not err in directing a verdict in favor of the plaintiff.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    8544.
    Thomas v. Bishop.
    Decided July 23, 1917.
    Complaint; from city court of Sandersville—Judge Jordan. January 22, 1917.

      Evans & Evans, for plaintiff in error. W. M. Goodwin, contra.
   Bloodwoeth, J.

The defendant having filed a plea in which he admitted a prima facie case in favor of the plaintiff, and having filed additional pleas under which he submitted evidence, and from which it appears that, giving to him the benefit of the most favorable view of the evidence and of all legitimate inferences therefrom, a verdict against him was demanded, the court did not err in directing a verdict for the plaintiff. Tarver v. Park, ante, 87 (92 S. E. 552); Civil Code of 1910, § 5526; Fitzgerald v. Reid, 7 Ga. App. 323 (66 S. E.. 813) ; Blackburn v. Woodward, 128 Ga, 226 (57 S. E. 318) ; Skinner v. Braswell, 126 Ga. 761 (2) (55 S. E. 914) ; Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (2) (35 S. E. 777).

Judgment affirmed.

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


text:
    8578.
    Lawrence v. First National Bank of Forsyth.
    Decided July 23, 1917.
    Complaint; from Monroe superior court—Judge Searcy. February 15, 1917.

      H. W. Halley, for plaintiff in error.
   Broyles, P. J.

It- does not appear that the refusal of the judge, at the trial term, to open the default in this ease was any abuse of the wide legal discretion vested in him as to such'a matter.

Judgment affirmed.

Jenlcins, J., concurs. Bloodworth, J., disqualified.


text:
    8588.
    HOYT, deputy marshal, et al. v. SMITH.
    A levy upon property other than that of the defendant, under an execution founded on a general judgment, does not render the levying officer liable, as a trespasser, to the owner of the property, where the defendant in fi. fa. is in possession of the property at the time of the levy, and where no circumstance appears that would suggest a reasonable doubt of the defendant’s ownership of the property.
    Decided July 23, 1917.
    Action on official bond; from Fulton superior court—Judge Ellis. January 22, 1917.

      Daley, Chambers & Daley, Alvin L. Richards, for plaintiff in error. Gober & Jackson, W. I. Heyward, contra.
   Broyles, P. J.

• Counsel for the defendant in error argue that in all cases where an execution, issued on a general judgment, is levied upon property other than that of the defendant, the levying officer is guilty as a. trespasser. In support of their contention they cite the following cases: Chipstead v. Porter, 63 Ga. 220; Holton v. Taylor, 80 Ga. 508; McDougald v. Dougherty, 12 Ga. 613; Wallace v. Holly, 13 Ga. 389 (58 Am. D. 518); Turner v. Irwin, 35 Ga. 254; Bodega v. Perkerson, 60 Ga. 516; Haslett v. Rodgers, 107 Ga. 239, 245 (33 S. E. 44). In the Chipstead case it is said: “Process is of two kinds, one of which directs the officer to seize the defendant’s property generally, and leaves the officer to find and identify it; the other directs him to seize some specific article or articles of property which are pointed out and described in the process itself, and which, if the process be legal and issue by competent authority, the officer must seize at his peril. Acting under the former process^ he is left to inquire and judge for himself as to what particular property his process covers, and he must make no mistake to the injury of third persons; he must not take the property of strangers, for his process is no warrant to do that, but is warrant only for seizing the property of the defendant. 57 Ga. 596; 60 Id. 516. But acting under the latter species, he has no concern but to find what his process describes and deal with it as the precept commands him.” In that case the execution was issued against specific property, and the Supreme Court there held that the constable was not liable as a trespasser, although he may have levied upon property other than that of the defendant. The further holding, although it may have been sound law, was obiter dictum. The only decisions there cited as authority for the obiter ruling are Wilson v. Paulsen, 57 Ga. 596, and Bodega v. Perkerson, 60 Ga. 516. In the Wilson case the property, levied upon under an attachment, was not, at the time of the levy, in the possession of the defendant in attachment. In the Bodega case, likewise, the attachment was levied upon property not at the time of the levy in the possession of the defendant in attachment.

In McDougald v. Dougherty, supra, the execution was levied on property not at the time of the levy in the possession of the defendant in execution. In the Wallace case, supra, the decision germane to the facts of the case was that the sheriff was liable for not levying a mortgage fi. fa. upon the mortgaged property named in the process, although such property was in the possession of a third person. The further holding in that case, relied on here by the defendant in error, was, as in the Qhipstead case, obiter. In Turner v. Irwin, supra, the Supreme Court áaid (p. 257) that the only question raised by the exceptions and which it was called upon to decide was whether, under the facts presented by the affidavit of the plaintiff and the- counter-affidavit of the defendant, the words of the stay ordinance, to wit, that the debtor was “about to remove his property without the limits of the county,” were substantially complied with. It is obvious that that question has no bearing upon the question now under consideration. In Holton v. Taylor, supra, the execution was levied upon property “in the hands of a person other than the defendant.” In Haslett v. Rodgers, supra, the germane holding was that a sheriff, by levying an attachment upon goods described in the petition, did not become a trespasser, although the conveyance (upon which the attachment was based) may have been valid in law. The other ruling in that case, relied on by the defendant in error, is obiter. The Bodega case, supra, has already been discussed. So it appears that not one of the cases cited by counsel for the defendant in error directly holds (obiter expressions excepted) that an officer who levies an execution,, based upon a general judgment, upon property other than that of the defendant in fi. fa., is liable as a trespasser, where the property levied upon is, at the time of the levy, in the possession of the defendant in fi. fa. On the contrary, property found in the possession of the defendant in fi. fa. is, prima facie, his property. Wallace v. Holly, supra. This being true, it would seem to follow, as a necessary consequence, that an officer who levies an execution upon property which is in the possession of the defendant in execution is not liable as a trespasser, although it subsequently develops that the property was not, as a matter of fact, the property of the defendant. This would certainly be true where, at the time of the levy, no notice was given the officer that the property in the defendant’s possession was not in fact his, and where no' circumstances appeared which might suggest a reasonable doubt as to whether the property was the property of the defendant.

We think any other ruling would seriously impair the rights of creditors, as otherwise a levying officer would not dare to levy on property of the defendant in fi. fa., although in the exclusive possession of the latter, unless there was a mathematical certainty that the property did belong to the defendant. And in the great majority of cases no such certainty would appear. In our judgment the various decisions of the Supreme Court on this question can be reconciled by construing all of them to mean that the levying officer is liable as a trespasser only when the property levied on is not in the possession of the defendant in fi. fa., or when the circumstances are such as to suggest a reasonable doubt as to whether the property is in fact the property of the defendant.

This was a suit for damages by the alleged owner of personal property, brought against a levying officer and his bondsmen, for an alleged illegal levy and sale of the property. The execution was issued upon a general judgment against the defendant in fi. fa. The petition failed to state that the property levied upon as the property of the defendant was not, at the time of the levy, in his possession, or that the levying officer had notice at the time of the levy that the property did not belong to the defendant in fi. fa. The petition further failed to show any circumstances connected with the property sufficient to suggest to the officer a reasonable doubt as to whether the property was in fact the property of the defendant. In our opinion,. therefore, the petition did not set out a cause of action, and the court erred in overruling the general demurrer interposed thereto.

Judgment reversed.

Jenlcins and Bloodworth, JJ., concur.


text:
    8612.
    Harper v. Day.
    Decided July 23, 1917.
    Complaint; from Chattooga superior court—Judge Wright. September 3, 1916.

      O. D. Rivers, for plaintiff in error.

      John D. & B. S. Taylor, contra.
   Broyles, P. J.

The motion for a new trial contained only the general, formal grounds. There was some evidence that authorized the verdict, and the trial judge has approved it.

Judgment affirmed.

Jenkins and Bloodworth, JJ., honour.


text:
    8618.
    BRIDGES v. GRIFFIN.
    The grounds of the motion for a new trial, other than the general grounds, are not in proper form for consideration; and the verdict was authorized by the evidence.
    Decided July 23, 1917.
    Rehearing denied August 2, 1917.
    Trover; from city'court of Baiubridge—Judge Spooner. Jan.uary 16, 1917.

      W. V. Ouster, for plaintiff.

      M. B. O’Neal, J. 0. Hale, for defendant.
   Broyles, P. J.

1. The 4th ground of the motion for a new trial complains of a ruling of the trial judge in allowing, over the objection of the plaintiff, a certain question to be propounded to the plaintiff, on cross-examination. This ground can not be considered, as it shows only that the question was objected to, and no statement is made as to what answer was anticipated or given, or even that the question was ever answered. Freeman v. Matthews, 6 Ga. App. 164 (3) (64 S. E. 716).

2. Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial must be complete in itself. When it is so incomplete as to require this court to refer to the pleadings or to the brief of the evidence, it will not be considered. This ruling disposes of the 5th ground of the motion for a new trial.

3. This was a suit in trover to recover one gray mare mule, one dark bay horse mule, and one bay mare. The total value of the three animals was alleged to be $400. The defendant filed a plea in which he admitted that the property was in his possession at the time the suit was filed, and that the valué thereof was $400, but he denied that the animals were the property of the plaintiff, and alleged that he (the defendant) had title to the same. On the trial the plaintiff elected to take a verdict for the property; and the defendant elected to take a money verdict. The plaintiff introduced evidence as to the value of each of the animals sued for, he himself testifying upon that point as follows: “The mare mule was worth $175 or $200, the horse mule about $150, and the mare about $125.” The jury found a verdict for the defendant for $150. The evidence of the defendant showed that he purchased each of the animals on different occasions, and that the purchase of each was a distinct and separate transaction. Under these and the other facts of the case, the verdict was not contrary to law, and was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., .concur.


author: Luke, J.

text:
    7907.
    Haynie v. Central of Georgia Railway Company.
   Luke, J.

1. Where, in a suit against a railway company for damages on account of personal injuries, it was alleged that the plaintiff, after having purchased from the defendant a ticket for transportation as a passenger on a certain train of the defendant from a named station, hoarded the train safely by placing his left foot on the bottom step of the smoking-car as it was moving slowly from the station building at a rate of speed not exceeding three miles an hour, and at a distance of about ten yards from where the rear end of the ear had stopped to discharge and receive passengers, and that, as he was in the act of placing his right foot on the second step of the car, the train, without any warning or notice, gave a sudden, violent, unusual, and unnecessary jerk, which threw him from the train and caused the injuries complained of, and that “the agents of said railroad, in charge of said train, saw petitioner as he was approaching said train to board the same and while he was in the act of boarding the same,” the petition set forth a cause of action and was sufficient as against a general demurrer. Whether, under the circumstances stated in the petition, the conduct of the plaintiff in attempting to go upon the moving train was such negligence as should preclude a recovery is a question for a jury. Suber v. Georgia, Carolina & Northern Ry. Co., 96 Ga. 42 (23 S. E. 387); Southern Ry. Co. v. Nichols, 135 Ga. 11 (5) (68 S. E. 789); Central Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); Coursey v. Southern Ry. Co., 113 Ga. 297 (38 S. E. 866); Southern Ry. Co. v. Parham, 10 Ga. App. 531 (73 S. E. 763); Chisholm v. Atlantic Coast Line R. Co., 14 Ga. App. 166 (80 S. E. 528). The omission of the names of the railroad company’s agents “in charge of said train” did not render the petition subject to special demurrer, the train itself being identified by number and further description, and the time and place at which the plaintiff attempted to board it being specified. Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294 (3) (71 S. E. 421, 36 L. R. A. 1112) ; Pierce v. Seaboard Air-Line Ry., 122 Ga. 664 (2) (50 S. E. 468) ; Atlantic Coast Line Railroad Co. v. Burroughs, ante, 197 (92 S. E. 1010), and citations.

Decided July 25, 1917.

Action for damages; from city court of Newnan—Judge Post. October 13, 1916.

A. H. Freeman, for plaintiff.

Cleveland é Goodrich, A. Sidney Gamp, for defendant.

2. The court erred in sustaining the demurrer and dismissing the petition.

Judgment reversed.

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


text:
    8054.
    Mayor and Council of Washington v. Harris.
    Decided July 25, 1917.
    Action for damages; from Wilkes superior court—Judge Walker. March 9, 1917.

      William Wynne, W. A. Slaton, for plaintiff in error.

      J. M. Pitner, contra.
   Luke, J.

The Supreme Court in Mayor &c. of Washington v. Harris, 144 Ga. 102 (86 S. E. 220), held that the petition in this case set out a good cause of action; the jury were authorized to find that the case as laid had been proved; the charge of the court, when considered as a whole, was full and fair, and the verdict has the approval of the trial judge. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8259.
    City of Atlanta v. Holcomb.
    Decided July 25, 1917.
    Action for damages; from Fulton' superior court—Judge Pendleton. March 28, 1916.

      J. L. May son, 8. D. Hewlett, for plaintiff in error.

      Dorsey, Shelton & Dorsey, R. Low Reynolds, contra.
   Luke, J.

1. The notice to the city was sufficient to put the city on notice of the claim of the alleged damages.

2. If, by a city’s construction of drains in a negligent manner, surface-water from the streets and adjacent property is cast upon an adjoining lot and is caused to pond thereon, or if by negligent construction or maintenance of such drains there be thrown upon such lot surface-water polluted by filth and laden with noxious odors, the owner of the lot may recover the damages sustained in consequence thereof. Mayor &c. of Brunswick v. Tucker, 103 Ga. 233 (29 S. E. 701); Holmes v. Atlanta, 113 Ga. 961 (39 S. E. 458); Langley v. Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. R. 133).

3. An owner of realty, suing a city for damages, can not recover, for damage to the freehold, the value of earth washed away by negligently maintained drainage, and also recover the difference between the market value of the lot before the earth was washed away and its value afterward. City of Atlanta v. Swiney, ante, 415 (93 S. E. 24).

4. The petition as amended was not subject to the general demurrer, nor to the special demurrers that were overruled.

Judgment affirmed.

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


author: Wade, 0. J.

text:
    8273.
    District Grand Lodge Number 18 etc. v. Webb.
    Decided July 25, 1917.
   Wade, 0. J.

1. The motion to dismiss the bill of exceptions, on the ground that no copy of the plea in abatement was sent up, is overruled, as the substance of the plea in abatement is sufficiently set forth in the petition for certiorari, so that the issues raised thereby are presented for consideration.

2. There was sufficient evidence to support the finding of the judge (who tried the case without the intervention of a jury) against the plea in abatement, upon the theory that the defendant, by an absolute and unconditional denial of liability, had waived the requirement, in the policy sued on, that the plaintiff must first pursue her remedy in the courts of the order.

3. There was evidence to support the finding of the trial judge (Supreme Circle of Benevolence v. Beall, 18 Ga. App. 425 (89 S. E. 630)), and there is no substantial merit, under the facts of this case, in the exceptions to the admission of testimony.

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

Judgment affirmed.

George and Luke, JJ., concur.

Certiorari; from Fulton superior court—Judge Bell. October 18, 1916.

C. P. Goree, for plaintiff in error.

William, F. Buchanan, J. Ralph McClelland, contra.


author: George, J.

text:
    8313.
    PERRY v. ANDERSON.
    The judgment was not subject to attack by affidavit of illegality on the ground that the verdict on which it was based was rendered by a jury not drawn and summoned for the term of the county court at which it was rendered, and who tried the case over the defendant’s objection that because of this fact they were not a legal jury. The judgment was not void for this reason; and the remedy for error in such a case .is certiorari.
    Decided July 25, 1917.
    Certiorari; from Bryan superior court—Judge Sheppard. November 7, 1916.

      O. C. Darsey, for plaintiff. J. H. Smith, for defendant.
   George, J.

In a suit in the county court of Bryan county the plaintiff recovered a verdict against the defendant. Execution was issued and levied upon the property of the defendant, and he filed an affidavit of illegality to the execution, upon the following ground: “Because the jury rendering the verdict upon which said execution is based was not a legal jury and had never been drawn or summoned to attend as jurors for said February term, and said jurors, having never been summoned and having never been drawn for said February term, were illegal jurors, and, being illegal jurors, could not find any legal verdict, and deponent never waived or consented for said jurors to try said case, but, on the other hand, made this fact known to the court before said verdict was rendered, and objected to said jurors finding any verdict in said case, whereof by reason of said fact said verdict is a nullity, and said execution is proceeding illegally.” The judge of the county court sustained a demurrer to the affidavit of illegality and dismissed it, on the ground that the defendant’s remedy was certiorari, and not an affidavit of illegality. The defendant sued out certiorari, complaining of the dismissal, and the judge of the superior court sustained the certiorari and remanded the ease to the county court “for trial on the plea of illegality.”

The judgment in the county court, dismissing the affidavit of illegality on demurrer, was proper. The court had jurisdiction of the person and of the subject-matter, and-the judgment attacked by the affidavit of illegality was not void; at most it was only erroneous. Certiorari, and not an affidavit of illegality, was the remedy of the defendant. The judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

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


text:
    8334.
    Hilley v. Hale.
    Decided July 25, 1917.
    Certiorari; from Gordon superior court—Judge Fite. December 'll, 1916.
    In this case the plaintiff sought .to recover for the killing of his • pig by an automobile. He obtained a verdict and judgment in a justice’s court, and the defendant sued out certiorari, and finally brought the case to this court on exceptions to the overruling of the certiorari. The killing of the pig by the automobile was admitted, and there was evidence as to its value. A witness for the plaintiff testified: that he, in company with the defendant, was riding in the public road past the plaintiff’s house in an automobile, which the defendant was driving at the rate of eighteen to twenty-five miles an hour-; that the car was new, the brakes were in good condition, and, so far as he knew, the car was “in first-class shape;” that the defendant was a careful driver and “was driving the ear with all due diligence;” that a small object darted out of a dense growth of weeds and attempted to cross the road in front of the car, and “before the defendant could possibly stop the car” the said object, which he took to be a pig, was struck bv the front wheel; that the car was within ten feet of the pig before the pig was seen; that the road was good and the defendant was driving at “a very, very moderate rate, but that the pig was so near the car (being only about ten feet), before he darted into the road from the dense bunch of weeds, that it would have been impossible for any one to have stopped the same before striking the pig, without turning the car over' and probably causing the loss of human life;” and that “the defendant did all that a prudent man could have done to stop the car.” He testified further that “Gordon county has stock law.” The defendant testified to the same effect, and that on account of the weeds he could not have seen the pig before it darted out and started across the road. He testified further that it “was some two hundred yards from the plaintiff’s premises and was running at large upon the public highway in contravention of the law.” Another witness testified to the same effect. There was no further testimony as to the occurrence in question.
   Luke, J.

The evidence in this case demanded a verdict in favor of the defendant, and it was error for the judge of the superior court to overrule the certiorari.

Judgment reversed.

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

A. L. Henson, for plaintiff in error. G. A. Coffee, contra.


text:
    8340.
    Johnson v. Dukes et al.

    Decided July 25, 1917.
    Certiorari; from Liberty superior court—Judge Sheppard. November 18, 1916.

      J. P. Moore, 8. T. Brewton, W. G. Warnell, for plaintiff in error.

      J. P. Dukes, contra.
   Luke, J.

Upon the petition for certiorari and the answer thereto the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    8357.
    Strickland v. Jelks, for use, etc.
    Decided July 25, 1917.
    Action on contract; from city court of Valdosta—Judge Cranford. January 1, 1917.

      Denmark & Griffin, for plaintiff in error. E. K. Wilcox, contra.
   Luke, J.

This case has been before this court heretofore, and is reported in 18 Ga. App. 86 (88 S. E. 906). It was then held that the petition set out a good cause of action. Thé jury were authorized to find, from the evidence, that the plaintiff had proved the case as laid; and, there being no error of law, and the verdict having the approval of the trial judge, the judgment overruling the motion for a new trial is not erroneous.

Judgment affirmed.

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


text:
    8493.
    Atlantic Coast Line Railroad Co. v. Andrews.
    Decided July 25, 1917.
    Action for damages; from city court of Jesup—Judge Clark. January 16, 1917.

      Bennet, Twitty & Reese, J. W. Poppell, R. L. Bennett, for plaintiff in error. Parks & Reed, James R. Thomas, contra.
   Luke, J.

1. On the trial of an action for damages on account of injuries alleged to have been received by a passenger in attempting to alight from a railroad-train that had not stopped at the destination of the passenger a sufficient length of time for the passenger to alight from the train, it was error for the court to charge the jury as follows: “In the event you find that this plaintiff left the train without sufficient excuse for leaving it while in motion, and that she was warned not to do so, and that her leaving the train was without justification upon her part, she would not be entitled to recover. It is a question for you, gentlemen of the jury, to say, if you find that she did leave the train while in motion, whether she was justified in doing so.” The question to be determined, as to the conduct of the passenger, was whether she was exercising ordinary care, and not whether she had sufficient excuse or was without justification in leaving the train. This instruction is not rendered harmless by the court’s having in other parts of the charge given the law correctly. The jury were left to decide between ' the conflicts in the charge and to apply such portions of the conflicting instructions as most impressed them. Juries must take the whole charge as the law, and it is not for them to select as between conflicting parts without being instructed so to do by the judge. Savannah, Florida & Western Railway Co. v. Batcher, 118 Ga. 273 (45 S. E. 239) ; Savannah Electric Co. v. McClelland, 128 Ga. 87 (57 S. E. 91).

2. The other errors assigned are not likely to recur on another trial, and it is not necessary to make any ruling thereon. The court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Wade, C. J.

text:
    8516.
    Whitlock & Gutman v. Fuller Hosiery Mills.
   Wade, C. J.

In the absence of any sufficient legal excuse for the failure on the part of counsel for the plaintiffs to send off, for execution in the city of New York (under an agreement between counsel), the interrogatories by which it was expected to establish the claim set up in the plaintiffs’ petition, until within a period of “about two weeks” before the term of the court at which the case in which they were to be used was set for trial, this court can not say that the trial court abused its discretion in refusing to continue the case because the interrogatories had «not been returned, notwithstanding it was the first trial term. The party seeking a continuance for non-return of interrogatories, even when a commission is regularly issued, “must show due diligence in suing out and having the same executed.” Civil Code of 1910, § 5722. No abuse of discretion appearing on the part of the trial judge, the judgment is

Decided July 25, 1917.

Action for damages; from city court of Carrollton—Judge Beall. January 13, 1917.

Buford Boykin, for plaintiffs.

C. B. Hoop, J. M. Moore, for defendant.

Affirmed.

George and Luke, JJ., concur.


author: Per Cubiam.

text:
    8524.
    Copeland v. Hancock.
    Decided July 25, 1917.
    Action on contract; from city court of Cairo—Judge Willie. February 12, 1917.
    W. J. Hancock sued T. S. Copeland for damages on account of an alleged breach of a contract for an option to purchase certain land, which had been leased by the defendant to the plaintiff for five years beginning October 22, 1910, under a lease containing a provision that the lessee should have the option to buy the land at any time during the period of the lease, at the price of $450. The petition alleged, that in July, Í915, the plaintiff informed the defendant that he was ready to pay this sum and “get his deed” to the land, and was then informed by the defendant that the land had been sold to others, and ascertained that the defendant sold it on January 26, 1915, to F. M. Brannon and T. A. Stringer; and that by the defendant’s failure to perform the contract the .plaintiff was damaged in the sum of $550, this being the difference between the contract price of the land and its market value at the time of the breach of the contract. The defendant, in his answer, denied the. alleged breach of the contract, and averred that the sale to third persons, alleged in the petition, was made subject to the contract between the plaintiff and himself, and that the purchasers agreed to perform the contract on his part and held themselves ready to do so until voluntarily released by the plaintiff. It was further pleaded that before that sale the plaintiff breached a provision of the lease that he should pay the taxes on the land as a part of the rent, or pay the plaintiff an equivalent sum. The trial of the case resulted in a verdict against the defendant for $200, and in his bill of exceptions he complains of the overruling of his motion for a new trial, in which it is- alleged that the verdict was not supported by evidence.
   Per Cubiam.

The only complaint in this bill of exceptions is as to the sufficiency of the evidence to support the verdict. After a careful examination of the record we are of the opinion that the evidence was not sufficient to support the verdict.

Judgment reversed.

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

At the trial the plaintiff testified, that on July 1, 1915, he sent his son to tell the defendant that “some time during the month of September every dollar of his money would be ready,” and that he (the plaintiff) “would want title to the place;” that he “never did offer Mr. Copeland the money, but told him that the money would be ready;” he lived on the plaee until the contract expired. As to the taxes he testified, that he paid them one year only, and did not pay the amount of the taxes to the defendant; that the defendant told him that he (the defendant) would pay the taxes. Alex. Hancock, the plaintiff’s son, testified: “I came to Cairo to see Mr. Copeland on the 2d of July, 1915, . . in behalf of my father. . . I told him that his money would be ready for him in September, 1915. He said, . . ‘I have done sold it . . and got my money.’ I said, ‘What are we going to do about that ?’ He said, ‘Whatever you and the other fellow can do will be all right with me.’ He told me to go to the Citizens Bank and see Mr. Searcy. He then turned away and left. . . The place was worth more than $1,000 at that time. He never told me whom he had sold the place to. . . I did not have the money when I went to see Mr. Copeland, but I told him the money was ready; . . that my father would have the money some time in September, then he would be ready to take up the contract. I never did go to him with the money and offer to take up the contract. I went to the Citizens Bank to see Mr. Searcy. He said he did not know a thing about it. . . I got Mr. Weathers to write a letter to Mr. Brannon about this land, at the instance of my father.” It was testified that the plaintiff received, in reply to that letter, a letter introduced in evidence, signed I1. M. Brannon, dated “7/19/15,” requesting to be informed as to the number of acres in the place referred to in the preceding letter, and the price per acre, and saying, “Will then advise you further in the matter. We bought more than one tract from Mr. Copeland.” It was testified that “land around there is selling for $20 and $30 per acre;” and the land in question was 45 acres.

The defendant testified, that he traded the land in question, with two other places, to Brannon and Stringer, for some land in Alabama; that the consideration recited in the conveyance was about $2,500 “for 105 acres in the whole tract;” that the value of the 45 acres in this land was about $400; that he sold it subject to the option that Hancock had; that neither of the Hancocks ever tendered him the money for the place in compliance with the option; and. that he never told Hancock not to pay the taxes. He testified that Stringer signed a paper (introduced in evidence) as follows: “Cairo, Ga., Jan. 26, 1915. This is to certify that we, the undersigned, agree to carry out the contract between W. J. Hancock and W. H. Brock and Leandy Smith and T. S. Copeland, who has the privilege of buying said farm at $20.00 per acre. W. H. Brock is to pay the undersigned $100.00 a year rent. ~E. Brannon Bealty Co., by T. A. Stringer, Yice-Pres.” W. S. Wight testified: “I acted as agent for Stringer and Brannon in handling the property which they traded for from T. S. Copeland. During this time Í had some dealings with Mr. Hancock—Mr. Alex. Hancock. . . I was authorized to close this land deal with Mr. Hancock according'to the terms of the option from Mr. Copeland. I notified Mr. Hancock that I was prepared to comply with the option which he held. Mr. Hancock never offered to comply with his part of the contract. After Mr. Hancock failed to comply with the contract and after the option had expired I sold the place to John Johnson for $400. Mr. Alex. Hancock came to me several times, and eventually told me that he could not get the money to close the deal. Early in the fall of 1915 I notified them that I would make them a deed.” The brief of the evidence states -that a letter was exhibited to Mr. Wight, which he admitted signing; and the brief contains a fragment of a letter, without address and with the signature, “W. S. Wight,” dated October 23, 1915,. which says that he has at last heard from Mr. Brannon, and “he can not accept your offer.” William Searcy testified, that he wrote a letter to Brannon for Alex. Hancock, who told him to write that he would not be able to make the payment and asked for an extension of time; he thought this was in the summer. Alex. Hancock testified, in rebuttal: “On the second Monday in July, when I came to see Mr. Copeland, he told me that he had sold the place and had got his money for it. He did not say anything about this contract between him and Mr. Stringer, and did not tell me who he sold the place to. He told me to go and see Mr. Searcy. At the time I went to see Mr. Copeland we had part of the money and had made arrangements to get the balance from J. N. Carter in September.”

L. W. Rigsby, for plaintiff in error, cited:

39 Cyc. 1232-3, 1238; Larned v. Wentworth, 114 Ga. 208; Black v. Maddox, 104 Ga. 157; Elliot v. Delaney, 217 Mo. 1414.

J. Q. Smith, contra, cited:

McLeod v. Hendry, 126 Ga. 167; Pearson v. Horne, 139 Ga. 453 (3a) Thurman v. Smarr, 145 Ga. 312; Irwin v. Askew, 74 Ga. 582; Randall v. Bell, 12 Ga. App. 614.


text:
    8630.
    SMITH et al. v. SOUTHERN RAILWAY COMPANY.
    1. In a suit for the homicide of an employee of a railroad company, under the employer’s liability act of this State (Acts of 1909, p. 160; Civil Code of 1910, § 2782 et seq.), a presumption of negligence against the company does not arise upon a prima facie showing that the deceased met his death while discharging the duties of his employment. The presumption arises only upon proof that the deceased was killed by the running of the locomotives, or cars, or other machinery of the-company, or from an act done by some person in its employment and service.
    2. There is no substantial merit in any of the assignments of error.
    Decided July 25, 1917.
    Action for damages; from Whitfield superior court—Judge Pite. November 27, 1916.
    William and Lou Smith brought an action under the Civil Code (1910), § 2782 et seq., against the Southern Railway Company and the Western and Atlantic Railroad Company for the homicide of their minor son, alleged to be eighteen years of age, who had never married, and upon whose estate there was no administration. The deceased was employed by the Southern Railway Company. The Western & Atlantic Railroad Company was made a joint party defendant on the theory that its negligence concurred in causing the injury. The defendants filed demurrers, which were overruled. The Supreme Court reversed the judgment, and held that, the case having been'brought under the employer’s liability act of this State, the action was demurrable at the instance of each of the defendants, for misjoinder of parties defendant, and at the instance of the Western & Atlantic Railroad Company for misjoinder of parties plaintiff. See Western & Atlantic R. Go. et ad. v. Smith, 144 Ga. 737 (87 S. E. 1083). The allegations of the petition appear in that decision. Afterwards the plaintiffs, by amendment, eliminated the Western & Atlantic Railroad Company as a defendant, and, Lou Smith, one of the plaintiffs, having died, William Smith was appointed her administrator, and by amendment was made a party plaintiff as such, and the case proceeded to trial in the name of William Smith and William Smith, administrator, as plaintiffs, and against the Southern Railway Company as the sole defendant. The verdict was in favor of the defendant. The plaintiffs’ motion for a new trial was overruled, and they excepted.

      W. E. Mann, W. G. Marlin, for plaintiffs.

      Maddox, McCamy & Shumate, for defendant.
   George, J.

Complaint is made, in the 1st and 3d grounds of the amendment to the motion for a new trial, that the court erred in charging the jury that, before the plaintiffs could recover, they must show the defendant negligent by testimony; the insistence of the plaintiffs in error being that they were not required to show such negligence, but that, upon showing the injury alleged in the petition, the law presumed negligence. The 8th ground complains of the failure of the court to charge the jury in substance as follows: “I charge you that when the plaintiff has shown that the deceased was in the service of the Southern Railway Company and that he was injured, and from said injuries plaintiff’s son died, then the law presumes that the defendant railway company was negligent as alleged in the declaration, and you would be authorized to find a verdict in favor of the plaintiff for the full value of the life of the deceased as shown by the evidence; that when the killing was shown as above stated, the burden is upon the defendant to show either that it was not negligent or that the deceased could have avoided the consequences of defendant’s negligence, if it was negligent, by the use of ordinary care.” This clearly states the contention of counsel for the plaintiffs in error. The deceased was a track-hand employed by the Southern Eailway Company, the defendant, and was engaged in its service at a point south of Dalton. At this point the tracks of that company and of the Western & Atlantic Eailroad Company run parallel for about six miles, the distance between them varying from four to sixteen feet, according to the evidence in the record. The defendant’s track was west of the Western & Atlantic Eailroad Company’s track. A north-bound freight-train on the defendant’s track approached the place where the deceased was at work. The track-hands were ordered to take the hand-car off the defendant’s track and place it on the west side. As the train came up from the south, the deceased and his foreman stepped off on the east side of the defendant’s track, next to and onto the track of the Western & Atlantic Eailroad Company, and a fast south-bound passenger-train of the Western & Atlantic Eailroad Company struck and killed him. In the circumstances, no presumption of negligence, upon proof merely of the death of the employee, arose against the defendant. The action is under section 2782 of the Civil Code of 1910. By the terms of this section it is provided: “In case death results from injury to the employee, the employer shall be liable unless it make it appear that it, its agents, and employees have exercised all ordinary and reasonable care and diligence, the presumption being in all eases against the employer. If death does not result from the injury, the presumption of negligence shall be and remain as now provided by law in case of injury received by. an employee in the service of a railroad company.”

It is contended* that when a ease is brought under this act, the plaintiff makes a prima facie case by merely showing that the deceased met .his death while discharging the duties of his employment. The case of Atkinson v. Hardaway, 10 Ga. App. 389 (4) (73 S. E. 556), is cited in support of this contention. The facts involved in the case cited do not appear in the decision, but we apprehend that in that case no direct ruling was invoked or made in conflict with what we now rule. Section 2780 of the Civil Code of 1910 provides: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” The presumption referred to in section 2782 arises only in connection with the conditions stated in section 2780. In other words, in case death results from injury to the employee, caused by the running of the locomotives, or cars, or other machinery of the company, or from some wrongful act done by any person in the employment and service of such company, the presumption against the company arises. That portion of the State employer’s liability act, contained in section 2782, which declares “the presumption being in all cases against the employer,” must be read in connection with section 2780, which-states the conditions under which the presumption of negligence against the company arises. If this premise be correct, it necessarily follows that the presumption of negligence which arises against the defendant on proof of the homicide of the employee did not arise in this case. The deceased was not killed by the running of the locomotives, cars, or other machinery of the defendant company, nor by any act done by any person in the employment and service of the defendant company. See Davis v. Ga. Railroad &c. Co., 110 Ga. 305 (34 S. E. 1001), where it' was held that the presumption did not apply in a suit brought against a railroad company by a passenger seeking to recover damages because of the failure of the conductor to protect him against an assault by a fellow passenger. Compare also Atlanta Ry. Co. v. Johnson, 120 Ga. 908 (5) (48 S. E. 389).

In the case of Savannah &c. Ry. Co. v. Flaherty, 110 Ga. 335 (35 S. E. 677), the plaintiff was a passenger, and in boarding a train her foot slipped from the edge of the platform which the defendant had negligently allowed to become slippery -with grease or other substances, and in the fall she received a serious injury. The Supreme Court held that the presumption did. not apply, and in the opinion said: “Was the damage to her done by any person in the employment and service of the defendant? We are prepared to say with the utmost confidence it was not. Granting that the incline was improperly constructed or kept, and that the placing of the steps of the ear over the slope of the incline was, relatively to those invited to board the train in this position, a negligent act, it still can not be said that any particular employee of the company did any direct wrong to the plaintiff. Neither the construction of the crossing nor the backing of the train to the place at which it had been stopped when the plaintiff endeavored to enter the car was an act of a person in the company’s service, which, in and of itself, could possibly have caused hurt to Mrs. Flaherty. The words last quoted embrace only acts done by employees which are the direct and efficient cause of injury to another. In other words, there must be such an act as would subject the employee himself to an action of tort. . . The language of the section under consideration is plain and unambiguous, and it seems clear that, in order to render its provisions applicable to a given case, it must affirmatively appear, as the law itself declares, that the injury complained of resulted either from 'the running of the locomotives, or cars, or other machinery’ of the company, or from some wrongful act of an employee which itself was the immediate cause of the damage to the person injured.” It will be observed that the court gave to section 2780 of the code a strict construction, even as against a passenger. The writer has some misgiving in applying the rule of strict construction as against a passenger, because at common law there was a-presumption against the carrier in favor of the injured passenger. As against all others, the section is undoubtedly -in derogation of common law, and is to be strictly construed. In Atlanta Railway Co. v. Johnson, supra, the origin of the presumption is examined, and it is said to be a concrete expression of the doctrine of res ipsa loquitur. The rule of res ipsa loquitur is based upon the apparent fact that the accident could not have happened without negligence on the part of the carrier. It is said that ''the presumption which arises in these cases does not arise from the mere fact of the injury, but from a consideration of the cause of the injury.” 3 Thomp. Neg. § 2756. It follows that neither the charges given, nor the failure to charge, excepted to in grounds 1, 2, and 8, were, for any of the reasons assigned, erroneous.

Complaint is made in the 3d ground of the amendment to. the motion for a new trial that the court erred in charging the jury that the same degree of care,—namely, ordinary care,—was required alike of both the deceased and the defendant. This is the law.

Complaint is made in the 4th and 5th grounds of the amendment to the motion for a new trial that the court read to the jury in their entirety sections 2782 and 2783 of the code. The sections referred to constitute our statute of 1909, regulating the liability of railroad companies for personal injuries to their employees, and are'applicable both where an employee is killed and where one is injured; the practical difference being that in case of fatal injury the right to recover is in the personal representative of the deceased employee, and in case of injury not fatal the right of action is, of course, in the employee, and that a presumpton of negligence arises against the carrier in case of death of the employee, and does not arise in case of injury. The reading of these sections in their entirety could not have resulted in any haim to the plaintiffs, so far as we are able to perceive.

Complaint is made in the 6th and 7th grounds that the court limited the plaintiffs’ right of recovery to proof of the foreman’s negligence in failing to observe and warn the deceased of the approach of the Western & Atlantic passenger-train. The allegations of negligence were: “ (a) The foreman of the section crew did not exercise ordinary care to observe the train approaching on the Western & Atlantic Railway Company’s track, and did not warn plaintiffs’ son of the approach of such train. (&) The flagman sent ahead to look out for trains approaching on the Southern, if any, did not warn petitioners’ son of the approach of the Western & Atlantic train, or the foreman of the section crew, nor did he flag or notify the persons in charge of the Western & Atlantic train.” The evidence disclosed that the foreman in charge of the work on the defendant’s track sent a flagman both to the north and the south of the point where the work was to be performed. The flagman sent to the north was stationed a distance 'of eighteen telegraph poles from the deceased. He could neither see nor hear -the deceased. He therefore was unable to make himself seen or heard by the deceased. He had no right or authority to flag or in any manner interfere with the operation of the trains of the Western & Atlantic Railroad Company. His sole duty was to flag any approaching train upon the defendant’s track. The evidence discloses that he discharged his full duty in this regard. There was no evidence in the record to authorize a charge on this specification of negligence.

In the 9th ground error is assigned upon the failure of the court to charge the jury in substance that it was the duty of the railway company to furnish the deceased a reasonably safe place in which to work, and to warn the deceased of the dangers surrounding him, from whatever source they might arise, in the circumstances of the case. In support of this contention, it is insisted that it was the duty of the foreman, who, with the deceaséd, was on the east side of the defendant’s track, to warn the deceased of the danger in standing upon the track of the Western & Atlantic Eailroad Company. The deceased knew he was upon the track of that company. He was familiar with the surroundings. He was more or less experienced in his work. He must have known that it was unsafe to stand upon a railroad-track, over which trains were daily, and perhaps hourly, operated.' Words of warning from the foreman would, in such circumstances, appear to be ridiculous and wasteful excess. There was no hidden defect. The track was on the surface, and the deceased was on the track. He might have stood between the two tracks, as the foreman did, who escaped injury. There was no error in failing to charge the principle of law stated in this ground of the motion. The principle was not ajiplicable.

The assignments of error áre without substantial merit. The case was fairly submitted to the jury, and the verdict will not be disturbed.

Judgment affirmed.

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


text:
    8633, 8634.
    Wilson v. Patterson; and vice versa.

    Decided July 25, 1917.
   George, J.

1. In a case in which the verdict was not demanded by the law and the evidence, the Court of Appeals will not disturb the first grant of a new trial, though based upon a single ground complaining of failure of the court to give in charge to the jury a particular principle of law; and will not determine whether the trial court was right in granting the motion on the special ground. Cox v. Grady, 132 Ga. 368 (64 S. E. 262), and cit.; Civil Code (1910), §§ 6204, 6088.

2. The main bill of exceptions assigns error upon the first grant of a new trial, based upon a single special ground of the motion for a new trial, and the cross-bill of exceptions assigns error upon the overruling of the remaining grounds of the motion. The judgment on both bills of exceptions is Affirmed.

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

Action for damages; from Fulton superior court—Judge Bell. September 30, 1916.

Robert 0. & Philip H. Alston, for Wilson. Guy Parker, Madison Richardson, Bryan & Middlebrooks, contra.


text:
    8639.
    Western and Atlantic Railroad Company v. Barnett.
    Decided July 25, 1917.
    Action for damages; from Gordon superior court—Judge Fite. November 27, 1916.

      Tye, Peeples & Tye, Neel & Neel, Starr & Paschall, Maddox, McGamy & Shumate, for plaintiff in error.

      W. G. Martin, W. E. Mann, J. G. B. Erwin Jr., contra.
   George, J.

.1. There was evidence warranting a finding that the defendant’s depot was set on fire by sparks emitted from its locomotive, and that the fire was communicated from the depot to the plaintiff’s Inillhouse, near the depot, and that the defendant was guilty of negligence in the manner in which the engine was equipped and managed at the time the fire was thus communicated. Central of Ga. Ry. Co. v. Trammell, 114 Ga. 312 (1, 2) (40 S. E. 259); Southern Ry. Co. v. Williams, 113 Ga. 335 (38 S. E. 744).

2. The evidence was in sharp conflict upon all issues in the case, and the preponderance of it seems to be in favor of the contentions of the defendant, but the issues were for the jury, and, there being evidence to authorize their verdict, the court did not err in overruling the motion for new trial, based upon the general grounds only.

Judgment affirmed.

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


author: Pee Curiam.

text:
    8337.
    Western & Atlantic Railroad Co. v. Davis.
    Decided July 25, 1917.
    Rehearing denied September 13, 1917.
    Action for damages; from Gordon superior court—Judge Fite. November 27, 1916.

      Tye, Peeples & Tye, O. N. Starr, Maddox, McGamy & Shumate, Neel & Neel, for plaintiff in error.

      W. E. Mann, W. G. Martin, J. G. B Erwin Jr., contra.
   Pee Curiam.

This case is substantially controlled by the decision in the case of Western & Atlantic R. Co. v. Barnett, ante, 616. Where not so controlled, there is no merit in the assignments of error.

Judgment affirmed.

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


text:
    8658.
    Wallace v. Kimball Company.
    Decided July 25, 1917.
    Action for damages; from Fulton superior court—Judge Pendleton. December 7, 1916.

      Neufville & Neufville, for plaintiff.

      William E. Arnaud, for defendant.
   George, J.

If it be conceded that, under the allegations of the petition, the defendant’s foreman in charge of its packing and shipping department was its vice-principal, it nevertheless appears, from further allegations of the petition, that, as to the negligence on his part which brought about the injury, he was a mere fellow servant of the plaintiff. The petition, therefore, was properly dismissed on general demurrer. While doing a servant’s work engaged solely in executing the ordinary details of labor in connection with another servant, a foreman who' in other respects stands in the place of the master is a fellow servant, and his negligence therein will not render the master liable to the other servant, except where the master is a railroad company. Civil Code (1910), § 3129; Studevant v. Blue Springs Lumber Co., 16 Ga. App. 668 (3) (85 S. E. 977), and eases there cited.

Judgment affirmed.

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


text:
    8671.
    Bedgood v. Floyd.
    Decided July 25, 1917.
    Motion to set aside judgment; from Campbell superior court— Judge Smith. June 13, 1916.

      James & Bedgood, for plaintiff in error.

      J. F. Golightly, contra.
   George, J.

This was a statutory motion to set aside a judgment. Civil Code (1910), §§ 4358, 5958. It is essential to the validity of such .a motion that it affirmatively appear that the motion was presented to the judge and filed in term time. It affirmatively appears, from the record that the motion was presented to the judge of the superior court at chambers, and the bill of exceptions recites that it was “made in vacation after the court had adjourned.” Having been begun in vacation, the proceeding was a nullity, and the judge of the superior court had no authority to entertain the motion. See Malsby v. Studstill, 127 Ga. 726, 728 (56 S. E. 988), and cases there cited. The order denying the motion will be construed as an order dismissing it; and, for the reason stated, the judgment is

Affirmed.

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


author: Per Curiam.

text:
    8672.
    Bedgood v. Floyd.
    Decided July 25, 1917.
    Motion to set aside judgment; from Campbell superior court— Judge Smith. June 13, 1916.

      James & Bedgood, for plaintiff in error.
    J. F. Golightly, contra.
   Per Curiam.

This case is controlled by the decision in Bedgood v. Floyd (No. 8671), ante, 617.

Judgment affirmed.

Wade,- O. J., and George and Luhe, JJ., concur.


text:
    8676.
    Waller v. Bullard.
    Decided July 25, 1917.
    Motion to vacate judgment; from Campbell superior court— Judge Smith. June 13, 1916.

      James & Bedgood, for plaintiff in error.

      J. F. Golightly, contra.
   Per Curiam.

This case is controlled by the decision in Bedgood v. Floyd, ante, 617.

Judgment affirmed.

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


text:
    8745.
    Abdallah v. The State.
   Wade, C. J.

1. The evidence, though circumstantial, was sufficient to establish the corpus delicti (Westbrook v. State, 91 Ga. 11 (16 S. E. 100); Allen v. State, 91 Ga. 189 (16 S. E. 980); Dixon v. State, 11 Ga. App. 367 (75 S. E. 266); Rice v. State, 16 Ga. App. 128 (84 S. E. 609) ; Wade v. State, 16 Ga. App. 163 (84 S. E. 593) ), and showed a motive on the part of the defendant to commit the crime of arson, and was sufficient to connect him therewith and to exclude every reasonable hypothesis save that of his guilt.

2. The discretion of a trial judge in refusing a new trial on the ground of newly discovered evidence will not be controlled, unless manifestly abused. Tilley v. Cox, 119 Ga. 867, 872 (47 S. E. 219). Where a motion for a new trial is based on alleged newly discovered evidence, and affidavits disputing this ground of the motion are introduced, “the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses. A reviewing court will not in any such ease control his discretion as to the comparative credibility of the witnesses who testified in support of the motion and those who swore to the contrary.” Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116). See also Hayes v. State, 16 Ga. App. 334 (85 S. E. 253).

Decided July 25, 1917.

Indictment for arson; from Emanuel superior court—Judge Hardeman. February 24, 1917.

Saffold & Jordan, for plaintiff in error.

Walter F. Grey, solicitor-general, contra.

3. There being some evidence to support the verdict, which has the approval of the trial judge, this court is without power to set the verdict aside.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    8635.
    BAUM v. HOBBS.
    Under the evidence the plaintiff, who sought to recover a promissory note and a cow he had given for a horse, was not entitled to a rescission of the trade; and the verdict in his favor was unauthorized.
    Decided July 25, 1917.
    Trover; from Laurens superior court—Judge Kent. No\ember 21, 1916.

      W. G. Davis, for plaintiff in error. Camp & Twitty, contra.
   Broyles, P. J.

This was an action in trover to recover a promissory note for $100 and a milch cow, both given for a horse. The plaintiff elected to take a money verdict, and the jury returned a verdict in his favor for $137.50. The plaintiff’s own evidence showed that he traded for the horse on a Monday, and on the same day drove it home, and in the latter part of the same week discovered certain defects in the horse. His evidence further showed, that, although he promptly carried the horse back to the defendant and complained of its defects, and although on several subsequent occasions he conversed with the defendant on the same subject, he did not demand a rescission of the trade until about a month after the trade, and until after the horse had been badly ruptured. The undisputed evidence in the ease further showed that the rupture had greatly lessened the value of the horse, and that it occurred after the horse had been for “some time” in the possession of the plaintiff. There was no evidence whatever to show that the rupture resulted from any of the defects complained of in the horse. Under such circumstances the plaintiff had no right to a rescission of the trade, and the finding of the jury in his favor was contrary to law and the evidence, and the court erred in refusing to grant a new trial.

Judgment reversed.

Jenkins and Blood-worth, JJ., concur.


text:
    8663.
    BOYD COMPANY v. DAVIS.
    The reasonable value of the services of a person conducting an auction as a private individual can not be illustrated by testimony as to commissions for sheriff’s sales, such commisions being fixed by law as emoluments of the sheriff’s office.
    Decided July 25, 1917.
    Complaint; from Calhoun superior court—Judge Cox. December 30, 1916.

      Pope & Bennet, G. J. Taylor, Yeomans & Wilkinson, tor plaintiff in error. B. W. Fortson, contra.
   Broyles, P. J.

1. This was a suit by an auctioneer, who happened to be also the sheriff of his county, for the recovery of commissions for conducting a sale of property. He conducted the sale as a private individual and not in his official capacity of sheriff. Although the petition was not specifically divided into counts, the pleader evidently intended it to contain two counts. The first one was based on an alleged express contract for specific commissions, and the second was based on a quantum meruit for the reasonable worth of his services. A verdict for $330 and interest was returned for the plaintiff. While the plaintiff was being examined as a witness, and while testifying as to the reasonable worth of the services sued for, the court allowed him to testify, over timely and appropriate objections from the defendant, as to what commissions a sheriff received for selling property; and, in overruling the objections to this evidence, the judge remarked: “That might illustrate the value of his services.” What a sheriff receives for his official services in selling property furnishes no light as to what would be a reasonable price for the services of a private auctioneer. The fees of a sheriff are fixed by law and are emoluments of his office, and do not purport to measure merely the reasonable value of the services rendered by him. When he conducts an official sale he has many other duties connected therewith that are not imposed upon a private auctioneer. He may become liable as a trespasser for an illegal levy and sale; and he is required to put the purchaser in possession of the property, and to see to it that the fund derived from the sale of the property is properly applied. It is clear, therefore, that the amount of his fees as sheriff for selling property furnishes no criterion whatever to measure the value of reasonable compensation for a private auctioneer. This ruling of the trial judge, therefore, was harmful error, and requires a reversal of the judgment overruling the motion for a new trial; it not appearing under which count the verdict was returned.

2. It is unnecessary to consider the other alleged errors, since it is not provable that they will recur upon the next trial of the case. Likewise, the question as to the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed..

Jenhins and Bloodworth, JJ., concur.


text:
    8678.
    McDonald v. Kimball Company, Incorporated.
    Decided July 25, 1917.
    Affidavit of illegality; from Eichmond superior court—Judge Henry C. Hammond. January 15, 1917.

      W. Inman Gurry, for plaintiff in error.

      Paul T. Chance, C. H. & B. 8. Cohen, contra.
   Broyles, P. J.

The motion for a new trial embraced only the usual general grounds. The evidence amply warranted the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Jenhins and Bloodworth, JJ., concur.


text:
    8682.
    Sapp v. Buxton.
    Decided July 25, 1917.
    Complaint; from municipal court of Macon—Judge Chambers. November 13, 1916.

      Charles H. Garrett, for plaintiff in error.

      Hardeman, Jones, Parh & Johnston, contra.
   Broyles, P. J.

This being a writ of error from the municipal court of Macon, under the ruling in Griffin v. Sisson, 146 Ga. 661 (92 S. E. 278), s. c. 19 Ga. App. 828 (92 S. E. 558), the Court of Appeals is without jurisdiction; and the bill of exceptions is accordingly

Dismissed.

Jenhins and Bloodworth, JJ., concur.