text:
    8675.
    CITY OF ATLANTA v. TRUSSELL.
    1. The construction and maintenance of sewers by a municipality is a ministerial and not a governmental function.
    2. A city acting under authority of its charter in the repairing or construction of sewers is bound to the same rule of diligence as to providing a reasonably safe place for its employees to work that applies in the case of a private contractor.
    3. A servant assumes the obvious risks of the business about which he is engaged; but this does not ordinarily impose upon him the burden of ascertaining by positivé investigation if the place where he is directed to work is safe, or make him responsible for what such an investigation might reveal, but generally he assumes such risks only as would be obvious to a person of ordinary intelligence and familiar with the business. In the absence of anything to suggest that the place where he is working is dangerous, he has a right to rely upon the performance by the master of the duty to furnish a reasonably safe place and to properly inspect it and preserve such safety.
    Decided December 11, 1917.
    Action for damages; from city court of Atlanta — Judge Reid. January SO, 1917.
    The plaintiff sought to recover damages from the City of Atlanta for the death of her husband. She alleged in her petition,' that her husband was in the employment of the defendant, working on what was known as the Ormond-street sewer, then being constructed within the limits of said city; that said sewer was being constructed by the defendant under authority conferred by its charter, and when completed was designed to drain the surface-water from the streets of the city and also to drain such water and sewerage from the property of individuals within the city limits; that this sewer was part of a system of drainage which the defendant had inaügurated and was completing, and it was being constructed by the defendant as any private person or corporation could have constructed it, and, while the city was authorized so to construct it, it was not bound to pursue this method but could have done the work through a private contractor; that the plaintiff’s husband was a carpenter and general laborer, and was engaged in such work- for the defendant in the construction of said sewer, the particular work in which he was occupied at the time of his death being the removal of certain wooden concrete forms in said sewer by the direction and order of the duly authorized foreman of the defendant; that on each side of the sewer in process of construction “were two other sewers of the City of Atlanta, which had been constructed by said City of Atlanta, the defendant, and which were then being maintained and operated by said defendant, these other two sewers being old brick sewers higher than a man’s head; and the sewer to the east of the new sewer upon which decedent had been working had been laid bare and uncovered by defendant for several hundred feet at this point;” that the decedent was “coming out of the end of the said new sewer upon which he was working under the defendant’s directions, and was climbing up a ladder to get out of said sewer, pursuant to his duty, when the east or brick sewer above mentioned, constructed and maintained by defendant, having been laid bare and allowed to remain in a defective and dangerous condition by the defendant for several weeks, exploded or burst, and sections and fragments thereof were carried, with a great stream of water which was'flowing in the same, down towards the place where the decedent was climbing up the ladder at the end of the concrete sewer, and a large section or fragment of brick struck the decedent, crushing his head against parts of the concrete sewer, and also, the rushing water coming over him with suffocating effect, he died instantly as a result of said causes.” The plaintiff alleged negligence in the following particulars: that the sewer which burst was defectively constructed; that the defendant permitted a great volume of sewerage and surface-water to flow through the same, and a great volume was flowing through the same on this occasion; that the sewer which burst had large cracks therein, both in the top and sides, which were visible, and which greatly weakened and rendered it dangerous, and that this condition had existed for many weeks before the homicide, and the defendant and its authorized agents knew thereof, but the decedent did not have equal rpeans of knowing of the said defects, nor could he by ordinary care have known thereof; that the defendant negligently failed to brace the sewer after removing the earth and exposing and thus weakening it by taking away the support of the earth from around it, and that ordinary care required that the sewer should have been braced, propped, or held up with heavy timber, but this was not done and it was negligence to so open and expose said sewer without bracing the same. It was alleged that “each and all of said defective, dangerous; and negligent conditions just described contributed to and caused the bursting of the sewer and the consequent death of the decedent; all of said defective conditions had existed over a month before said death, and defendant should have known thereof and did know.”
    A demurrer was interposed upon the ground that no cause of action was set out in the petition, especially because it appeared therefrom that the deceased lost his life while engaged in governmental work for the City of Atlanta, by reason of an alleged defect in said work; and also because his death resulted “by reason of a condition the risk of which he assumed by his employment.” It was furthermore insisted in the demurrer that no negligence was set out in the petition for which the City of Atlanta could be held liable; and various special demurrers were likewise interposed.

      J. L. Mayson, S. D. Hewlett, for plaintiff in error.

      R. R. Arnold, contra.
   Wade, C. J.

(After stating the foregoing facts.) We do not consider it necessary to refer to any of the special demurrers, as in our opinion none of them point out any such substantial defects as, required correction by amendment. It is enough to say that if the petition be good as against the general demurrer, it presents the plaintiff’s complaint with sufficient certainty and definiteness; for both the injury alleged and the negligence to which it is ascribed are so clearly indicated as to put the defendant on ample notice and enable it to anticipate the precise line of attack which the plaintiff must pursue in order to recover therefor. 1. A clear distinction is now generally recognized between the responsibility of a municipal corporation when in the exercise of a governmental function on the one hand, and of a ministerial function on the other. The rule is uniform that a municipal corporation is not liable for alleged tortious injury to the person or property of individuals when engaged in the performance of public or governmental functions or duties; but, on the other hand, a recovery may be had against a municipal corporation where it negligently performs or negligently fails to perform duties in their nature ministerial. Our code concisely states the rule as follows: “Municipal corporations are not liable, for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they are liable.” Polit. Code, § 897. See Cornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415), construing this section. See also Mayor &c. of Dalton v. Wilson, 118 Ga. 100, 103 (44 S. E. 830, 98 Am. St. R. 101). The distinction between governmental and ministerial functions is well settled and the process of separation is generally practicable; but despite the plain difference between the two kinds of powers, they often approximate each other so closely as tó render the ascertainment of the exact line of distinction between them somewhat difficult, so that usually all that can be done with safety is to determine in each case as it arises under which class it falls. It is unnecessary to refer to the important exception to the general rule of exemption from liability for negligence in the performance of a public duty, which is usually recognized, and is recognized in this State, as to damages resulting from defects in streets and highways.

The first question, therefore, which presents itself for decision is whether or not the construction and maintenance of a sewer intended to drain surface-water from private property and from the streets of a municipality, as well as to remove sewerage from the property of private individuals within the city limits, is a governmental of ministerial act, where the city is acting (as alleged in the petition in this case) under charter authority and is itself building or constructing such sewer. The decisions are practically uniform in holding that the duties of municipal authorities in adopting a general plan of drainage, and in determining when, where and of what size and at what level drains or sewers shall be built, are of a quasi-judicial nature, involving the exercise of deliberate judgment and wide discretion; and the municipality is not liable for an error of judgment on the part of the authorities in locating or planning such improvements. See 28 Gyc. 1313 (2). It is, however, equally well settled that after the adoption of a plan of sewerage or drainage by a city, the manner in which such plan is executed becomes, so far as the rights of the citizen may be affected, a mere ministerial duty, and for any negligence in the execution, construction or maintenance of the work, whereby injury is inflicted upon a private right, the municipality will be responsible. “The actual construction of the class of improvements under discussion [sewers and drains] is the exercise of a merely ministerial function; and if it is not performed with reasonable care and skill, any person who is injured by reason of such negligence may have an action.” 28 Cyc. 1315 (3). The distinction between the governmental act involved in the selection of a' plan and the ministerial act performed in the execution of that plan is clearly stated in the following quotation from 5 Thompson on Negligence, § 5794: “That a municipal corporation is not liable for errors of judgment in matters where its governing body or other officers act in the exercise of a legislative or judicial discretion, has given rise to a distinction, as to its liability, between the case of a defective plan and that of a defective execution of public work. If the plan of a public work is so defective that I am thereby damaged, I can' recover nothing, because the making of the plan was in the nature of a legislative or a judicial act; but if the work is defectively or negligently executed by the officers or agents of the municipal corporation who are charged with its execution, and I am thereby injured, then, according to this judicial casuistry, I can recover damages.” While municipalities are not liable for failing to adopt plans therefor or for failing to construct sewers (5 Thompson on Negligence, § 5871), “they are frequently held liable to pay damages to the owners of private property for injuries which proceed from the negligent or unshillful manner in which the ministerial work of making the sewer, drain, or the like has been executed, or for negligence in failing to heep it in repair, or allowing it to become obstructed, whereby unnecessary damage is done to such property; in other words, where they have failed to exercise ordinary or reasonable care.” Id. 5873. This rule ha-s been repeatedly recognized by the Supremé Court of this Statb. It was said in Langley v. Augusta, 118 Ga. 590, 598 (45 S. E. 486, 98 Am. St. R. 133): “The officers in charge of the affairs of ,a municipal corporation may select places for the construction of a system of sewerage and drainage, and adopt a plan for such construction, without rendering the city liable in damages for injuries resulting from such selection and from the proper [italics ours] construction of the system. These officers may also, if it is necessary, take or damage property of private citizens in constructing the system of sewerage and drainage, but adequate compensation must be paid for property so taken or damaged. The same is true of the construction of any public improvement. City of Atlanta v. Green, 67 Ga. 386; Moore v. Atlanta, 70 Ga. 611; Boughton v. Atlanta, 113 Ga. 948 [39 S. E. 316]. If a municipal corporation negligently constructs a system of sewerage or drainage, or negligently maintains [italics ours] one properly constructed, so as to injure private citizens or their property, it will be liable in damages for the injury thus occasioned.” In Massengah v. Atlanta, 113 Ga. 966 (39 S. E. 578), the Supreme Court said: “Permitting a public city sewer to be or remain in such a defective condition as to become a nuisance, with resulting injury to realty, gives a cause of action against the municipality in favor of the owner of such realty, and on the trial thereof he may recover for all damages to his property which have occurred within four years of the filing of his petition.” The same rule is recognized in the following cases: “A municipal corporation is liable to a property owner for damage sustained by a negligent failure to keep its drains and sewers in repair.” Mayor &c. of Brunswick v. Tucker, 103 Ga. 333 (39 S. E. 701). “If such a nuisance owed its origin not to the general system of which this sewer was a part, but to a defective execution of the same at this particular place, there can be no doubt of the power to restrain the city from continuing the nuisance, notwithstanding the municipal government is by statute invested with plenary powers over streets, sewers, drainage and sanitation.” City of Atlanta v. Warnock, 91 Ga. 310, 314 (18 S. E. 135, 33 L. E. A. 301, 44 Am. St. E. 17). “It seems thus to be clear that'in grading or in constructing sewers skill and care must be used, it being ministerial work, and if not used, the city w<as liable "prior to, and exclusive of, the constitutional provision now of force.” City of Atlanta v. Word, 78 Ga. 276, 286. The rule is concisely stated in Mayor &c. of Savannah v. Spears, 66 Ga. 304 (2), as follows: “In the location of sewers and drains, and perhaps also in determining their dimensions, municipal authorities exercise a judicial or legislative discretion; but after the dimensions have been agreed upon or determined, they are liable in damages for negligence in constructing such sewers or drains, or for failure to keep them in good condition.” See also Smith y. Atlanta, 75 Ga. 110, 112; Mayor &c. of Milledgeville v. Stembridge, 139 Ga. 692, 693 (78 S. E. 35); Perry v. Worcester, 6 Gray (Mass.), 544 (66 Am. D. 431, 436, and numerous cases cited in note); Chalkley v. Richmond, 88 Va. 402 (14 S. E. 339, 29 Am. St. R. 739, note); 61 L. R. A. 697, note; Georgetown v. Commonwealth, 115 Ky. 382 (73 S. W. 1011, 1 Ann. Cas. 961). After a sewer or drain has been constructed by a municipal corporation, when it assumes the control and management thereof it is bound to use reasonable diligence and care to keep the same in good repair, and is liable in damages for injuries resulting from its negligence in this respect. See Taylor v. Austin, 32 Minn. 247 (20 N. W. 157); Mayor &c. of Savannah v. Spears, supra; Mayor &c. of Savannah v. Cleary, 67 Ga. 153; Barton v. Syracuse, 36 N. Y. 54; Nims v. Troy, 59 N. Y. 500; Rowe v. Portsmouth, 56 N. H. 291 (22 Am. R. 464); Smith v. New York, 66 N. Y. 295 (23 Am. R. 53); Merrifield v. Worcester, 110 Mass. 216 (14 Am. R. 592); Hitchins v. Frostbury, 68 Md. 100 (11 Atl. 826 6 Am. St. R. 422); Bates v. Westborough, 151 Mass. 174 (23 N. E. 1070, 7 L. R. A. 156); Young v. City of Kansas, 27 Mo. App. 101; Markle v. Berwick, 142 Pa. St. 85 (21 Atl. 794); Fuchs v. St. Louis, 133 Mo. 168 (34 L. R. A. 118, 31 S. W. 115, 34 S. W. 508); Fitzgerald v. Ottawa, 22 Ont. App. 297; Frostburg v. Dufty, 70 Md. 47 (16 Atl. 642); Fleming v. Manchester, 44 L. T. N. S. 517, 45 J. P. 423; Burnett v. New York, 36 App. Div. 458 (55 N. Y. Supp. 893).

Numerous cases in our own reports, some of' which are above referred to, establish the right of an individual to recover from a municipality on account of defective or improper construction of drains or sewers, resulting in flooding' or otherwise injuring private property; and, of course, the same rule must apply where the injury is to the person. • It is broadly stated in 4 Dill. Mun. Cor. (5th ed.) 2903, that “if a- city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable, as we shall see, to an action for the damages thereby occasioned.” This statement includes the proposition that if a city fails to properly maintain a sewer, and thereby one in the exercise of ordinary care suffers personal injuries, the city would be liable.

The construction of the new sewer, and the maintenance of the old sewer from alleged defects in which the injury in this case resulted, both coming within the scope of the ministerial duties of the municipality, there is therefore no merit in the ground of thé demurrer insisting that the construction and maintenance of sewers involve the exercise of purely governmental functions for which the city could not be held liable.

2. The petition alleged that the city under proper charter authority was proceeding to erect a new sewer without the intervention of a contractor, and that the husband of the plaintiff lost his life in consequence of defects in an old sewer previously constructed by the city, adjacent to the one on which he was at work, which defects had existed for a time sufficiently long to charge the city with notice, some evidences of which being in fact visible, coupled with further negligence on the part of the city in removing the surrounding earth which supported the old sewer and thus subjecting it to a strain which, on account of its defective construction, it was unable to withstand. On the general, proposition, the following quotation from 4 Thompson on Negligence, § 3916, is both pertinent and comprehensive: “The construction by a city of a sewer is a ministerial work, and it will be liable for an injury to one employed by it in such construction, caused by the careless or unskillful manner of performing the work. A city can not escape liability for injuries to one. of its employees engaged in constructing a sewer, caused by the unskillful manner of performing the work, on the ground that, the city itself, through its superintendent of streets, constructed the sewer, instead of letting out the contract to the lowest bidder as required by its charter; since, as it was given power to establish and regulate sewers, it was acting within the general .'scope of its power in constructing the sewer, and was doing an act lawful in its nature, although done in an unlawful manner.” A municipality engaged in constructing a sewer is bound to the same rule of diligence in providing a safe place for its employees to work which applies to a private or independent contractor engaged in similar work. “A municipal corporation may be held liable for negligence at the suit of an employee; and when acting in its quasi-private or ministerial capacity, it owes its employees the same measure of duty, and will be liable to them for injuries in the same manner and to the same extent, as private corporations or individuals, as in the case of an injury to one working on the street, or of an injury to one working in the construction of a sewer.” 28 Cyc. 1266 (b). A municipal corporation “is liable as an employer, under the same circumstances as a private individual or corporation, wherever the injury complained of was received by the servant while participating dn work which was being done in connection with the exercise of a power conferred upon the corporation for the purpose of enabling it to carry out one or other of its merely ministerial functions.” 4 Labatt’s Master & Servant, (2d ed.) 4928, § 1615. See also Condon v. Chicago, 249 Ill. 596 (94 N. E. 976). There can be no confusion as to the law in this jurisdiction, under the clear ruling of the Supreme Court in Mayor &c. of Savannah v. Jordan, 142 Ga. 409, 412 (83 S. E. 109, Ann. Cas. 1916C, 240) : “Where a municipality is exercising an administrative function at the time an employee is injured, it owes its employee the duty of furnishing a safe place to work; and for a failure to do so, and where by reason of such failure an employee is injured without fault on his part, the corporation would be liable, under the same circumstances that a private individual or corporation would be. . . The authorities undoubtedly make a distinction between cases where injuries are occasioned by the agents of municipalities while engaged in the performance of governmental functions, or in private enterprises. Between the municipality- and the public the question of liability depends upon whether at the time of the injury the municipality is engaged in a governmental or ministerial duty. The relation of- a municipal corporation to its servants is the same as it is between any other master and servant,, provided it is engaged in the performance of ministerial functions.” The doctrine is well stated in Rhobidas v. Concord, 70 N. H. 90 (47 Atl. 82, 51 L. R. A. 381, 85 Am. St. R. 604): “An injury to a servant of a municipal corporation employed on waterworks, by reason of the negligence of the municipal authorities in failing to furniáh him a reasonably safe place to work, to which he has a common-law right under his contract, gives him a right of action for damages, since his right, which is violated, is one which concerns an individual only, and not one which affects the whole community, or depends in any way upon the performance or non-performance of any public duty.”

3. In determining, therefore, whether the deceased assumed the risk arising from the condition of the old sewer which burst and brought about his death, we must appfy the same rules which obtain where the servant is at work for a private individual. In other words, the servant assumes no' more or greater risk because of the fact that he is serving a municipality than if he were serving a private individual or private corporation. Generally a servant assumes such risks incident to the employment as by exercise of ordinary care and prudence on his part he might discover; but this means only the usual and ordinary risks of the particular business which are obvious and patent, and does not ordinarily impose upon him the burden of making any active or positive effort to ascertain or discover defects or dangers, nor does he ordinarily assume the risks which he might have so ascertained or discovered by such investigation. See 2 Cooley on Torts (3d ed.), 1043, 1044. Again, it is essential to the assumption of risk that the servant should not only know of the defect from which the injury arises, but that he should appreciate the danger, or that the danger should be manifest to a man of ordinary intelligence and experience in the line of work in which he is engaged. An adult servant is. of course presumed to possess ordinary intelligence and capacity and to comprehend such dangers as are obvious to a person of ordinary understanding and experience; and should he rely upon any want of such capacity, he must show that the master had notice of his deficiency. An obvious and patent risk is one so plain that it would be instantly recognized by a person of ordinary intelligence who is familiar with the particular business. If the servant knows the danger, or if it is as obvious to him as to any one else, he obeys an order to work in a dangerous place at his own peril, and by undertaking to work in such a place and with such knowledge he assumes the risk and the master is not liable if injury results. However? a servant owes the duty of instant obedience; and unless the risk is so great and so obvious that no reasonably prudent man would have obeyed under the circumstances, he is ordinarily justified in obeying-an order from the master. 2 Cooley on Torts (3d ed.) 1137.

In a suit for personal injury by a servant against the master, where the right of recovery is dependent upon the negligence of the master in failing to inspect the premises and where the duty to inspct was one which rested upon the injured servant, the servant can not recover for an injury sustained because of his failure to inspect. Stewart v. Savannah Electric Go., 133 Ga. 10 (65 S. E. 110, 17 Ann. Cas. 1085). But even where no special duty rests upon the servant to inspect the premises, notwithstanding he may . 't be required to make any .active or positive effort to ascertain or dioccver defects or dangers in the place where he is directed to work “he must exercise his intelligence; and when a situation suggests investigation and inspection in order that its dangers may fully be disclosed, he is under the obligation of investigating and inspecting” (18 B. C. L. 642, § 137); but “latent or concealed dangers or defects he is not bound to discover, it being the duty of.the employer to warn him of these; but he is held to a knowledge of all such as are patent or obvious. While, however, open and obvious perils may not be made the foundation for a recovery for injuries sustained by reason thereof, it must appear, in order to defeat the employee’s action, that the danger was in fact obvious to one in his situation. Time and opportunity for inspection and investigation must have been afforded to him. Each case must be determined upon its own facts, the decision being properly within the province of the jury.” 18 B. C. L. 643, 644. But though an employee is bound to exercise ordinary diligence in observing perils by which he is menaced, he is entitled to proceed on the presumption that the employer has fulfilled the obligation to provide him with a safe place to work, and is not required to' anticipate the existence of possible dangers not clearly suggested to a man of ordinary intelligence, familiar with the business, by what is apparent or obvious in his surroundings. “The employee may presume that all precautions required of the employer have been taken, that all tools, appliances, and places are fit and suitable for his use and occupancy, and that in all respects there will be an adherence to established and customary methods. In short, whenever the employer from the standpoint of knowledge is in a position.superior or dominant to that of the employee, the latter may rely-for his safety on the activity of the employer.” 18 It. C. L. 689, 690. The doctrine has been enunciated and applied with great frequency, that, “as a general rule, the servant is under no obligation either to inspect that part of the plant by which his safety may be affected, or to inquire into the details of the system adopted for the conduct of the master’s business, for the purpose of- discovering concealed dangers which would not be disclosed by superficial observation.” 4 Labatt’s Master & Servant (2d ed.), 3798. ‘ As already stated, although an employee may have knowledge of a physical fact, as of the defective condition of the place where he is required to work, by reason of which he sustains an injury, it does not follow that he appreciated the danger to which he was exposed thereby, since his general knowledge may not have been such as to give him any proper conception of the peril and- the condition may have have appeared perfectly harmless to him, and in such a case “his right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars his action.” 18 R. C. L. 695.

It is the master’s duty to provide a reasonably safe place to work and to maintain it in a reasonably safe condition, and-the servant can rely on the performance of this duty, since ordinarily dangers arising from an unsafe place are not included within the risk of the business assumed by the servant. King Manufacturing Co. v. Walton, 1 Ga. App. 403 (3) (58 S. E. 115); Georgia Railroad v. Hunter, 12 Ga. App. 294 (7) (77 S. E. 176); Betts Co. v. Hancock, 139 Ga. 198 (77 S. E. 77). The fact that the servant assumed the risks of a particular employment will not exempt the master from liability for fafiure to furnish a safe place to work if there be no contributory negligence on the part of the servant. Middle Georgia &c. Ry. Co. v. Barnett, 104 Ga. 582 (2) (30 S. E. 771). It is insisted in this case, that, conceding the duty of the master to furnish a safe place to work, the servant must likewise exercise ordinary care in discovering defects therein (Chenall v. Palmer Brick Co., 117 Ga. 107 (4) (43 S. E. 443), and that under the facts alleged in the petition the defects in the old sewer were plainly visible, and therefore the servant was not in the exercise of ordinary care in going upon the old sewer, which was obviously defective, or in working near the same; and it is further insisted that the servant knew of the danger, or should have known of its existence by thq exercise of ordinary care, since he was bound to see dangerous conditions of the premises upon which he was at work that were open and visible (Walker v. Atlanta &c. R. Co., 103 Ga. 820, 822, 30 S. E. 503). We do not think, however, that these contentions are well taken. The injury to the plaintiff did not result from any danger, the existence of which was clearly or necessarily indicated to a man of ordinary intelligence by the cracks visible in the top and side of the sewer. Neither does it follow, as a matter of course or of law, that the deceased knew or could have known (from the presence of the cracks and from knowledge of the removal of earth from about it) that the old sewer was liable to burst from the pressure of water and sewage therein after the surrounding earth had been removed, since nothing is alleged which would serve to charge the decedent with knowledge as to any defects in the original construction of the sewer, or to put him upon notice that the same would not on account of such structural defects, or because of later ■ deterioration, be itself sufficiently strong, without support from beams of timber or from earth, to withstand such pressure as might reasonably be expected would be exerted against its walls, notwithstanding the existence of cracks therein. On the other hand, it might fairly be inferred from the allegations in the petition that the city knew or could have known, by reference to its records as to the details of the construction of this sewer, or by proper examination and expert inspection thereof before or at the time the supporting earth was removed, that the old sewer could not sustain the degree of pressure which would be normally exerted against its inner walls by the usual quantity of water and sewage passing through the same, if the surrounding earth should be removed and no other support substituted therefor. In other words, the city could have known the amount of strain which the sewer, alone and unsupported in the condition in which it was at the time, was calculated to support; and may have been negligent, after removing the surrounding earth and failing to substitute- other supports, in still permitting an undiminished volume of water and sewage to pass through its channel, which perhaps it might have been possible to divert temporarily and by this or other means provide for .the reasonable safety of its servants working adjacent thereto by its direction. In addition to this, the petition expressly declared that the cracks visible in the sewer had been there for a long time, and the city was thus charged with notice of their existence and of the dangerous condition of the sewer which was-thereby indicated to the city — though not necessarily indicated to the servant, who had no knowledge as to the maimer in' which it had been constructed or of the strain it was calculated to endure. Although the general allegation is made that the cracks were visible, there is no assertion that they were visible to him at or before the time the plaintiff’s husband lost his life, or that he had ever actually observed or been in position to observe the same. In fact, there is nothing in the petition to suggest that his work required him to be where he could see the particular cracks, unless perhaps they were observable by him on the occasion when he ascended from the level of the new sewer’ he was constructing to” the top of the old sewer, which was “higher than a man’s head,” immediately before the sewer burst and his death ensued. Had the injury to the plaintiff in this case resulted from catching his foot or hand in a crack in the old sewer, which was plainly visible to him, or if he had been injured by stepping into a crack on top of the sewer which was either plainly visible to him, or would have been visible if he had exercised ordinary care in selecting a path along said sewer and in planting his feet therein, such negligence on his part might have barred any recovery; but even if, under the allegations in the petition, the defects in the sewer were or should have been .visible to him, it does not appear that he approached near any defective part of the structure at the time of the injury, but his death followed in consequence of the bursting of the sewer because the supporting earth had been removed from around it, and because on account of its. defective construction it was too weak to endure the strain of the large (unreduced) volume of water and sewage which the city allowed to pass through it, notwithstanding knowledge of its defective condition. As already said, the cracks in the sewer, if visible to the decedent, would not necessarily convey to Mm knowledge that the sewer3 without the support of the eárth which had been, removed from around it, had become unsafe or dangerous.' At all events, whether the employee, having or being -chargeable with knowledge of the defects in the old sewer, was guilty of negligence in remaining near the same or in continuing his work at the unsafe place without seeing that the defects were repaired, or otherwise seeking to protect himself, or was negligent in attempting to ascend to a position on top of the defective sewer, would be questions for the jury, and not for determination on demurrer; for upon the jury must necessarily devolve the inquiry whether persons of ordinary prudence who had observed the visible defects in the sewer would have believed such defects dangerous, or should have been apprised of the danger indicated thereby and should have exercised any greater degree of care than may have been exercised by the decedent in guarding against the danger. “Whether where an employee, after having knowledge of defects in machinery or those which may exist on the premises, or being cheargeable with such knowledge, continues to work with or upon the same, without reporting such defects to the master, or making any effort to repair the same, or otherwise seeking to shield himself from dangers attendant upon the existence of such defects; he is guilty of negligence, is a question to be determined by the inquiry, whether a person of ordinary prudence would have believed the defects dangerous to, or increased the risks of, the service in which he was engaged.” Walker v. Atlanta &c. R. Co., supra. The servant had the right to assume that the place where the master directed him to work was safe, and no burden rested upon him to do more than exercise ordinary care in determining if the place was in fact safe; and he was not, under the facts alleged, required to make any positive investigation to discover possible or hidden dangers, nor did he assume risks which he might possibly have discovered as the result of such investigation, hut assumed only risks that were obvious and patent to a man of ordinary intelligence familiar with the business. As said heretofore, he should use reasonable means to inform himself concerning the perils of his employment and as to the safety of the place where he is required to work, and must exercise his intelligence; and where a situation suggests investigation and inspection, the burden is generally upon him to pursue such investigation. It can not be said, however, as a matter of law, that under the allegations under consideration the presence of the cracks in the oíd sewer were sufficient to even suggest to the servant that the place was unsafe and dangerous and therefore to require -of him any investigation; since as aforesaid it is clearly inferable from these allegations that he had no knowledge of the defective construction of the old sewer or of its insufficiency to support the strain to which it was subjected at the time he ascended it, and enough is alleged to show that the city knew or should have known by proper examination and inspection of its dangerous condition. What thé proof may show is of course another matter, and one with which we have no present concern.

The case of Love v. Atlanta, 95 Ga. 129, 133 (22 S. E. 29, 51 Am. St. R. 64), cited by counsel for the plaintiff in error to support the proposition that no municipal liability arises on account of the failure of the officers, agents, or servants of the city to exercise ordinary care in safeguarding those employed in the construction and maintenance of sewers designed to preserve the public health, aside from all else, is clearly distinguishable on its facts from the case made by the petition under consideration. In that ease the plaintiff was injured while passing along the streets of the 'city, through the negligence of a servant of the defendant in permitting an animal attached to a garbage cart in charge of said servant to run away and collide with the buggy of the plaintiff. The decision in that case, that no right of action existed, was predicated upon the fact that the mule and cart causing the damage were actually in use at the time by the city under the direction of its health board, and the servant of the city charged with driving the cart was then employed in cleaning the streets and removing therefrom such offensive substances as usually accumulate in streets of thickly populated cities, which if not removed woit'ld endanger the public health. The court held that in removing the garbage the driver and the mule were engaged-in-the performance of a governmental and not a ministerial function. It would be stretching the decision in the Love case beyond the bounds of rpason, and certainly would be in principle opposed to the uniform rule of liability fixed in other jurisdictions, as well as in this," to hold that where one employed by á municipality was injured through its negligence while he was engaged-in the construction of something to be thereafter used in the preservation of the public health, no municipal liability would attach, or that no liability would arise on account of dangers resulting from the previous defective construction of an instrumentality intended and then being used "to preserve the public health.. In Mayor &c. of Savannah v. Jordan, ■ supra, the following ruling in the Love case is quoted: “In order to exempt a city from liability, it is not sufficient to show that the particular work, from the negligent performance of which by the servants of the city a citizen was injured, was being performed under the direction of the health authorities; but it must be shown that the particular work so being done was connected with or had reference to'the preservation of the public health.” In other words, even under the rule in the Love case it was held necessary to show Tooth that the- work being done had reference to the preservation of the public health and was also being performed under the direction of the health authorities. This would serve to still further distinguish that case from the case under consideration.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8690.
    COOPER et al., receivers, v. NATIONAL BANK OF SAVANNAH.
    1. THe provisions of the acts of Congress constitute the ultimate authority-relative to the operation of national-banks, and the decisions 'of the Supreme Court of the United States will be followed by the State courts in the construction of those statutes.
    2. The national-bank laws of Congress adopted as the authorized rate of interest that permitted by the laws of the several States where such banks might be located; but Congress did not adopt the prohibition im-
    .. posed by the Georgia statute upon the taking of interest at the highest authorized rate in advance by way of discount, but on the contrary, by section 5197 of the Revised Statutes, specifically authorizes national' banks to reserve, on any discount made, interest at the rate allowed by -the laws of the several States.
    3. In order to maintain a suit under section 5198 of the Revised Statutes of the United States, for the recovery of the penalty there imposed for the charging of usury which has been actually paid, such actual payment must be alleged and shown.
    Decided December, 11, 1917.
    Aetion for penalty. Before Judge Meldrim.- Chatham superior court. March 26, 1917.

      This suit was brought by the receivers of the Citizens & Screven County Bank against the National Bank of Savannah, alleging in substance that the defendant had knowingly received, charged, and taken from the Citizens & Screven County Bank interest in excess of' the highest contractual rate allowed under the laws of the State of Georgia; and it was sought to recover the penalty for usury imposed by the Federal statute upon national banks. An exhibit was attached to the petition, showing a list of the loans made, which in each instance set forth the date, the time the loan, was to run, the interest charged, thé highest interest charge allowable by law, and the amount actually charged in excess thereof. Usury was alleged to have been received on each of these loans, in that interest was reserved in advance by way of discount at the highest rate allowed by law. The amount of such alleged usury was arrived at by taking the amount actually received under each loan and calculating eight per cent, interest thereon for the time it was to run, and all interest reserved in excess of such amount was alleged to be usury. It was shown that each of the loans so made, including the alleged usurious interest embraced in each", had been paid at its respective maturity. It was further alleged that the defendant bank further knowingly took, received, reserved, and charged the Citizens & Screven County Bank, and the last-named bank paid to the defendant, a rate of interest greater than is allowed by law, in that it was understood and agreed between the borrower and the lender, at the time of the making of all of said loans, that the Citizens &.Screven County Bank should, at- all times while it was a borrower, keep on deposit with the National Bank of Savannah at least the sum of $10,709.31, whjch could only be used towards -the payment of said indebtedness, and from the 2d day of November, 1914, to the 17th day of November, 1915, such deposit was continuously and uninterruptedly maintained by the borrower under such requirement with the defendant, all of which was knowingly done for the purpose of exacting usury from the borrower, the use of the $10,709.31 to the Citizens & Screven County Bank, which was denied to it, being worth at least a rate of interest of seven per cent, per annum, or $1,499.30 for said period of time, and equally worth to the defendant at least seven per cent, per annum during said period. An amendment to the petition was filed, striking the amount originally claimed to be the total amount of interest taken as being the sum of $8,837.52, and substituting in lieu thereof the sum of $7,338.22, and substituting double the latter amount instead of twice the former as the amount of the penalty sued for. The reason of this amendment is thus explained in the brief of counsel for plaintiff in error: “The original petition sought to recover the amount of interest charged to the defendant in the petition on the deposit of $10,709.31. This was amended and stricken, because the interest on that amount, while lost to the plaintiff, was not paid to the defendant. In other ■words, the plaintiff can not recover, under the statute, for interest lost,- but for usury paidj and while the requirement of the deposit, ■on- the conditions named, was really in itself a usurious transaction, the plaintiff could not recover the penalty computed on that .amount.” A demurrer to the petition as amended was filed, and was sustained; to. which ruling exception is taken.

      Saussy & Saussy, for plaintiffs.

      Edward S. Elliott, Garrard & Gazan, for defendant.
   Jenkins, J.

(After stating the foregoing facts.)

1. The Revised Statutes of the United States, as to national banking associations, provide as follows: Section 5197: “Any association may take, receive, reserve, and charge on any loan or discount, made, or upon any pote, bill.of exchange, or other evidences .of debt, interest at the rate allowed by the laws of the State, Territory, .or. district where the bank is located, and no- more, except ¡that where by. the laws of any State a different rate is limited for •banks of issue organized under State laws, the rate so limited shall be. allowed for associations organized or existing in any such State .under this Title. When no rate is fixed by 'the laws of the State, or Territory, or district, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days from which the note, bill, or other evidence of debt has to run. And the purchase, discount, or sale of a bona fide bill of exchange, payable at another .place than the place of such purchase, discount, or sale, at not more than the current Tate of exchange for sight-drafts In addition to the interest, shall not be considered as taking or receiving a greater rate of interest.” Section 5198: “The taking, receiving, reserving,., or. charging a rate of interest greater .than is allowed by the preceding .section,, wben. knowingly .done,, shall-be deemed a for-

feiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred.” Section 5136 (7) provides that a national banking association may “exercise . . all such incidental powers as shall be neces-.. sary to carry on the business of banking; by discounting..and negotiating promissory notes, drafts, bills of exchange,- and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of this title.” (U. S. Comp. Stat. 1916, §§ 9758, 9759, 9761.) The Georgia statute defines usury as “the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful interest.” Civil Code (1910), § 3437. The Code (§ 3436) further declares: “It shall not be lawful for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever.” In the case of Loganville Banking Co. v. Forrester, 143 Ga. 303 (84 S. E. 961, L. R. A. 1915D, 1195), the Supreme Court of this State held that “The reserving of interest in advance by a bank at the highest legal rate of interest on a loan, whether it be a short or long-term loan, is usurious.” We might formulate and state the contentions of the plaintiff as follows: Eor a national bank to receive on any loan or discount more than the rate of interest allowed by the law of the State where it is located is a usurious transaction; in Georgia eight per cent, interest in advance by way of discount is by the State law usurious; therefore for a national bank in Georgia to receive eight per cent, in advance by way of discount is usurious. The'.contention of. plaintiff is sustained by-the -decision-in. Timberlake v. Bank, (U. S. Circuit Court, N. D. Mississippi), 43 Fed. 231 (3), where it was held that under the Mississippi code, which only allows interest on -the amount of money actually lent, a national bank in that State' can not deduct interest in advance. The ruling made in the Loganville Banking Co. case is based upon the provisions of the Georgia statute against usury, which “expressly forbids an increase of the maximum interest rate by way of discount,” and in that case it is stated that “AH laws respecting the rate of interest- charged for the loan of money by individuals are applicable to banks,” citing Civil Code (1910), § 2336. Therefore the question with which we are now concerned is whether, under the authority of the national-bank act as interpreted by the Federal decisions, a national bank can charge the highest rate allowed under the State law by way of discount in advance, although State banks are prohibited from so doing. Counsel for the defendant contend that they may, for the reason that while the State law' specifically prohibits State banks over which it has control from thus exceeding the maximum rate by way of discount (which prohibition constitutes the basis of the decision in the Loganville Banking Co. case), the national-bank act, supra, expressly allows' national banks to charge the highest rate allowed under the State law by way of discount, the meaning of such authorized power to discount necessarily being to take out and reserve such interest in advance.

The acts of Congress providing for the creation and operation of national banks, as construed' by the Federal courts, constitute the ultimate and paramount authority on this subject. Hansford v. National Bank of Tifton, 10 Ga. App. 270 (73 S. E. 405); Farmers National Bank v. Dearing, 91 U. S. 29 (23 L. ed. 196); Bates v. First National Bank of Dalton, 111 Ga. 757 (36 S. E. 949); First National Bank of Dalton v. McEntire, 112 Ga. 232 (37. S. E. 381); Reese v. Colquitt National Bank, 12 Ga. App. 472 (77 S. E. 320). In Haseltine v. Bank, 183 U. S. 134 (22 Sup. Ct. 51, 46 L. ed. 118), the Supreme Court of the United States said: “The definition of usury, and .the penalties fixed thereto, must be determined by the National Banking Act, and not by the laws of the State.” Thus, the act of Congress relating to the operation of national banks might have authorized them to charge a rate of interest' in excess of that allowed under the State law; it might have restricted, the power to discount under that rate to the right existing under the laws of the State where located; or it might have conferred such power to discount under the authorized .State rate, irrespective ■ of any such authority under the State law. It was within the scope of the authority of Congress to prescribe as the penalty for usury upon national banks that which is provided under the law of the several States; or it might, as was in fact done, provide a separate and exclusive penalty, which in fact happens to be double in amount and in sevérity that imposed under the law of this State. It was the opinion of the eriiinent trial judge who sustained the demurrer in the present case that the act of Congress did not adopt the State law upon the question of usury further than it relates to the rate of interest allowed by the laws of the State. In this opinion we agree. It does not appear that the Federal statute prohibits, as does the Georgia law, the discount of paper at the highest contractual'rate; but on the contrary it seems to specifically authorize any national bank to “reserve, . . ■ on any . . discount made, . . interest at the rate allowed by the laws of the State . . where the bank is located” (Revised Statutes, § 6197, supra). It will also be observed that, under the language of the seventh paragraph of section 5136, R. S. II. S., defining the powers of a national bank, discounting is specifically included. That the import of the word “discount” necessarily carries with it the charging of interest in advance 'is shown by what was said by the Supreme Court of the United States-in the case of Fleckner v. Bank of United States, 21 U. S. (8 Wheat.) 338, 351 (5 L. ed. 631), where Judge Story, 'speaking-for the! court says: “Nothing can be clearer than that by the language of-the commercial world, .and the settled practice of banks, a discount by a bank iheans, ex vi termini, a deduction or drawback made upon its advances or loans of money, upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank.” See also the recent case of McCarthy v. First National Bank, 223 U. S. 493, 499 (32 Sup. Ct. 240, 56 L. ed. 523). A distinction has sometimes been held to exist between a direct loan and a purchase and discount of commercial paper, but in the ease of Morris v. Third National Bank, 142 Fed. 25, 31 (73 C. C.A.211), it was held by the Circuit Court, of'Appeals-that ni' such distinction can be made; and it was there said that “the discounting of promissory notes and other evidence of debt is within the express granted powers of national banks.” Rev. Stat. TJ. S. § 5136. And the court further holds thát that term is sufficiently comprehensive to include the acquisition both by way of purchase and by ordinary lpan; quoting National Bank v. Johnson, 104 U. S. 271 (26 L. ed. 742), in which case it was said that “the terms, ‘loans’ and ‘discounts,’ are synonyms.” The Fleckner decision also holds that the taking of interest in advance in the ordinary course of business does not constitute usury. Thus the court says. (21 U. S. 354) that an authority to discount or make discounts, from the very force of the terms, necessarily includes an authority to take interest in advance. “And this'is not only a settled opinion among professional and commercial men, but stands 'approved by the soundest principles of legal construction. Indeed, we do not know in what other sense the word discount is to be interpreted. Even in England, where no statute authorizes bankers to make discounts, it has been solemnly adjudged that the taking of interest in advance by bankers, upon loans in the ordinary course of business, is not usurious.” The Fleckner case has been followed in many decisions rendered by the various judicatories of the country, State and Federal; and it must be regarded as well established that, in the absence of any statute to the contrary, similar to that, of force in this State, interest may be taken in advance by way of discount, at least on short-time paper, at the highest rate allowed by law. See Bank of Newport v. Cook, 60 Ark. 288, as reported in 29 L. R.A. 761, with note (30 S. W. 35, 46 Am. St. R. 171). Thus, while in the able opinion of our Supreme Cpurt, as rendered by Presiding Justice Evans, it was held as the' law of this State, and, as we think, manifestly correctly, that under the Georgia statute discount taken at the highest rate is prohibited as being usurious, the ruling made in that case would not apply to the powers of a national bank operating under Federal law which does not thus prohibit the taking of such discount; but, on the contrary, expressly authorizes it, which practice, as thus authorized, has been declared by the Supreme Court.of the United States not to be usurious. It is true that the Fleckner- decision was rendered long prior to the .enactment of the present ,-nation.aUbank -act; but the point is that.this act as -now of force authorizes discount at the highest rate allowed -under the laws of the several States, and the ruling in the Fleckner case holds that such a practice is not usurious. - As regards the.operation of national banks within the State of Georgia, Congress adopted the rate of interest as here prescribed, but went no further, and not only did not adopt our inhibition upon discounting at that rate, but, on the contrary, gave specific authority therefor, which practice, in the absence of any such inhibition, has been held by the Supreme Court of the United States not to be usurious.

2-3. The gist of section 6198 of the U. S. Revised Statutes is to provide that the charging of usury by a national bank shall cause a forfeiture of the entire interest; and that where such illegal interest shall have been actually paid, the bank shall forfeit -twice that amount. Thus, the mere charging or stipulating for a usurious rate of interest, which has not been actually paid, causes a forfeiture of any interest in an action on the debt brought by the bank, while the actual payment 'of usury to a national bank renders it subject to an action maintained against it for twice -the amount of the entire interest paid. The questions, therefore, relating to the-second ground of complaint as set forth by the petition in the court below, are: 1st. Did the requirement that the borrowing bank should at all times during the period covered by the different loans keep and maintain on deposit with defendant a sum amounting to not less than $10,709.31, “which could only be used towards the payment of said indebtedness,” render the transaction usurious? And 2d. If so, could such consummated requirement be treated as such a usurious transaction as would not only prevent the recovery of all interest in an action for the debt brought by the lender, but one which could be taken as-such an actual payment of illegal interest as would authorize an independent suit maintained by the borrower to recover the prescribed penalty of twice the amount of all interest actually paid? Counsel for the defendant bank contend that under the pleadings the sum required to be left with it did not exist as a general deposit, such as would have passed the title thereto to the defendant and created the relation of debtor and creditor between it and plaintiff, but that the fund constituted a special deposit, or rather a “deposit for a specific purpose,” which had to- be held by- the defendantbank for-.that-particular'purpose only?- and- which-it could not have otherwise used. They say that if the plaintiff bank lost the use of its money while so held, such result was occasioned solely by- its own failure to apply it in payment of the indebtedness, “which meant, of course, the principal of the indebtedness.” A deposit for a specified purpose has been thus defined in 7 C. J. 631: “A deposit may be for a specific purpose, as where money or property is delivered to the bank forrsome particular designated purpose, as a note for collection, money to pay a particular note or draft, etc. While such a deposit is sometimes termed a 'special deposit’ and partakes of the nature of a special deposit to the extent that title remains in the depositor and' does not pass to the bank, yet it seems moré accurate to look on this as , a distinct class of deposit. In using deposits made for the purpose of having them applied to a particular purpose, the bank acts as the agent of the depositor; and if it should fail to apply it at all, or should misapply it, it can be recovered as a trust deposit; and the agency created by the deposit is revocable by the depositor at any time before the purpose of the deposit has been accomplished.” It thus appears that the proper meaning of such a deposit is that in making it a trust fund is constituted, with respect to which a special duty as to its application is assumed by the bank. And it was held in Mayer v. Chattanooga National Bank, 51 Ga. 325, that where such a deposit is made with specific direction that it shall be paid out to a check in favor of a named party which has been or will be given, the fund still remains the property of the depositor until the bank either pays or promises to pay the same to the person for whose benefit the deposit was made. But in the present case, can the enforced deposit be properly regarded either as special or for a specific purpose merely for the reason that the plaintiff might have applied if towards the extinguishment of the debt? The main outstanding feature of its existence lies in the fact that it was enforced. ’ It might be implied from the language of the petition that the lender could at any time, and be- - fore the maturity -of the loan, withdraw the deposit for the sole purpose of applying it on the indebtedness; but such implied privilege could not be taken as changing the maturity of the loan notes; and so such use of the deposit would merely constitute a prepayment, and as such would not relieve the maker of the notes from the payment of interest as provided for therein. It is true ‘that upon the voluntary prepayment of a note, the exacting of the full specified legal interest which would have accrued up to its maturity does not constitute usury (Savannah Savings Bank v. Logan, 99 Ga. 291, 25 S. E. 692); but where such prepayment is not voluntary, but is compelled by reason of the fact that an enforced deposit in the amount of the payment is the necessary alternative, then,- under either horn of the dilemma, either such payment or such deposit would constitute usury. In the search for usury, it is not the matter.of form, but of substance which is essential. Pope v. Marshall, 78 Ga. 635 (4 S. E. 116); Rushing v. Worsham, 102 Ga. 825, 829 (30 S. E. 541). Thus, if the requirement of the lender that the borrower should maintain such a deposit was in fact merely a scheme or device by which the usurious intent could be concealed, then the transaction would be- illegal, whatever its form. In 29 Am. & Eng. Enc. Law (2d ed.), 509 (2), the following rule is stated: “In the case of loans or discounts by a bank at the highest legal rate of interest,' a provision that the proceeds of the loan or discount or any part thereof shall be kept as a deposit in the bank during the period or a portion of the period of the loan renders the transaction usurious, for the reason that the borrower thus pays interest on money which he does not receive or have the use of. But the fact that the borrower voluntarily allows a part of the loan to remain on. deposit with the banker, without any agreement therefor, will not constitute. the giving or taking of usury, though such deposit- is made with the expectation by the borrower that he will thereby be enabled to obtain further loans more readily." In the case of East Biver Bank v. Hoyt, 32 N. Y. 119, it was held: “An arrangement by-which one seeking a discount at a bank is required to obtain a discount of paper amounting to $1,500, to secure the application to his use of $1,000 of the proceeds, without the right to use the remainder thereof except in payment of the paper discounted when it shall become due, renders the transaction usurious.

Turning now to our second inquiry, and treating the transactions between the parties to the present suit as being in fact thus infected with usury, was there such a payment of illegal interest byweason of such enforced deposit as would authorize a suit to recover the penalty of twice the amount of all interest actually paid? Bearing in mind that we are now dealing, with the transaction as regaras the alleged payment of usury solely upon the basis of the allegations made relative to the enforced deposit, we find the rule in regard to the sufficiency of the payment of usury stated as follows, m 39 Cyc. 1091 (2) : “The payment of usurious interest necessary to entitle the debtor to recover the statutory penalty must he an actual payment in money or money’s worth. Nothing less will suffice. A renewal or other substituted obligation given by the original debtor is not a sufficient payment.” In Lomax v. First National Bank (Tex. Civ. App.), 39 S. W. 655, it- is held that in an action by a national bank on a note, a cross-action for the statutory penalty against the bank for taking usurious interest can not be maintained where the plea of usury fails to give the amount of usurious interest paid. Referring to the petition in the present suit as amended, we find no allegation setting forth the amount of usury paid by plaintiff to defendant by reason of such required deposit. On the contrary, the original averment setting forth the amount of such usurious payment has been stricken by plaintiff, for the reason, as stated in the brief of its counsel, that “the interest on that amount, while lost to the plaintiff, was not paid to the defendant. In other words, the plaintiff can not recover, under the statute, for interest lost, but for usury paid; and while the requirement of the deposit, on the conditions named, was really in itself a usurious transaction, the plaintiff could not recover the penalty computed on that amount.” Thus, while the very able and learned counsel for plaintiff contend that the transactions embraced in the present suit are tainted with usury by reason of the enforced deposit, still, they themselves do not allege or contend that such an executed requirement constitutes an actual payment of usury by the plaintiff to the defendant; and under the provisions of section 5198. of the Revised Statutes, an averment to that effect is a necessary requirement to the maintenance of a suit to recover the penalty there imposed for the charging of illegal interest which has been actually paid. See generally, Citizens’ National Bank of Danville v. Gentry, 111 Ky. 206 (63 S. W. 454), as reported in 56 L. R. A. 673, to which an exhaustive note is appended.

Judgment affirmed.

Wade, O. J., concurs. Lulce, J., dissents.


author: Luke, J.

text:
    8790.
    MILLER v. SOUTHERN RAILWAY COMPANY.
    1. In a suit against a railway company, where an agent, whose name is not disclosed, is described as the company’s agent in charge of a specified ticket-office of the company at a specified time and place, it is error to sustain a special demurrer calling for the name of such agent. The company is presumed to know the name of the person it employs to perform such a duty at a particular time and place, while the public or a patron of the company is not presumed to possess any such knowledge or to acquire it during the transaction of purchasing a ticket. Atlanta Ice & Goal Co. v. Reeves, 136 Ga. 294 (3) (71 S; E. 421, 36 L. R. A. (2ST. S.) 1112); Bryant v. A. C. L. R. Co., 19 Ga. App. 536 (4) (91 S. E. 1047) ; Eaynie v. Gen. Ry. Co., 20 Ga. App. 599 (93 S. E. 258).
    2. An allegation in a suit against a railway company, that the plaintiff was unlawfully ejected from one of the company’s passenger-trains after being carried 5 or 6 miles beyond a designated station,' “and was forced to walk back to” such station, is not subject to special demurrer on the ground that “it does not appear why plaintiff, was .forced to walk back.” Especially is such a demurrer without merit where, as in this ease, the petition elsewhere shows that the plaintiff was wholly without money or means of conveyance, and that the train was stopped at such place for the specific purpose of ejecting the plaintiff therefrom.
    3. A demurrer to the allegation referred to in the preceding heádnote, on the ground that “it does not appear . . why he did not stay at Carbondale,” is in this case a speaking demurrer, for the reason that the petition as a whole discloses neither the proximity nor the existence of any such place as “Carbondale,” and the courts judicially know nothing of it, there being no such incorporated municipality in this State. It was therefore error to sustain this ground of the demurrer, even if it might otherwise have been meritorious.
    (a) A speaking demurrer is one which alleges some new matter, not disclosed by the pleading against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained.
    4. The action is brought to recover damages from the railway comj)ány for the acts of its agents in unlawfully ejecting the plaintiff from one of its passenger-trains. The plaintiff alleges, among other things, that, while walking from the place of his ejection to the station last passed by the train, through a section o-f country in which he was a stranger, “he was accosted by a strange white man and notified that no colored person could safely traverse that section of the country, and petitioner was forced to hire said white man to escort him through that section, giving him therefor a five-dollar watch-chain.” To the allegations here quoted the defendant demurred, on the ground that they “are immaterial and irrelevant, and set forth no element of recovery against the defendant.” Eeld: (a) Such allegations are by no means essential to the plaintiff’s alleged cause of action, and partake more of the nature of evidence than of pleading; -but they are nevertheless so closely connected with the transaction in controversy as not to be subject to the criticism that they are wholly irrelevant. Bryant v. A. C. L. B. Co., supra.
    (&) While such allegations do not contain any element of recovery against ■ the defendant, they are not set forth for any such purpose, and would be subject to.demurrer if they were set forth for such purpose, because they are not accompanied by additional allegations to show the defendant’s duty to anticipate and prevent the particular injury there- ' by disclosed.
    (c) The allegations in question should not have been stricken upon the particular grounds of demurrer urged; but, upon proof of such allegations, the jury should (upon proper request) be so instructed as not to attach any undue importance to such matter.

      4. The petition in this case contains only one count, wherein the plaintiff seeks a recovery upon two contradictory versions of the same transaction, namely: . (1) That he purchased from the defendant’s agent at Chattanooga, Tenn., a ticket to Rome, Ga., and the defendant’s conductor wrongfully ejected him from the train at Dalton, falsely claiming that the ticket was to such intermediate station only; (2) that while he called for and paid for a ticket to Rome, the Chattanooga agent wrongfully furnished a ticket to Dalton only, and he did not discover the error until Dalton was passed, when the conductor so advised him and ejected him from the train for his inability to pay additional fare from Dalton to Rome, notwithstanding he. explained to the conductor the kind of ticket he had called for and paid for. Such a petition is clearly duplicitous, and the court properly sustained the demurrer based upon such ground. The plaintiff should have amended, . either by preserving the two contradictory versions in two separate and distinct counts, or else by striking one of the alleged versions altogether.

      (a) A plaintiff may, in one petition, set out as many contradictory versions of the same transaction as he deems advisable to meet the probable evidence, provided each separate version is set forth in a separate and distinct count, itself constituting a complete cause of action of such a nature that it may properly be joined with the other alleged causes of action, and varies from all the other counts in some material particular. The purpose of the rule is to prevent variance and nonsuit, also to prevent defendants from ofttimes defeating the ends of justice by proving an equally meritorious, though materially different,. right of action in the plaintiff. But a petition which" contains, in one count two such contradictory versions of the same transaction is subject to demurrer for duplicity.
    6. There were several grounds of special demurrer, but no ground of general demurrer, aimed at the petition. One ground of the demurrer was meritorious; the others should have been overruled. The court passed an order directing “that the same be and it is hereby sustained, unless plaintiff amend within five days from this date, so as to meet the complaints thereof.” The plaintiff failed to amend, and his petition was consequently dismissed. Held, that,.since the judgment .sustaining the ground of demurrer attacking the petition for duplicity was proper, the court did not err in dismissing the petition.
    Decided December 11, 1917.
    Action for damages; from Whitfield superior court — Judge Tarver. April 2, 1917.

      ■Harris & Harris, for plaintiff.
    ■ Maddox, McCamy & Shumate, for defendant.
   Luke, J.

This ease grpws out of the ejection of a passenger from one of the defendant railway company’s passenger-trains. The plaintiff alleges, that he purchased from the defendant’s ticket-agent at Chattanooga, Tenn., a ticket entitling him to transportation over defendant’s line of railroad from that point to Eome, Ga.; that he boarded the train, delivered to the conductor the ticket he had received, and rode as far as Dalton, Georgia, on his way to Eome; that when a few miles past Dalton the conductor again demanded' fare from him, which he refused to pay, telling the conductor that his ticket called for passage to Eome; that the conductor claimed that the ticket read to Dalton, and not to Eome, and threatened to eject plaintiff from the train unless additional fare was immediately jiaid; that plaintiff was without sufficient money to pay additional fare from Dalton to Eome, “and the conductor stopped the train five or six miles south of Dalton, in said county, and made him leave the train,” the ejection occurring about nine o’clock at night. The suit was brought in the superior court of Whitfield edunty; and in the second paragraph of the petition it is alleged “that the cause of action for which complaint is filed took place in said county.” In the fifth paragraph it is alleged that the plaintiff did not read the ticket purchased by him at Chattanooga, but “presumed then and now presumes that the agent gave him a ticket to Eome,” he relying upon the agent to furnish the ticket called for; that “if said agent failed to furnish a ticket to Eome, but gave. petitioner a ticket to Dalton, . . said act was gross carelessness and negligence upon the part of said agent, for which defendant is liable.” In the sixth (or last) paragraph of the petition, it is alleged “that it was negligence and carelessness upon the part of the defendant if it furnished him a ticket only to Dalton, when he called for and paid for a ticket to Eome; . . that it was gross, carelessness and negligence upon the part of defendant for its conductor to put him off the train as aforesaid when his ticket called for transportation to Rome, for which act the defendant is liable.” The defendant demurred “to the 5th and 6th paragraphs of the declaration, because* they are duplicitous in not alleging with sufficient definiteness whether the cause of plaintiff’s ejectment from defendant’s train was due to a mistake of the agent selling the plaintiff the ticket upon which he was riding, or the mistake of the conductor in failing to transport plaintiff upon a correctly issued ticket.” The other grounds of the demurrer appear in the headnotes. The court sustained the -demurrer upon each and every ground thereof; and upon the plaintiff’s failure to amend to meet all such grounds of demurrer, the court dismissed the petition. Both' rulings are assigned as error.

1-5. The first four headnotes are sufficiently full and clear, but the fifth is of such nature as to justify discussion.

It has been quaintly said that “truth is the goodness and virtue of pleading, as certainty is the grace and beauty of it.” There is also an ancient rule, sometimes designated as “the rule of honesty in pleading,” to the effect that every pleading should state only such facts as are true and capable of proof, avoiding false and frivolous allegations tending to deceive the court or the adversary, or to delay the progress of the trial. As a general rule for the guidance of practitioners, it can not be too highly commended. Yet, even this rule, “the rule of honesty in .pleading,” must, in the interest of truth and justice, have its limitations. Any pleading which contains material allegations of fact that are self-contradictory necessarily violates two general rules of pleading— first, in that one or the other of such allegations must be untrue, and, second, in that the two together leave it uncertain .as to which of them, if either, is in fact true. But a petition, or ah affirmative plea, is not and has never been anything but an averment of the material facts which, in the opinion of the pleader, will be supported by the evidence to be adduced upon the trial; and the experience of ages in the administration of justice demonstrates that, in contested cases, the evidence seldom fails to show material conflicts, and ofttimes shows materially different versions of the facts in'such.a way that each version might constitute a good cause of action or defense if specially pleaded. In such a case, or where such evidence is contemplated, the pleader has no choice but to allege all of such contradictory versions of the same transaction, or else hazard his whole case on the one version which he thinks the evidence will tend most strongly to support, thereby.facing the usual dangers of variance and nonsuit, as well as affording his adversary a possible opportunity to point out a fatal variance between the allegations and the proof — in other words, to de- • feat the ends of justice — by proving one of the equally advantageous, though contradictory, versions not alleged. Owing to other invariable rules of pleading, particularly the rules requiring certain matters to be specially pleaded, and the rule requiring that the allegations and the proof shall correspond in all-cases, it ofttimes becomes absolutely necessary, in the interest of truth and justice, to. allow pleadings which are on their face untrue.' It was-this experience in the administration of justice that brought about the common-law rule permitting plaintiffs to set out several counts in one declaration, all counts being based upon the same subject-matter of complaint, and each count being in some material particular contradictory of all the others. 1 Chitty, 409 et seq- In theory, each such count must be based upon a separate and distinct transaction; but this theory does not extend to or affect the amount of the plaintiff’s recovery, — does not, in fact, extend beyond the limit of its absolute necessity; because otherwise such a fiction would work an injustice, and would never have been tolerated. While the English rule as to pleading several counts has undergone great changes since May 14, 1776, the General Assembly of Georgia has not seen fit to abolish it in this State; and, under the reviving act of February 25, 1784 (Cobb’s Digest, 721), a plaintiff in this State may now, as.at common law prior to May 14, 1776, embrace in one petition as may contradictory counts based upon the same subject-matter of complaint as he deems advisable, ■subject only as to the general rules as to joinder of actions and to such statutory changes in matters of form as have been enacted by the General Assembly of this State.

While <¿& petition containing only one count, in which two [contradictory] causes of action áre set forth, will, on special demurrer, be held bad for duplicity,” yet “a petition containing several counts, each referring to the same transaction, but differing from each other in substantial particulars as to the details of the transaction, is not bad for duplicity.” Gainesville &c. Ry. Co. v. Aus tin, 122 Ga. 823.(1/3) (50 S. E. 983). “While it is permissible to embrace in one petition in different counts as many causes of action as the plaintiff sees proper, provided they are all of a similar nature, still, since the pleading act of 1893, each count must contain a complete cause of action in distinct and orderly paragraphs, numbered consecutively; and it is not permissible to make paragraphs of one count a part of another count by mere reference to the same.” Cooper v. Robert Portner Brewing Co., 112 Ga. 894 (38 S. E. 91).

Instead of abolishing the common-law rule which allows a plaintiff to avail himself of the benefits of all the probable evidence, as above, pointed out, the General Assembly of this State has, by special enactment, created substantially the same privilege for defendants. The act approved Dec. 19, 1818 (Civil Code, (1910), § 5649)/provides: “No part of an answer shall be stricken out or rejected on-account of being contradictory to another part of the same,.but the court shall suffer the whole answer to remain in, if the defendant shall desire it, and avail himself of any advantage he can or may have under either or the whole of said answer, and proceed to trial accordingly.”

With respect to the wisdom of the rules permitting such double pleading, it is difficult to. conceive of a better illustrative case than that'disclosed by the petition in the case at bar. According to his petition, the plaintiff was ejected from the train before arriving at the destination to which he had paid his fare, the conductor claiming that the ticket called for passage to an intermediate station only, while the plaintiff had not read the ticket but had relied on the ticket-agent to furnish the proper ticket. In such a case the plaintiff’s cause of action did not arise until he was unlawfully ejected from the train; but, in pleading it, he is required to specify wherein the defendant was negligent, whether through the ticket-agent in- delivering to him a wrong ticket, or through the conductor in ejecting him after having collected the right ticket. From the very nature of the case, the ticket could have not been both right and wrong, and therefore both the ticket-agent and the conductor could not have been guilty, of the gross negligence here involved; yet the plaintiff may well apprehend that if he declares upon the negligence of one employee only, the evidence upon the trial will develop a conflict as to which of the two employees of the defendant was in fact at fault. In other words, if only one of the employees is alleged to have been negligent, the controlling issue under the evidence may be, not as to plaintiff’s injury, but as to the cause of the injury, whereas the injury itself and the plaintiff’s right of recovery remain the same, regardless of whether the negligence causing it originated with the ticket-agent or with the conductor. In such a ease the law of this State permits the plaintiff so to plead his case that the jury, in passing upon it, will be concerned, not so much with the question as to which employee of the defendant was at fault, but rather with the question as to whether or not the plaintiff was in fact unlawfully ejected from the train through the fault of either of them. Such doubtless was the object of the plaintiff’s counsel in setting up in one count the- contradictory allegations that render the petition subject to special demurrer for duplicity.

6. The sixth headnote needs no elaboration. The petition was subject to the demurrer attacking it for duplicity, and it was not error to dismiss the petition when the plaintiff failed to amend to meet this ground of demurrer.

Judgment affirmed.

Wade, G. J., and Jenlcins, J., concur.


author: Bloodworth, J.

text:
    8532, 8584.
    SHEDD v. STANDARD SEWING MACHINE CO.
    1. “Authority to an agent to execute, in behalf of the^ principal, a definite, specified contract does not, without more, imply or include authority in the agent to enter into independent contracts, even though the subject-matter of the latter contract be related to, or the same as, that of the contract in the execution of which the agent was empowered to act for his principal.”
    2. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against ■ him is demanded.”
    Decided December 11, 1917.
    Complaint; from Wayne superior court — Judge Highsmith. January 29, 1917.

      Gibbs & Turner, Parker & Parlcer, for plaintiff in error.

      Franklin & Langdale, James B. Thomas, contra.
   Bloodworth, J.

The Standard Sewing Machine Company ■brought suit against B. B. Shedd on open account for certain sewing machines and sewing-machine fixtures. Defendant denied indebtedness, and filed a plea in which he alleged that the order for these goods was secured through fraud, and also a plea of rescission. After the evidence was in, the court directed a verdict for the plaintiff, and the defendant excepted.

1. The 4th ground of the motion for new trial complains that the court erred in excluding from the jury a certain agreement between “W. T. Cooper, Mgr. 6a. & Fla.,” and R. B. Shedd; said agreement being as follows: “In consideration of R. B. Shedd, of Jesup, 6a., buying 30 Standard Sewing Machines of the Standard Sewing Machine Company, of Cleveland, Ohio, as per their original order and duplicate given this day, I do hereby agree to send my own salesman and guarantee to sell said machines for him, for a commission of $8.00 per sale. Also agree to make an average of $52.50 on the style of machine sold him on the tim'e basis. The said R. B. Shedd is to furnish a horse and wagon for the purpose of [selling?] said machines, and keep and feed said horse and wagon at all times. Signed in duplicate. W. T. Cooper, Mgr. 6a. & Fla. R. B. Shedd.” The court properly rejected this agreement. For the goods purchased the defendant signed a written contract which contained the following stipulation: “Please ship at once the following sewing machines,^ for which we agree to pay according- to prices, terms, and conditions given herein, subject to your approval. . . The above is an exact statement of the terms agreed upon as per your order above; and it is fully understood and agreed that no claims or demands on account of any promise, either verbal or written, or any agreement of any kind whatever, outside of this order, will or can be made; the undersigned agreeing to be bound strictly by the terms and conditions above named, and not to countermand this order. Purchaser is requested to read this order carefully.” This order, signed “W. T. Cooper” and “R. B. Shedd,” was mailed to the plaintiff, approved, and the goods shipped in accordance therewith. It will be noted that the -original order signed by Shedd and Cooper, and forwarded to the company, was subject to approval by the latter, and the purchaser expressly agreed “to be bound strictly by the terms and conditions” of the contract, the same stating that “no claims or demands on account of any terms either verbal or written, or any agreement of any kind whatever outside of this order, will or can be made.” These words in the order put the purchaser on notice of the limited agency of the salesman, and that the sale must be approved by the company. The evidence shows that the paper signed by Shedd and by “W. T. Cooper, Mgr. for Ga. & Fla.,” which was rejected as evidence, is an agreement between these two persons to-which the company is not a party, and for which it is in no way. liable, the evidence showing it was made without the knowledge or authority of the company, and was never ratified by it. “Authority to an agent to execute, in behalf of the principal, a definite, specified contract does not, without more, imply , or include authority in the agent to enter into independent contracts, even though the subject-matter of the latter contract be related to, or the same as, that of the contract in the execution of which the agent was empowered to act for his principal.” Crawley v. Watt-Holmes Hardware Co., 12 Ga. App. 367 (77 S. E. 106). Granting that Shedd’s testimony is true, the terms of the original contract, quoted above, put the purchaser on notice of the limited agency of the salesman, and that the company would not be bound by any agreement, either verbal or written, sought to he made outside the terms and conditions named in the contract. There is no contention that Shedd was ignorant of the contents of the order when he signed it. The terms of the order were plain and unambiguous; “and these words, staring the defendant in the face at the time of entering into the contract, were a caution and a warning that the agent — a .mere salesman — had no authority to make stipulations other than those contained in the instrument itself.”' Biggers v. Equitable Manufacturing Co., 124 Ga. 1049 (53 S. E. 674); Hutson v. Prudential Insurance Co., 122 Ga. 847 (50 S. E. 1000); Butler v. Standard Guaranty & Trust Co., 122 Ga. 371 (50 S. E. 132); Thomas v. Bagley, 119 Ga. 778 (47 S. E. 177); Findlay Bride Co. v. American Sewer Pipe Co., 18 Ga. App. 446 (89 S. E. 535); Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 (5) (60 S. E. 868); Pursley v. Stahley, 122 Ga. 362 (50 S. E. 139).

As noted above, the paper signed by Shedd and by Cooper, “Mgr. for Ga. & Fla.,” was never sent to the company, and they knew nothing of it béfore this suit was brought; and therefore there could be no .ratification by the company of this act of the salesman. In Ludden & Bates Southern Music House V. McDonald, 117 Ga. 60 (43 S. E. 425), the headnote is as follows: “In order to sustain the defense pleaded in this case, it was necessary to show that the plaintiff ratified a previously .unauthorized act of its agent. As is well settled, it is essential that such ratification, to he binding oh the principal, must be made with full knowledge on his part of all the material facts relating to the act in question. There being no evidence upon the trial warranting a finding that the plaintiff had any knowledge of the act of the agent upon which the defense was based, the verdict for the defendant was without evidence to support it, and the court erred in not granting a. new trial.”- See Hardeman v. Ford, 12 Ga. 205; DeVaughn v. McLeroy, 82 Ga. 687 (4d), 688 (10 S. E. 211).

2. The court properly directed a verdict for the plaintiff. After the agreement between “W. T. Cooper1, Mgr. Ga. & Ela.” and JR. B. Shedd was excluded from the evidence, and properly so, there was nothing to support the plea of fraud in the procurement of the contract, and, as shown above, the evidence was insufficient to authorize a rescission of the contract. Nor was the directing of a verdict for the plaintiff contrary to the evidence and erroneous because, “having elected to sue upon the open account,” the defendant in error “can not recover upon a written contract.” In an opinion written by Mr. Justice Lumpkin in the case of Alabama Construction Co. v. Continental Car &c. Co., 131 Ga. 365, 369 (62 S. E. 160), we find the following: -“It is too well .settled in this State to be discussed as an open question, that, though there may have been a written contract for the-sale of personalty,'yet, where suit was brought on an open account for the amount claimed to be due, and the evidence for the plaintiff was to the effect that it had fully complied with its contract, and nothing remained to be done but the making of a money payment by the defendant, a nonsuit was properly refused. Southern Printers Supply Co. v. Felker, 125 Ga. 148 (54 S. E. 193).” See also Blue Ridge Lumber Co. v. Greenwood, 136 Ga. 224 (71 S. E. 135); Tumlin v. Bass Furnace Co., 93 Ga. 594, 598, 599 (20 S. E. 44); Schmidt v. Wambacker, 62 Ga. 321; Hill v. Balkcom, 79 Ga. 444 (5 S. E. 200).

“The mere fact that there are .conflicts in the testimony does not render the direction of a verdict in favtfr of a party erroneous, when it appears that the conflicts are immaterial, and that, giving fo the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559” (35 S. E. 777); Skinner v. Braswell, 126 Ga. 761 (55 S. E. 914).

Judgment affirmed on main bill of exceptions. Cross-bill dismissed.

Broyles, P. J., and Harwell, J., concur.


author: Broyles, P. J.

text:
    8988.
    Whiddon v. Atlantic Coast Line Railroad Company.
   Broyles, P. J.

1. This was a suit in a justice’s court, brought against a railroad company for injury to live stock. The amount involved exceeded fifty dollars. The justice rendered judgment against the defendant, and the case was carried by certiorari directly to the superior court. The question whether or not the writ of certiorari was the available remedy for the defendant, though argued in the brief of counsel for the plaintiff in error, was not made before the lower court or in the record brought to this court, and therefore will not be passed upon. Savannah, Thunderbolt & Isle of Hope Ry. v. Fennell, 100 Ga. 474 (28 S. E. 437), and eases there cited.

2. The plaintiff’s right to recover resting solely upon the statutory presumption of negligence (Park’s Ann. Code, § 2780), and the testimony of the engineer (undisputed by any other testimony or by any physical facts of the case) showing that he and his fireman were in the exercise of all ordinary care and diligence, and that the killing and injuring of the plaintiff’s live-stock were not due to any negligence of the defendant or' its- employees, the presumption of negligence was completely rebutted, and the recovery in favor of the plaintiff was unauthorized. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202, 204 (7 S. E. 639) ; Georgia Southern & Florida Ry. Co. v. Sanders, 111 Ga. 128 (36 S. E. 458) ; Atlantic Coast Line Railroad Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268).

(a) This was a suit for the killing of one ox and the injuring of another. The engineer testified, that on the occasion in question it was about 12:50 o’clock on a very foggy night; that the train was running about thirty miles an hour; that he had been and was looking ahead all the time; that the engine was equipped with an electric -headlight in good condition; that on a clear night, with this light, he could.see on a straight track a quarter of a mile; that the track at this point was straight for a considerable distance, but that because of the fog on this occasion he could not see- an object more than one hundred feet aheád; that when he first saw the ox (he saw only one ox) it. was about one hundred feet ahead, near the edge of the track; that the train was equipped with air-brakes, in good condition; that immediately upon seeing the ox he reversed his engine, shut off the steam, applied the emergency brakes, and sounded the cattle-alarm with the whistle; that when he applied the air-brakes the speed of the train, in the distance of one hundred feet, was slowed down from thirty miles to between ten and fifteen miles an hour; that he could have done nothing else than he did to prevent striking the animal, and that it was impossible, at the rate of speed at which the train was moving, to have stopped the train before reaching and hitting the animal; and that his fireman at the time was engaged in firing in front of the fire-box, and di'd not and could not have seen the ox from his position.

3. There was no conflict in the evidence submitted. The plaintiff contends that there were conflicts as to {1) whether the track was straight, and (2) whether the night was foggy. On the first point, all the witnesses substantially agreed that the track was straight for a considerable distance up to and at the crossing where the injury occurred, but that just beyond the crossing the track curved. As to the second point: the engineer’s testimony that the night was very foggy, at the place where the injury occurred, was undisputed. The mere fact that the plaintiff testified that on that night there was no fog where he lived, which was a mile from the scene of the accident, did not raise an issue of fact on this question.

4. Under all the facts of the case the judge of the superior court did not err in sustaining the certiorari and in setting aside the judgment in the justice’s court. He was not authorized, however, to render a final judgment in favor of the plaintiff in certiorari. The case should have been remanded^ for another trial. In so remanding it the judge could have sent with it such instructions as in his discretion the ends of justice required. Holmes v. Pye, 107 Ga. 784 (33 S. E. 816); Atlantic Coast Line Railroad Co. v. Shuman, 121 Ga. 113 (48 S. E. 680); Moore v. Southern Express Co., 9 Ga. App. 487 (71 S. E. 762). The judgment rendered in the superior court was as follows: “Upon hearing the within certiorari, it is ordered that the same be and is hereby sustained and the judgment complained of is set aside. It is further ordered that the plaintiff in certiorari recover of Tigner Whiddon $4.80 cost paid by plaintiff in the justice court, and the further sum of-costs in this court.” It is not clear from the language of this judgment that it is a final one; but apparently it was so intended by the court, since the case was not remanded' for another trial, and since judgment was rendered not only for the costs in the superior court but also for the costs in the justice’s court, which latter item of costs could not legally have been included in the judgment unless it were a final decision upon the certiorari. Park’s Ann. Code, § 5204; Haire v. McCardle, 107 Ga. 775 (2), 778 (33 S. E. 683). It also appears that this judgment was considered as a final disposition of the case by both parties, counsel for plaintiff expressly stating in their brief that it was a final judgment in the case, and counsel for the defendant (who filed no brief but who acknowledged service upon them of the brief of opposing counsel), by their silence, apparently acquiescing in this view. Under 'these particular circumstances the judgment will be treated as a final disposition of the case, and it is therefore reversed, with direction that the ease be remanded to the justice’s court for a new trial.

Decided December 11, 1917.

Certiorari; from Decatur superior court — Judge Harrell. May 34, 1917.

M. E. O'Neal, J. 0. Hale, for plaintiff.

Judgment reversed, with direction.

Bloodworth and Harwell, JJ., concur.