text:
    8023.
    NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. VAN GIESEN.
    1. Refusal to direct a verdict is never ground for reversal. Green v. Scurry, 134 Ga. 482 (2) (68 S. E. 77); Roper 'Wholesale Grocery Óo. v. Pavér, S Ga. App. 178 (68 S. E. 883).
    .2. Where an assignment of error is made as to the admission of evidence, and it is not made to appear'that any objection to the evidence was urged on the trial, the exception raises no question for determination by this court. Oity of Rome V. McWilliams, 145 Ga. 191 (2) (88 S. E. 931); Ponder V. State, 18 Ga. App. 727 (90 S. E. 376).
    3. The exclusion of a certain letter, written after the death of the insured by T. T. Denham, recording secretary of subordinate council No. 8, to the general secretary of the National Council of the Junior Order of United American Mechanics, was not error. No conclusion of the writer, stated in a letter written after the death of the insured, could affect the rights of the beneficiary.- Moreover the letter attempts to make an explanation of the actions of the financial secretary of the. subordinate council, and this evidently is hearsay.
    4. The court did not err in excluding from the consideration of the jury the by-laws Nos. 58 and 59 of the National Council.
    5. Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, demands a particular verdict, the court may direct the jury to find for the party entitled thereto.
    Decided June 14, 1917.
    Complaint; from city court of Savannah—Judge Davis Freeman. October 19, 1914.

      Hitch & Denmark, John G. Kennedy, for plaintiff in error.

      Osborne, Lawrence & Abrahams, contra.
   Bloodworth, J.

Headnotes 1, 2, and 3 need no elaboration.

The by-laws which the court refused to allow in evidence are as follows: “Section 58, folio 109: No action at law or in equity shall be brought or maintained in any court by a member or his beneficiary or -beneficiaries on any claim or cause arising out of membership in the beneficiary degree until all appeals or remedies within the order have been exhausted and unless such action is brought within six months of the time when such claim has been fully disallowed by the National Judiciary.” “Section 23, folio 124: No member of the order, nor his beneficiary or dependent, shall have the right to bring or maintain any action at law or in equity against' the National Council on account of beneficiary benefits. The Funeral Benefit Department transacts no business and has no contracts with individual members of the order, but solely with the councils of the order, and in case of the refusal of the Secretary-Manager to prove a death claim, and the council desires to appeal from his decision, it should be the duty of the council, within sixty days, to file with him an appeal of particulars, giving all of the facts of the case, whereupon it should be the duty of the Secretary-Manager to prepare his reason for refusal to pay such claim, and forthwith -present all papers in the case to the National Judiciary for his adjudication.” These by-laws seem to be unreasonable in their requirements, in that they provide that before a beneficiary can bring suit for the wrongful withholding of benefits to which he is entitled, .appeal must be taken to the National Judiciary of the order, and no provision is made for the beneficiary to make this appeal, but this right is conferred on the local council only; and for this reason it was probably proper for the judge to exclude the by-laws. But, in the view we take of the case, it is not necessary to decide this question, as the by-laws were clearly irrelevant and immaterial after the national council had refused to furnish to the local council and to the beneficiary blanks for proof of death, and had declined to pay the claim, as shown by the following portion of the agreed statement of facts, to wit: “After the death of the said Frank S. Van Giesen, the plaintiff notified the Beeording Secretary of the Henry W. Grady Council No. 8 of the Junior Order of United American Mechanics of the death of her husband, giving the name, age, and roll number of her deceased husband, and demanded, such blanks as might be necessary to file proofs of death in order to claim the benefit of $500, but the Beeording Secretary, after such demand, communicated with the officers in charge of the funeral department of the National Council of the Junior Order of United American Mechanics, who refused such blanks, and said National Council declined to pay the claim of the plaintiff.” National Life Insurance Co. v. Jackson, 18 Ga. App. 494 (89 S. E. 633).

Did the court err in directing a verdict for the plaintiff? The defendant insisted that it was not liable, because the plaintiff had been, in arrears for dues for thirteen weeks at the time the sickness which ended in his death began. The agreed statement of facts set out above shows that prior to the death of the said Van Giesen all dues had been paid to the local council and all to the national council, and that these payments had been remitted regularly each month by Council No. 8 to the funeral benefit department of the national council, and that the deceased had never been suspended. Although the dues of the deceased had been in arrears, yet when they were received and kept by the local council this was a waiver by that council of the requirements of the by-laws as to prompt payment. In National Council &c. v. Caraway, 13 Ga. App. 819, 833 (81 S. E. 343), this court said: “We agree with the contention of the defendant in error that' the receipt of the dues of Bodger Caraway on June 18, 1908, by West End Council (the sum of money received by the council being sufficient to pay all his dues up to and including the time of his death) is a waiver on the part of West End Council of the by-law depriving the defendant in error of funeral' benefits. The . . financial secretary . . accepted the payment, as he was authorized to do, and gave the customary receipt, and at the time of Kodger Caraway’s death the money thus collected had not been returned or tendered.” In the instant case Council No. 8 had collected all dues for which the deceased was liable, and had given him the customary receipt, and at the date of his death the dues thus collected had not been returned or tendered. The record in this case shows that the dues to entitle a member of the order to funeral benefits are not paid by him directly to the national council, but are paid to the subordinate council in which he holds membership. The national council receives this money from the subordinate council, and the question whether a member is entitled to a funeral benefit from the national council is to be determined by the standing of the deceased member with his -subordinate council, upon which devolves not only the duty of keeping him in good standing with the national council, but also the duty of the national council to take affirmative action for his suspension in case his dues are in arrears. In this case the national council received, accepted, and retained the monthly dues remitted in behalf of the deceased,- and must be presumed to have done so with a knowledge of all the facts; for, as was said in the case of National Council &c. v. Cragen, 17 Ca. App. 575 (87 S. E. 836), “the recording secretary of the local council of the order was the agent of the funeral-benefit department of the national order—to enroll members, collect assessments due by them, and to transmit the names of those who ha,d been enrolled in the funeral-benefit department.” While the Caraway case, supra, is somewhat different in its facts from the instant case,- we think the principles announced therein are controlling in this case. Applying the rulings therein to the evidence in this case, we are forced to the conclusion that the evidence, with all reasonable deductions and inferences therefrom, demanded a verdict for -the plaintiff, and that the court did not err in directing the verdict.

Judgment affirmed,.

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


source: Caselaw Access Project

author: Bioodworth, J.

license: Public Domain

text:
    8046.
    CHAPMAN & COMPANY v. MARSHALL BROTHERS.
    The provision in the contract between the plaintiffs and the defendants, under which lumber was shipped to third persons on orders from the plaintiffs, that “all shipments are made subject to inspection at destination, unless specifically specified to the contrary, and with the understanding that report as rendered by consignee shall be accepted as original evidence of such inspection,” did not render such reports exclusive evidence, or conclusive as to the matter to which they related.
    Decided June 14, 1917.
    Complaint; from Crawford superior court—Judge Mathews. May 20, 1916.

      West & Dasher, for plaintiffs.

      Feagin & Hancock, for defendants.
   Bioodworth, J.

Marshall Brothers were sawmill men, and H. D. Chapman & Co. were brokers. The latter placed a number of orders for lumber with the former, the lumber to be shipped by the sawmill men to certain third parties as per directions of the brokers. Chapman & Co. and Marshall Brothers signed with each order an agreement, a portion of which was as follows: “All shipments, are made subject to inspection at destination, unless specifically specified to the contrary, and with the understanding that report as rendered by consignee shall be accepted as original evidence of such inspection.” Chapman & Co. paid Marshall Brothers for each shipment of lumber as per invoice furnished by the latter. In several instances the consignees made claims on Chapman & Co. for shortage in measurement and reduction in grade, and it was upon an itemized statement of this account that suit was brought. The trial resulted in a verdict for the defendants. The plaintiffs made a motion for a new trial, which was overruled, and they excepted.

On the trial the plaintiffs insisted that under the contract the reports of the consignees as to the lumber “should be considered original evidence, and it is not competent for [the shippers] to contradict the original report of the consignee, because it was original evidence and the only evidence;” and in their motion for a new trial they contend that the court erred in admitting testimony contradicting such reports, and erred in the charge to the jury as to the effects of this provision of the contract. We can not agree with this contention. The court charged the jury in reference to this part of the contract as follows: “Of course you will look at. all these papers with care, and note the original agreement upon which each of these cars were shipped, that the original report from the consignee (that is, the person to whom the lumber was shipped) would be accepted as original evidence as though it was sworn to. It does not mean it is conclusive evidence, but it shall be considered here as though sworn to. It means the inspection made by the consignee at destination where the lumber was unloaded.” We think the court was as liberal with the plaintiffs as the contract would allow. We agree with the judge that the reports referred to might be treated as “original” evidence, but, under a proper construction of the contract, they could not be held to be exclusive evidence. ' Therefore we think no error was committed by the judge in his charge or in the admission of evidence, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Jenkins, J.

text:
    8130.
    White v. McWhorter.
    Decided June 14, 1917.
    Trover; from Haralson superior court—Judge Bartlett. April 10, 1916.

      Griffith & Matthews, for plaintiff.

      Lloyd Thomas, for defendant.
   Jenkins, J.

Where in a suit in bail trover the plaintiff elected to take a money judgment, and where the clear intendment of his evidence as to the value of the property sued for necessarily related to such value at the time of the conversion, and his evidence as to its worth for hire' related to the period from the date of conversion to the trial, the former amount being the same as the value alleged in the suit, and the latter amount a sum less than therein named, and where such testimony of the plaintiff constituted the entire evidence in the ease; and where the money verdict in lieu of the property was for a sum less than the amount testified to, and the verdict for hire was in the amount sworn to, the defendant can not complain on the ground that the verdict was “contrary to law and the principles of justice and equity;” and it was therefore error for the trial judge to order 'the grant of a new trial unless the plaintiff should within ten days write off from the verdict the $15 found for hire of the property sued for. Civil Code of 1910, § 5930; Peeples v. Felton, 14 Ga. App. 5, 7 (80 S. E. 21) ; O’Neill Mfg. Co. v. Woodley, 118 Ga. 114 (44 S. E. 980). The evidence de^ manded the verdict and a new trial should have been refused.

Judgment reversed.

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


author: Bloodworth, J.

text:
    8131.
    COPELAND v. RUFF.
    1. Whether the court erred in allowing a particular witness to testify to certain facts over objection is immaterial where the same facts were shown by other evidence, to which no objection was made, v
    2. No error requiring a new trial appears in the admission of testimony complained of which was introduced for the purpose of supporting the plea to the jurisdiction by showing that the defendant intended to move back to the county in which he was residing wlien he came to the county of the suit. The ground complaining of the admission of testimony that he “would have moved back in August” (after the suit had been commenced) if he had not received a letter from a named person “with reference to moving back” is incomplete. No question for decision is presented by grounds which can not be understood without examination of the brief of evidence.
    3. There was sufficient evidence to authorize the verdict for the defendant.
    Decided June 14, 1917.
    Complaint; from Haralson superior court—Judge Bartlett. April 10, 1916.
    1. The 8th ground of the motion for a new trial relates to testimony of the defendant that on December 31, 1911, he paid his taxes to the tax-collector of Cobb county, and registered in that county. This testimony was admitted over the objection that it related to a time subsequent to the commencement of the suit. There was other evidence to the same effect, to which, so far as appears, no objection was made.
    2. The 9th ground was as follows: “Because the court committed error, as movant contends, on the trial of said case, in admitting the following evidence of M. Y. Ruff (the defendant) to the jury trying the case, over the objection of movant’s counsel, made at the time the same was offered: ‘If I had not received it (referring to letter defendant received from Mr. Neufville on July 15, 1911, with reference to moving back to Cobb county), I would have moved back in August, the latter part of August.’ Movant objected to said evidence at the time the same was offered, on the ground that it was not proper for a witness to testify as to what he would have done, which objection was overruled by the court. The court ruled on this point that he would let it go in that his intention was to move back in August. At the time said evidence was offered . . movant objected to the same on the grounds that the same was irrelevant and immaterial, and a self-serving declaration after the suit was filed and the issues formed.”

      The 13th ground was to the effect that the court erred in admitting testimony of the defendant that he and his wife and daughter were members of a church in Cobb county, and did not bring their “church letters or relationship of Cobb county to Haralson county,” and that he did not bring his demit from the Masonie lodge of which he was a member in Cobb county to the Bremen lodge in Haralson county, or his card from the Odd-Fellows lodge in Cobb county of which he was a member, when he came to Bremen. This testimony was admitted over the objection that it was “irrelevant and immaterial and not competent.”

      0. E. Roopj Griffith & Matthews, for plaintiff.
    ’ J. E. Mozley, M. J. Head,- for defendant.
   Bloodworth, J.

Suit was brought by Copeland against Buff in the superior court of Haralson county, and a plea was filed alleging that the court did not have jurisdiction of the case, as it did not have jurisdiction of the person, it being alleged that at the time of the commencement of the suit (June 27, 1911) and at the time of filing the plea the defendant was a resident of Cobb county. The issue was submitted to a jury and the verdict was in favor of the plea. The plaintiff made a motion for a new trial on a number of grounds, but grounds 8, 9, and 13 only were approved. The motion was overruled, and plaintiff excepted.

The testimony objected to in the 8th ground related to matters about which evidence, both oral and documentary, was admitted without objection, and the admission of this testimony could not have harmed the plaintiff. Loeb v. State, 75 Ga. 258 (5); Luke v. Hill, 137 Ga. 159 (3) (73 S. E. 345, 38 L. R. A. (N. S.) 559).

The testimony objected to in the 9th and 13th grounds of the motion was not inadmissible for the reasons assigned. Besides, ground 9 of the motion, standing alone, is incomplete. “Grounds of a motion for new trial which are incomplete, and can not be understood without resorting to an examination of the brief of evidence, fail to present any question for decision. Head v. State, 144 Ga. 383 (87 S. E. 273); Sims v. Sims, 131 Ga. 262 (62 S. E. 192).” Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Braxley v. State, 17 Ga. App. 197 (4) (86 S. E. 425).

The jury determined the issues of fact in favor of the plea of defendant; there is some evidence to support this finding; the eourt overruled the motion for a new trial, and this court will not interfere. See Ruff v. Copeland, 141 Ca. 805 (82 S. E. 250).

Judgment affirmed.

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


text:
    8149.
    Farmers and Merchants Bank v. Reeves.
    Decided June 14, 1917.
    Exceptions to auditor’s report; from Upson superior .court— Judge Searcy. August 14, 1916.

      James B. Davis, for plaintiff in error.

      Cleveland & Goodrich, contra.
   Jenkins, J.

While the rights of third persons must be respected by a creditor in making application of payments to him by the debtor (Newton v. Nunnally, 4 Ga. 356; Simmons v. Cates, 56 Ga. 609; Baumgertner v. McKinnon, 10 Ga. App. 219 (2), 224, 73 S. E. 519), and while a creditor who holds both a secured and an unsecured claim can not appropriate a payment to him first to his unsecured claim, over the objection of another creditor holding a lien upon the property from which the fund of the payment was derived (Cofer v. Benson, 92 Ga. 793, 19 S. E. 56; Leonard v. Fields, 143 Ga. 479, 85 S. E. 315; Stulls v. Waddell, 4 Ga. App. 264, 61 S. E. 145; Hodnett v. Mann, 10 Ga. App. 668, 73 S. E. 1082; Fountain v. Fountain, 7 Ga. App. 362 (2), 66 S. E. 1020), still, where it clearly appears that the secured creditor receiving the money paid it in the debtor’s behalf to third persons holding claims against the latter, and had no interest in the payments and derived no benefit from them, and in good faith acted only as the agent of the debtor in the transaction, the principle of law stated above can not be made to apply. Nor would the analogous principle of law, embodied in section 6048 of the Civil Code of 1910 (which provides: “If the. plaintiff in execution, for a valuable consideration, releases property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as purchasers and creditors are concerned”), operate, on principle, against such secured creditor, unless there was an express or implied release of the property to the extent of such payments and for a valuable consideration.

Judgment affirmed.

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


text:
    8166.
    JONES v. FOURTH NATIONAL BANK OF COLUMBUS.
    1. “Although a defendant may in his plea have admitted a prima facie case for the plaintiff, yet where he allows plaintiff to introduce, evidence to make out his case, without1'calling attention to the admission and claiming the right accruing therefrom, he will be held to have waived his right to open and conclude the argument.” Southern By. do. v. Gresham, 114 Ga. 183 (39 S. E. 883) ; 2Worthington v. Granade, 118 Ga. 684 '(45 S. E. 447); Baird v. Sill, 141 Ga. 15 (80 S. E. 281).
    2. A check originally payable to a married woman or order, and indorsed in blank by her, appears to have been cashed by the plaintiff bank and the proceeds paid to the husband and deposited by him to an account standing in his name in that bank, and on which a draft was drawn by him, applying the fund in payment of his own obligation due the bank. It was possible, under the evidence, for the jury to have found that the bank did not know or have reasonable cause to believe that the payment so made by the husband was with property of the wife. Moye v. Waters, 51 Ga. 13; Humphrey v. Copeland, 54 Ga. 543; Gorman v. Wood, 68 Ga. 527; Chason v. Anderson, 119 Ga. 495 (46 S. E. 629) ; Matthews V. Poythress, 4 Ga. 287; Fidelity Trust Co. v. Mays, 142 Ga. 821 (83 S. E. 961); Walden V. Downing Co., 4 Ga. App. 534 (61 S. E. 1127); Third national Bank of Columbus v. Poe, 5 Ga. App. 113, 119 (62 S. E. 826) ; Macon & Birmingham By. Co. v. Lane, 6 Ga. App. 549 (65 S. B. 360). Such being the case, the wife, under the authorities cited, is bound by the payment so made.
    Decided June 14, 1917.
    Complaint; from Muscogee superior court—T. T. Miller, Judge pro hae vice. August 14, 1916.

      Ed. Wohlwender, Hatcher & Hatcher, for plaintiff in error.

      Battle & Hollis, contra.
   Jenkins, J.

The Fourth National Bank sued Mrs. Emma L. Jones as maker and L. T. Jones, her husband, as indorser, upon a promissory note for $1,800, originally made to H. E. Weathers and by him indorsed to the bank. Mrs. Jones filed a plea in which she undertook to set up an offset of $1,500, which sum she alleged was derived from the sale of certain property belonging to her, and which she had turned over to her husband and codefendant to be taken by him to the bank and paid on her note, but which was applied by the bank and her husband upon a note owing it by .him. Upon the trial the plaintiff introduced in evidence the note and the security deed and closed its case. Thereupon the defendants both testified in behalf of Mrs. Jones, in support of her plea, to the effect that at the time such payment was made by the husband on his note, the bank was apprised of the title to the cheek payable to and indorsed by the wife, and also of the direction given by the wife as to its application on her own note. In rebuttal the officers of the bank denied such knowledge and such notice, and, the ease having proceeded to a verdict in favor of the plaintiff, the defendants moved for a new trial, which, was denied, and they excepted.

It is not necessary to add anything further to what is ruled in the headnotes.

Judgment affirmed.

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


text:
    8173.
    ROBERTS v. BANK OF EUFAULA.
    1. The Civil Code, § 3578, declares, in effect, that the implication of authority to collect, which exists on the part of an agent who produces the evidence of debt, does not arise where the debtor fails to require the production of such obligation; but this provision of law does not preclude the debtor from otherwise establishing such express or implied authority, nor from showing the subsequent'ratification of the act by the creditor as principal.
    2. The principle of law which requires that in order for an unauthorized act to be capable of ratification, the one who performed the act must have purported to act in the name of and on behalf of the principal, can not be invoked by the plaintiff in this case, under the facts disclosed by the record.
    3. Where, before the maturity of a promissory note, an unauthorized agent, purporting to act in the name of the payee, collects for the latter the entire amount owing on the note, and the creditor, with full knowledge of the transaction, accepts a portion of the proceeds and consents that the person making the collection may use the remainder for a few days, the creditor will be held to have ratified the collection in toto.
    Decided June 14, 1917.
    Eoreelosure of mortgage; from Clay superior court—Judge Worrill. September 16, 1916.

      B. R. King, L. M. Rarnbo, for plaintiff in error.

      James W. Harris, contra.
   Jenkins, J.

L. L. Roberts executed and delivered to the Farmers & Merchants Bank, Georgetown, Georgia, a. certain note and mortgage on personal property, dated April- 28, 1915, due October 15, 1915, for $2,000. Before maturity the payee sold and delivered the note and mortgage, to the Bank of Eufaula. Upon the foreclosure of the mortgage by the latter bank for the remaining principal sum of $500 and interest alleged to be due thereon, the mortgagee filed an affidavit of illegality, setting up payment as follows: “On the 6th day of October, 1915, deponent paid to L. G. Brannon, cashier of Farmers and Merchants Bank of Georgetown, the sum of, two thousand dollars with which to pay off and cancel the mortgage foreclosed; . . said mortgage was in the hands of plaintiff, and said Brannon informed Lawrence Wilds, cashier of plaintiff bank, that he had collected the two thousand dollars, the full amount of said note and mortgage, and that he, Brannon, wanted to pay over to said Wilds the sum of fifteen hundred dollars, and that he, Brannon, wanted to use the balance of five hundred dollars for a few days, and said Wilds consented to same, which was without the consent of deponent. The plaintiff knew the whole amount of said mortgage had been paid, and credited said Brannon with five hundred dollars of the amount of said mortgage for the term of several days.” To this affidavit the plaintiff demurred as follows: “1. Because the said plea of illegality fails to set forth any legal defense. 2. Specially because said plea of illegality fails to show that L. G. Brannon individually, or as cashier of the Farmers & Merchants Bank, of Georgetown, Georgia, had in his possession the note and mortgage in question at the time defendant made said payment, or that the said Bran-non, either individually or in his representative capacity as said cashier, was the duly authorized agent of the Bank of Eufaula to make said collections, or that all the money actually collected reached the plaintiff. 3. Because said plea of illegality is evasive and uncertain and does -not set forth any complete .contract between Brannon and Lawrence Wilds for procuring the loan of $500.” Defendant attempted to amend his defense by showing the following facts: “That defendant has fully paid and satisfied said mortgage by paying the same, for that this defendant did, on October 6th, 1915,- pay to L. G. Brannon, who was at the time cashier of the Farmers and Merchants Bank of Georgetown, at the time a going concern and doing a banking business, $2,000.00, as a payment of said paper. That on the same day Mr. Lawrence Wilds, president of the Bank of Eufaula, came to see L. G. Brannon, and was by the said Brannon given full information of said payment of said $2,000.00 by said Boberts, and he, the said Wilds, acting as president of the Bank of Eufaula, for it and in its behalf, and having authority to then and there so act for the plaintiff bank, ratified the- collection of said $2,000.00 by said Brannon, and ratified the payment of said money as payment of the above-mentioned note and mortgage by the said Boberts to the said Bran-non, by accepting $1,500.00 thereof with full knowledge of said full payment of the amounts due on said note and mortgage, and by lending to said L. G-. Brannon $500.00 of the amount so paid, as aforesaid, to be by Brannon repaid to the plaintiff bank in a few days, and by retaining said $1,500.00 of said $2,000.00 paid as aforesaid, with full and complete knowledge of the payment of the entire amount due on said note and mortgage as aforesaid, and defendant pleads that by the ratification of the payment by said Boberts to said Brannon as aforesaid, the plaintiff did ratify the right of and the act of said Brannon in receiving payment as aforesaid; and defendant further pleads that the plaintiff bank has not paid hack to defendant or offered to pay back to defendant the sum of $1,500.00 which it receivéd as aforesaid.” The trial judge passed the following order: “The above and foregoing demurrer having been argued, and thereafter an amendment to the plea of illegality having been submitted, and after argument thereon, the said demurrer is hereby sustained and the plea of illegality and amendment thereto is hereby stricken.”

Section 3578 of the Civil Code of 1910 provides as follows: “Where money is due on a written evidence of debt, payment to an agent of the creditor who fails to produce the obligation is at 'the risk of the debtor. Non-production of the security rebuts the implication of authority arising from the agent’s employment, and it must be otherwise established.” In 'the case of the Bank of the University v. Tuck, 96 Ga. 456 (23 S. E. 467), the court held: “Where the maker of a negotiable promissory note pays the same to the original payee without requiring the production and surrender of the paper, he is liable to pay it again to an innocent holder who acquired title to it in good faith and for value before maturity, unless the payee was the holder’s general agent for the collection of such papers, or had special authority to collect in the particular instance, or the money collected in fact reached the holder’s hands.” . See also the same case as reported in 101 Ga. 104 (28 S. E. 168).

Boberts does not contend, however, that he is protected in the payment of the $2,000 to Brannon as originally made, by reason of the fact that .the latter was the cashier of the Farmers & Merchants Bank, the payee named in the note, but concedes that unless the pleadings show such a ratification’by the plaintiff of the collection made as would relate back thereto and thereby constitute Brannon its agent in that transaction, then the plaintiff would not be bound thereby. He does insist that the allegations as made show that the act of Brannon in collecting the $2,000 was in fact ratified by plaintiff, and that by so doing the agency of Brannon for it relates back to the time of the collection,'and that he is for this reason protected in such payment. The contention is that although Brannon was not the agent of the plaintiff bank when he made the collection, he became such by ratification of the acts done by him in its behalf.

The terms of the code-section quoted do not preclude a party who makes payment on a note to one who fails to produce the obligation from carrying the burden there imposed of establishing the authority of the agent to collect. The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf. Civil Code (1910), § 3569. A ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. Civil Code (1910), § 3591; Todd v. German-American Insurance Co., 2 Ga. App. 789 (3), 798 (59 S. E. 94). Thus it is that in a case of this sort “non-production of the security rebuts the implication of authority arising from the agent’s employment, and it must be otherwise established,” by proof of either express or implied authority or by the proved subsequent ratification of the act. The provisions of - section 3578 relate simply to the burden of proof, and provide that the implication of authority which exists as to the agent who produces the obligation does not arise in favor of one who makes payment on a written obligation without requiring its production. These statements are in entire accord with the ruling made in the case of Bank of the University v. Tuck, supra. In that case, as fir'st reported, it is stated in the opinion that there was nothing in the evidence to show that the bank had in express terms ever made the warehouse company its general or special agent, authorized to accept the payment, nor was there any evidence of ratification on its part. The court held that there was evidence sufficient, growing out of the alleged course of dealings, to authorize a submission to the jury of the question as to whether there existed an implied agency to collect on the part of the warehouse company at the time payment was made to it. The other cases cited by counsel for the plaintiff, along with the one just discussed, make rulings of similar purport, and are not at variance with the principle here announced. Since, in the present case, it was not alleged that Bran-non, at the time the collection was made by him, had been, either expressly or by implication, authorized by the plaintiff so to do, the sole question before us relates to whether or not, under the pleadings, the plaintiff subsequently ratified the unauthorized act of Brannon so as to become bound thereby.

The plaintiff contends that the doctrine of ratification can not have proper application in this case, for the reason that a subsequent ratification of the acts of another must .be for acts assumed to have been done in his behalf. He insists that in the defense filed there is nothing going to show that Brannon professed to be, or- assumed to act as, the agent of plaintiff bank and on its behalf. In support of the principle of law here invoked the plaintiff cites: 1 Mechem on Agency, §§ 386, 387; 2 C. J. § 91; Florida Midland &c. Railroad Co. v. Varnedoe, 81 Ga. 175 (7), 178 (7 S. E. 129); Thompson v. Brown, 121 Ga. 814 (2) (49 S. E. 740). We think, however, that the pleadings in the ease, upon which alone disposition was given thereto, go to show that the payment to Brannon was not made to him and received by him in his individual capacity or as the agent of the defendant, but that the transaction was based upon the mutual assumption of his agency for the 'plaintiff, and that such act on his part was done in the plaintiff’s name. In the original affidavit it is stated that “Brannon informed Wilds, cashier of plaintiff bank, that he had collected the two thousand dollars.” It is stated therein that “the plaintiff knew the whole amount of said mortgage had been paid.” The amendment sets forth that the defendant turned oveT to Brannon the $2,000, “as a payment of said paper;” that Wilds “ratified the collection of said $2,000.00, and ratified the payment of said money as payment of the above-mentioned note;” that the plaintiff did “ratify the right of and the act of said Brannon in receiving the payment as aforesaid.” Had the money been turned over by the defendant to Brannon in his individual capacity, or simply as his own agent, to be transmitted by him to the plaintiff, the transaction certainly could not properly be designated either as a collection or as a payment in satisfaction of the debt. We are therefore of the opinion that the principle here invoked by the plaintiff is irrelevant, under the proper import and intent of the pleadings.

This brings us to the crucial question in the case: Did the plaintiff ratify the collection made by Brannon on its behalf, and, if so, did such ratification amount to validating the unauthorized act in toto or only in part? Section 3593 of the Civil Code provides that "If the agent exceeds his authority the principal can not ratify in part and repudiate in part; he must adopt either the whole or none.” See also: Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (70 S. E. 356); Dolvin v. American Harrow Co., 135 Ga. 699 (54 S. E. 706, 38 L. R. A. (N. S.) 785). It is not requisite to the ratification of an unauthorized act of one assuming to act as the agent of another that the acquiescence should be in express terms. In most cases such a ratification can be implied from the acts and conduct of the principal. As a general rule, if the principal, with full knowledge of all the material facts, accepts, and retains the benefits of the unauthorized act, he thereby ratifies the act. Of course, as stated, ratification necessarily implies complete knowledge of all the material facts relating to the transaction. Dolvin v. American Harrow Co., 131 Ga. 300 (8), 308 (63 S. E. 198); Butler v. Standard Guaranty &c. Co., 133 Ga. 371 (3) (50 S. E. 132). In the absence'of such, knowledge on the part of the principal, upon his being apprised of the facts, he is privileged to make his election either to stand upon the unauthorized act of the agent, or else repudiate it and restore the benefits thereof.

The unauthorized act of Brannon in this case consisted in the collection of the full amount of $3,000 due on the mortgage. According to the pleadings the plaintiff had full and exact knowledge of the entire transaction, before committing itself in reference thereto. The act which it was called upon either to affirm or repudiate was the one actually performed, the collection, as in fact made. It chose to accept from Brannon $1,500 of the amount collected, and "consented” that he might “use the balance of $500 for a few days.” Under our view of the law of the ease, the plaintiff could not receive a substantial benefit from the unauthorized act of Brannon without ratifying the transaction in its entirety. It was held in the ease of American Ex. Bank v. Georgia &c. Co., 87 Ga. 651, 657 (13 S. E. 505), that where money is raised by one on the credit of another, without authority, the retention of any part of the money by the latter will be a ratification. Chief .Justice Bleckley, speaking for the court in that case, said: “By retaining the money, after knowledge that it was raised on his credit by an assumption of authority, B ratifies the act, irrespective of whether he intends to ratify it or not, and as he can not ratify in part and repudiate in part, such ratification will result from retaining any of the money with no offer to return the amount retained, although he may have paid out the residue for A’s benefit before acquiring knowledge of all the material facts.” In Hughes v. Neal Loan & Banking Co., 97 Ga. 383 (23 S. E. 823), the court held: “The evidence of the plaintiff herself showing affirmatively that, though she had never indorsed the government check payable to her order, she had ratified its unauthorized collection by accepting in settlement of her claim a part of the proceeds of the check and a promissory note, and that in so doing she acted with a full knowledge of all the material facts, the bank through which the collection of the check was negotiated was not liable to her, and the court was right in awarding a nonsuit.

But most especially do we think, under the pleadings in the case, that the plaintiff should not be permitted now to repudiate in part the act of Brannon in making the collection, since it was only by its own consent that the plaintiff failed to receive the full amount due on the mortgage. And while it may be correctly pointed out -by the demurrer that the affidavit fails to set up a full and exact contract between the plaintiff and Brannon, whereby the latter procured a loan from the former of the remaining $500, still it appears from the affidavit that, in a constructive sense at least, the money reached the plaintiff, since it was retained by Brannon only with the plaintiff’s consent. It is insisted by the plaintiff that the acceptance of the $1,500 by the plaintiff could not amount to a ratification of the entire collection by Brannon, even with full knowledge thereof, for the reáson that in doing so the plaintiff held and retained only that which was intended for it and to which it was entitled. • In support of this proposition the case of Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480 (2) (32 S. E. 591), is cited. In that case it was held: “A principal who in law is entitled to the possession and control of personal property is not bound by an unauthorized agreement of an agent by which the principal obtains the possession thereof, nor will the principal, merely by retaining possession of such property after receiving the same from the' agent, be charged with a ratification of the act of the agent. This is so because it is the right of the principal, either with or without such an agreement, to hold and possess the property.” Justice Lumpkin, in referring to this case, in Dolvin v. American Harrow Co., supra, stated that here “the principal only received notes to the possession of which it was legally entitled regardless of the agreement of the agent.” We think there is a manifest distinction which should be made between a ease like the one cited and the one at bar. While in the case at bar the holder of the mortgage was, upon its maturity, entitled to satisfaction thereunder, still it had no especial claim to the funds in question, except by virtue of the payment. It will furthermore be observed, from the statement of facts, that when the money was accepted by the plaintiff the note and mortgage had not even in fact become due; and for this additional reason the authority cited does not appear to this court to be pertinent and controlling.

It is Our opinion that it was error to sustain the demurrer to the affidavit as amended.

Judgment reversed.

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


author: Blood worth, J.

text:
    8179.
    McLEOD, adm’x, v. TRAVELERS INSURANCE COMPANY.
    1. No harmful error was committed in admitting in evidence the cancellation entered on the plaintiff’s life-insurance policy, since in his petition he alleged that it was canceled, and other evidence, admitted without objection, showed that it had been canceled for non-payment of premiums and of interest on a loan.
    2. Under the uncontradicted evidence the plaintiff was not entitled to recover from the insurance company the .premiums paid by him on the policy. The fact that in the course of negotiations between him and the insurance company for a second .loan, to include payment of the past-due premiums and interest' on the previous loan and reinstate the policy (which by its terms had lapsed for non-payment of premium and interest), the State agents of the insurance company stated in a letter to him that the policy had been “reinstated” can not avail him, this statement being qualified by the context, in which it was said that this was “subject to payment of premium,” which was never paid, and that they would advise him to “execute loan papers and forward” the papers to them by first mail. Under the terms of the policy the insurance company acted within its rights in refusing to make the- loan.
    Decided June 14, 1917.
    Complaint; from Sumter superior court—Judge Graham presiding. July 24, 1916.

      Shipp & Sheppard, for plaintiff. JE.'A'. Hawlcins, for defendant.
   Blood worth, J.

B. L. McLeod insured his life in the Travelers Insurance Company, borrowed money on his policy, defaulted in payment of interest and premium, and his policy was canceled. Thereafter he brought suit to recover the premiums paid, alleging breach of contract, and upon the trial of the case the court directed a verdict for the defendant. A motion for. a new trial was overruled, and writ of error was brought.

In addition to the error in directing a verdict, the only other specific allegation of error is upon the admission in evidence of a cancellation entered upon the policy sued on. This could not have been harmful to the plaintiff, even if erroneous, as1 in his petition he necessarily alleged the cancellation of the policy, and the fact that it was canceled for non-payment of premiums and interest was shown by other evidence, admitted without objection.

It appears from the record that the policy of insurance sued upon lapsed by reason of the non-payment of premium, and of interest on a loan secured from the insurance company upon the identical policy before cancellation. It is a further uncontroverted fact that the insured attempted, after the lapse of the policy, to secure a second and larger loan from the insurance company, for the purpose of extending the first loan, paying the interest thereon, and paying the past-due premium on the lapsed policy, in order that it might be reinstated. There was no legal obligation resting upon the company to make this second loan, and the reinstátement of the lapsed policy was by express contract contingent upon the “insurability” of the applicant, involving a “satisfactory medical examination.” The insurance company, acting within its rights, refused to make the second loan, and, “as there was no excess of the cash value of the contract pledged,” over the amount then due the company, the policy was duly canceled.

The fact that the State agents of the insurance company, in a letter written to the insured in the course of negotiations for the second loan, stated that the policy had been “reinstated” can not avail the plaintiff, for this particular notification was qualified by the remainder of the context, to wit: that this was “subject to payment of premium, and wé would advise you to execute loan papers and forward to us by first mail.” The amount of premium for reinstatement was included in the amount of the loan applied for. This loan was not made, and the premium was not paid in any other manner. Under these facts the court did not err in directing a verdict for the defendant, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


author: Broyles, P. J.

text:
    8223.
    OCONEE RIVER MILLS v. CONTINENTAL INSURANCE COMPANY.
    A motion to reinstate a case dismissed in vacation by the plaintiff’s attor-, ney should be made before the expiration of the next term of the court, and when made after that term it stands, as to excuses for delay, upon the same footing as an extraordinary motion for a new trial. No sufficient excuse for such delay appearing in this case, the court did not err in overruling the motion to reinstate the case.
    Decided June 14, 1917.
    Motion to reinstate case; from Laurens superior court—Judge Kent. February 21, 1916.

      W. M. Clements, John R. L. Smith; Grady Harris, for plaintiff.

      King & Spalding, for defendant.
   Broyles, P. J.

This was a motion to reinstate a ease which had been dismissed by the plaintiff’s attorneys. The ease was not dismissed by any order of court, and no entry of dismissal was made upon the minutes of the court, but the plaintiff’s attorneys, in vacation, on July 23, 1915, made such an entry on the original petition, and, on the same date, the clerk cf the court in which the suit was pending canceled the entry of the case upon the court docket, by drawing cross-lines over it, and made an entry on the docket that the ease had been dismissed by the plaintiff and the costs paid. The following day the officers of the plaintiff (a corporation) were advised of the dismissal of the suit. The regular July term of the court began on July 26, 1915, and adjourned oh August 7, 1915. The next regular term convened on October 25, 1915; and at that term, to wit, on November 2, 1915, the plaintiff, through other attorneys, filed its motion to reinstate the case, on the ground that its former attorneys were not authorized to dismiss it. This motion was overruled. The defendant, in its answer to the motion, pleaded, among other defenses, that the motion to reinstate was made too late. Under our view of the case it is necessary to consider this question only. As stated, the case was dismissed in vacation, on July 23, 1915. The plaintiff corporation, through its officers, was informed of this fact on the following day. The next regular term of the court began on July 26, 1915. The plaintiff allowed this term to elapse, and made no motion for reinstatement until November 2, 1915, during the regular October term of the court.

It is contended by counsel for the plaintiff in error that the case was -never really dismissed; that the entry of dismissal upon the original petition, by the plaintiff’s attorneys, and an entry of dismissal upon the docket of the court, by the clerk, both made in vacation, did not in law amount to a dismissal of the case. In our opinion this position is untenable. Section 5627 of the Civil Code of 1910 provides that “The plaintiff in any action, in any court, may dismiss his action in vacation or term time, and, if done in term time, the clerk or justice shall enter such dismissal on the docket.” Under this section, where the case has been dismissed in vacation by the plaintiff, it is not even necessary to enter the dismissal upon the docket of the court. However, in this case such an entry on the docket was promptly made by the clerk of the court. As to the right of the plaintiff to dismiss his suit, either in term time or in vacation, without any leave or order of the court, provided that thereby no right of the defendant is prejudiced, see also Kean v. Lafhrop, 58 Ga. 355; Jackson v. Roane, 96 Ga. 40 (23 S. E. 118). In the instant case it is undisputed that the attorneys who made the entry of dismissal upon the petition were the' attorneys (and the only attorneys) for the plaintiff in the litigation until after the dismissal of the action. This being true, their entry of dismissal upon the original petition, made in vacation, amounted in law to a dismissal of the suit, and before the plaintiff could litigate further it was necessary for the case to be reinstated. In considering the single question as to whether the motion to reinstate was made in time, the further question, as to whether, under all the facts, the attorneys were justified in dismissing the action, is not involved. However, in simple justice to the reputation of the eminent counsel who so acted, we think it not improper to call attention to the following facts disclosed by the record: This was a joint suit by two plaintiffs,—the Oconee Eiver Mills, and the Citizens & Southern Bank as trustee for the bondholders of the mills; both plaintiffs being represented by the same firm of attorneys. The trustee bank held the insurance policy sued on, by way of pledge from the other plaintiff. The attorneys were advised and directed to make the ■settlement finally agreed upon by the trustee bank, the holders of all of the bonds of the Oconee Eiver Mills, the holders of one •half of all of its stock, and by the attorney in fact of all of its stockholders. This settlement was opposed by the Oconee Eiver Mills only, its officers having notified its attorneys that it would not agree to it. . The Oconee Eiver Mills was insolvent, its plant was shut down, and its officers had removed to another county. If the offer of settlement made by the insurance company had been rejected, it would have been a very close question whether the bondholders would have received anything, as apparently the insurance company had a good defense to the suit, and the Oconee Eiver Mills had declined to indemnify the bondholders or their representative against this contingency. And the great bulk of any recovery, under the facts of the case, would necessarily have gone to the plaintiff bank.

In Watkins v. Brizendine, 111 Ga. 458 (36 S. E. 807), it was held that “A motion to reinstate a case, made after the expiration of the term at which the order of dismissal was entered, stands, as to excuses for delay, upon the same footing as an extraordinary motion for a new trial. There being ... no sufficient excuse for failing to make the motion to reinstate at an earlier term than that [at] which it was filed, the court erred in sustaining it.” See also, to the same effect, Austin v. Markham, 44 Ga. 161. Under these decisions it is apparent that if the case now under consideration had been dismissed in term time by an order of the court, the motion for a reinstatement was made too late. It is contended, however, by counsel for the plaintiff in error that this ruling is not applicable where the suit was dismissed in vacation. We, however, see no reason why the principle underlying it should not be applied to such a case; and, when so applied, it seems clear to us that where the case has been dismissed in. vacation, the motion for reinstatement should be made before the expiration of the next term of the court, and a movant failing to do so should present some good excuse for such delay.

In our judgment no sufficient reason was shown for the plaintiff’s delay in filing the motion to reinstate the case, and the judge who passed upon the motion did not err in overruling it.

Judgment affirmed.

Jenldns and Bloodworth, JJ., concur.


text:
    8329.
    Watts v. Pass.
    Decided June 14, 1917.
    Trover) from Gordon superior court—Judge .Fite. May 33, 1916.

      Starr & Paschal, for plaintiff. Neel & Neel, for defendant.
   Broyles, P. J.

1. The party alleged to have been defrauded in a horse-swap by means of fraudulent representations made by the other party can not maintain an action in trover, although he promptly repudiated the contract and offered to return the animal which he had received and a promissory note for $100, which had been given him as “boot,” and demanded the return of the other animal, where, after his offer- to rescind had been refused, and after his trover suit had been filed, he placed the note in a bank as collateral security for his indebtedness to the bank, and at the maturity of the note instructed the cashier of the bank to collect it from the defendant and to credit the proceeds on his (the plaintiff’s) indebtedness to the bank, which was done. Hunter v. Stembridge, 17 Ga. 243; Lane v. Latimer, 41 Ga. 171; Fannin v. Thomason, 50 Ga. 614, 617; Chaflin v. Continental Works, 85 Ga. 27, 40 (11 S. E. 721); Glover v. Green, 96 Ga. 126 (22 S. E. 664); Howard v. Cassels, 105 Ga. 412 (31 S. E. 562, 70 Am. St. R. 44) ; Timmerman v. Stanley, 123 Ga. 850 (2) (51 S. E. 760, 1 L. R. A. (N. S.) 379); McLean v. Clapp, 141 U. S. 429 (12 Sup. Ct. 29, 35 L. ed. 804); 2 Black on Rescission, §§ 583, 595, 601, 603, 608, 651. The decisions in Barnett v. Spier, 93 Ga. 762 (21 S. E. 168); Houze v. Blackwell, 144 Ga. 700 (87 S. E. 1054), and Hambrick v. Wilkins, 65 Miss. 18 (3 So. 67, Am. St. R. 631), relied on by counsel for the plaintiff in error, are not applicable to the facts of this case.

2. The court did not err in directing a verdict for the defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Broyles, J?. J.

text:
    8343, 8344.
    Wheeler v. Porter; and vice versa.

    Decided June 14, 1917.
    Complaint; from Catoosa superior court—Judge Fite. December 20, 1916.
    The petition, alleged that the defendant was indebted to the plaintiff in the sum of' $450, by reason of the following contract: that the defendant contracted with the plaintiff, a real-estate dealer, to sell the defendant’s farm, and agreed to pay him $500, and the plaintiff obtained a purchaser for the farm, and that aftef the sale the defendant desired the plaintiff to knock off some from the $500, and the plaintiff agreed to take $450 as his commission, which 'the defendant" agreed to pay. It was alleged that the defendant failed and refused to perform either of these contracts.

      J. M. Rudolph, Maddox, McCam§ & Shumate, for «Wheeler.

      William E. Mann, contra.
   Broyles, J?. J.

1. The only assignment of error argued in the brief of counsel for the plaintiff in error is that the court erred in instructing the jury, in substance, that if they came to the conclusion that there was no certain and definite contract or agreement between the parties, they would be authorized to find for the plaintiff on a quantum meruit, provided he rendered valuable services to the defendant. In our opinion this charge was unauthorized by the pleadings and the evidence, but, the jury having returned a verdict for the full amount sued for under the contract, it is not shown that this charge was harmful' to the defendant; and, therefore, it does not require a reversal of the judgment below.

2. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

3. The ruling upon the main bill of exceptions renders a consideration of the cross-bill unnecessary.

Judgment on the main hill of exceptions affirmed. Oross-hill dismissed.

Jenkins and Bloodworth, JJ., concur.


text:
    8350.
    Holloway v. Silver.
    Decided June 14, 1917.
   Broyles, P. J.

This was the first grant of a new trial, and it will not be disturbed, as it does not appear that the judge abused hi's discretion in granting it, and that the facts and the law required the verdict notwithstanding his judgment. Civil Code (1910), § 6204.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Foreclosure of mortgage; from city court of Zabulón.—Judge Dupree'. January 5, 1916. •

Bedding <& Lester, for plaintiff in error.

J. M. Smith, contra.


text:
    8362.
    Kirkland et al. v. Gaskins, Paulk & Company.
    Decided June 14, 1917.
    Complaint; from Irwin superior court—Judge Gectrgeu December 16, 1916.

      Quincey & Bice, Homer Oxford, for plaintiffs in error.

      Melvin Meeks, contra.
   Broyles, P. J.

1. Whenever a speedy sale of personal property is made under the provisions of sections 6068 and 6069 of the Civil Code of 1910, it must affirmatively appear that two days’ notice of the applicant’s intention to apply for an order of sale was duly given, unless the ease falls within one of the exceptions specified in that section. Simmons v. Cooledge, 95 Ga. 50 (2) (21 S. E. 1001). This ease did not fall within any of the exceptions so specified; and it not affirmatively appearing that the two days’ notice was given, the sale was void, and no valid title was obtained by the purchasers thereat.

2. The fact that the payees of the mortgage-note sued upon were the purchasers of the property at the void-sale did not amount to a rescission of the contract between them and the makers of the note, and did not estop them from bringing suit upon the note. The sale was void and a mere nullity; the purchasers gained nothing by it, and the rights of the mortgagors were not affected; for the latter, if entitled to be restored to the possession of the property, could call upon either the purchasers of the officers who sold it, for its delivery. Wesley v. Battle, 17 Ga. App. 755 (88 S. E. 415) ; Cooper v. Smith, 125 Ga. 167 (53 S. E. 1013).

(a) Although this was a void judicial sale under a mortgage foreclosure, the status or rights of the parties (the purchasers at the sale and the mortgagors) were not affected by -the provisions of section 6076 of the Civil Code of 1910, which provides that “a purchaser at a void or irregular judicial sale under foreclosure of a mortgage succeeds to allot the interests of the mortgagee,” since the purchasers at the sale in this .case were the mortgagees in the mortgage which was foreclosed.

3. The judge, exercising by consent the functions of both judge and jury, did not err in rendering judgment for the plaintiff for the -full amount sued for, or in thereafter overruling the motion for a new trial.

Judgment affirmed.'

Jenhins and Bloodworth, JJ., concur.


text:
    8508.
    Bank of Gillsville v. American National Bank.
    Decided June 14, 1917.
    Complaint; from city court of Macon—Judge Mathews presiding.' February 2, 1917.

      Davenport Ouerry, Warren Roberts, for plaintiff.

      Hardeman, Jones, Parle & Johnston, for defendant.
   Broyles, P. J.

Under tlie agreed statement of facts, the judge, sitting by-consent without the intervention of a jury, was authorized to find that the defendant bank had the right to assume that the draft drawn on it by J. E. McCrary (formerly cashier of the Bank of Gillsville, but who had been removed as cashier a few days before the draft was drawn, and who therefore was not authorized to draw it) was drawn before he was removed as cashier, and, without further inquiry, to pay it as an authorized draft of the Bank of Gillsville. This being true, the court did not err in finding in favor of the defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Wade, C. J.

text:
    6805.
    Taylor v. Mutual Benefit Industrial Life Association of America.
    Decided June 15, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. May 21, 1915.

      Foster & Sioclebridge, Carl F. Hutcheson, S. M. Castleton, for plaintiff. Samuel A. Boorsiin, for defendant..
   Wade, C. J.

1. Under the answer of the Supreme Court to questions certified to that court, the judgment in the municipal court was reviewable by certiorari, without first taking an appeal to the appellate division of the municipal court on the judgment on the motion for a new trial. Taylor v. Mutual Benefit Industrial Life Insurance Asso., 146 Ga. 660 (92 S. E. 47).

2. The order of the superior-court judge sustaining the certiorari, being in effect the first grant of a new trial, will not be interfered with by this .court, since it appears that there was a definite and positive refusal to pay the claim based upon the policy of insurance; and therefore it is unnecessary to pass upon the various points referred to in the briefs of counsel. Cochran v. Minter, 10 Ga. App. 337 (73 S. E. 551).

Judgment affirmed.

George and Luke, JJ., concur.


author: George, J.

text:
    7943.
    MIDLAND RAILWAY v. WEBB, next friend.
    1. The plaintiff’s petition set forth his cause of action in orderly and distinct paragraphs, numbered consecutively, and contained the necessary allegations of fact, including the acts of negligence, upon which he relied for recovery. The.defendant’s answer, “Now comes the defendant and denies that it has damaged the plaintiff in the sum of $15,000 as alleged in said petition,” amounted to no answer, and placed upon the plaintiff no burden not already resting upon him under the law. Hence, exceptions to the charge of the court, upon the ground that the court invaded the province of the jury in the instructions upon the law of negligence, are without merit.
    2. The evidence warranted the verdict. The further grounds of the motion for new trial are without merit.
    Decided June 15, 1917.
    Action for damages; from city court of Statesboro—Judge Proctor. September 20, 1916.

      George H. Richter, Brannen & Booth, for plaintiff in error.

      Strange & Metis, P. D. Shearouse, contra.
   George, J.

The plaintiff filed suit against the railway company for personal injuries, and in the petition set forth his cause of action in orderly and distinct paragraphs, numbered consecutively. The petition contained proper averments of fact, including the acts of negligence, upon which he relied for a recovery. The defendant answered as follows: “Now comes the defendant and denies that it has damaged the plaintiff in the sum of $15,000 as alleged in said petition.” The court submitted to the jury the question as to the defendant’s negligence and the plaintiff’s contributory negligence, and as to the amount of the damage. The jury returned a verdict for the plaintiff, and the defendant filed a motion for a new trial, and therein complained of the court’s charge as to negligence, and of the failure to give in charge certain phases of the law of negligence. No exception is taken to any portion of the charge relating to the measure of damages. The motion was overruled by the presiding judge, and the defendant excepted.

The petition complies substantially with the requirements of sections 5538 and 5539 of the Civil Code (1910). The act of 1893 (Acts 1893, pp. 56, 57) commonly known as the “Neal act” (sections 5539 and 5634 of the Civil Code of 1910), (1) abolished the plea of general issue, (2) required the- defendant to answer severally and distinctly each paragraph of the plaintiff’s petition, and (3) provided that any averment distinctly and plainly made in the plaintiff’s petition which is not denied by the defendant’s answer shall be taken as prima facie true, unless the defendant states in his answer that he can neither admit nor deny such averment, because of-the want of sufficient information. The plaintiff in a negligence case can not have a verdict by default, but the amount of his damage is' a question for the jury. The plea filed by the defendant in this case admitted every fact properly pleaded by the plaintiff, including the acts of negligence alleged. The plea, therefore, within itself, required of the plaintiff nothing, and is no plea. The assignments of error contained in the motion for a new trial and relating entirely to the law of negligence are without merit, because the defendant’s negligence, under the pleadings, was not an issue in the case.

Judgment affirmed.

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


text:
    7945.
    Atlantic Coast Line Railroad Company v. Kennedy.
   Wade, C. J.

I. The points raised in the original demurrer interposed by the defendant, including the contention that under the allegations in the petition the plaintiff was not engaged in interstate commerce at the time of the injury, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned. See, however, 3 Thornton’s Federal Employers’ Liability Act, §§ 35, 246, 248, 249.

2. The act of Congress of April 14, 1910 (c. 160, § 2, 36 Stat. 298), amending the safety-appliance laws, provides that “all cars must be equipped with secure sill-steps and efficient hand-brakes,” etc. Eederal Statutes Ann., Supp. 1912, p. 336 (U. S. Comp. St. 1916, § 8618). In the original petition the plaintiff’s right to recover was based upon the allegation that in the performance of his duties as an employee of the defendant company, while engaged in switching operations, in a switch-■yard, it became necessary for him to use a sill-step in descending from a moving car, and that, owing to the fact that this step was not securely • fastened, his foot slipped through it, and, “acting in the emergency thus created, [he] put his right knee against the side of the car, pushed himself away from the car, and jumped backward, in order that he might not be thrown beneath it;” that he “caught on his feet and his . left heel struck the end of a cross-tie that extended from two to.three inches above the ground, his body was twisted, and he was thrown upon the ground on his left side, with great force and violence,” with the resulting injuries on account of which he sued. Clearly - the alleged proximate cause of the injury to the plaintiff was the insecure sill-step, and the allegation as to the striking of his foot on the end of a cross-tie extending above, the ground merely illustrated how the injury followed from the original proximate cause—the insecurity of the step, and how the construction of the track contributed to bring about the injury, though upon such construction no negligence was assigned.

3. The court erred in allowing the amendment, which not only more fully described the condition of the track at the place where the injury occurred, but further charged negligence against the defendant because of “its failure to fill in the space between the ties and make the surface level so as to remove the danger incident to the performance of such work in its yard,” and also added the distinct and separate averment that “such negligence contributed to his injury.” As pleaded, paragraph 5 of the amendment to the petition (which was allowed by the court over objection) set up, as a distinct and independent act of negligence on the part of the defendant, which contributed to bring about the injury to the plaintiff, the condition of one of the tracks in the switch-yard.

(a) Not only does an employee entering the service of a railroad company in a switch-yard built by the company assume the risks arising from .the way in which the-yard is constructed (Kirbo v. Southern Railway Co., 16 Ga. App. 49, 84 S. E. 491; s. c. 18 Ga. App. 187, 89 S. E. 179), but he also assumes the risks growing out of the condition of the tracks in such yard, in the absence of any allegation that the master knew, or ought to have'known by the use of due care on his part, of the existing danger on account of defects in the tracks in such yard, or the failure to maintain them in a safe condition, and that the servant did not know of such defects or failure and had not equal means of knowing the facts, and by the exercise of ordinary care could not have known thereof. Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429) ; Holland v. Durham Coal Co., 131 Ga. 715 (63 S. E. 290) ; McDonnell v. Central Railway Co., 118 Ga. 86, 89 (44 S. E. 840) ; Kilgo v. Rome Soil Pipe Manufacturing Co., 16 Ga. App. 737 (4) (86 S. E. 82) ; Upchurch v. Culpepper, 17 Ga. App. 577 (87 S. E. 834) ; Schlemmer v. Buffalo &c. Railway Co., 220 U. S. 590 (31 Sup. Ct. 561, 55 L. ed. 596). Except in cases where the injury results from the violation of some Federal law. enacted for the protection of railroad employees, the common-law doctrine of the assumption of risks is still in force in cases arising in interstate commerce. Seaboard Air-Line Railway v. Horton, 233 U. S. 492 (6, 7) (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475).

(b) The amendment allowed by the court did not set forth that the rail- ' road company either knew, or by the exercise of due care on its part should have known, of the alleged defective and dangerous condition of one of its tracks in the switch-yard, or that the employee himself did not know or could not by the exercise of ordinary care have known of such defective and dangerous condition.

'(e)' The fact that in the original suit the right of the plaintiff to recover was based upon an alleged violation of a provision of the Federal employer’s liability act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657-8665), as tp which the doctrine of assumed risks was abrogated, would not authorize a recovery by the plaintiff for injuries brought about by defects in the tracks in a switch-yard, under the allegations as .made in the amendment, and the court therefore erred in allowing said amendment, even conceding that the original allegation as to such construction was sufficient to authorize such an amendment without adding a new and distinct cause of action.

Decided June 15, 1917.

Action for' damages; from city court of Yaldosta—Judge Cranford. October 20, 1916.

Patterson & Copeland, Bennet & Branch, for plaintiff in error.

B. K. Wilcox, contra.

4. Since the court erred in allowing the amendment above referred to, and thus laid a basis for recovery not authorized by law, what followed need not be considered.

(a) It may, however, be said that the harmful effect of allowing the amendment attempting to set up the independent act of negligence therein alleged is illustrated and was accentuated by an excerpt from the charge of the court, which is duly excepted to, submitting to the jury the question whether or not the defendant was negligent “in one or more of the ways alleged” by the plaintiff, as this instruction authorized the jury to find for the plaintiff either, because of the defect in the sill-step, or because of a defect in the construction of the track in the switch-yard, or the failure to properly maintain the track, and a recovery was thereby rendered possible upon proof alone of the separate act of negligence involved in the failure to maintain the track in good condition, since there was some evidence tending to support this allegation in the amendment.

Judgment reversed.

George and Luhe, JJ., concur.


author: Luke, J.

text:
    7979.
    Lamb, receiver, v. Davis.
   Luke, J.

1. On the trial of an action against the receiver of a railroad for injuries alleged to have been sustained by a person at a railroad crossing, it was not error for the court to charge the jury as follows: “The law is that a railroad company shall be liable'for any damage done to persons by the running of the locomotives or cars or other machinery, of the company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that its agents exercised all ordinary and reasonable diligence, the pre- ■ sumption in all cases being against the company.” Civil Code (1910), § 2780.

2. When considered in the light of the whole charge of the court, the excerpts complained of are not erroneous.

3. ' The charge of the court fully covered the issues in the case, and it was not error to refuse to give the requested instructions in the exact language of the requests.

Decided June 15, 1917.

Action for damages; from city court of . Greenville—Judge Eevill. November 11, 1916.

Brandon & Hynds, McLaughlin & Jones, Hatton Lovejoy, for plaintiff in error;

J. R. Terrell, J. F. Hatchett, M. Z. O’Neal, contra.

4. In view of the certificate of the trial judge in approving the grounds of the motion for a new trial, no error is shown in the admission of evidence.

5. Nothing appearing to show that the amount of the verdict is the result of gross mistake, undue bias, prejudice, or other corrupt motives, this court can not set the verdict aside upon the ground that it is excessive. Seaboard Air-Line Ry. v. Miller, 5 Ga. App. 402 (63 S. E. 299); Southern Bell Tel. Co. v. Davis, 12 Ga. App. 28, 39 (76 S. E. 786).

6. There was evidence to authorize the verdict and it has the approval of the trial judge, and, there being no other assignment of error which requires a new trial, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, 0. J., and George, J., concur.


author: Ceorge, J.

text:
    7986.
    Sammons v. Wilson.
    Decided June 15, 1917.
    Action for slander; from city court of Monroe—Judge Stone. September 20, 1916;
    J. H. Fdicer, Hal G. Nowell, for plaintiff in error.

      Walicer & Roberts, contra.
   Ceorge, J.

1. In a suit for slander, where only general damages were asked, and where no evidence was submitted upon the question of special damages, it was error to charge the jury that “Special damages are such as actually flowed from the act, and must be proved in order to be recovered.”

2. The following charge was likewise error, requiring a reversal; “In all eases necessary expenses consequent upon the injury done are a legitimate. item in the estimate of damages.” No such damages were claimed, and there is not a scintilla of evidence on the subject in the present record. Indeed, neeessáry expenses consequent upon the injury done are legitimate items of damage in personal injury cases only, and the rule is entirely inapplicable in a slander1 suit.

.3. It is unnecessary to make any decision upon assignments of error contained in the several grounds of the motion for new trial not dealt with above, since the errors therein complained of will hardly occur upon another trial of the ease.

Judgment reversed.

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


text:
    7991.
    Garner v. Souders.
    Decided June 15, 1917.
    Action for damages; from city court of Atlanta—Judge Reid. October 13, 1916.
    • Moore & Branch, for plaintiff. Dodd & Dodd, for defendant.
   Wade, C. J.

Even if it be conceded that there was enough evidence as to the identity of the chauffeur in charge of the car at the time of the injury to the plaintiff to carry that question to the jury, it definitely appeared that he was then operating the car contrary to the express direction of the master (the defendant), and not in connection with any business of the latter, but wholly for his own private use and purposes. The trial judge therefore did not err in directing a verdict in favor of the master. See Fielder v. Davison, 139 Ga. 509, 512 (77 S. E. 618).

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8015.
    DOWNING COMPANY v. PEARSON BANKING COMPANY.
    1. A drawee who has paid a draft to which forged bills of lading were at taehed has no recourse against a bank which had discounted the draft in the ordinary course of business and without knowledge of the fraud.
    2. A bank, in cashing a draft, without notice or suspicion of wrong-doing, does not warrant to the acceptor bills of lading attached to the draft.
    3. The indorsement by a bank of the words, “All prior indorsements guaranteed, pay any bank dr banker, or order,” entered upon a draft to which forged hills of lading 'are attached but which contains no reference to them, implies no guarantee of the genuineness of the bills of lading.
    Decided June 15, 1917.
    Action for damages, etc.; from city court of Douglas—Judge Bryan. November 20, 1916.
    The petition of the Downing Company alleged that the Pearson Banking Company, a corporation, had injured and damaged plaintiff in the sum of $235, by reason of the following facts: that on May 3, 1909, a draft for $235, purporting to have been drawn by the Douglas Naval Stores Company, by E. E. Fisher, upon the petitioner as drawee, was cashed by the defendant bank and transferred to the 'defendant by Fisher; that attached to the draft were what purported to be two bills of lading issued by the Atlanta, Birmingham & Atlantic Railroad Company, one for thirty barrels of rosin, and the other for twenty casks of spirits of turpentine; that the defendant bank indorsed the draft, and in due time it was presented to petitioner, and by petitioner paid; that the two bills of lading attached to the draft were forged and altered, and that petitioner paid the draft in ignorance of this fact; that there was nothing upon the bills of lading or the draft to indicate or suggest the forgery or to put petitioner upon notice thereof, but, on the contrary, they appeared on their face to be regular, and the supposed fact of regularity was completely evidenced to petitioner by the fact that the defendant, a reputable banking company, had duly indorsed the draft to which the bills were attached; that petitioner, after payment of the draft, waited a reasonable length of time for delivery to it of the naval stores specified in the bills of lading, and promptly, on June 1, 1910, on learning that the bills of lading were forgeries, notified the defendant of the forgery and demanded the return of the money paid on the draft; that petitioner paid the draft without consideration, and that, by reason of the negligence of the defendant bank, it was misled into believing that the bills of lading were genuine. The petition further alleged that the defendant bank was negligent in failing to require identification of the person presenting the draft, and in failing to use any diligence in endeavoring to ascertain whether there was such a concern as the Douglas Naval Stores Company, and whether Fisher had authority to draw the draft in the name of the said concein; that reasonable diligence on the part of the defendant bank would have disclosed the fraud in the purported bills of lading and in the draft, and would have shown that Fisher had no right to sign the draft in the name of the Douglas Naval Stores Company, that there was no such concern as the Douglas Naval Stores Company at that time in Coffee county, Georgia, and that the bills of lading were forgeries. The tenth paragraph of the petition is as follows: “Petitioner relied wholly upon the bills of lading attached to said draft for the value of said draft, and said draft would not have been paid at all except for said bill's of lading attached.” The suit is for the recovery of money paid under mistake of fact as to the genuineness of the bills of lading, for recovery of money improperly had and received by the defendant bank, and for negligence on the part of the bank in receiving, discounting, and sending forward under its indorsement the draft to which the forged bills of lading were attached. The petition was held bad, on general demurrer, and the Downing Company excepted.

      Dickerson, Kelley & Roberts, Benneb, Twitty & Reese, for plaintiff. J. W. Quincey, B. T. Allen, for defendant.
   George, J.

(After stating the foregoing -factsl) The question for determination in this case would be without difficulty except for the inferential allegation in the petition, that Fisher was wanting in authority to draw the draft in the name of the Douglas Naval Stores Company. The petition does not aver that the party actually drawing the draft was other than E. F. Fisher, nor does it distinctly and unequivocally allege that Fisher did not have authority to draw the draft in the name of Douglas Naval Stores Company. Construing the petition most strongly against the plaintiff in error, the charge is that the Douglas Naval Stores Company was not a going concern in Coffee' county at the time of the drawing of the draft. The petition alleges that the Douglas Naval Stores Company had been, prior to the date of the draft, engaged in business in Coffee county. It is not averred that the bank knew that the naval stores company had discontinued its business. We think it fair to conclude that the petition does not set forth a cause of action, or claim any damages for failure of authority in E. F. Fisher to draw the draft in the name of the Douglas Naval Stores Company. Indeed, the whole action is one of negligence, and proceeds upon the theory that the bills of lading were forgeries, and that the bank was negligent in failing to discover this fact before accepting and cashing the draft and causing it to be presented to the plaintiff. We have reached this conclusion because the plaintiff did not see fit to aver distinctly that Fisher acted without authority in drawing the draft in the name of the Naval Stores Company, and because it is not alleged that the plaintiff lost anything by reason of the fact that the Douglas Naval Stores Company was not bound by the act of Fisher in executing the draft. Indeed, the draft itself was genuine. Whether it was signed in the real name of the drawer is immaterial. It was signed by Fisher, in such name as he elected to use, and that fact sufficed to establish his legal relations to it and to the parties with whom he dealt. Conceding the petition to charge ' that the draft was in fact drawn by Fisher, and that he was bound thereby, and th.at the Douglas Naval Stores Company, whether a mere trade name used by Fisher, a copartnership, or a corporation, was also bound thereby, we come to a consideration of the real facts set out in the petition.

Does a bank, in discounting a draft, without notice or knowledge of wrong-doing on the part of the drawer, warrant to the acceptor or drawee bills of lading attached thereto as security? In our opinion it does not. The business of banking could not be carried on safely, or at all, if banking institutions were held to be liable for frauds and forgeries with respect to collateral documents and transactions of which they are ignorant, or if their failure to inquire into and ascertain the genuineness and good faith of such matters were held to be actionable negligence. The negligence was on the part of the plaintiff. It was not bound either to accept or to pay the draft, and if it did accept or pay the draft, before the delivery of the naval stores described in the bills of lading, it did so at its own risk. As drawee it can not recover the money paid out by it upon the draft, as being without consideration, or as being money improperly had and received by the bank, or as money lost to it by reason of actionable negligence on the part of the bank in merely receiving and cashing a draft and sending it forward for collection. It is to he noted that the draft did not refer in any manner to the bills of lading attached thereto. The hank did not indorse the bills of lading. The bank merely indorsed the draft and in express language limited its liability to a guaranty that all prior indorsements were genuine. The general rule' is that a drawee who has paid drafts to which hills of lading or other collateral instruments were attached has no recourse against a bank which had discounted the drafts in the ordinary course of business and without knowledge of the fraud, and the petition in this ease does not allege knowledge on the part of the bank of fraud in the execution of the draft or of fraud in the attached collateral, nor does it allege any single fact within the knowledge of the bank from which such knowledge could legitimately he inferred. See 2 Michie on Banks and Banking, § 186, p. 1603; 3 Ruling Case Law, 616, § 244; Hoffman v. National City Bank, 79 U. S. (12 Wall.) 180-193 (20 L. ed. 366); Goetz v. Bank of Kansas, 119 U. S. 551-561 (7 Sup. Ct. 318, 30 L. ed. 515); Nebraska Hay & Grain Co. v. First National Bank, 78 Neb. 334 (110 N. W. 1019, 9 L. R. A. (N. S.) 251, 126 Am. St. R. 602). Nothing in this case is in conflict with the principle announced in Woods v. Colony Bank, 114 Ga. 683 (40 S. E. 720, 56 L. R. A. 929), and Yatesville Banking Co. v. Fourth National Bank, 10 Ga. App. 1 (72 S. E. 528). The court did not err in sustaining the demurrer.

Judgment affirmed.

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


text:
    8041.
    Seaboard Air-Line Railway v. Deal.
    Decided June 15, 1917.
    Action for damages; from McIntosh superior court—Judge Sheppard. August 31, 1916.

      Bolling Whitfield, for plaintiff in error.

      Charles M. Tyson, contra.
   Luke, J.

1. From the evidence in this ease it appears that the unmarried son of the plaintiff (a married woman) was earning about $600’ annually, and was living with the family composed of the father, the mother, and other children, and contributed to the common fund used for the support of the entire family (Augusta Railway Co. v. Glover, 92 Ga. 132 (6), 18 S. E. 406) ; and there was evidence authorizing the jury to find that he walked on the defendant’s line of railroad at night from the town of Townsend towards his home near Jones; that the way along the line of the railroad was used by pedestrians and had been so used for some time, and-was straight; that, without the engineer or fireman having discovered his presence, he was struck and killed by a train of cars operated by the defendant;' and that he was a licensee, and not a trespasser. Held: (a) The court, under the facts of the case, did not err in giving in charge to the jury sections 2779 and 2780 of the Civil Code (1910). (6) The question whether the deceased was in the exercise of ordinary care at the time of his death was solely for determination by the jury, (c) The plaintiff, if she was entitled to recover at all, was entitled to recover the full value of the life of the deceased as shown by the evidence.

2. The charge of the court is not subject to the criticisms urged, and, there being some evidence to authorize the verdict, it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    8042.
    Seaboard Air-Line Railway v. Middleton.
    Decided June 15, 1917.
    Action for damages; from Melntosb superior court—Judge Sheppard. August 31, 1916.

      Bolling Whitfield, for plaintiff in error.

      Osborne, Lawrence & Abrahams, contra.
   Wade, C. J.

There was evidence to authorize the inference, drawn by the jury, that the decedent was a licensee on the right of way of the railroad, and to warrant the conclusion that he was killed by the running of a train of the defendant company, and thus to create a presumption of negligence on the part of the defendant. Whether the deceased was in the exercise of ordinary care, and whether the presumption of negligence created by the killing was rebutted, were questions for the jury. The special grounds of the motion for a new trial merely amplify the general grounds. There was evidence to sustain the verdict, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., eoneur.


text:
    8091.
    ATLANTA NORTHERN RAILWAY COMPANY v. BROWN.
    1. The section of the code which provides that “where any suit is instituted or defended by a corporation, the- opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation” (Civil Code, § 5858, subsection 3) did not apply to testimony of the plaintiff in a suit against a railway company, as to a conversation or transaction with a conductor employed by it, who subsequently died, where the defendant had introduced testimony of another employee, who was present at the time of the conversation or transaction, and who testified as to what occurred, although the employee who testified was ' not actually engaged in the furtherance of the defendant’s business at the time of the occurrence in question.
    2. The evidence authorized the verdict.
    Decided June 15, 1917.
    Action for damages; from Cobb superior court—Judge Patterson. April 15, 1916.
    The action was for damages on account of. ejection from a car of the railway company and an assault by the conductor of the car. The conductor was dead at the time of the trial. After testimony as to what occurred between the plaintiff and the conductor. had been given in behalf of the defendant by a motorman in its employment, who testified that on the occasion in question he was riding in the* car as a passenger, on the way to his home from his work, and had no connection with that car, the court, over the objection of the defendant, allowed the plaintiff to testify as to what passed between the conductor and himself at the time of the ejection and assault; the defendant objecting on the ground that under the Civil Code (1910), § 5858, subsection 3, the plaintiff was not a competent witness in his own behalf as to transactions or communications with the deceased conductor. The trial resulted in a verdict against the defendant for $500, and in its motion for a new trial, the refusal of which was assigned as error, it alleged that the verdict was unsupported by evidence, and that the court erred in admitting the plaintiff’s testimony referred to above.

      Colquitt & Conyers, for plaintiff in error.

      N. A. Morris, Anderson & Roberts, J. E. Mozley, contra.
   Wade, C. J.

“Where any suit is instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation.” Civil Code (1910), § 5858 (3). In construing this section this court has held: “Besides the deceased agent of the corporation, there must be some other person present, related in some way to the corporation, before the opposite party will be competent to testify 'to transactions or communications had with such agent. The mere presence of a stranger, who was in no wise concerned or interested for the corporation in regard to the matter concerning which the transactions or communications were had with the deceased agent of the corporation, would not make the evidence of the survivor admissible in reference to such transactions or communications.” New Ware Furniture Co. v. Reynolds, 16 Ga. App. 19 (2) (84 S. E. 491). See also Augusta Naval Stores Co. v. Forlaw, 133 Ga. 138, 149 (65 S. E. 370); Register v. Aultman & Taylor Co., 106 Ga. 331, 332 (32 S. E. 116); Merchants National Bank of Savannah v. Demere, 92 Ga. 735 (4), 740 (19 S. E. 38); American Harrow Co. v. Dolvin, 119 Ga. 186 (45 S. E. 983). Testimony from the plaintiff as to a transaction and conversation solely with W. C. Lindsey, since deceased, as agent for the Atlanta Northern Bailway Company, was competent, since it was shown that the transaction and conversation were had in the presence of another person, then employed by the corporation, and therefore connected with, concerned, and interested for the corporation in regard to the transaction had with the deceased agent of the corporation, and who was in fact introduced as a witness in behalf of the corporation and was competent to testify as to the identical conversation and transaction. Although the witness in whose presence the transaction and conversation between the plaintiff and the deceased agent of the corporation occurred, and who was then in its employ, was not actually engaged in the furtherance of the corporation’s business at the precise time of the transaction and conversation, he was nevertheless such a person as "would be interested to remember what occurred favorably to the corporation; could aid the corporation to develop the whole truth, and to expose mistakes and misstatements.” American Harrow Co. v. Dolvin, supra.

The evidence authorized the verdict, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Wade, O. J.

text:
    8098.
    Western and Atlantic Railroad Company v. Carlock.
   Wade, O. J.

1. The court erred in charging the jury as to the presumption against a carrier arising upon proof of damage occasioned by the running of its cars or by any person in its employment. This being a case in which the defendant admitted a technical breach of a contractual duty, and consequent liability for nominal damages, and no actual damage being alleged in the plaintiff’s petition, there was no issue as-to the defendant’s negligence. “For this reason, the provisions of the Civil Code (1910), § 2780, relating to the presumption of negligence against the carrier when a person is injured by the running of cars, trains, or other machinery, were wholly inapplicable. Ga. Ry. & El. Co. v. McAllister, 126 Ga. 447 (54 S. E. 957, 71 L. R. A. (N. S.) 1777). Indeed, it is difficult to see how the provisions of this section of the code could be applicable in any case where the sole claim of negligence is that the plaintiff was carried beyond his station.” Southern Ry. Co. v. Cartledge, 10 Ga. App. 523, 526 ( 73 S. E. 703).

2. “In an action instituted for the recovery of damages for the commission of a mere negligent tort which involves no actual physical invasion of one’s rights of person or property, but which consists in the omission to perform a private duty, springing out of the relation of carrier and passenger, the breach of which results in damage to the person to whom ' that duty is owing, the law of trespass is not involved; and it is therefore error in such a case for the trial judge to give in charge to the jury that portion of section 3906 of the Civil Code [of 1895, Code of 1910, § 4503] which provides as follows: ‘either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff;’ but upon the trial of such a case it is proper to give in charge to the jury that portion of the section of the code above referred to which precedes the words above quoted.” Southern Ry. Co. v. Harden, 101 Ga. 263 (28 S. E. 847).

Decided June 15, 1917.

Action for damages; from Catoosa superior court—Judge Fite. January 11, 1916.

Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error. J. E. Rosser, R. W. Crenshaw, contra.

3. It is insisted that the court erred in charging the jury that “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; and in such a case no measure of damages can be prescribed except the enlightened consciences of impartial jurors.” Neither the plaintiff’s petition nor the proof makes out a case for recovery of actual damages, and her right of recovery being entirely for injuries to her peace, happiness, or feelings, this part of charge is not subject to criticism.

4. The several other special grounds are either without any substantial merit, or are not insisted upon in plaintiff’s brief.

Judgment reversed.

George and Luhe, JJ., concur.


text:
    8135.
    Lamb, receiver, v. Sewell.
    Decided June 15, 1917.
    Action for damages; from Troup superior court—Judge Freeman. December 31, 1916.

      Hatton Lovejoy, for plaintiff in error.

      E. A. Jones, A. H. Thompson, contra.
   Wade, O. J.

1. The value of the opinion given in the plaintiff’s testimony as to the speed of the train which struck her, based upon the facts she stated, or the sufficiency or insufficiency of these facts to authorize the opinion given by the witness, was a matter to be determined by the jury; and the court did not err in admitting the testimony.

2. The requested instructions which the court declined to give 'to the jury were, so far as pertinent and legal, sufficiently covered by the charge of the court.

3. There is no substantial merit in any of the special grounds of the motion for a new trial; there was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    8145.
    Southern Railway Company v. Tiller.
    Decided June 15, 1917.
    Action for damages; from Monroe superior court—Judge Searcy. June 10, 1916.

      Harris, Harris & Witman, for plaintiff in error.

      Persons & Persons, contra.
   Wade, C. J.

1. Under the facts of this ease the switch-yard doctrine was inapplicable; the deceased was not a trespasser, but a licensee; a presumption of negligence was created upon proof of the killing by the running of the cars of the defendant company; the court did not err in admitting evidence as to a rule of the railroad company, intended primarily to safeguard employees, the existence of which illustrated, nevertheless, the negligent and dangerous character of the operation known as a “flying switch,” that caused the death of the plaintiff’s husband (the rule prohibiting “flying switches” where avoidable, and requiring that where unavoidable they shall be made with all the care necessary to prevent accident). Whether or not the deceased was in the exercise of ordinary care at the time of the injury by the cars was solely for determination by the jury.

2. There was no error in overruling the defendant’s demurrers, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

George and LuJce, JJ., concur.