author: Per Curiam. Smith, J.,

text:
    10651, 10652.
    WILLIAMS et al., admr’s, v. WESTERN & ATLANTIC RAILROAD CO.; and vice versa.

    1. Questions as to diligence and negligence, including contributory negligence, are questions peculiarly for the jury, and there being sufficient evidence in this case from which the jury might infer acts of negligence on the part of the defendant such as constituted the proximate cause of the injury, the court erred in granting a nonsuit. White v. Atlanta Consolidated Street By. Co., 92 Ga. 494 (17 S. E. 672) ; Carey v. East Tenn. &o. By. Co., 95 Ga. 747 (22 S. E. 299) ; International Cotton Mills v. Welt, 22 Ga. App. 309 (96 S. E. 16) ; Moore v. Dixie Eire Ins. Co., 19 Ga. App. 800, 804 (92 S. E. 302). In view of the new and additional facts and circumstances disclosed by the evidence adduced upon the trial of the ease now under review, the decision rendered by this court in Williams v. Western & Atlantia B. Co., 20 Ga. App. 726 (93 S. 'E. 655), affirming the grant of a nonsuit in an action between the same parties and involving the same subject-matter as the one now before this court, is not controlling.
    2. “A cause of action to recover damages for death under the Federal employer’s liability act [U. S. Comp. St. §§ 8157-8665] accrues when an administrator is appointed, and not at the time of death, within the meaning of the section providing that no action shall be maintained unless commenced within two years from the day the cause of action accrued.”
    3. The petition, as amended, was not subject to the demurrers interposed.
    Decided February 9, 1920.
    Action for damages; from city court of Atlanta—Judge Beid. March 27, 1919.
    Application for certiorari was denied by the Supreme Court.
    This is a suit under the Federal employer’s liability act, • instituted by Mrs. Jennie L. Williams, administratrix, and C, L. Williams, administrator, of the estate of Chester A. Williams, deceased, against the Western & Atlantic Bailroad Company, to recover for the homicide of the decedent (the son of the plaintiffs), which occurred while he was in the employ of the defendant and in the discharge of his duties, his death having been occasioned by the wrecking of a building, brought about by the alleged explosion of escaping- gas from a gasoline engine belonging to the defendant. The explosion and the decedent’s death occurred on January 25, 1912. The suit was-filed more than two years thereafter (January 24, 1917), but within two years after the appointment of the plaintiffs (September 29,1915) as representatives of the decedent’s estate. The petition was demurred to, on the ground that the suit was barred, since it is provided in the act under which the action arose that "No action shall be maintained under this act unless» commenced within two years from the day the cause of action accrued.” The demurrer was overruled and the defendant filed exceptions pendente lite. The case proceeded to trial and resulted in a nonsuit. The plaintiff in the main bill of exceptions excepts to the granting of a nonsuit, while the defendant, in a cross-bill of exceptions, excepts to the overruling of its demurrer, both general and special.

      Westmoreland, Anderson & Smith, for plaintiffs.

      Tye, Peeples & Tye, for defendant.
   Per Curiam.

(After stating the foregoing facts.)

The judgment rendered by this court in 20 Ga. App. 726 (93 S. E. 555), affirming the grant of a nonsuit, was a suit between the same parties and upon the same subject-matter as the one now before us brought under the Federal employer’s liability act. We do not consider that the former decision is now controlling upon the question whether or not there was an issue of fact as to the defendant’s negligence as constituting the proximate cause of the injury, which should have been submitted to the jury, since the new and additional evidence submitted by the plaintiffs in this, the present suit, very materially strengthens the contention of the plaintiffs that the explosion was caused by gasoline alleged to have escaped from the engine and pipes of the defendant. D. G. Hicks (or Hix), a witness for the plaintiff, testified at both of the trials, in part substantially as follows: The engine-room was not provided with ventilators. There were three windows in the engine-room. Those windows were kept closed in cool weather. There was nothing in the engine-room to cause an explosion in case somebody went into that room with a lighted lantern, except the gasoline. If that engine had been running for several hours and the room closed up, and there was gasoline leaking into the room, the heat caused by the motion of the wheels would be sufficient to volatilize that gasoline and cause an explosion when it came in contact with flame. I have never heard of -anything else except a flame that would cause gasoline to be exploded. If the room had been closed up for several hours, and the engine was running, and there was. leaking gasoline in the room, and the .door opened and a party entered with a lighted lamp, with a flame, that air that was let in would be sufficient to volatilize that gasoline and cause an explosion.

Another expert witness, C. E. Freeman, testified at both of the trials, in part, substantially as follows: If there was a room fifteen by eighteen feet with a ceiling anywhere from twelve to eighteen feet high, built of brick with a cement floor (such as in this case), with two Fairbanks-Morse gasoline engines in it, with windows in the room, and the windows closed, and the door closed, and a party entered that room with a lighted lantern, and after the door was opened there was an explosion which wrecked that building and caught that party under the debris, there is only one form of gas that would enter this building, it is evident that a light would cause this explosion only from coming in contact with a gas, if those were gasoline engines, there was gasoline coming in the building; gas will not explode until it volatilizes, which it will do at any-temperature from zero up; this explosion could only have been caused from the volatilization of some amount of gasoline that could have gotten into this building somehow being exploded or ignite’d from this lantern. If the engine had been running three or four hours, and the gasoline had been leaking, . . if this engine was running three or four hours in a room of the dimensions given, I would say it would raise the temperature of that room to from eighty to ninety degrees, and that would cause the gasoline to volatilize very rapidly. If the door was opened and a party went in from the outside, and had gone from four to six feet, and an explosion took place from the lantern that he carried in his hand, the opening of the door and the letting in of the air would volatilize the gasoline sufficiently to cause the explosion. If the temperature was from eighty to ninety degrees, and gasoline leaking or dropping one drop a second, it would take from three to six hours for that room to become sufficiently charged with gas to cause an explosion of sufficient violence to wreck the building. The volatilization that would ordinarily take place would not be in sufficient quantities to be dangerous in the absence of a leak in some gasoline pipe or pump, in any standard-make gasoline engine that I have ever had any experience with.

Besides the evidence adduced on the former trial, the following additional evidence was submitted on the trial of the case now before us. G-. F. Pflasterfer, an employee of the defendant, sworn in behalf of plaintiff, testified: “After an investigation I ascertained the cause of the blowing up and made a report on it; as well as I remember I made the report to my superior officer . It [the explosion] was caused by the house being closed up for a considerable period, making it air-tight, and in the escaping gases from the engine accumulating there and having no chance to mix with the air, and that when a lighted lantern was taken into the compartment and the fresh air was let into the room, the proper mixture of gas with the air and the lighted lantern caused the explosion. . . The cause of the explosion was gasoline having impregnated the room, the windows down, some one opened the door with a lighted lantern, a flame, and the building blew up. . . This examination was made within twenty-four hours after the accident. . . I base it [the statement that the windows were shut] on the reports made to me as to the condition in which the power-house was left for three hours or more; the chief maintainer and others made that report, made the report that the engine was left running and the windows and doors down and shut.” It will be recalled that in the former decision this court based its holding partly upon the fact that there was then nothing to indicate that the ventilating windows were closed.

C. L. Williams, who qualified as an expert on gasoline engines, testified with reference to the pump on the engine which was running the night of the explosion, as follows: “This pump on No.l engine, the knoll-nut was very badly scarred, showing marks of violence caused by a chisel or something used on the knoll-nut to tighten it. . . The knolknut presses down on it, pressing the packing down like that. If this knoll-nut is screwed down all the way against the shoulder, the nut and shoulder would be in contact, leaving no space for the packing between the nut and the shoulder. . . There were places indicating marlcs where oil had been deposited on the nut down on the barrel of the pump where the gasoline running down on the side of the pump left marlcs when it cut the oil. Gasoline will remove oil, and it left a strealc showing that the pump had been leaking. . . In my opinion that condition had existed for some time, had been in that condition for some time. . . The gasoline that I speak of as being on the side óf the pump could not have got there any other way except the way I have described. . . This knoll-nut that I examined was on engine No. 1. It looked like somebody had used a chisel in order to make it fit tight. It did fit tight. If it did fit tight, gasoline could come between the plunger and the barrel, as there was no packing there, nothing to seal it. There was no packing there to seal the joint, and therefore the gasoline could come through there. It would come out from the barrel of the gasoline pump.” The italicised portion of the evidence was not submitted at the former trial. There is no evidence going in any way to show that this particular leak in the pump, here testified to for the first time, had ever been remedied, or in any way sought to be remedied. D. G. Hicks, who qualified as an expert gasoline-engine man, testified for the first time at the second trial that without proper packing in the gasoline pump, and with the knoll-nut in the condition described by the witness Williams, gasoline would leak therefrom.

It will thus be seen that on this trial, but not at the former trial, there was evidence showing that the windows were down and the door closed, and new circumstances were adduced for the purpose of showing that gas was leaking from the pump on the engine, as well as from the pipes. Furthermore, the witness Bead, in addition to his testimony at the former trial, now swears that two or three of the threads on the gasoline pipe had “worked out,” and Misenheimer, who was not sworn on the former trial, testified that in reparing the leak in the pipe, he did not think that he “turned it over a quarter around.” It would thus seem from all of the testimony submitted on the present suit (that is, the evidence which was new, taken in connection with the evidence which was also presented in the former eases and which was in substance repeated) that a jury might have been reasonably authorized to infer that the plaintiff had established by sufficient proof the fact that negligence on the part of the defendant did exist, and that such negligence constituted the proximate cause of the injury. Not only was evidence submitted for the first time for the purpose of showing that the ventilating windows of the room were closed, but new evidence was submitted for the purpose of showing a new and independent leak, the evidence being not only to the effect that gasoline might have leaked from such new source,—the pump on the engine,—but that it was actually doing so. Even in regard to the alleged leak in the pipe,' while the same evidence appears now as at the former trial, tending to show that such admitted defective joint had been remedied, still in this ease there is now evidence to the effect that certain threads on this pipe had worked out, and the jury on the last trial, had they been permitted to do so, could have weighed and considered for themselves the nature and character of the work done in the repairing of such leaking and defective pipe by the defendant’s mechanic, since on the last trial it was testified by the mechanic for the first time, “I don’t think I turned it over a quarter around.” he then having reference to the same joint that had as many as two or three of its threads worked out. In our opinion the evidence is entirely sufficient to have authorized the submission to the jury of the question of the defendant’s negligence, made by all of this testimony, irrespective as to any issue as to contributory negligence on the part of the decedent, and that the court erred in refusing to permit the jury to pass upon this question, by granting a nonsuit.

The case being reversed on the main bill of exceptions, it becomes necessary to pass upon the cross-bill of exceptions, wherein the defendant excepts to the overruling of its demurrer, both general and special, insisting that the plaintiffs’ suit is barred by reason of not having been “commenced within two years from the date the cause of action accrued,” as the act requires. The defendant insists that the cause of action accrued on the decedent’s death, which occurred on January 25, 1912, and that, as the suit was not commenced until January 24, 1917, more than two years thereafter, it is therefore barred. On the contrary the plaintiff insists that the cause of action accrued on the appointment of the plaintiffs as representatives of the estate of the deceased, which appointment was made on September 28, 1915, and the suit, having been commenced within two years from that date, is not barred. The authorities are conflicting on the question as to when a cause of action under this act accrues. Some hold that the right accrues upon the appointment of an administrator of the estate of the person for whose homicide a suit is brought, while others hold that it accrues upon the death of the decedent. The weight of authority seems to support the view that the cause of action accures with the appointment of the administrator. Without attempting any lengthy discussion or elaboration of the authorities pro and con, we are content to rest our decision on the authority of the recent well considered and exhaustively treated case of American R. Co. of Porto Rico v. Coronas, decided by the United States Circuit Court of Appeals, First Circuit, 230 Fed. 545 (144 C. C. A. 599, L. R. A. (N. S.) 1916 E, 1095). It was there held, that a cause of action to recover damages for death under the Federal employer’s liability act accrues when an administrator is appointed, and not at the time of death, within the meaning of the section providing that no action shall be maintained unless commenced within two years from the day the cause of action accrued. We adopt the conclusion reached in that case, and hold that the cause of action in this case accrued with the appointment of the administrators.

The petition was not subject to general demurrer, and, as finally amended, was not subject to any of the grounds of the special demurrer.

Judgment reversed on the main bill of exceptions; affirmed on cross-bill.

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

Smith, J.,

dissenting. The majority of the court are of the opinion that the trial judge erred in granting a nonsuit, and that therefore the ease should be reversed on the main bill of exceptions. I cannot concur with my colleagues in this judgment. I am of the opinion that the action of the court in granting a nonsuit was proper, for the following reasons: When this case was previously here for review the evidence was thoroughly studied and considered, and the following ruling made: “That the cause of action, if any, arises under the Federal employer’s liability act, and under the petition as filed ‘the case pleaded was not proven and the case proven was not pleaded,’ and the court properly granted the nonsuit.” Williams v. W. A. Railroad Co., 20 Ga. App. 726, 729 (93 S. E. 555, 556). On motion for rehearing this court held that the doctrine of res ipsa loquitur did not apply, and quoted with approval the following: “Negligence cannot be inferred merely from the fact of disaster; the burden being on plaintiff to establish by proof that negligence did exist. . . A case may not be submitted to the jury where there is at most only a balanced probability that actionable negligence existed. . . Manifestly a presumption of negligence does not arise upon mere evidence of an injury sustained. . . The maxim res ipsa loquitur does not apply where the accident might have been due to improper handling as well as to improper furnishing the thing causing the accident.” Ib. 730, 731, 732.

The record now before us in this case discloses that although there was an effort made to add to the testimony introduced on the former trial and to introduce new features into the case, the evidence is substantially the same as it was when this court made the ruling above referred to. No material changes have been made in the case as a whole, and though two new witnesses were introduced, their testimony at most does not amount to more than suggestions or inferences as to possibilities. It is my opinion, therefore, that since there is no material or substantial change in the record now under review and the record reviewed by this court when this case was previously before it, the rulings then made are controlling.

It is unnecessary, under the view I take of the case, to pass upon the questions raised by the cross-bill of exceptions.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    10992.
    PAULK et al v. BERRIEN COUNTY et al.

    1. The transfer of this case to this court by the Supreme Court is equivalent to a holding that no constitutional question is involved.
    2. The trial judge did not abuse his discretion in overruling the motion for a continuance.
    3. Where the commissioners of roads and revenues of a county notify, by advertisement in a newspaper for thirty days, the qualified voters of that county that a bond election will be had on a fixed date, to determine whether or not the county shall issue bonds in the sum of $500,000, and the -tax-payers by their vote authorize the issue of this sum in bonds, the judge of the superior court has no authority to validate, upon the request of the commissioners and over the objection of a number of tax-payers, bonds in the sum of $350,000.
    Decided February 9, 1920.
    (Certiorari was granted by the Supreme Court.)
    Validation of county bonds; from Berrien superior court—Judge Thomas. July 5, 1919.
    The State of Georgia filed a petition against Berrien county, praying that the county show cause why an issue of $500,000 “road bonds,” alleged to have been duly authorized by the voters of the county, should not be confirmed and validated. The defendant filed an answer, alleging that the assessed value of the taxable property in the county was insufficient to authorize the amount of bonds which had been voted on by the people, and that the commissioners desired to issue only $350,000 in bonds, and prayed that the court pass an order confirming and validating bonds in this sum. At the hearing the plaintiffs in error, taxpayers of the county, intervened and were made parties with the county. The intervenors, through counsel, requested a postponement of the hearing, and the refusal of this request is now complained of. They filed an answer attacking the legality of the election, and denying the authority of the court to confirm and validate the bonds in an amount other than the amount voted upon. The court, after bearing evidence, passed an order confirming and validating bonds in the sum of $350,000, as prayed by the county authorities. To this order the intervenors excepted.

      Quincey & Rice, for plaintiff.

      G. E. Hay, solicitor-general, J. D. Lovett, W. D. Buie, contra.
   Smith, J.

(After stating the foregoing facts.)

The transfer of this case to this court by the Supreme Court is equivalent to a holding that no constitutional question is involved.

The trial court, in passing upon the motion for a continuance, probably and rightly took the view that this case affected not only several intervenors, but all the tax-payers of the county; and it appearing from the motion and the subsequent evidence that the intervenors were properly notified by advertisement of the time set for the hearing, and had collected all of their testimony and witnesses, and were as well prepared for trial as they would have been at a later date, there was no abuse of discretion in overruling the motion to continue. The mere fact that the solicitor-general, the county attorney, and counsel for the intervenors had agreed that the case be continued is entirely insufficient, in the absence of any approval by the judge of such an agreement, to change our ruling. Civil Code (1910), § 5724.

Section 440 of the Civil Code provides that thirty-days notice of a bond election shall be given in the newspaper in which the sheriff’s advertisements for the county are published, notifying the qualified voters that on a day named an election will be held to determine whether bonds shall be issued by the county. This section concludes with the statement that said! notice “shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually, and when to be fully paid off.” It is well settled that these provisions are mandatory and must be strictly complied with. “When a county or municipality undertakes to incur a debt, and tax the people for the purpose of paying the interest and principal of that debt, they must comply with the law strictly. [Italics ours.] Nor does it matter with how great a unanimity the action of the mayor and council is approved by the people, still, if there are four tax-payers, or even one, objecting to incurring the debt, he or they have a right to appeal to the courts to prevent the illegal issuance of bonds as evidence of that debt.” Bowen v. Greensboro, 79 Ga. 709, 714, 715 (4 S. E. 159, 162). That ruling was followed in the case of City of Dawson v. Water Works Co., 106 Ga. 732 (32 S. E. 921), where it was held: “The policy of the constitution is against the incurring of municipal debts, and therefore the constitutional provision prescribing the manner in which debts must be incurred is to be strictly construed. It has been the uniform ruling of this court that not only the constitutional provision must be strictly construed, but that the act of the General Assembly prescribing the manner in which an election shall be held on the question of bonded indebtedness shall be also strictly construed.” See numerous cases there cited in support of this statement. In the case of Smith v. Dublin, 113 Ga. 833 (39 S. E. 327), the Supreme Court held that a bond-election notice which did not state the exact amount to be used for several designated purposes was insufficient at law. The notice under review in that case contained these words: “Said bonds to be known as ‘School and City Improvement Bonds/ and to be issued in the aggregate amount of $25,000, in denominations of from $1,000 to $5,000 each, as purchasers may desire, and not more than $20,000 of the amount realized therefrom to be used for the purpose of building and erecting a schoolhouse, and not more than $5,000 for the purpose of enlarging and improving the light and water plant of said city, and the surplus, if any, to be used by the mayor and council in such other manner as they may see fit.”

Clearly, therefore, under the settled law of our State, had the commissioners of Berrien county passed a resolution submitting to the voters of the county the question as to whether or not bonds in an amount not exceeding $500,000 should be issued, such a notice would have been invalid. This being true, it follows as a natural conclusion that where voters have authorized the issuance of $500,000 in bonds, neither the commissioners nor the judge of the superior court has any right to determine that a lesser amount shall bo confirmed and validated. To illustrate, suppose the commissioners should decide to build a concrete dike or levee one hundred feet high, in order to prevent the overflow of a nearby river, which project would of course be of unlimited benefit to the public. Competent engineers advise that the construction of such a dike will cost $100,000, and it is proposed by the commissioners to the tax-payers that $100>000 in bonds be issued for construction. The tax-payers at an election duly advertised and held authorize the issuance of $100,000 in bonds for the purpose intended. After the election and before the validation of the bonds the commissioners determine that they will build a crude brick structure only ten feet high> and consequently entirely inadequate to withstand the pressure of the stream during the rainy seasons; and of their own volition they ask the court to validate only $5,000 of bonds. Surely the commissioners are not vested with such right or discretion. Otherwise it would be legally sufficient to advertise a bond issue not to exceed a certain amount, and then permit the commissioners to fix the amount. This the Supreme Court has repeatedly held cannot be done. Smith v. Dublin, supra.

After a careful examination of the books we have been unable to find any case in Georgia adjudicating the exact question now under consideration. In making this statement we are not unaware of the case of Heilbron v. Cuthbert, 96 Ga. 312, 317 (23 S. E. 206, 207), where Justice Lumpkin said: “It was insisted in the argument for the plaintiffs in error, that the published notice of the election to be held in Guthbert for the purpose stated, specified a larger amount of bonds than the municipal authorities could constitutionally issue in any event. Be this as it may, the petition for injunction presented no such objection as this to the legality of the notice; therefore, even if the proposed issue of bonds as stated in the notice would have been greater than the constitution authorizes, the trial judge was not, for this reason, necessarily constrained to grant an injunction restraining the issue of bonds to a lesser amount and undoubtedly within the constitutional limit. If the point insisted upon here was meritorious, it ought to have been made in the petition presented to the trial judge” (italics ours)» This quotation clearly shows that the point made in the present case was not made, and consequently not decided, in that case. Also, the facts in that case are clearly distinguishable from the facts in this case. In that case, an injunction was sought after a solemn judgment had been rendered validating the bonds, whereas in this case the plaintiffs in error intervened at the proper time and before any judgment was had 'validating the bonds.

This is not a case where the rights of a bona fide holder have become involved, and it might not be amiss to state in conclusion that where proceedings are brought to prevent the issuance of bonds, the law will be more strictly construed than where bonds have already been issued and have passed into the hands of bona fide purchasers.

Judgment reversed.

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


author: Stephens, J.

text:
    10292.
    EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. EPPES.
    1. A fraternal beneficial order, by the adoption of amendments to its constitution or by-laws, cannot defeat or abridge essential and substantial rights created by a covenant previously entered into in a certificate of insurance issued by it. And this is true despite the covenant holder’s agreement to a stipulation in the covenant that the certificate was accepted by him subject to the laws of the order then of force or which might, thereafter be enacted.
    2. A provision in the certificate that a certain proportionate part of the value of the covenant will be paid to the assured as an accident benefit creates an essential and substantial right in the assured; and a reduction of this benefit by a subsequent change in the constitution or bylaws of the order is such a material change in the certificate as defeats or abridges this right.
    3. Though a member of an order, in his original covenant or certificate, agrees to be bound by future changes in the by-laws, an alteration made subsequently to issuance of the covenant will be given a prospective operation, in the absence of a clear intent that it shall operate retrospectively.
    4. The judge of the superior court did not err in overruling the certiorari.
    Decided February 10, 1920.
    Certiorari; from Eulton superior court—Judge Pendleton. October 30, 1919.
    Application for certiorari was denied by the Supreme Court.

      Brewster, Rowell & Reyman, Marie Bolding, for plaintiff in error. J. A. Branch, contra.
   Stephens, J.

This was a suit instituted in the municipal court of Atlanta, in October, 1918, by a policy or “covenant” holder against the above-styled fraternal beneficial association to recover premiums paid by him upon a certificate of insurance issued to him in January, 1909, and for interest upon each payment, and was based upon a breach of the contract by the insurer through a large increase in the rate of premium demanded and a decrease in certain substantial benefits under the certificate or “covenant”.

A principal and substantial element of the contract of insurance here involved was its feature of accident protection, wherein the assured was protected against the loss of one or both eyes. If both eyes were lost, then the full accumulated value of the covenant would be paid to him at once, in certain periodical installments. If one eye was destroyed, one half of the then accumulative value of the covenant was payable to the assured, the remainder of the policy being payable to his estate upon his death.

The attempt of the defendant fraternal order to continue the covenant of insurance in force, at the increased rate, conditionally upon a reduction in the material accident-benefit to the covenant holder, among other benefits, of one quarter of its cumulative value, upon the loss of one eye, amounted to a repudiation of a main and substantial element of the insurance contemplated in the contract, and not merely the avoidance of a collateral or incidental benefit. The cumulative value of the covenant at the time of this action taken by the order was $5,000. Half of this amount, or $2,500, • must be considered a very substantial part of the consideration, and fifty per cent, reduction of this amount, to be paid the assured upon the eontigency of the destruction of one of his eyes, would necessarily be a great impairement of the insurance contemplated in the original contract. The contention of the insurance company that there was no reduction in the benefit to the covenant holder, but that there was only a change in the method of payment, and that the full benefit would be paid, the only change being that a part of such benefit would be paid in installments and the balance would be deferred until the death of the assured, is untenable. To assert that, under the policy as changed, part of the benefit was only deferred until the death of the assured is only another way of asserting that the benefit has been reduced. It follows, that, the defendant having repudiated its contract as to a principal element of insurance provided therein, the plaintiff was entitled to recover the amounts paid in by him as premiums, with interest thereon from the time that each was paid. Supreme Council v. Jordan, 117 Ga. 808 (1) (45 S. E. 33), and cit. This holding is not in conflict with the decision in Farrow v. State Mutual Life Ins. Co. 22 Ga. App. 540 (96 S. E. 446). See, in this connection, L. E. A. 1917E, 1035, note; 1 Bacon on Life & Accident Insurance (4th ed.), 420, § 234, and authorities cited.

Even though the member of the order, in his original covenant, agrees to be bound by future changes in the by-laws, an alteration made subsequent to the issuance of the covenant will be given prospective operation, in the absence of a clear intent that it shall operate retrospectively. Civil Code (1910), § 6: Ancient Order United Workmen v. Brown, 112 Ga. 545 (2) (87 S. E. 890); Sovereign Camp v. Thornton, 115 Ga. 798, 800-1 (42 S. E. 236); 29 Cyc. 72, note 50.

Since the ruling above is controlling in the case, it is unneces~ sary to pass upon tbe right of the defendant order to increase the premium rates to preserve the life of the order and to comply with the provisions of the act of 1914 (Ga. L. 1914, p. 99, Park’s Ann. Code, § 3564(q), 3564(w), 3564(x) ).

The evidence authorized the verdict, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jeríkins, P. J., and Smith, J., concur.


author: Smith, .J.

text:
    11032.
    Motes v. Phillips et al.

    Decided February 10, 1920.
    Action for deceit; from Bartow superior court—Judge Tarver. September 37, 1919.

      M. B. Eubanks, for plaintiff.

      Neel, Finley & Neel, for defendants.
   Smith, .J.

There being evidence to authorize the verdict returned, which has the approval of the trial judge, his judgment overruling the motion for a new trial based solely on the ground that the verdict is without evidence to sustain it cannot be interfered with.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., eoneur.


text:
    11043.
    Fallin v. Locomotive Engineers Mutual Life & Accident Insurance Association.
    Decided February 10, 1920.
   Smith, J.

Where a certificate or policy of insurance issued by the Locomotive Engineers Mutual Life & Accident Insurance Association contains the following: “Any member of this association, . . sustaining the total or permanent loss of sight in one or both eyes, shall receive the full amount of his insurance. . . This association will not recognise a claim for the insurance of any certificate holder for impaired eyesight, but for total and permanent blindness only, in one or both .eyes,” the association is not liable in a suit in which it is sought to recover thereon for total and permanent blindness, where the petition alleges that the plaintiff has become color blind in both eyes. Color blindness does not amount to total and permanent blindness within the meaning of the policy. The court did not err in sustaining the general demurrer and dismissing the ease.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.

Action on insurance policy; from Fulton superior court—Judge Pendleton. October 16, 1919.

Mayson & Johnson, for plaintiff.

Reuben R. Arnold, for defendant.


text:
    11062.
    Haynes-Henson Shoe Co. v. Brown & Brown.
    Decided February 10, 1920.
    Complaint; from Fayette superior court—Judge Searcy. October 23* 1919.
    Haynes-Henson Shoe Company sued Brown & Brown for a balance alleged to be due on an open account. The defendants admitted that they owed the account, but pleaded that they were entitled to damages in the snm of $320 for the breach of an alleged contract for the sale of goods amounting to $800, ordered of by them through one Buchanan, a traveling salesman of the plaintiff. From uncontradicted evidence it appears that this salesman had no authority to close a sale, but that all orders taken by him were subject to approval by his principal. The order referred to, which was in the form of a memorandum, was not signed. The salesman testified that he did take an order from the defendants for a bill of shoes, and that he sent it to his house for approval, and that the order was returned to him with the word “declined” marked across its face. The order introduced in evidence was so marked. The only witness for the defendants testified, among other things, as follows: “I did not do anything else after I gave the order to Mr. Buchanan. I did not sign any agreement in writing, either at the time the shoes were bought or thereafter, agreeing to take the goods or pay for them. I did not answer any card or letter they sent me about the goods.” There was also introduced in evidence a letter from the plaintiff to the defendants, which referred to a past-due indebtedness of the defendants, but this letter, although it mentioned an order for fall goods, did not contain a promise.or agreement to sell any particular goods or merchandise. The jury returned a verdict in favor of the defendants. The plaintiff made a motion for a new trial, based on general grounds only, which was overruled, and it excepted.
   Smith, J.

1. “If a traveling salesman, who has no authority to close a sale, takes from a prospective purchaser a written contract agreeing to buy an article on named terms and conditions, but by stipulations in the writing the contract is subject to the approval of the agent’s principal, the writing amounts to a mere offer, and is unilateral, until the approval contemplated has been duly made.” Cable Company v. Hancock, 2 Ga. App. 73 (58 S. E. 319).

2. “In such a ease, if the contract relates to ‘goods, wares, or merchandise to the amount of $50 or more,’ and is therefore within the purview of the statute of frauds, the approval contemplated must be in writing before the contract becomes mutual.” Ib.

3. “A signed a writing' agreeing to deliver to B, at a time and place stated, and at a price named, goods exceeding in value $50. B did not agree in writing or otherwise, either at the time the above paper was signed or thereafter, to pay for the goods. The time for delivery passed without B doing anything to bind himself to pay for the goods. After that date B tendered the price and demanded the goods. Held, that B could not maintain against A an action for damages for failure to deliver at the time and place fixed in the wanting. The right of B to demand an enforcement of the obligation depended upon his doing some act, prior to the time fixed for delivery, which would bind him to pay in the event of delivery.” Sivell v. Hogan, 119 Ga. 167 (4) (46 S. E. 67).

4. From undisputed evidence in this case it appears that the defendants never signed any written agreement for the purchase of the goods in dispute, so as to .bring the transaction within the requirements of the statute of frauds, nor does it appear that the plaintiff ever entered into any written agreement to sell the goods. Under the circumstances there was no legal, binding contract, and a verdict was demanded in favor of the plaintiff. The court therefore erred in overruling the motion for a new trial.

Judgment reversed.

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

J. W. Culpepper, for plaintiff.

H. A. Allen, for defendants.


text:
    11072.
    Floding v. American Machinery Company.
    Decided February 10, 1920.
    Certiorari; from Fulton superior court—Judge Pendleton. September 25, 1919.

      Westmoreland & Smith, for plaintiff in error.

      W. 8. Dillon, C. M. Lancaster, contra.
   Smith, J.

There was evidence to support the finding of the judge of the municipal court of Atlanta, who tried the case without a jury; and the judge of the superior court did not err in overruling the certiorari, .based on the general grounds only.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


author: Broyles, C. J.

text:
    10044.
    Ash et al., executors, v. Peoples Bank of Oliver.
    Decided February 13, 1920.
    Complaint; from city court of Springfield—Judge Shearouse. June 14, 1918. ■

      II. B. Strange, Travis & Travis, for plaintiffs in error.

      A. B. Lovett, contra.
   Broyles, C. J.

1. In answer to questions certified by this court in this case, the Supreme Court, on January 16, 1920, handed down an opinion with the following headnotes. See 149 Ga. 713 (101 S. E. 912).

“1. Writs of error do not lie from the city court of Springfield to the Court of Appeals of Georgia.

“2. Nor has the judge of that court power or authority to hear and determine a motion for a new trial.

“3. Upon review of the cases of Monford v. State, 114 Ga. 528 (40 S. E. 798), and Welborne v. State, 114 Ga. 793 (40 S. E. 857), and other decisions to the same effect, the rulings there made are reaffirmed.” Under the above rulings the writ of error is

Dismissed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    9936.
    Fannin County v. Pack.
    Decided February 18, 1920.
    Certiorari; from Fannin superior court—Judge Morris. May 31, 1918.

      William Butt, for plaintiff.

      Thomas A. Brown, B. L. Smith, for defendant.
   Jenkins, P. J.

In accordance with the answers made by the Supreme Court to the questions certified to it in this case (149 Ga. 704, 102 S. E. 166), the ruling of the court below, sustaining the defendant’s affidavit of illegality, is affirmed.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10013.
    Lamb, receiver, v. Howard.
    Decided February 18, 1920.
    Complaint; from Coweta superior court—Judge Terrell. July 6, 1918.
   Smith, J.

In accordance with the answer made by the Supreme Court to the question certified to it in this case, the judgment of the court below, overruling the demurrer to the plaintiff’s petition, is

Affirmed.

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

The case came to this court on exceptions to the overruling of a demurrer in which it was contended that the action was barred by the statute of limitations. The Court of Appeals certified to the Supreme Court the following question: “Under section 3798 of the Civil Code, providing that in certain kinds of cases 'all railroad companies shall be sued in the county in which the cause of action originated/ and that 'any judgment rendered in any other county than the one in which the cause so originated shall be utterly void/ and in view of the decision in the case of Atlanta, Knoxville & Northern Railway Go. v. Wilson, 119 Ga. 783 [47 S. E. 366], was the entire proceeding in a ease to which these provisions applied, and in which the Supreme Court held that 'the petition shows upon its face that the courts of Coweta county alone had jurisdiction of this suit, and that the superior court of Eulton county did not have jurisdiction/ and 'it should have been dismissed upon general demurrer’ (145 Ga. 850 [90 S. E. 63], so utterly void as to prevent renewal of the action within six months, so that the renewed case should stahd upon the same footing, as to limitation, with the original case, as provided in section 4381 of the Civil Code, where the losing party dismissed his case before the remittitur from the Supreme Court was made the judgment of the court below?” *

The headnote of the answer of the Supreme Court is as follows: “Where suit was brought against a railroad company to recover damages for a tort committed in another county in this State, and was dismissed by the plaintiff after the rendition of a decision by this court, holding that the court of the county in which the suit was brought had no jurisdiction of the case, the suit might be brought again within six months of the dismissal in the county in which the cause of action originated, although the bar of the statute of limitations would attach but for the pendency of the first suit.” For the opinion of the Supreme Court in full, see 150 Ga. (103 S. E. 436).

A. E. Freeman, Ration Love joy, Brandon & Eynds, for plaintiff in error.

Westmoreland, Anderson & Smith, contra.


text:
    9481.
    Louisville & Nashville Railroad Co. v. Hood.
    Decided February 24, 1920.
    Action for damages; from Cobb superior court—Judge Morris. December 1, 1917.
    Application for certiorari was denied by tbe Supreme Court. This action was brought under'the Federal “employer’s liability act.” The plaintiff was an “extra gang foreman” in charge of men employed by the railroad company to repair its track and keep the roadbed and the track in proper condition for the passage of trains. He was riding on a handcar with other employees, on his way to repair a part of the track, when the car, on rounding a curve of the road, was derailed by slag and stones on the track and which had fallen from where they had been piled up near it for use in ballasting the roadbed, and he received personal injuries, which he alleged were due to negligence of the railroad company in placing this ballast there and in piling it up in such a way that it was liable to fall on the rails as it did. The defendant in its answer denied the alleged negligence, and pleaded that the plaintiff himself was negligent, and that he assumed the risk of injury from the placing of the ballast in the manner alleged. The trial of the case resulted in a verdict for damages, and, the defendant’s motion for a new trial being overruled, it excepted.
    Parts of the plaintiff’s testimony were as follows: “I could see the slag before I got to it. As far as seeing it was concerned, it was all along there; we had to contend with that every minute we were running. I knew all the time that that was the condition we worked under. I knew that it was the way we unloaded stuff several times. . . That was the common condition; looking at it, you understand. . . Going around that curve I saw this condition ahead of me. I seen the stuff piled up on the outside of the rail ahead of me. . . My car continued at the rate of about 10 miles. . . I said a pebble about as big as your thumb, or something of that sort, would derail the wheel. I don’t know how large that was we ran over. The cause of the derailment was this stuff falling down on the track. . . The matter of protecting the handcar is one of the duties of the foreman. . . The section foremen are the men of all other men whose duty it is to have a safe roadbed for the trains to go back and forth over. The company has to look to them to do iti . .1 had four men on the car, going about 10 miles an hour around the curve, and did not send a flagman around the curve. . . It is my duty to flag around all dangerous places. I was in charge of my lever ear there and in control of it. The men on it were subject to my orders. I could tell them to slow down, and it was their duty to do it. . . I had railroaded for 35 to 40 years in all capacities almost. . . When a foreman, extra gang man, or ordinary foreman goes out on the railroad track it is his duty to be on the lookout for any and all sorts of defects. He carries the eyes of the railroad company, so far as finding defects. . When I started out it was as much my business and as much my duty to be looking out for spikes that might be loose or any sort of defects that might exist in the track as well as it was [for looking out] for the bucked track. That was true not only on that particular trip, but it was true all the time. . . I didn’t know just where the bucked track was, but it a fact that it usually bucks on curves. . . I had not gotten to the bucked track when my lever car was derailed. . . I knew that the shaking and running of trains would cause it [the slag] to fall down. . . I knew that two trains had come over this track about a couple of hours before that. . . The passenger train had just come over this same piece of track. . . It was immediately after these trains passed that I left Hombre to go out on my lever ear. . . Yes; it is also true they run extra trains up there on that road. They get up a train of coal cars and send them off down to the mines to be loaded extra; and I wouldn’t know what minute they might come on me. . . This railroad is not very old. . . I forget the age of if. . . There was a great deal to do to bring it up to wbat railroad men call a standard or good railroad.”
   Broyles, C. J.

1. Under the Federal “employer’s liability act” (U. S. Comp. St. §§ S657-8665), an employee of a railroad company, except in cases involving violation by the carrier of the statute enacted for the safety of employees, assumes the ordinary risks and hazards of his particular employment, and also those defects and risks which are known to him, or which are plainly observable, although due to the master’s negligence. Charleston & Western Carolina Ry. Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275), and cit.

2. Under the above ruling- and the facts' of the instant case a recovery by the plaintiff was unauthorized, and the court erred in overruling the motion for a new trial.

3. In view of the above holding it is unnecessary to pass upon the special assignments of error.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.

See 149 Ga. 829 (102 S. E. 521).

Tye, Peeples & Tye, D. W. Blair, W. E. Roberts, John Boston, for plaintiffs in error.

George P. Gober, J. E. Mozley, PI. B. Moss, W. I. Heyward, contra.


author: Luke, J.

text:
    10206.
    ATLANTA LOAN & SAVING COMPANY v. NORTON.
    “All building and loan associations, and other like associations doing business in this State (and the term ‘other like associations’ shall include a corporation organized to do a general savings and loan business, and among other things lending its funds to members of the industrial and working classes, or others, and secured in whole or in part by personal endorsements and its own fully paid or installment stock, or its own fully paid or installment certificates of indebtedness, or other personal property) are authorized to lend money to persons not members thereof, nor shareholders therein, at eight per cent, or less, and to aggregate the principal and interest at the date of the loan for the entire period of the loan, and to divide the sum of the principal and the interest for the entire period of the loan into monthly or othdr installments, and to take security by mortgage with waiver of exemption, or title, or both, upon and to real estate situated in the county in which said building and loan association may be located; and such building and loan association shall be construed to be located in any county wherein it has an office, agent, or resident correspondent: Provided, however, and nevertheless, the associations referred to and as defined herein shall not be compelled to lend their funds exclusively in the manner hereinbefore specified, but in addition thereto also have authority to make loans to members of the industrial and working classes and to all other persons, due at fixed intervals not exceeding twelve months, and secured in whole or in part by personal endorsements and by its own fully paid stock, or stock payable on the installment plan, certificates of indebtedness, fully paid or payable on the installment plan, or both endorsements and such securities, or other personal security and ehoses in action, and on such loans so made and secured as aforesaid it shall be lawful to deduct interest in advance, but not to exceed eight per cent, discount, and the installment payments, if any, made on such hypothecated stock or certificates of indebtedness during the time the loan is of force may or may not bear interest, >t the option of the association, and the taking of said installment payments on said hypothecated stock, certificates of indebtedness, choses in action, or other evidences of indebtedness shall not be deemed usurious.” Civil Code (1910), § 2878, as amended by the act of 1910 (Ga. L. 1910, p. 55) and the act of 1913 (Ga. L. 1913, p. 54). See Park’s Ann. Code, § 2878.
    (») “Under the provisions of the charter, constitution and by-laws of the Atlanta Loan and Saving Company, set forth in connection with the questions propounded by the Court of Appeals, that company is ‘a like association’ within the meaning of the act of 1913, which was an act to amend section 2878 of the Code of 1910.
    2. “The act of 1913 referred to above is a general law, and does not fail of effect because the company’s charter antedated it and was never amended for the purpose of adopting the privileges it offers.” Atlanta Loan <& Savings Oo. v. Norton, 149 Ga. 805 (102 S. E. 536).
    3. Under the foregoing rulings and the facts of the instant case the trial judge erred in finding' for the plaintiff in his suit to recover from the defendant company an amount paid by him to it and alleged to be an usurious interest charge; and the judge of the superior court erred . in overruling the certiorari.
    Decided February 24, 1920.
    Certiorari; from Fulton superior court—Judge Ellis. October 30, 1918.

      Philip Weltner, for plaintiff in error.

      Myron Emb erg, contra.
   Luke, J.

This was a suit by W.- L. Norton against the Atlanta Loan & Saving Company for an “amount due overpayment on money borrowed,” and was submitted to and tried before a judge of the municipal court of Atlanta upon an agreed statement of facts, which were, briefly, as follow^: That shortly prior to November 17, 1916, the plaintiff made a written application to the defendant company for a loan of one hundred dollars, for a term of fifty-two weeks, and on December 14, 1916, obtained the loan from the defendant company, giving to it his personal note for one hundred dollars, with two endorsers, and for additional security two $50 shares of the class “C” (installment) stock in that company. This stock had been issued to the plaintiff as a part of the loan transaction, simultaneously with the approval of his application for the loan. Under the terms of the loan agreement, as evidenced by the note, the stock certificate and the constitution and by-laws of the defendant company, this stock was to be paid for in fifty weekly payments of $2 each ($1 per week on each share) payable promptly on Monday of each successive week, one of the provisions of the agreement being that “in the everit the weekly installments due on the shares represented by this certificate are not paid promptly on each Monday a fine of five cents for each share shall be charged for each week said payments are in default.” The defendant company, when making the loan, deducted the interest of eight per cent, in advance, and paid to the plaintiff the sum of $92 net. Simultaneously with the execution of the plaintiff’s note for the money borrowed and the issuance to him of the certificate for two shares of stock in the loan company, he assigned and transferred to the defendant company that stock certificate. The plaintiff thereafter on a number of occasions failed to meet his weekly payments when due, and when these were later paid he was penalized to the extent of $5.20. On November 26, 1917, $96 had been paid in installments on the stock in question; the fines at that time aggregating $5:20. On December 14, 1917, or fifty-two weeks after the date of the note, the obligation fell due. • On January 3, 1918, the finance committee of the defendant company charged off a small fine (40 cents) from the $96 credited to the plaintiff on his stock-certificate (because of his failure to meet the installments due on November 19 and 26, 1917), and, under the terms of the loan agreement, retired the two shares of stock at $95.50 net, leaving a balance due thereon of $4.40, which was paid by the plaintiff on January 3, 1918, and upon receipt of that amount the plaintiff’s note was surrendered to him.

From this it will be seen that for, a loan of $100 (from which 8% interest was deducted in advance) the plaintiff repaid in installments weekly, in fifty-two weeks, the sum of $105.20; that $5.20 of this sum represented legitimate fines for failures to pay the installments when due as agreed; and the only question remaining was whether the retention in advance by the loan company of 8% interest on the loan and the repayment in weekly installments of the principal sum constituted the collection of usurious interest, as contended by the plaintiff. Upon this question the trial court found for the plaintiff, and the judge of the superior court, in overruling the certiorari, concurred in that judgment.

In response to certain questions propounded by this court the Supreme Court held substantially as set forth in the 1st and 2d headnotes hereto, and further ruled that “a corporation organized for the purpose set forth in the charter and constitution of the Atlanta Loan & Saving Company falls within the terms there used [Civil Code, § 3878, as amended by tbe act of 1913] to define a like association.”

It may be said, in this connection, that the ease of McIntosh v. Thomasville Real Estate & Improvement Co., 138 Ga. 128, cited and relied on by the defendant in error, was decided before the passage of the act of 1913 (Ga. L. 1913, p. 54) amending section 3878 of the Civil Code, and that the doctrine of that case (the 3d division thereof) and of the authorities therein cited has been modified by the legislative definition of the term “a like association.” For an elaboration of this decision, see the full opinion of the. Supreme Court in this ease, 149 Ga. 805 (102 S. E. 536).

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    10351.
    Brown, alias Johnson, v. The State.
   Bloodworth, J.

In answer to certain questions certified to it in this ease, the Supreme Court said (149 Ga. 816, 102 S. E. 449) :

“1. By the act approved March 28, 1917 (Acts Ex. Sess. 1917, 8), it was made unlawful for any person ‘to have, control, or possess in this State’ specified kinds of liquors or beverages. In section 16 of the act it was provided: ‘that the punishment for any violation of any of the provisions of this act, wherein a different punishment is not prescribed, shall be as for a misdemeanor, as provided in section 1065 of the Penal Code of 1910.’ That section of the Penal Code provides: ‘Except where otherwise provided, every crime declared to be a dis-demeanor is punishable by a fine not to exceed one thousand dollars, imprisonment not to exceed six months, to work in the ehaingang on the public roads, or on such other public works as the county or State authorities may employ the ehaingang, not to exceed twelve months, any one or more of these punishments in the discretion of the judge.’ The city court of Savannah having by law jurisdiction to try persons charged with misdemeanors for violating the prohibition statutes mentioned above (see Acts 1868, p. 165), and upon conviction of the accused to impose any one or all of the penalties specified in the Penal Code, § 1065, within the discretion of the trial judge, the superior court has no power, under the writ of certiorari, to modify a sentence which imposes a punishment not exceeding the maximum punishment prescribed by that law. See Whitten v. State, 47 Ga. 298; Loeb v. Jennings, 133 Ga. 796, 801 (67 S. E. 101, 18 Ann. Cas. 376); Coppage v. State, 4 Ga. App. 696 (62 S. E. 113) ; 11 Corpus Juris, 106, § 40, and cases cited in note 77; Phillips v. State, 80 Ark. 200 (2) (96 S. W. 742).

(a) There is no special law relating to the city court of Savannah which confers on the judge of the superior court power, on certiorari, to modify a sentence imposed by the judge of the city court of Savannah while acting within his jurisdiction. Under this view the reasoning in Cole v. State, 2 Ga. App. 734, 738 (59 S. E. 24), would not apply. The doctrines pronounced in McDonald v. Ludowici, 3 Ga. App. 654, 656 (60 S. E. 337), and Johnson v. Atlanta, 6 Ga. App. 779, will not be followed (65 S. E. 810).

Decided February 24, 1920,

“(6) In a case of the character mentioned above where the trial judge enters a formal judgment imposing a fine for the maximum amount authorized by law, his sentence is not to be held on certiorari as ‘excessive and illegal,5 on the ground that while imposing sentence the judge stated to the accused that he was endeavoring ‘to reach5 another person who would probably pay the fine, ‘instead of the defendant,5

“2. On the trial, in the city court of Savannah, of a defendant accused, with others, of violating the prohibition statute mentioned in the preceding note, in so far as the questions propounded by the Court of Appeals show, certain documents were irrelevant; the documents being: (a) copies of certain indictments returnable in the United States district court for the southern district of Georgia, charging the defendant on trial in the city court of Savannah, and others, with ‘the offense of conspiracy and violation of the Reed-Jones amendment to the post-office appropriation act of March, 1917, with the pleas and verdicts thereon;5 (6) certain excerpts from the minutes of the United States district court in the southern district of Georgia, which showed that in two cases against the same persons who were indicted in the city court of Savannah, in one of which they were charged with violation of the ‘act March 3, 1917, sec. 332, U. S. Penal Code,5 and in the other with violation of ‘see. 37, U. S. Penal Code, act March 3, 1917,5 juries were duly empanneled and witnesses for the government; questioned, and after the prosecution'had closed its case, the attorney for the defendants moved to direct a verdict for the defendants and the motion was overruled; whereupon ‘by ■= agreement,5 a verdict of guilty was entered as to all of the defendants.” While under this ruling the documentary evidence referred to therein was improperly allowed to go to the jury, this error, in the opinion of a majority of the court, was harmless, because the defendant introduced a witness who swore to substantially the same facts embraced in the documentary evidence. Because of the peculiar facts of this ease the writer is in doubt on this proposition.

3. There was no error in the excerpt from the charge of the court of which complaint is made, when the same is considered in connection with the entire charge and in the light of all the evidence.

4. The request to charge was sufficiently covered by the chargS given.

5. Every ground of a motion for new trial should be complete within itself and understandable without reference to another part of the record. Under' this rule we are not called upon to consider the sixth ground of the amendment to the motion for a new trial.

6. There was some evidence to support the verdict, which has the approval of the trial judge, and the judgment is

Affirmed.

Broyles, O. J., and Luhe, J., concur.

Certiorari; from Chatham superior court—Judge Meldrim. December 20, 1918.

Shelby Myriclc, Robert L. Golding, for plaintiffs in error.

Walter C. Ilartñdge, solicitor-general, contra.


author: Bloodworm, J.

text:
    10404.
    Reddick v. The State.
    Decided February 24, 1920.
    Indictment for manufacture of intoxicating liquor; from Putnam superior court—Judge Park. February 11, 1919.

      Davidson & Callaway, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Bloodworm, J.

1. In answer to questions in this ease, certified to the Supreme Court by this court, that court said: “After the selection of a jury in the trial of a criminal case, in which the accused has participated (assuming from the question under review that the defendant in the instant case did participate in the selection of a jury), and after the introduction of evidence upon the merits of the case has commenced, the defendant will be deemed to have waived formal arraignment, and it is then too late for him to demur; and the court did not err in refusing to allow the defendant to demur, nor in overruling the motion to quash.” (For the statement of facts upon which the above ruling was made, see Reddick v. State, 149 Ga. 822, 102 S.E. 347).

2. There is no merit in any of the special grounds of the motion for new trial; the evidence supports the verdict, which is approved by the trial judge, and the judgment is

Affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    10480.
    Davis v. The State.
    1. In a criminal case where a ground of the defendant’s motion for a new trial is that one of the jurors was related within the prohibited degrees to the prosecutor in the ease, and the newly discovered evidence as to the alleged relationship is that of witnesses, the provisions of section 6086 of the Civil Code of 1910, as to supporting affidavits, do not apply. However, independently of that section, the trial fudge, upon the hearing of such a motion, has the authority, in his discretion, to require the production of affidavits as toy the residence, associates, means of knowledge, character and credibility, of the affiants who depose as to the relationship of the juror to the prosecutor.
    2. In such a case as is above referred to, where the affidavits of the witnesses relied on to sustain the allegations as to the relationship do not meet any of the requirements of section 5764 of the Civil Code, and it is not shown that the affiants were related by blood or marriage to the persons in question, or that they were testifying from any personal knowledge, or from what source they obtained their information, this court can not hold, as a matter of law, that the alleged relationship was so clearly established that the trial judge erred in overruling the ground of the motion for a new trial based upon the alleged relationship.
    3. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.
    Decided February 24, 1920.
    Accusation of misdemeanor; from Warren superior court— Judge Walker. March 10, 1919.
    Application for certiorari was denied by the Supreme Court.

      L. D. McGregor, for plaintiff in error.

      R. 0. Norman, solicitor-general, M. L. Felts, contra.
   Broyles, C. J.

The first two headnotes above are, in substance, the rulings of the Supreme Court in answer to questions certified by this court. For elaboration thereof see the full opinion rendered by the Supreme Court, 150 Ga. (102 S. E. 444).

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    10807.
    EUNICE v. RELIANCE FERTILIZER CO. et al.

    The judgment denying the motion to distribute funds was not erroneous for any reason assigned.
    Decided March 2, 1920.
    Motion to distribute funds; from city court of Blackshear— Judge Mitchell. June 16, 1919.

      Parker & Parker, for plaintiff in error.

      Memory & Memory, contra.
   Bloodworm, J.

The Reliance Fertilizer Company sued C. W. Eunice. Pending the suit a garnishment was obtained by the plaintiff and summons served on the Blackshear Bank on February 25, 1919, and on the next day judgment was obtained on the original suit. On March 10, 1919, the bank answered the summons of garnishment, admitting indebtedness to the defendant, C. W. Eunice, in the sum of $650. On March 11, 1919, G. B. Eunice, filed in the court a motion in which he alleged that he held fi. fas. against C. W. Eunice which were prior liens to that of the fertilizer company, and prayed that “the funds in the hands of the garnishee be directed by the court to be paid to the petitioner on his judgments, according to the law as made and provided in such cases.” On the same day he served notice on the bank above named that he claimed “any and all funds held up in its possession” under the garnishment proceedings in favor of the Reliance Fertilizer Company against C. W. Eunice. He also served notice upon the sheriff that He Had fi. fas. which constituted a prior lien on the said fund, and placed said fi. fas. in the hands of the sheriff. On March 17, 1919, the court rendered judgment against the bank in favor of the fertilizer company, and execution issued on this judgment. The bank paid to the attorney for the fertilizer company the amount which it answered it was indebted to C. W. Eunice, and took up the execution issued on the judgment against the bank, and also took a receipt showing settlement of the judgment. On June 18, 1919, the motion to distribute funds was called for a hearing. The record shows that on this alleged motion no order of any kind was ever entered by the court; there was no order making any one a party to the proceedings, and no one was served or acknowledged service thereof. On the hearing of the motion the movant introduced certain evidence. The bill of exceptions recites that "the defendants nor either of them introduced any evidence, but counsel for Eeliance Fertilizer Company took the position that there were no parties defendant before the court or proceedings to authorize a judgment distributing funds. After argument of counsel the court rendered judgment in said case, refusing and denying the motion to distribute, holding that there was no motion before the court sufficient to subject the fund claimed to distribution.” G. B. Eunice excepted to this ruling and brought the case to this court for review, naming the Blackshear Bank, J. W. Eoberson, sheriff, and the Eeliance Fertilizer Company as defendants in error.

The ruling complained of was' right.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    10835.
    GILL, executor, v. ATLANTA, BIRMINGHAM & ATLANTIC RAILWAY CO.
    1. “It is well settled that the rule that an undisclosed principal shall stand liable for the contract of his agent has no application to a contract under seal.”
    2. To recover the penalty for failure of a railroad company to build and maintain good and sufficient cattle-guards as provided for in the Civil Code (1910), §§ 2699, 2700, the plaintiff’s petition must allege such facts as bring it within the provisions of this law.
    3. The court properly sustained the demurrers of the plaintiff’s petition as amended and dismissed it.
    Decided March 2, 1920.

      Action for damages; from Taylor superior court—Judge Howard. May 20, 1919.

      B. L. Berner, B. L. Williamson, for plaintiff.

      Brandon & Hynds, H. P. Wallace, Hatton Love joy, for defendant.
   Bloodworth, J.

Gill brought suit against the. Atlanta, Birmingham & Atlantic Bailway Company for damages. After his death his wife, Mrs. Francis Gill, as executrix, was made a'party in his stead. The original petition as amended was in substance as follows: Petitioner is the owner of a certain tract of cultivafcable land in the 12th militia district of Taylor county, through which tract the line of railway of defendant runs. Said tract of land was valuable for purposes of cultivation and for rental, and the value for both purposes was destroyed by the breach of the contract set out herein. There is no stock law in force in said district, and cattle are “allowed to run wild” therein. The lands of petitioner were fenced, “said fence running entirely around the lands and up to the right „of way of the defendant on each side of the track.” In 1905 the petitioner entered into a contract with the defendant, the terms of which are substantially as follows: that in consideration of $75 the Title Guaranty & Trust Company, of Atlanta, Ga., agrees to put up and maintain in good order for the said Gill such stock-gaps and road-crossings as may be necessary for said Gill to go to his farm and use for other purposes, and to keep the said crossings and stock-gaps in good repair for practical use, and put them where it will suit the convenience of the said Gill. It is alleged that the said Title Guaranty & Trust Company was the agent of the defendant to procure the right of way for the construction of its road-bed, and was really and in law making the contract for the defendant. The defendant did erect three cattle-guards in separate places, and these remained in good condition until the year 1913, when one of them was destroyed by a wreck on the defendant’s railroad. Instead of erecting a proper cattle-guard or replacing one similar to the one destroyed, the defendant erected one that would not keep out the cattle or hogs, and which was finally abandoned altogether, “thus leaving said land open for the stock of every kind to enter thereon, and by such conduct rendered said lands utterly valueless for cultivation or rent.” During the year 1913 the petitioner rented said land to one George Pyron, and was to receive three bales of cotton “of the value on an average of $50 .per bale.” He furnished said tenant money and supplies for making the crop, to the amount of $444.50. His tenant was insolvent and was dependent upon his labor in planting and raising said crops on said land to pay petitioner, who “relied upon his lien as a landlord for the payment of his rent, and upon his landlord’s lien for supplies and necessaries; and the failure of the defendant to maintain safe cattle-guards caused the destruction of the crops, to the plaintiff’s loss of the amount of his rent and his bill for supplies. Petitioner has been unable to rent said land or to grow a crop thereon during any of the years since 1913, although he made repeated efforts to do so; and this was due to the absence of the cattle-guards, as no one would rent said lands in their absence. During the years 1914, ■1915, and 1916 his tenant houses were unoccupied, and said houses and outhouses have depreciated in value, to his loss $50 annually. After the destruction of the stock-gap it was the duty of the defendant to replace the same “without further notice, and, because of its failure to do so, this defendant is indebted to your petitioner in the sum of $25 per day for each day the same remained unerected, as is provided by law, as the proper and just amount to be recovered in this action.” The plaintiff offered, as an additional amendment to his original petition, another petition, in the form of a second count, which was practically the same as the original petition, except that the second count alleged that “by the breach of said contract as herein set forth, the said land has been depreciated in value $2000.00, for which he prays judgment in addition to the special damages.” This count was stricken, on objections filed by the defendant.

Demurrers to the original petition and to the petition as amended were filed, and were in substance as follows: That the petition fails to set forth a cause of action; that the plaintiff cannot recover for the years that the petition shows that the lands were rented, for the reason that the cause of action, if any, would be in favor of the tenant; that the items of damage set forth in the petition would not be the correct measure of damage; that the allegations as to a contract obligation should be stricken, “for the reason that the contract attached to the petition and the extract therefrom set forth in the petition show that this defendant is in nowise liable upon said contract, not being a party thereto;” that the plaintiff should not recover “for the reason that the petition fails to show that the petitioner has done anyhing whatever to lessen the amount of the damages complained of or in anywise guard against the same;” that the alleged damage because of loss of rent and advances made to the tenant is too remote and speculative, “because the plaintiff is not entitled to recover in law for such damages even though there was a breach of contract as alleged;” that the alleged damages are “too speculative and remote, and are not the proximate result of the alleged breach of contract;” that the allegations in the petition in reference to the recovery of $35 per day for each day the cattle-guards remained unerected should be stricken; “because under the allegations of the petition this is not the legal measure of damages and cannot be recovered for the breach of contract alleged in the petition;” that the petition “is indefinite, duplicitous, and uncertain, and it cannot be ascertained therefrom what damages plaintiff is claiming or what plaintiff claims is the measure of damages,” and that the petition does not allege “what would have been the cost to plaintiff to execute the contract or to build the stock-gap, or to build a fence in lieu of said stock-gap, or to build any other structure to protect his land in the place of said gap.” The demurrer was sustained, and plaintiff’s petition as amended was dismissed.

There is no reversible error in any of the rulings on the pleadings. Should it be conceded that the court erred in refusing to allow the amendment in the nature and form of -a second count,” this could not have been harmful to the plaintiff; for, under the rulings hereinafter announced, this proposed second count was afflicted with the same infirmity as the first, and was subject to the demurrer filed. From the view we take of this case, it would be useless to discuss each of the grounds of demurrer, as the two following propositions are controlling.

The contract attached to the petition, and on which plaintiff bases his alleged rights to recover, is between the plaintiff and the Title Guarantee and Trust Company. The defendant in this case is not mentioned therein,—is a stranger to the contract. It is true that the deed or contract refers to the Atlanta, Birmingham & Atlantic Bailroad, but there is no mention of the Atlanta, Birming ham and Atlantic Bailway Company. The deed or contract in question is under seal, and plaintiff expressly alleges in his petition that he made the contract with the Title Guarantee and Trust Company. It is sought to hold the defendant liable under the allegation that “Said Title Guarantee and Trust Company was the agent of the defendant to procure the right of way for the construction of its road-bed, and that said corporation was formed for said purpose, and in making said contract with the plaintiff, whereby it acquires the title to that portion of his land, was really and in law making a contract for the defendant.” This contention is without merit. “The rule that an undisclosed principal shall stand liable for the contract of his agent does not apply when the contract is under seal. Accordingly, a lease under seal, executed by an agent as lessee in his individual name, and which does not purport to be executed on behalf of the principal, is not binding upon the latter, although it appears from extrinsic evidence that the lessee was the general agent to conduct a business for his principal, and that the premises were leased to be used in such business.” Lenney v. Finley, 118 Ga. 718 (2), 720 (2) (45 S. E. 593), and cit. In VanDyke v. VanDyke, 123 Ga. 688 (51 S. E. 582, 3 Ann. Cas. 978), the Supreme Court was asked to review and reverse the ruling in the Lenney case, supra, and declined to do so. Applying to the case under consideration the principle 4above announced, it is clear that under the contract in question a suit will not lie against the Atlanta, Birmingham & Atlantic Bailway Company.

The petition alleges “that the said defendant erected said stock-gap in the first instance, as it was its duty to do, and after destruction of said stock-gap it became its duty to repair the same and erect the same, and erect the same again where it became necessary, without further notice, and that because of its failure so to do, this defendant is indebted to your petitioner in the sum of twenty-five dollars per day for each day the same remained unereeted as is provided by law, as the proper and just amount to be recovered in this action, for which amount also this petitioner asks verdict and judgment.” Treating these allegations as an endeavor to recover the penalty provided for in paragraphs 2699 aud 2700 of the Civil Code of 1910, there is no endeavor to set up in the petition a compliance with these statutory provisions; and before tbe plaintiff can recover under them, he must allege such facts as will bring his petition within the provisions of this law. This he utterly failed to do.

Judgment affirmed.

Broyles, O. J., and Luke J., concur.


text:
    10838.
    PIDCOCK v. WEST.
    1. The court did not err in refusing to give to the jury certain requested instructions as to the burden of proof, | as the charge given covered substantially the principle embraced in the request.
    2. There is nothing in the record or in the amount of the verdict to indicate that the verdict was the result of prejudice or bias on the part of the jury.
    3. Eor no reason assigned did the court err in permitting the plaintiff “to make physical demonstration of her alleged injury.”
    4. The court did not err in admitting in evidence the “Carlisle Mortality Table,” over the objections that it was irrelevant, that there was no allegation or proof of permanent injury to the plaintiff, or of reduced earning capacity, and no proof of the value of her services.
    5. None of the objections urged as to the excerpt from the charge of the court in reference to compensation for future pain and suffering are good.
    6. There is evidence to support the verdict.
    Decided March 2, 1920.
    Action for damages; from Colquitt superior court—Judge Thomas. July 29, 1919.
    Application for certiorari was denied by the Supreme Court.

      W. F. Way, for plaintiff in error.

      James Humphreys, Parker & Gibson, contra.
   Bloodworth, J.

This suit is based upon injuries received by the plaintiff in an automobile collision, in which the car of defendant fan into the car in which the plaintiff was riding. A verdict of $1,500 in favor of plaintiff was returned, and the defendant excepted.

The court did not err in failing to give to the jury a requested instruction as follows: “I charge you as a matter of law that there is no presumption of negligence against the defendant, and consequently the burden is on the plaintiff not only to prove injury as alleged, but to prove that the defendant was guilty of some one or more acts of negligence set forth in the petition, and that such negligence of the defendant was the proximate cause of the injury received by the plaintiff.” The court did charge: “The burden is upon the plaintiff to establish her case. .The plaintiff must recover, if at all, by proving to your satisfaction by a preponderance of the testimony that the defendant was negligent in one or more of the ways in which plaintiff alleges in her petition that the defendant was negligent. She cannot recover for any other or different acts of negligence than those alleged in her petition, and it must appear further that in consequence of this negligence she was injured.” The charge given covered substantially the principle embraced in the request.

Complaint is made that the verdict “was so grossly excessive as to conclusively suggest bias and prejudice in favor of the plaintiff.” To this contention we cannot assent. The record contains no proof of prejudice or bias, and the amount of the damages awarded would not justify such a conclusion. Plaintiff was in the car belonging to Mr. West. She swore: “My left arm was knocked out of place and my hand all mashed, and a place cut in my arm on the under side. My wrist-joint was dislocated, and a bone in my hand was broken or crushed. The gash was cut across my wrist. I came on to town with my son in his car, and got Dr. Harrell to give me medical assistance. He put my arm in a brace and bandaged it from my elbow to my fingers. I wore my arm in those splints a little over five weeks. For three months my suffering was intense. Of course it was not so bad all the time, but for four or five weeks, though, it was pretty intense. The suffering has not entirely disappeared, and at times I suffer a great deal, and have had but little use of my arm since. I have not entirely recovered the use of my left hand. It is very tender to work in any way. . . As a result from the injury I can not do my sewing. I can sweep' just a little. I have to do the sweeping with my right hand. If there is much weight to the cooking utensils, I cannot handle them with my left hand. If I do I drop them.” The physician who attended Mrs. West swore: “I found the wrist dislocated, cut across here [the doctor indicating]; do not remember which pressure, a gash about two inches long, and her arm was bruised, and the arm up here was bruised pretty well. I could not detect at that time that there were any broken bones. The wrist was dislocated and some of the bones were out of place, and after that I decided that there must have been some of those little bones broken. Now I am not an X-ray, but my opinion is that they are. I made an examination of the wrist abput a week ago and thought that I could detect one little bone that was broken or bruised. No, sir, the injury has not entirely recovered. In my opinion as a physician the injury is permanent. I cannot say to what extent it will disable her from the use of her left hand. I am a practicing physician and have been for about twenty years. During that twenty years I have had ordinary experience of practicing medicine and treating wounds of this nature. Based upon that experience my opinion is that this injury is permanent.” Under this evidence we cannot say that the verdict is so large as to "shock the moral sense.” See Realty Bond & Mortgage Co. v. Harley, 19 Ga. App. 186 (2), 187 (91 S. E. 254), and cit.; Atkinson v. Taylor, 13 Ga. App. 100 (1) (78 S. E. 830),

Eor no reason assigned did the court err in permitting “the plaintiff to make physical demonstration of her alleged injury,” or in making the same in the manner in which it was made. See Civil Code (1910), § 4644 (4); Richmond & Danville R. Co. v. Childress, 82 Ga. 719 (9 S. E. 602, 3 L. R. A. 808, 14 Am. St. R. 189). In this connection see also Macon & Birmingham Ry. Co. v. Ross, 133 Ga. 83 (1) (65 S. E. 146), and cit.; Temples v. Central Ry. Co., 19 Ga. App. 308 (5), 313 (91 S. E. 502), and cit.

It is alleged that the court erred in admitting the “ Carlisle Mortality Table,” over the objections that in the absence of an allegation and proof of reduced earning capacity, and of a permanent injury, it was not admissible; that “it was immaterial and irrelevant;” that "plaintiff had not charged her injury to be permanent;” and that “there was no proof of' the value of her services.” As against these objections the court properly admitted the mortality table in evidence. In Powell v. Augusta and Summerville R. Co., 77 Ga. 200 (3 S. E. 759), Chief Justice Bleckley said: "Where there is evidence tending to show that that state of impaired health and diminished ability to labor attributable to the injury may endure through life, the mortuary tables are admissible in evidence to aid the jury in dealing with the element of time involved in their computation of the damages. There was such evidence in this ease, and the tables were, therefore, relevant. One who is to live long in pain is more damaged than one who has to endure suffering but for a brief term. Test this by applying it to two cases and contrasting them, the first in which pain is to last only for a day, and the second for twenty years. It may be thought that the loss of ability to labor is not pain, but this is a mistake. There is no greater blessing of life than ability to labor, even though the proceeds may belong to another. It is better for happiness, as well as for ...virtue, to work for nothing than to be idle. A physical injury that destroys the power of a human being to labor is one of the most serious injuries that is possible to inflict. True, it is not to be measured by pecuniary earnings where the suit is by a married woman, for such earnings, as a general rule, belong to the husband, and the right of action for their loss is in him, but the wife herself has such an interest in her working capacity as that she can recover something for its destruction, and what she is to be allowed ought to be more or less according to the length of time during which her privation is likely to comtinue. Such privation may well be classed with pain and suffering, especially where it involves the breaking up of established habits. To man or woman accustomed to work, enforced idleness is torture.” The Powell case was a suit for pain and suffering to the wife, and there was no claim for diminished earning capacity.

The following objections were urged as to the charge of the court in reference to compensation for future pain and suffering: “Because the plaintiff had not alleged her injuries to be permanent. Because there was no proof that her injuries were permanent. Because there was no proof of the value of her services or the extent to which the value of her services had been diminished by reason of the 'alleged injury sustained. Because the annuity tables according to the Carlisle Table of Mortality had not been introduced or admitted in evidence, and therefore the following portions of the charge, to wit, ‘If you allow her an amount for any future mental and physical pain and suffering, you must reduce that amount to its present cash value at the rate of seven per cent per annum/ left the jury without any basis upon which to figure and ascertain what amount, figured at seven per cent, per annum, would be the present cash value. Because the introduction and use to [of?] the mortality table without the use and introduction of the annuity tables is improper and illegal, and any charge based thereon improper.” None of these objections are good. As shown in paragraph 2 of this opinion, the evidence supports the petition as to the injury being permanent. The court charged the jury that “The plaintiff sues and contends for damages for pain and suffering. The court instructs you further that pain and suffering is an element of damages which the law recognizes. If you believe, from the evidence in this case, that the plaintiff is entitled to recover of the defendant any sum on account of pain and suffering resulting from the injury alleged and as stated in the declaration, then the amount of. such recovery would be and is left by the law to the enlightened consciences of impartial jurors. The court instructs you further that if you find that the plaintiff is entitled to recover, under the evidence and under the rules of law given you in charge, you would be authorized to find such amount in damages as would compensate her for the physical and mental pain which she has suffered as a direct and proximate result of the defendant’s negligence, if you find that the defendant was negligent. This would be such compensation, however, as would be compensation without injustice to the defendant. If you find that she has suffered pain, mental and physical, up to the present time. If you find that her injury is such as will probably cause her future pain and suffering, mental and physical, you would be authorized to allow her compensation for such mental or physical pain and suffering. If you allow her an amount for any future mental and physical pain and suffering, you must reduce that amount to its present cash value, figured at the rate of seven per cent, per annum. The court instructs you further that certain tables have been introduced in evidence for your consideration, and these are called mortality tables. You may use them or you may not, and then it is left to you as to what use you will give them. The court instructs you further, the only material information you can derive from it is the time which an average person of equal age with the one under consideration in the present case may be expected to live.” In Ball v. Mabry, 91 Ga. 782 (3) (18 S. E. 64), it was held: “In a proper case it is not error to charge that the plaintiff is entitled to recover for the pain and suffering he will probably endure in the future.” In Southern Ry. Co. v. Wright, 6 Ga. App. 185 (64 S. E. 709), Judge Eussell said: “The instruction of the learned trial judge, that if the injuries are permanent there is no rule of law given by which you may estimate the damages in a ease of this kind, save the enlightened conscience of impartial jurors, etc., evidences that the idea of diminished capacity to earn money was intended to be excluded from the consideration of the jury, and must have been so understood by it.” That portion of the charge in this case in reference to the present cash value of future pain and suffering is not erroneous because the “annuity table” was not introduced in evidence. This table can be used with profit, and is frequently a great time saver in arriving at the present cash value, but is not essentially necessary.

-The presiding judge approved the verdict found by the jury, there is evidence to support it, and this court will not disturb it.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.