text:
    8656.
    CUTHBERT ICE COMPANY v. YORK MANUFACTURING COMPANY.
    1. Under the facts of the case, as disclosed hy the pleadings, the court did not err in sustaining the demurrer interposed to the defendant’s original plea and answer, and in striking the 4th, 5th, 6th, 7th, 8th, 9th, and 10th paragraphs thereof. It was likewise not error for the court to sustain the demurrer to the amended plea and answer of the defendant and to strike the entire amended answer. Neither the original nor the amended answer set out any valid legal defense to the suit.
    2. The exception to the judgment overruling the defendant’s demurrer to the amended petition, not having been referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.

      3. The court did not err in directing a verdict against the defendant for the full amount sued for, including attorney’s fees.

      (a) Although the defendant in its answer denied having received the statutory notice necessary to bind it for the payment of attorney’s fees, and although the giving of such notice was not shown by the proof, the conduct of counsel for the defendant, upon the trial, was such as to estop him from raising this question thereafter.
    Decided July 26, 1917.
    Complaint; from Iiandolph.-superior court—Judge Worrill. November 6, 1916.
    Machinery for an ice manufacturing plant was sold by the York Manufacturing Company to the Cuthbert Ice Manufacturing Company under a written contract made in December, 1911, and, after installation of the machinery, the purchaser gave purchase-money notes, dated in June, 1912, and due in December, 1912. ■ This suit was based on renewal notes given on the date of maturity of the original notes. The written contract of December, 1911, warranted, under certain conditions, the workmanship and material of the plant for one year, and that it would have a capacity for making 15 tons of ice per.day of 24 hours, and provided as follows: “If for a period of 30 days after the machinery, apparatus, or plant furnished hereunder is erected ready to charge, the purchaser shall fail to notify the York Manufacturing Company in writing of any claim that the said machinery, apparatus, or plant as furnished does not fulfill the terms and requirements of the contract, specifying in what particular or particulars it fails, this shall in itself be considered an acknowledgment by the purchaser that the said machinery, apparatus, or plant as furnished does fulfill the said terms and requirements, and shall constitute a complete acceptance of the same as fulfilling all the terms and requirements of the contract.” The defendant, in its orignial answer (paragraphs 4 to 10 inclusive), alleged, that the plant and equipment for which the notes sued on were given were installed and delivered in April, 1912, under the warranty that when installed the plant would manufacture on a continuous run 15 tons of ice per day of 24 hours, hut in fact it did not and could not . manufacture more than 12% tons per day of 24 hours on a continuous run; that the boiler furnished as a part of the equipment was of insufficient capacity, and the plant was otherwise not capable of manufacturing the warranted tonnage of ice, because of the insufficient number of brine and condensing coils; and that in consequence of this lack of capacity to manufacture the warranted output, the defendant suffered loss and damage, to an extent specified, and it prayed judgment against the plaintiff in a stated sum. The court, on demurrer, struck these paragraphs of the answer. In the demurrer it was contended that no defense was set up therein, for the reason that it was not shown that the defendant complied with the contract by giving the written notice of defects within the time specified in the contract; that it was not shown that the defendant did not know of the alleged defects at the time the notes sued on were given; and that the alleged damages were remote, speculative, uncertain, and indefinite.
    By amendment the defendant repeated substantially the stricken paragraphs and further pleaded as follows: “Defendant is not .estopped to raise the defense hereinbefore set forth because of its failure to give plaintiff 30 days written notice that said plant and equipment as furnished did not fulfill the requirements and terms of. said contract; . . for the reason that said provision of said contract is and was unreasonable and impossible of performance by defendant, for the reason that said plant and equipment was installed and delivered to defendant at a season of the year when the weather was cool and of such temperature as to enable said plant and equipment to manufacture the warranted tonnage of ice for a greater period than 30 days from the installation and initial operation of said plant. Defendant further shows that as the summer season advanced, and under a higher temperature, said plant and equipment, under repeated tests and usage, developed an incapacity to manufacture and produce its warranted tonnage of ice as aforesaid; and defendant, because of the facts alleged, was unable to discover, by the exercise of ordinary means'or diligence, within said period of 30 days, the defects now complained of. Defendant shows that under the terms of said contract said plant, including material and workmanship,- was guaranteed for a period of one year from its installation, notwithstanding the aforesaid provision of said contract requiring defendant to file with plaintiff written complaint of such defects within 30 days from the installation of said machinery. Defendant now knows and alleges that said plant and equipment, because of defective and insufficient material and workmanship, was never capacitated to produce and manufacture 24 [?] tons of ice per day of 24 hours on a continuous run, and gave plaintiff written notice as well as oral notice of said defects as soon as the same became known by defendant. . . Oral notice of said defects was given to a'representative of plaintiff, now unknown to defendant, who waived the terms of said written contract providing for the forfeiture of defendant’s right to raise said defense after said period of 30 days, by an inspection of said plant and equipment and.direction of certain changes to be made, alleged to be necessary to bring said plant up to its warranted capacity. . . The execution of said renewal notes sued on did not constitute a new contract between plaintiff and defendant, or deny to defendant the right to raise the defense herein set up, said renewal notes being executed by virtue of and as a part of said original contract.” The plaintiff’s demurrer was renewed as to the amendment to the answer, and the court struck the amendment.

      George H. Perry, for plaintiff in error, cited:

      McDaniel v. Mallary Brothers Machinery Co., 6 Ga. App. 848; Hill v. Western Union Telegraph Co., 85 Ga. 425; Arnold v. L. & N. R. Co., 4 Ga. App. 519, and cit.

      James W. Harris, contra, cited:

      Fay & Eagan Co. v. Dudley, 129 Ga. 314, 318; International Harvester Co. v. Dillon, 126 Ga. 672; McCormick Harvester Machine Co. v. Allison, 116 Ga. 445; City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464; Size-more v. Woolard, 3 Ga. App. 261 (2); Stimpson Computing Scale Co. v. Taylor, 4 Ga. App. 567 (2) ; Edison General Electric Co. v. Blount, 96 Ga. 272; Lunsford v. Malsby, 101 Ga. 39; American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254; Montfort v. Americus Guano Co., 108 Ga. 12; Harder v. Carter, 97 Ga. 273; 16 Cyc. 585 et seq.
   Broyles, P. J.

The third headnote (subdivision a) alone requires elaboration. This was a suit on two promissory notes, for principal, interest, and attorney’s fees. The petition alleged that the statutory notice as to the claim for attorney’s fees had been given. This allegation was denied by the defendant in its answer. As shown by the bill of exceptions, after the plaintiff closed its evidence (and no evidence showing the giving of such notice had been introduced), “the court inquired of plaintiff’s counsel if there was any claim to attorney’s fees in the suit, whereupon, plaintiffs counsel announced in his place that there was and that he had served defendants with written notice of suit for the purpose of binding defendants in the payment of attorney’s fees, such statement not being made under oath by plaintiffs counsel as a witness in said case.” Upon this point is the following note of the trial judge, embodied in and made a part of the bill of exceptions: “The court also asked plaintiffs counsel if the petition alleged that notice of the claim of attorney’s fees had been given defendant before suit as required by the statute. Counsel for plaintiff answered that it had. The court then asked if defendant had denied such allegation in its answer, to whifch plaintiffs counsel answered that it had not. All this occurred in the presence and hearing of defendant’s counsel, who knew the court was under the impression that there existed no issue about attorney’s fees and who said nothing to the contrary, when the court stated that inasmuch as no contested issue was left, a verdict would be directed, and the court did then direct a verdict for plaintiff. If counsel for defendant had notified the court that such issue was contested and that he desired to be heard on it, the court would have allowed it. The court thought defendant’s counsel assented to the correctness of the statement of counsel for plaintiff.”

In the light of this note of the trial judge we think it was clearly the duty of counsel for the - defendant, under the circumtsances narrated, to speak up and notify the court that the defendant had in its answer denied receiving the notice as to attorney’s fees. An attorney in a case is not only the champion of his client, but is also an officer of the court, and the obligation rests upon him during the trial of the case to assist the court, and to furnish to it all the' light possible. His duty is not only not actively to deceive the court as to any fact of the case, but, if possible, not to permit opposing counsel to do so. It appears in this case that the court, in seeking information as to an important fact, called upon counsel for the plaintiff for enlightenment, and that such counsel inadvertently misled the court by giving erroneous information, and that counsel for the defendant, knowing this and himself having the correct information, instead of giving it to the court, remained silent and allowed the court to be deceived. We think such conduct of counsel estopped him, in good conscience and equity, from taking advantage of such an error. Fraud amounting to an estoppel may be committed by silence. Civil Code (1910), § 4419. As was said by this court in National Duck Mills v. Catlin, 10 Ga. App. 246 (73 S. E. 421) : “The general rule of estoppel by silent acquiescence . . has been of long standing, and has received repeated recognition from the highest courts of this State.” Acquiescence or silence, when the circumstances require an answer, or other conduct, may amount to an admission. Civil Code (1910), § 5782. “Estoppel by silence arises where a person who by force of circumstances is under a duty to speak refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice.” 16 Cyc. 681. “Negligent silence may work an estoppel as effectually as an express representation.” Tobias v. Morris, 126 Ala. 535, 551 (28 So. 517). “It is a just and well-recognized principle, that ‘He who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to keep silent.’” Harris v. American Building etc. Association, 122 Ala. 545, 554 (25 So. 200). “Silence is a species of conduct and constitutes an implied representation of the existence of the state of facts in question, and the estoppel is accordingly a species of estoppel by misrepresentation.” 16 Cyc. 181, note 10. “An equitable estoppel arises upon a state of facts which -renders its application in the protection of rights equitable and just.” 16 Cyc. 682. In later cases the wisdom and justice of the principle of estoppel in pais, or equitable estoppel, are fully recognized, and the common saying in the earlier reports that estoppels are odious and are not favored in law is no longer approved. 16 Cyc. 683, 684.

In the instant case, when counsel for the defendant,, who was an officer of the court, by his silence allowed the court to believe erroneously that the giving of the notice as to attorney’s fees had not been denied by the defendant, and that there was no issue on this point, he was, in our judgment, estopped by this conduct from raising this- question after the direction of the verdict against his client. While it vites considered necessary, in elaborating our ruling, to comment plainly and forcibly on such conduct, it was not intended as a harsh or severe criticism of one who, we doubt not, believed he was entirely within his legal rights, under the circ-umstances, in remaining silent. The ugly-sounding word “fraud” is of course herein used in its legal sense only.

Under the peculiar facts of this case the plaintiff in error will not be heard to complain that the court directed a verdict against it for the attorney’s fees.

Judgment -affirmed.

Jenkins and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8696.
    Millen Hotel Company v. First National Bank of Millen.
   Broyles, P. J.

1. The allegation that the defendant “has been notified of this suit, and if same is not paid by 30 day of March, 1916, 10 per cent, attorney’s fees will be due,” is insufficient to show that before suit the defendant was given the ten-days notice in writing of the intention to sue, and of the term of the court to which the suit would be brought, as required by the statute (Civil Code of 1910, § 4252), where suit is brought on a note, for principal, interest, and attorney’s fees; and the timely special demurrer to this paragraph of the petition should have been sustained and the paragraph stricken unless properly amended.

2. The exceptions to the overruling of the other grounds of the demurrer to the petition, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

3. At the appearance term of the court the defendant filed its answer, in which it admitted the execution of the note sued upon, but denied all the other allegations of the petition, and further pleaded that the note sued upon was not past due, as alleged in the petition, for the reason that, for a valuable consideration, to wit, $1,600, the plaintiff contracted to extend the time of payment of the note until November 1, 1916, but that after receiving this consideration it refus'ed to so'extend the time of payment, and failed to return to defendant the money paid as consideration therefor. The suit was brought to the Aprilquarterly term of the court, to be held on the third Monday in April, 1916. This answer was not attacked at the appearance term, either by demurrer or by motion to strike. At the trial term the defendant offered an amendment to strike from this answer the paragraph which admitted the execution of the note, and substitute in its place the plea of non est factum. The plea of non est factum may be filed as an amendment to the original plea after the first term, provided there is enough in the original plea to amend by. Stanton v. Burge, 34 Ga. 435; Cahn v. Newhouse, 60 Ga. 51; Hayden v. Atlanta Cotton Factory, 61 Ga. 234 (3); City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464, 468 (65 S. E. 315); Connor v. Hodges, 7 Ga. App. 153 (6) (66 S. E. 546). Since the pleading act of 1893 (Acts 1893, p. 56), it has been uniformly held that an answer amounting to no more than the plea of the general issue, when attacked at the appearance term by demurrer or a motion to strike, is not sufficient to support an amendment offered at the trial term. Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913). The plea in this case, however, amounted to more than the general issue, and, moreover, was not attacked in any manner at the appearance term. It was therefore sufficient to support the amendment offered at the trial term, and as the amendment was properly verified, in compliance with the Civil Code (1910), § 5640, the court erred in disallowing it.

Decided JulY 26, 1917.

Complaint; from city court of Millen—Judge Dekle. March 5, 1917.

O. G. Reynolds, for plaintiff in error. A. 8. Anderson, contra.

4. The above-mentioned errors of the court rendered the further proceedings in the case nugatory, and it is unnecessary to pass upon the motion for a new trial.

Judgment reversed.

Jenhins and Bloodworth, JJ., concur.


text:
    8710.
    AKERS BROTHERS et al. v. INTERNATIONAL SHOE COMPANY.
    1. Section 14 of the act establishing the city court of Ashburn (Acts 1906, p. 150), which provides that either party in a civil cause pending in that court shall be entitled to a jury trial, upon entering a demand therefor, “in all cases in which said party may be entitled to a jury trial under the constitution cmd laws of this State,” does not entitle a defendant in a cause to a trial by jury where under the pleadings no issuable defense is raised.
    2. “Where the only plea filed to a suit upon an unconditional contract in writing is partial payment, and the plaintiff thereupon amends his petition by admitting the facts set forth in such plea, and praying judgment for the balance due upon such contract, the effect of the amendment is to leave the case without any issuable defense,” and it is “not error for the court to enter up judgment in accordance with the amended prayer of the petition.” Purity lee Works V. Rountree, 104 Ga. 676 (30 S. E. 885). This principle applies also to a suit upon an open account.
    3. Under the foregoing rulings and the particular facts of this case, the court did not err in disposing of it at a regular monthly term, and in rendering judgment in favor of the plaintiff.
    Decided July 26, 1917.
    Rehearing denied Septembbr 25, 1917.
    Complaint; from city court of Ashburn—Judge Tipton. February 30, 1917.

      A, 8. Bussey, for plaintiffs in error, J, A, Comer, contra.
   Broyles, P. J.

This was an action upon an open account, and was returnable to the January term, 1917, of the city court of Ash-burn, which was a quarterly term. At that term the defendants filed their answer, which in effect amounted to a plea of partial payment; and demanded a jury trial—which, under the act creating the court (Acts 1906, p. 150), could be had at a quarterly term only. On February 20, 1917, during the regular monthly term, no jury being in attendance upon the court, the plaintiff had the case called by the court and placed on trial. At the same time the plaintiff amended its petition by admitting the facts set forth in the defendants’ plea, and praying judgment for the balance due upon the account. The defendants were present in court and objected to the case being put upon trial, contending that they had a right to a jury trial. The court overruled their objections, and passed the following order: “Plaintiffs having filed an amendment allowing defendants credits for items set up in said answer as items $2.09, $3.58, and $3.35, and said items being the only items set up in said answer, it is ordered by the court that the plaintiff International Shoe Co. (Friedman-Shelby Branch) do have and recover of the defendants the sum of $196.80 principal and $17.05 interest to date, and future interest at 7% per annum, and $-costs of court. This Feb. 20, 1917.” To this ruling and judgment the defendants excepted.

The case was returnable to a quarterly term, and, a demand for a jury trial having been made by the defendants, if there had been any issue of fact for a jury to pass upon, the case could have been legally disposed of at such a term only, and not at a monthly term. The pleadings, however, having eliminated any such issue, the defendants were not entitled to a trial by jury. Section 11 of the act creating the city court of Ashburn (Acts 1906, p. 150), as amended by section 1 of the act approved August 3, 1916 (Acts 1916, p. 197), provides that “at the monthly terms of said city court such matters may be disposed of as do not require a jury.” In our opinion the court did not err in disposing of the case at the monthly term (the defendants and their counsel being present), and in rendering judgment in favor of the plaintiff. This ruling is not contrary to the decision in Moore v. Citizens Bank of Ash

Judgment affirmed.

Jenkins and Bloodtvorth, JJ., concur.


text:
    8726.
    KIKER v. JONES.
    1. The relation of landlord and tenant is not established by a contract between an owner of land and another person that the owner is to furnish the land, stock, tools, and supplies to make a crop, and the other person is to do the labor and receive a part of the crop. A person employed to work for a part of the crop under such a contract is a cropper, and the title to the crop (subject to the interest of the cropper therein) and the possession of the land remain in the owner. Civil Code (1910), § 3707.
    2. Where a landowner brought an action of trover for certain cottonseed and bales of cotton grown ou his land by another person, and the evidence as to the contract under which the cotton was grown was the plaintiff’s testimony that he furnished the land, stock, tools, and supplies for the other party to make the crop, and the other party furnished the labor, and the plaintiff was to receive “as rent” a half of the cotton and two thirds of the corn and fodder, and that these were the terms on which he “rented” the land to the other party, it was error to grant a nonsuit on the ground that the evidence did not show that the relation of landlord and cropper existed between the parties. The legal relation of the parties is to be determined, not by the statement that the land was “rented,” or that the owner was to receive a part of the crop “as rent,” but by the entire contract; and the testimony tended to show that the legal relation of the party who did the work was that of “cropper.”
    Decided July 26, 1917.
    Trover; from Gordon, superior court—Judge Tarver, March 7, 1917.

      Starr & Paschall, for plaintiff, cited:
    Civil Code (1910), § 3707; Hancoclc v. Boggus, 111 Ga. 884-5 (2); Appling v. Odom, 46 Ga. 583; Thompson v. Passmore, 9 Ga. App. 771; 8 Michie’s Dig. Ga. R. 552; 12 Cyc. 979; Blitch v. Bdwards, 96 Ga. 608-10.

      F. A. Cantrell, A. L. Henson, for defendant, cited Thompson v. Passmore, supra.
   Broyles, P. J.

Where a landowner enters into a contract with •another person, by the terms of which the owner is to furnish the land, stock, tools, and supplies to make a crop, and the other person is to do the labor and receive a part of the crop so made, the legal relation which exists between them is thsft of landlord and cropper. Appling v. Odom, 46 Ga. 583; Hancock v. Boggus, 111 Ga. 884 (2) (36 S. E. 970). The person employed to work for a part of the crop under such a contract is a cropper, and '“the title to the crop, subject to the interest of the cropper therein, and the possession of the land, remain in the owner.”' Civil Code (1910), §§ 3707, 3705-6. In the present case the plaintiff sought to recover in trover certain cottonseed- and bales of cotton grown on his land by one Davis, and admitted to be -in the defendant’s possession. The plaintiff testified, that he furnished Davis “the land, stock, tools, and supplies for Davis to make a crop for the year 1915. All he furnished was the labor. I received one half of the cotton and two thirds of the corn and fodder. These were the terms on which I rented him the land.” In response to a question propounded by the court the plaintiff said-: “I rented Davis land on the terms above stated. I was to receive as rent one half of the cotton and two thirds of the corn and fodder.” On redirect examination the witness said, “I rented Davis land on the terms above stated.” His counsel then put the following question to him: “You furnished land, stock, tools, and supplies, and all he furnished was the labor?” He answered, “Yes.” This evidence of the plaintiff strongly tended to establish the relationship of landlord and cropper between himself and the other party to the contract. The fact that he testified that he “rented” the land to the other party was in the nature of a conclusion of the witness, and did not, in view of the rest of his evidence, conclusively show that the relation of landlord and tenant existed between himself and Davis. The facts stated in his testimony, that he furnished the land, stock, tools, and. supplies for the other party to make a crop, and that the latter furnished only the labor, tended to establish the relationship of landlord and cropper. The first great essential in the interpretation of a contract, whether written or-oral, is to arrive at what was. the real intention of the parties. It is not every contract which uses the word “rent,” by way of description of what is to be paid for the use of property, that creates, in the case of real estate, the relationship of landlord and tenant. To determine what the real status between the parties is, it is necessary to look behind mere technical terms used in the contract and gather from the entire contract what is the legal relation established between them. Blitch & Newton v. Edwards, 96 Ga. 606 (24 S. E. 147) ; Hays v. Jordan, 85 Ga. 747, 748 (11 S. E. 833, 9 L. R. A. 373).

It follows from what is said above that the trial judge erred in granting a nonsuit on the ground, stated in the bill of exceptions, that “the evidence did not show that the relation of landlord and cropper existed between Hiker and Davis.”

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


author: George, J. Luke, J.,

text:
    7692.
    METROPOLITAN LIFE INSURANCE COMPANY v. THOMPSON.
    1. Under the laws of Ihis State, a contract of insurance, fire or life, “to he binding, must be in writing; but delivery is not necessary if, in other respects, the contract is consummated.” Civil Code (1910), §§ 2470, 2499. “A contract of life insurance is consummated upon the unconditional written acceptance of the application for insurance by the company to which such application is made.” New Yorlc Life Ins. Co. v. Bdbcoclc, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134). “The receipt by an agent from his insurance company of a policy to be unconditionally delivered by him to the applicant is, in law, tantamount to a delivery to the insured, although the agent never parts with possession of the policy, and although its delivery to.the applicant is by contract made essential to its validity.” Id.

    2 “The manual delivery of the policy is not necessary where the policy has been issued by the company and simply retained by the agent for his individual protection until reimbursed by the insured.” Fireman’s Fund Ins. Go. V. Pehor, 106 Ga. 1 (31 S. E. 779) ; Mechanics’ & Traders’ Ins. Go. v. Mutual ctc. Asso., 98 Ga. 262 (25 S. E. 457).
    3. The actual payment in advance of the first premium upon a policy of life insurance is not necessary to the validity of the contract, unless the payment of the first premium is, by the express terms of the policy, or by necessary implication, made a condition precedent to any liability of the insurer on the contract.
    4. It follows from the above that, where the petition alleged, in effect, that the plaintiff was the beneficiary named in a life-insurance policy, that the insured made application to the local agent of the company for a policy of life insurance, that the applicant was examined by the company’s physician, and his application for insurance accepted by the company, that the policy of insurance was duly issued by the company and was actually forwarded and received by the local agent, who on the date of the death of the insured had it ready for delivery to him, but, after learning of his death by accident, refused to deliver it, and that on account of this refusal a copy of the contract was not attached to the petition, the petition set forth a cause of action, and was not demurrable upon the ground that it did not aver that the first premium had been paid, or that the policy was in force on the date of the dc-ath of the insured. The remaining grounds of the demurrer were likewise without merit. The court, od demurrer, could not determine that the contract was not in force at the time of the death of the insured, or that the payment of the first premium was a condition precedent to any liability of the insurer on the contract, no copy of the contract having been attached to the petition!
    5. The policy was introduced in evidence. By its terms the payment of the first weekly premium while the insured was alive and in sound health was made a condition precedent to the liability of the insurer. . under the contract, and it contained a further provision that the agent was without power to make, alter, or change any term of the contract. The policy, by its terms, did not require actual delivefy to the insured. The court charged the jury as follows: “If, as contended by the plaintiff in this case, the application was made by the insured, and he arranged with the insurance agent that the insurance agent was to pay the first premium, and he was to return it personally to the insurance ■ agent, and he sent in his application in that way, and you should find that the insurance agent reported to his company that it was paid— the first premium, and that thereupon his company issued the policy and forwarded it to the agent to be delivered to the insured, then that would be a binding insurance contract between that company and the assured.” Held, that this charge was error. It was not shown that the agent was a general agent of the company, but, under the undisputed evidence in the record, he was a special agent, with limited authority. His mere statement to his company, made in writing or otherwise, that the first premium had been paid, if in fact it had not been paid, did not, under the terms of the policy, alter that part of it by which the payment of the first weekly premium was made a condition precedent to the liability of the insurer. Reese v. fidelity Mutual Life Asso., Ill Ga. 482 (36 S. E. 637); Mutual Life Ins. Go. v. Olaney, 111 Ga. 865 (36 S. E. 944) ; Mutual Reserve Asso. V. Stephens, 115 Ga. 192 (41 S. E. 679); Brown V. Mutual Benefit Ins. Go., 131 Ga. 38 (61 S. E. 1123).
    6. The policy of insurance was dated October 11, 1915, but was executed by the company prior to that date, and on the 8th or 9th of the month was actually received by the local agent of the company for delivery to the insured. The insured was killed in an explosion at 8:15 o’clock a. m. on October 11, 1915. The contract provided that the company, “in consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree . . to pay, upon receipt of proofs of death of' the insured, . . the amount stipulated in said schedule. Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health; but should the proposed insured not be alive or not be in sound health on said date, any amount paid to the company as premiums shall be returned.” Held, that if a binding contract had been otherwise consummated, the time for the commencement of the risk had arrived when the insured met his death.
    7. The provision of the code that “a policy of life insurance runs from midday of the date of the policy, and the time must be estimated accordingly, if the policy is limited to a specified number of years” (Civil Code of 1910, § 2501), is not applicable where, as in this case, the parties to the contract make provision as to the time of the commencement of the risk. The provision of the policy that “no obligation is assumed by the company prior to the date hereof, nor unless on said date [italics ours] the insured is alive and in sound health,” protected the company from liability for the death of the insured at any time prior to the 11th day of October. . The date set for the obligation to begin was October 11th, and when that day began, the obligation began with it.
    8. If no time for the commencement of the risk is fixed in the contract of insurance, the provisions of code-section 2501, supra, are to be read into the policy as a term thereof, and the policy runs from midday of the date thereof. The policy of insurance in this case expressly provided against liability “prior to the date” of the policy, and (construing the policy most strongly against the company) fixed the commencement of the risk with the beginning of the day on which the policy went into effect.
    9. On account of the error in the charge quoted in the 5th headnote of this decision, the court erred in overruling the motion for a new trial. The further assignments of error, based upon the charge of the court, are without substantial merit. No opinion upon the sufficiency of the evidence is here expressed, since the ease is to be retried.
    Decided August 3, 1917.
    Action on insurance policy; from city court of Wayeross—Judge McDonald. May 37, 1916.

      Paries & Reed, for plaintiif in error.

      Parlcer & Parker, contra.
   George, J.

The ruling announced in the 5th headnote alone requires elaboration. The policy upon which this action was based contained the following provision: “This policy contains the entire agreement between the company and' the insured, and the holder and owner hereof. Its terms can not be changed or its conditions varied, except by a written agreement, signed by the president or secretary of the company. Therefore, agents (which term includes superintendents, deputy superintendents, and assistant superintendents) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures, or receive’ premiums on policies in arrears more than four weeks,” etc. The payment of the first weekly premium was made a condition precedent to any liability of the company under the contract. The evidence for the plaint!ffi disclosed that the local agent of the company approached her husband and asked him to take the policy of insurance, but he declined to do so, upon the ground that he did not have the money with which to pay the first premium. The agent agreed to advance the first premium for him, and to hold the policy until a time certain. It further appeared that the local agent, in submitting the application of the plaintiffs husband, stated to the company that the first weekly premium had been paid. It was not contended that the premium had in fact been paid, but the contention of the plaintiff was that her husband made an arrangement with the local agent by which the agent was to advance the first premium. It was not contended, but on the contrary was admitted, that no money had been paid directly by the applicant. The local agent, sworn as a witness for the defendant, denied the making of the agreement with the plaintiff’s husband, and testified that he was to obtain the policy for the applicant, who was to pay the first premium at the time of the delivery of the policy to him. This agent-further testified (and his evidence was undisputed) that the company usually and generally, and in this case, sent forward the policy with specific instructions not to deliver the policy until the agent had seen the applicant and had received the first premium in cash. It was not objected that the witness was incompetent to testify. Under the circumstances, the charge of the court, quoted in the 5th headnote, was clearly erroneous. The agent had no authority to alter a term of the contract. Payment of the first premium was a condition precedent to any liability of the company under the contract. The mere statement of the agent, made to his company, in writing or otherwise, was ineffectual to vary, change, or alter the terms of the contract. It would have been otherwise had the company accepted the obligation of the agent for the first premium. The company, under the evidence in the record, had no notice or knowledge of any such agreement, if any was in fact made by the agent with the applicant. The company, therefore, had the right to stand upon its contract, no term of which had been changed or waived by its authority. To allow a recovery, under the circumstances detailed in the charge of the court, would put it within the power of the local agents of every insurance company to defraud and ■ bankrupt the company, it matters not how careful the company may have been to protect itself by the express provisions of its contract. Under-the rule in this State, no .contractual relation with regard to the payment of the premium existed between the agent and the company; and until the company accepted the agent’s obligation for the first premium upon the policy, or until actual payment of the premium, no liability existed on the part of the company. Upon the sufficiency of the evidence we express no opinion. The whole effect of our ruling is that the charge of the court quoted in the 5th headnote required a reversal of the judgment. The judge therefore erred in overruling the motion for a new trial.

Judgment reversed.

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

Luke, J.,

dissenting. I do not agree to the ruling announced in the 5th headnote in this case. The charge of the court held to be error is as follows: “If, as contended by the plaintiff in this case, the application was made by the insured, and he arranged with the insurance agent that the insurance agent was to pay the first premium, and he was to return it personally to the insurance agent, and he sent in his application in that way, and you should find that the insurance agent reported to his company that it was paid—the first premium, and that thereupon his company issued the policy and forwarded it to the agent to be delivered to the insured, then that would be a binding insurance contract between that company and the assured.” The written statement of the agent who procured the application shows that the first weekly premium in cash had been collected by him and held by him for the company. The agent having in writing so instructed the company, and the company having issued and delivered the policy of insurance, the agent was bound to the company for the premium, and the evidence authorized the jury to find that the company accepted the obligation of the agent for the first week’s premium.

It is the opinion of the writer that the charge of the court was not error, and that the judgment of the trial court should not be reversed, but should be affirmed.


author: Luke, J.

text:
    7958.
    CITY COUNCIL OF AUGUSTA v. JACKSON.
    1. “The primary purpose of a street is for passage and travel, and any unauthorized and illegal obstruction of its free use comes within the definition of a nuisance; and such obstruction as would leave the street or way in an unsafe condition or impair its use in an unreasonable manner or for an unreasonable time would render the city liable for any damage resulting therefrom.” Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739); Rolins v. MoGehee, 127 Ga. 431 (2) (56 S. E. 461).
    2. “Without express legislative authority, a municipality can not grant to any person the right to erect or maintain a structure or obstruction in a public street.” Civil Code (1910), § 894.
    3. In the charter of the city of Augusta there is nothing that permits the city authorities to grant the use of its streets-for the operation of an enterprise of the nature indicated by the plaintiff’s petition. Especially are they powerless to grant to a carnival association the right to erect in a public street and maintain during the period of a week’s carnival a shooting gallery, which is to be operated for the amusement of the public and for profit to the owners, and in which revelers at the carnival are permitted to discharge deadly firearms, thereby endangering persons lawfully upon and using other streets or other parts of such ohsti’ueted street. City Council of Augusta v..Reynolds, 122 Ga. 754 (2) (50 S. E. 998, 69 L. R. A. 564, 106 Am. St. R. 147).
    4. Where it is shown that a city, through its officers who are charged with the supervision of its public streets, undertook without authority of law to grant the right to maintain a nuisance therein, it is not necessary to show that the city had notice of the condition of the street during any of the time that the nuisance was in operation, but such condition will be Held to have been bx-ought, about by the city itself, and the city is therefore charged with knowledge of the exact condition thus produced. Mayor &c. of Savannah v. Donnelly, 71 Ga. 258; City Council of Augusta v. Cone, 91 Ga. 714 (17 S. E. 1005) ; City of Rome v. Davis, 9 Ga. App. 62 (70 S. E. 594); Little v. Madison, 42 Wis. 643 (24 Am. St. R. 345).
    5. Where, in violation of the positive duty of a municipality to keep its streets in a reasonably safe condition for travel, its officers license or permit the use of a public street in such manner as to constitute a dangerous nuisance, and injury results to one of the public passing along the street, liability can not be avoided by the municipality on the ground that the licensing or allowance of such use of the street was illegal or ultra vires.
    6. The petition sets forth a cause of action, and the defendant’s special demurrer is without merit.
    Decided August 3, 1917.
    Action for damages; from city court of Biehmond county— Judge Black. October 17, 1916.

      C. Henry Cohen, for plaintiff in error.

      -T. F. Harrison, contra.
   Luke, J.

Sarah Jackson brought an action against the City Council of Augusta, to recover damages for the homicide of her son, Willie Jackson. In her petition it is alleged that the defendant granted a permit or license to a designated fraternal order to maintain and operate a street carnival in certain public streets of the city of Augusta, under which permit the enterprise occupied the space of 75 or 80 feet in one of the principal streets, and from 20 to 30 feet along the side-of another street, consisting, in part, of numerous tents, shows, and exhibitions, in front of which Avere stationed men blowing horns and talking through megaphones to attract attention, with various other stands, booths, and structures; a Ferris wheel, a merry-go-round, a shooting gallery, and other devices for the amusement of the public and the profit of the owners; that a shooting gallery was located at the intersection of Broad and Center streets, occupying a portion of both streets, having an obstruction at one end to prevent bullets from passing through, but having on its sides nothing but a white cloth to prevent bullets from being shot or deflected through the sides and injuring persons. lawfully upon and using other streets and other portions of Broad and Center streets; that on the last day of the carnival the deceased, a boy thirteen years of age, was walking along Center street, when suddenly, without warning or fault on his part, he was shot in the head by a rifle bullet discharged from one of the rifles used in connection with the said shooting gallery, the bullet being deflected from the faulty back-stop and through the canvas sides of the shooting gallery, inflicting upon the deceased a wound, from which he died on the sixth day thereafter. The plaintiff not only avers that the defendant expressly permitted an alleged enterprise to be put in operation, but also avers that the defendant then and there knew, and had sufficient opportunity to put it on notice, as to the existence of such dangerous shooting gallery. The other allegations of the plaintiff’s petition, dealing with the earning capacity of the deceased, her dependence upon him, his contribution to her support, and the statutory notice to the defendant of the plaintiff’s claim, are unimportant here. To this petition the defendant demurred both generally and specially; and, upon its demurrer being overruled, it excepted. The several grounds of special demurrer are but amplifications of the general demurrer, and amount to the contention that the' city was without authority of law to grant the alleged permit to obstruct its streets, that such act on its part was ultra vires and void, and that, for these reasons, “it could not be held responsible because a carnival company without legal authority from said city occupied said streets and maintained a shooting gallery.”

The headnotes, with the authorities therein cited, sufficiently cover every proposition involved in this case, except as to the defense of ultra Adres; and that defense, we think, has no application to a case of this character. This action is brought to recover damages resulting from the failure of the city to keep its streets in a reasonably safe condition for passage and travel. It is not based upon the theory that the carnival company had any legal right to obstruct any of the public streets in question, but rather upon the theory that the company did not have any such right. This case is not a proceeding to uphold in any way the unauthorized '•’'Hitraet or permit, but the sole legitimate purpose of the allegation that the city granted such a permit is to charge the defendant Avith knowledgé of the unsafe condition of the streets thus permitted to be caused as well as to exist. In other words, the plaintiff’s petition charges a double wrong on the part of the defendant city, namely, causing a public street to be put in a dangerous condition, and then knowingly permitting it to remain in such condition. It charges an act of commission as well as an omission, each of which is a violation of that duty imposed by law upon every municipality to keep its streets in a reasonably safe condition for passage and travel. Two wrongs can not make a right, especially as against a person who is himself without fault; nor will the defendant be heard to plead one of its wrongs as a defense to another.

Judgment affirmed.

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


author: Wade, C. J.

text:
    8103.
    Louisville & Nashville Railroad Co. v. Coatney.
   Wade, C. J.

1. There was no error in overruling the general and special demurrers to the plaintiff’s petition.

2. This ease proceeded under the employer’s liability act of Congress of April 22, 1908 (35 Stat. 65, Comp. St. 1916, §§ 8657-8665); and there was no presumption of negligence against the defendant, but there was some evidence from which negligence on the part of a coemployee of the plaintiff might be inferred, and this court is unable to hold, as a matter of law, either that the injury so clearly resulted from such a want of ordinary care on the part of the plaintiff as. would necessarily defeat his recovery (Thornton on Federal Employers’ Liability Act (3d ed.), 153, § 192), or else from a risk of his employment assumed by him. Under all the facts and circumstances in proof, these were questions for determination by the jury.

3. After a careful examination of the record and of each of the thirty-one grounds of the motion for a new trial, this court is of the opinion that there is no such substantial merit in any one or more of the special grounds as to require a reversal, and that there was sufficient evidence to authorize the verdict against the railroad company, and nothing to indicate that the amount of the verdict ($10,000), which is alleged to be excessive, was the result of bias.or prejudice on the part of the jury.

Decided August 3, 1917.

Action for damages; from Bartow superior court—Judge Fite. June 10, 1916.

D. W. Blair, J. M. Ned, for plaintiff in error.

Atkinson & Born, James B. Whitaker, contra.

■Judgment affirmed.

George and Luke, JJ., concur.


author: Wade,- C. J.

text:
    8380.
    LEE v. CONTINENTAL CASUALTY COMPANY.
    1. The provision of section 5197 of the Civil Code of 1910 that the answer to the writ of certiorari “shall not be written or. dictated by either of the parties, or their attorneys, or any other person interested in the case,” is mandatory.
    2. Where it appeared that the answer of a magistrate, merely adopting the allegations in the petition for certiorari, was prepared by one who had been the petitioner’s attorney in the same ease and had prepared a previous petition for certiorari therein, of which this petition was a renewal, though, at the time of preparing the answer, he was no longer of counsel and not interested in the result of the case, the trial judge erred in not striking the answer, upon objection thereto.
    Decided August 3, 1917.
    Certiorari; from Muscogee superior court—Judge Munro. December 23, 1916.

      Ed. Wohlwender, for plaintiff. J. L. Willis, for defendant.
   Wade,- C. J.

The bill of exceptions in this case recites the following facts: “The said case coming to be heard as aforesaid, and there being filed on November 29th, 1916, a motion by defendant in certiorari to strike and dismiss the answer filed by H. K. Gammon on September 1st, 1916, he having been the justice of the peace before whom said cause was tried and the verdict returned, and, before passing on said certiorari, his honor Geo. P. Munro heard the following evidence in support of said motion and against the same, which was as follows: 1st. It was admitted that a prior certiorari was filed in said cause and was dismissed on the 4th day .of March, 1916, because the answer of the justice of the peace was not filed at the term of court required by law, and that the petition in this cause was filed on July 18th, 1916, which was within six months after the dismissal of the former petition. 2d. H. K. Gammon, sworn in behalf of James A. Lee, defendant in certiorari, testified: fI was the justice of the peace before whom said case was tried, and I did not prepare the answer filed in this cause. When the former petition in this matter was in court I adopted the petition for my answer, but the answer filed herein was prepared by Judge John H. Lewis, and I did not read this petition, but Judge Lewis told me that the petition in this case was the same as the petition in the other case, and I then told him that I would adopt this petition for my answer and for him to prepare it for me, which he did, and I signed the same. I thought Judge Willis prepared my answer, and so told Mr. Wohlwender, but I now remember that Judge Lewis did it. It is true I did not read the petition in this case and I do not know what it contains, but Judge Lewis told me that it was the same as the other petition, which other petition I had read. At the time Judge Lewis wrote my answer he was judge of the municipal court of Columbus and did not have anything to do with the case. Nobody influenced me in making my answer in this case/

"Judge John H. Lewis, sworn in behalf of plaintiff in certiorari, testified as follows: *1 wrote the answer in this cause and Judge H. K. Gammon requested me to do so. I did not represent either side in the matter at the time, as I had become judge of the municipal court of Columbus and could not practice law. I represented the company in the original suit, and before the jury, and prepared the certiorari that was first filed in this cause, and which certiorari was dismissed after I quit the case, but I did not have anything to do with the present certiorari. I did tell Judge Gammon that the.petition in this cause contained the same as the former petition, and he then told me to write the answer as he would adopt the petition as his answer, which he did, and which answer .and affidavit I prepared for him. I was not at the time counsel in the case and was not interested in the same one way or another, as I had been paid and other counsel employed/ Judge. J. L. Willis, sworn in behalf of plaintiff: ‘I never saw the answer of H. K. Gammon in said case until this day. I had nothing to do with making the answer of said justice and never suggested to him how to make it, or what said answer should be/”

There was a motion to dismiss the answer to the certiorari, upon the ground that the answer was prepared by the attorney who represented the plaintiff in certiorari (the defendant in the trial court) when the case was tried before the justice of the peace and also before a jury in the justice’s, court, and who likewise prepared the first petition for certiorari; it being insisted that the said attorney was a party at interest, and therefore disqualified to. write the answer or dictate its contents. The motion to dismiss the answer was overruled, and this ruling was excepted to, and also the action of the judge in rendering final judgment for the plaintiff in certiorari. It appears from the record that the allegations in the previous petition for certiorari were identical with those made in the petition, under consideraton, and the answer of the magistrate was the same in both instances. The testimony of the learned judge to the effect that he was not engaged in the practice of law at the time he prepared the answer for the magistrate, and was not either of counsel in the case or interested in its results, is unquestioned. It therefore appears that probably no harm resulted to the defendant in certiorari on account of the fact that the answer-adopting the last petition was prepared by one who was attorney for the plaintiff in certiorari in the original trial of the case in the justice’s court, and in the preparation of a previous petition for certiorari which had been dismissed and of which the last petition was but .a renewal. Nevertheless, the provision of the code (Civil Code of 1910, § 5197) that the answer “shall not be written or. dictated by either of the parties, or their attorneys, or any other person interested in the cause,” is mandatory,, and if it were permissible for one formerly connected with a case as counsel for one of the parties to write or dictate the answer of the magistrate to a petition for certiorari therein, even after his connection with the case as counsel had been severed, it is apparent that he might and probably would, without intention perhaps, but subconsciously affected by the conception of the case and of its facts which he had acquired while acting as counsel, present in the answer prepared by him for the magistrate a biased and prejudiced account, instead of the fair and impartial representation contemplated by law.

Even where the answer amounts to no more than an adoption of the allegations in the petition for certiorari, or, going still further, even where an identical former petition (as in this case) has been adopted by the magistrate on his own motion, unaided by suggestion from any person, and the answer to the second petition for certiorari, which is prepared by one who was counsel for the plaintiff in certiorari in preparation of the original petition, merely itself adopts the allegations in the second and identical petition as true, the partisan view of the former counsel for the plaintiff in certiorari, naturally and properly prejudicing him to some extent in favor of his former client, may influence him, and through him the magistrate whose answer he prepares, in adopting the allegations in the second petition as correct. For it might be that upon examination of the second petition, even’ though identical with the first, which he had previously declared set forth the truth as to all occurrences at the trial, the magistrate, if acting alone and uninfluenced by the opinion or suggestion of any other person interested in the ease, would determine that he had been in error in adopting the original petition, and on careful scrutiny of the second and identical petition deny the truth of some of the allegations therein made, and thus present a different case for' decision in the superior court. We are loath to set aside the judgment of the superior court in this case, under the particular facts appearing, but, the provisions of section 5197 of the Civil Code being mandatory, and this section applying, as we believe, not only to parties or counsel then interested in the cause, but to parties and attorneys who have at any time been interested therein, we are constrained to hold that the judge of the superior court erred in declining to strike the answer of the magistrate, and in thereafter rendering final judgment.

Judgment reversed.

George and Luke, JJ., concur.


text:
    8423.
    Avery & Company v. Farmers Bank of Doerun.
   Wade, C. J.

1. The decision of the Supreme ’ Court on a former writ of error in this case (Farmers Bank of Doerun v. Avery, 145 Ga, 449, 89 S. E. 409) is the law of the case. It was then held “that upon the trial of the issue made where the vendor of the personalty filed a claim to the property levied on, the judgment lien had priority over the unrecorded conditional bill of sale, and that a verdict finding the property not subject was not authorized.”

(a). In the present case it appears that the contract embracing the reservation of title, executed in conformity with a prior agreement that the contract of sale should nottake effect until the signing of the retention-of-title note, was duly recorded within the time prescribed by law.

Decided August 3, 1917.

Levy and claim; from Colquitt superior court—Judge Thomas. December 19, 1916.

E. L. Bryan, for plaintiffs in error. J. L. Dowling, contra.

2. The evidence demanded a verdict in favor of the claimant, and the trial judge erred in overruling the motion for a new trial.

Judgment reversed,.

George and Luke, JJ., eoneur.


author: Geobge, J.

text:
    8764.
    City of Dublin v. Kea.
    Decided August 3, 1917.
    Action for damages; from Laurens superior court—Judge Kent. March 31, 1917.

      W. G. Davis, for plaintiff in error.

      8. P. New, G. B. Davis, contra.
   Geobge, J.

1. “Although municipal authorities may have plenary power in the matter of collection, removal, and disposition of garbage, yet they can not lawfully create, in connection therewith, a nuisance dangerous to health or life; and where such a nuisance is created and its effect is specially injurious to an individual by reason of its proximity to his home, he has a cause of action for damages. Bell v. Mayor etc. of Savannah, 139 Ga. 298 (77 S. E. 165).” Kea v. Gity of Dublin (this case), 145 Ga. 511 (89 S. E. 484).

2. The verdict of $850 in favor of the plaintiff is not without evidence to support it, and is not legally excessive. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Luke, J., eoneur.


author: Wade, O. J.

text:
    8774.
    Terrell v. The State.
    Decided August 3, 1917.
    Rehearing denied September 13, 1917.
    Indictment for cheating and swindling; from Gordon superior court—Judge Tarver. March 31, 1917.

      Maddox, McCamy & Shumate, Starr & Paschall, Ne'el & Neel, for plaintiff in error. J. M. Lang, solicitor-general, contra.
   Wade, O. J.

There is no substantial merit in any of the special assignments of error; and, there being some evidence to support all the material allegations in the indictment, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., eoneur.


text:
    8776.
    Innes v. The State.
    Decided August 3, 1917.
    Indictment for larceny after trust; from Fulton superior court— Judge Hill. April 14, 1917.

      C. L. Pettigrew, James K. Sines, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. B. Arnold, Sugh M. Dorsey, E. A. Stephens, contra.
   Wade, C. J.

1. Under the particular facts of this ease, and under the ruling of this court in Innes v. State, 19 Ga. App. 271 (91 S. E. 339), there is no substantial merit in the first six grounds of the amendment to the motion for a new trial, which complain of the admission of testimony.

2. There is no merit in the 7th and 8th grounds of the amendment to the . motion for a new trial, as the venue was sufficiently shown.

3. In the absence of a timely request in writing for more specific instructions as to the presumption of innocence in favor of the defendant, the charge as given (more especially when considered in connection with the charge as a whole) was a sufficient compliance with the well-established rule requiring instruction as to the presumption of innocence to be given in every criminal trial; and there is no merit in the 9th ground of the motion for a new trial.

4. The remaining special grounds of the motion for a new trial need not be dealt with, as they are without such substantial merit as to require a reversal of the judgment in this case. The evidence was sufficient to authorize the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luhe, JJ., concur.


author: George, J.

text:
    8785.
    KIRKPATRICK HARDWARE COMPANY v. HAMLET.
    1. Under the law of this State, “an action of assumpsit for money had and received will not lie, unless the property of the plaintiff has been converted into 'money, or that which is its equivalent; and the consumption of the property by the defendant is not sufficient to authorize this remedy.” Compare Spencer v. Eewett, 20 Ga. 426; Barlow v. Stalworth, 27 Ga. 517.
    2. “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action.” He can not in such a case waive the tort and sue upon an implied contract, “for the reason that, until the wrong-doer has received money [or that which is its equivalent] to which the owner of the property is entitled, there can be no . . implied promise to pay money.” Gragg Arendale, 113 Ga. 181 (4), 182 (38 S. E. 399); Southern Ry. Go. v. Born Sleel Range Go., 122 Ga. 658 (2)~ (50 S. E. 4S8) ; Woodruff v. Zaban, 133 Ga. 24 (65 S. E. 123, 134 Am. St. R. 186, 17 Ann. Cas. 974) ; Southern Ry. Go. v. Roberson, 136 Ga. 146 (71 S. E. 129) ; Cherokee Graphite cGc. Go. v. Gentral Ry. Go., 17 Ga. App. 52 (86 S. E. 258).
    3. A consumption of personal property wrongfully taken, winch results from the mere use of it, is not a conversion of it into money, or that which is its equivalent, under the law of this State. See Barlow V. Stalworth, supra.
    4. An exception to the general rule, recognized by the courts of this . State, arises where the property converted was acquired rightfully, or by virtue of a oontraet between the parties; in which case the tort may be waived and the owner may sue in assumpsit, even though the property has not been converted into cash, or that which is its equivalent, by the wrong-door. Compare Bates v. Bigby, 123 Ga. 727 (51 S. E. 717); Rhodes Furniture Go. v. Freeman, 2 Ga. App. 473 (58 S. E. 696).
    5. The Supreme Court has refused to overrule the decisions in Spencer V. Bewett, Barlow v. Stalworth, and Gragg V. Arendale, supra (see Wood-ruff v. Zaban, and Southern Ry. Co. v. Roberson, supra) ; and while the general rule obtaining in a majority of States may be a more reasonable ohe, this court is bound by the decisions of the Supreme Court. Nothing in Farmers &c. Bank v. Bennett, 120 Ga. 1012 (48 S. E. 398), Buchanan v. MeClaim, 110 Ga. 477 (35 S. E. 665), and Reynolds v. Padgett, 94 Ga. 347 (21 S. E. 570), is in conflict with the rule so firmly fixed in the law of this State. The statement by Justice Simmons in Reynolds V. Padgett, supra, refers to the general rule obtaining elsewhere.
    6. The present action is a suit upon an implied contract for the value of .personal property wrongfully taken and converted to the use of the defendant, otherwise than by a conversion of it into money or the equivalent of money; and the suit was properly dismissed upon demurrer. It follows that the appellate division of the municipal court of Atlanta erred in overruling the decision of the trial judge of that court, and the judge of the superior court erred in overruling the petition for certiorari, brought to review the judgment of the appellate division.
    Decided August 3, 1917.
    Certiorari; from Fulton superior court—Judge Bell. March 28, 191?.

      Nathan Coplan, for plaintiff in error.

      McClelland & McClelland, contra.
   George, J.

The basement under Hamlet’s barber-shop was occupied by the Kirkpatrick Hardware Company. In the basement was a large electric light, connected with the meter in Hamlet’s shop, and for several years the current for the light in the basement was supplied through his meter. In March, 1916, this fact was discovered, and Hamlet filed suit against the hardware company for the value of the current consumed during the four years preceding the filing of the suit. Counsel for the plaintiff properly characterized the action as “a suit upon an implied contract for the market value of the current consumed by the hardware company.” The judge of the municipal court of Atlanta, before whom the case was tried,, dismissed the petition upon demurrer. An appeal was taken to the appellate division of the municipal court, and the judgment of the trial judge reversed. A petition for certiorari was presented' to the judge of the superior court, and upon the hearing the judgment of the appellate division of the municipal court of Atlanta was affirmed. The Kirkpatrick Hardware Com- ■ pany excepted.

The rulings governing the case are stated in the headnotes.

Judgment reversed.

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


text:
    8808.
    Fullwood v. The State.
    Decided August 3, 1917.
    Indictment for felony—issue of insanity at time of trial; from Hancock superior court—Judge Park'. April 9, 1917.

      'John R. Cooper, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Wade, C. J.

1. The evidence amply sustained the verdict.

2. There is no merit in any of the special grounds of the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8844.
    Jackson v. The State.
    Decided August 3, 1917.
   Luke, J.

1. Upon the trial of one charged with rape the particulars of a complaint made- by the female are not admissible in behalf of the prosecution, unless the complaint be a part of the res gestae or the particulars of the complaint be shown upon cross-examination. Huey v. State, 7 Ga. App. 398 (66 S. E. 1023) ; Williams v. State, 15 Ga. App. 306 (82 S. E. 938). The court erred in overruling the motion for a new trial, because of the admission of such testimony.

2. If is unnecessary to consider the other grounds of the motion for a new trial, as it is not likely that the alleged errors will recur upon another trial'.

Judgment reversed.

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

Indictment for assault with intent to rape.; from Jasper superior court—Judge Park. April 16, 1917.

A. 8. Thurman, for plaintiff in error.

Doyle Campbell, solicitor-general, Greene F. Johnson, contra.


text:
    8871.
    Baker v. The State.
    Decided August 3, 1917.
    Accusation of misdemeanor; from city court of Savannah—■ Judge Rourke. May 1, 1917.

      Oliver & Oliver, for plaintiff in error.

      Walter 0. Hartridge, solicitor-general, contra.
   George, J.

1. The sixth count in the accusation under which the defendant was tried and convicted (omitting formal parts) is as follows: “The said Charles A Baker, in the county of Chatham and State of Georgia aforesaid, on the 29th day of August in the year of our Lord nineteen hundred and sixteen, did unlawfully have in his possession at one time more than two quarts of spirituous, liquors.” There was direct evidence that the defendant was in charge of a boat, loaded with more than 40 cases or boxes of whisky of all kinds, and that the boat was brought from Jacksonville, Florida, and anchored in the county of Chatham. There was sufficient evidence to authorize tne jury to find that the defense set up by the accused, to wit, that he was engaged to carry the cargo of whisky from Jacksonville, Fla., to an undesignated point in either South Carolina or North Carolina, and to an unnamed consignee, was a mere subterfuge. -The evidence was ample to support the verdict finding the accused guilty on the sixth count, and the „ourt did not err in overruling his motion for new trial.

2. The sentence imposed (which was within the statutory limit for a misdemeanor) was not legally excessive.

Judgment affirmed.

Wade, O. J., and Luke, J., eoneur.


text:
    8872.
    Taylor v. The State.
    Decided August 3, 1917.
   Luke, J.

There is no merit in the assignments of error on the admission of testimony, the charge of the court was full and fair and was not subject to the. assignments of error thereon, the evidence authorized the conviction of the accused, and the newly discovered evidence is not such as would be likely to produce a different verdict on another trial. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

Accusation of sale of liquor; from city court of Carrollton— Judge Beall. May 4, 1917.

E. T. Steed, James & Bedgood, for plaintiff in error.

Willis Smith, solicitor, contra.


text:
    8875.
    Holley v. The State.
    Decided August 3, 1917.
    Accusation of carrying concealed weapon; from city court of Fort Gaines—Judge Turnipseed. April 9, 1917.

      E. B. King, for plaintiff in error.

      P. C. King, solicitor, contra.
   Geobge, J.

1. The accused was tried before the court without the intervention of a jury, on an accusation charging him with the offense of carrying a concealed weapon. There was direct evidence of his guilt, and the court did not err in adjudging him guilty, nor in subsequently overruling his motion for a new trial, based upon the general grounds.

2. The special ground based upon alleged newly discovered evidence is without merit. No supporting affidavit was submitted to the court.

Judgment affirmed.

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


text:
    8893.
    Purtell v. The State.
    Decided August 3, 1917.
    Certiorari; from Fulton superior court—Judge Ellis. March 29, 1917.

      Felder <& Johnson, for plaintiff in error.

      John A. Boykin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, contra.
   Wade, O. J.

1. The evidence supported the verdict; and in the absence of any timely request in writing for fuller or more specific instructions, the charge of the court sufficiently covered the issues in the case; and there is no substantial merit in any of the assignments of error, when • considered in connection with the answer of the trial judge and with the brief of evidence.

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

Judgment affirmed.

George and Luke, JJ., concur..


author: Bloodworth, J.

text:
    8150.
    AVERY & COMPANY v. MIDDLEBROOKS.
    (The action being for principal, interest, and attorney’s fees on promissory notes, and the verdict being for a lump sum, without mention of principal, interest, or attorney's fees, and the amount of the verdict being much greater than the principal sued for, but less than the aggregate amount of the principal, interest, and attorney’s fees, or of the prin- ■ cipal and the interest, and not divisible or sustainable under any view of the pleadings or the evidence, the court erred in not granting the plaintiffs’ motion for a new trial, in which the verdict was complained . of on this ground.
    Decided August 3, 1917.
    Complaint; from Pike superior court—Judge Searcy. September 15, 1916.

      E. F. Dupree, Napier, Wright & Wood, for plaintiffs.

      Bedding & Lester, for defendant.
   Bloodworth, J.

Avery & Company brought suit against Mrs. Ella E. Middlebrooks and her husband, J. M. Middlebrooks, for the principal, interest, and stipulated attorney’s fees of 10 per cent., on four promissory notes, the aggregate principal of which' was $974.74, and the credits on which were $280.44. In addition to certain pleas which weTe disposed of by the decision of the Supreme Court in. this case, as reported in 142 Ga. 830 (83 S. E. 944), Mrs. Middlebrooks pleaded as follows: “Defendant says that she is not indebted or liable to plaintiff for attorney’s fees on • said notes. Nor is she liable to the plaintiff qn said notes. Defendant further says that the two notes for $265 each sued’ on she was only security on said notes, the same being the contract of her .•husband, J. M. Middlebrooks; that the same is not her contract, but the contract and debt of her husband, J. M. Middlebrooks. Defendant further says that the two notes for $222 each sued on she never signed, nor did she authorize any one to sign for her, that .-the-same is not .her-act-or deed,- and that she is not indebted.to the plaintiff on said notes.” In his plea J. M. Middlebrooks denied liability, denied that he was liable for attorney’s fees, and alleged that the plaintiffs received from him a certain • sawmill and machinery worth $1,000. In his testimony he said: • “Avery & Co. finally got the mill back. If he [they] gave me credit for it, I have never seen it. It was worth $1,000 when he [they] got it back.” On the trial the jury returned the following verdict: “We, the jury, find for the plaintiff against J. M. Middlebrooks, $1,-057.07. April 5; 1915. Wt E. Qresham, foreman.” In their TOOtion for a new trial the plaintiffs alleged: “The plaintiff sued for principal, interest, and attorney’s fees on four notes, and there was no controversy as to amounts, but the amount of the verdict is $1,057.07, whereas the correct amount should have been $665 principal, $526.80 interest to date of verdict, and $119.18 as attorney’s fees.”

The verdict in this case is for an amount far in excess of the principal sued for, and there is no mention of interest or attorney’s fees. If the verdict had designated a fixed amount as principal and a certain amount as interest, and the principal were larger than the amount sued for, it would be permissible for the excessive amount to be written off. Rockdale Paper Mills v. Stevens, 65 Ga. 380 (4). In addition to the above: Where the judgment is for one lump sum, including principal and interest, and the amount of each is definitely ascertainable, the finding may be upheld with direction to amend by separating principal and interest (Mitchell v. Henry Vogt Machine Co., 3 Ga. App. 542 (2), 60 S. E. 295), but in the instant ease the verdict is for such an amount as no statement of the facts and no view of them could sustain. It is therefore without evidence to support it, and must be set aside. Giles v. Spinks, 64 Ga. 205 (2); Georgia Railroad & Banking Co. v. Crawley, 87 Ga. 191 (13 S. E. 508); National Fowler Bank v. Burch, 6 Ga. App. 79 (64 S. E. 282).

As a new trial is to be granted for the reason stated above, it is unnecessary to discuss the other assignments of error.

Judgment reversed.

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


author: Jenkins, J.

text:
    8233.
    Vaughn et al. v. Farmers and Merchants Bank.
   Jenkins, J.

1. A demurrer should be determined before the ease is submitted, even though the demurrant and his counsel be absent without leave. Anderson v. Fulton County Home Builders, 147 Ga. 104 (92 S. E. 934). The record in the present case, however, in no wise discloses . that a demurrer was filed by the defendant, or that exception was taken on such ground, and therefore direction can not be given to the case on the principle of law above stated.

2. Where a plea of non est factum has been filed to a suit on a note, the instrument sued on can not be admitted in evidence until proof of its execution has been made. The plea filed in the present case, which alleges that the indorsement was not made in the words appearing in the indorsement on the note, and that the same was materially altered, but which fails to allege in what form the indorsement was made or what the alteration consisted of, and fails to show that the alteration was intentional and made with intent to defraud, by one claiming under the note, does not amount to a plea of non est factum, so as to require proof of the execution of the note. Jewell v. Walker, 109 Ga. 241, 245 (34 S. E. 337) ; Civil Code of 1910, § 4296; Burch v. Pope, 114 Ga. 334 (40 S. E. 227); Shirley v. Swafford, 119 Ga. 43 (45 S. E. 722) ; Winkles v. Guenther, 98 Ga. 472 (25 S. E. 527.) ; Bedgood-Howell Co. v. Moore, 123 Ga. 336 (51 S. E. 420).

Decided August 3, 1917.

Complaint; from Twiggs superior court-—Judge Kent. January 24, 1916.

Hal B. Wimberly, for plaintiffs in error. L. D. Moore, contra. ,

3. A verdict was rendered for the plaintiff, on direction of the court, on Thursday," January 13, 1916, of Twiggs superior court, in the absence of the sole counsel for defendant. The record does not disclose whether the defendant was present or not. Exceptions pendente lite were taken to the action of the court in ruling the case for trial under the follow-, ing facts: Leave of absence had been granted to counsel for defendant to attend the city court of Eastman, and the leave of absence was. to extend until Wednesday night, and longer if he should notify the court of his inability to return to said trial court. He did mail a letter to. the trial judge as to his inability to get to said trial court in time for-the trial of the case, but the notice did not reach the judge until after a- verdict and a judgment had been rendered in the case. It does not appear from the record that there was a motion to vacate the judg- - ment and reinstate the case. Held: No error was committed by the trial judge in ruling the case for trial at the time it was reached upon the docket; and this court is unable, under the exceptions taken, to rule as to whether the judgment should have been vacated and the case reinstated on a proper showing upon a motion made for that purpose. Sparks v. Ober & Sons Co., 138 Ga. 316 (75 S. E. 135).

Judgment affirmed.

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


text:
    8250.
    WILLIAMS et al. v. WESTERN AND ATLANTIC RAILROAD COMPANY.
    Under the evidence in this ease, even if it was erroneous to refuse to allow the amendment to the petition, the error was not harmful to the plain- • tiffs; and the court did not err either in granting a nonsuit or in refusing to reinstate the case.
    Decided August 3, 1917.
    On rehearing, September 28, 1917.
    . Action for damages; from Eulton superior court—Judge Ellis. September 30, 1915. , ;

      Westmoreland & Westmoreland, Alfred C. Broom, for plaintiffs.

      Tye, Peeples & Tye, for defendant.
   Bloodworth, J.

Chester A. Williams, nineteen years of age, was killed by an explosion at a power-plant of the Western & Atlantic Kailroad Company, by which he was employed at the time as what is known as a “maintainer.” The first suit for this homicide was brought by Mrs. Jennie L. Williams, mother of the deceased. Demurrer was filed and sustained. • . In that ease the Supreme Court (142 Ga. 696, 83 S. E. 525) held: “Where suit was brought by a mother for the homicide of her son by a common carrier by railroad, the deceased son having been an employee of the railroad,'and a demurrer was filed to the petition on the ground that the father was not joined with the mother and was a necessary party plaintiff to the action (there being no personal representation of the deceased) since the passage of the railway employers' liability act of 1909 (Civil Code (1910), § 2782), it was not error to sustain such demurrer.”

The second suit was brought by Mrs. Jennie L. Williams and C. L. Williams, based, as was the former suit, upon the act referred to above. In their petition they alleged that they were the mother and the. father of Chester A. Williams; and the last paragraph of the petition was as follows: “That the plaintiffs bring this suit against the defendant for the negligent homicide of their spn, as hereinbefore alleged, and sue for the full value of his life, and lay their damages at the sum of. fifty thousand dollars, for which they ask judgment against the defendant.” At the appearance term the defendant filed a plea denying liability. When the case was called for trial on the 28th day of September, 1915, the defendant amended its plea , by alleging that at the time of the death of Chester A. Williams it was a common carrier by railroad engaged in commerce between the State of Georgia, the State of Tennessee, and other States of the United States, and that at that time Chester A. Williams was employed by the defendant' and was also engaged in «uch commerce. The trial proceeded; and when the evidence for plaintiff was in, the defendant moved the court for a nonsuit, “on the ground that the plaintiff had failed to prove the cause of action set forth in the petition, the specific ground of said motion being that the cause of action set forth in the petition-was filed and prosecuted under the employers’ liability act of the State of Georgia, while evidence disclosed that the injury was sustained while both the defendant and the decedent were engaged in interstate commerce; and upon the further ground that the evidence disclosed that the defendant had not been shown guilty of any negligence which caused the death of decedent.” Thereupon the plaintiffs offered to amend their petition by so changing the title of said ' case that it would read, “Mrs. Jennie L. Williams and C. L. Williams, as administratrix and administrator of the estate of Chester A. Williams, deceased, v. Western & Atlantic Eailorad Company;” and by alleging that the plaintiffs were the duly appointed personal representatives of the estate of Chester A. Williams, and that as such they had qualified, and that “said Jennie L. Williams, mother, and C. L. Williams, father, of the intestate, are the sole beneficiaries;” and by striking from the 12th paragraph above quoted the words, “and sue for the full value of his life,” and substituting in lieu of the stricken allegation the following: “and sue for the pecuniary value of the life of the deceased.” The court refused to allow this amendment, and sustained a motion for nonsuit. The plaintiffs filed a bill of exceptions pendente lite, ■ covering the rulings of the court in refusing to allow the amendment and in granting the order of nonsuit.

On the 23d of October, 1915, during the term at which the non-suit was granted, the plaintiffs presented to the trial judge a petition to set aside the order disallowing the amendment and the order granting a nonsuit, and to reinstate the case. The court refused the motion to reinstate, in the following words: “In this case I seriously doubt whether after granting the nonsuit it is matter of discretion to set aside the order; but [I think] that the motion ought to be determined as matter of law, and I put my refusal to grant the motion on the question that under the law I ought to refuse it.” The refusal to allow the proffered amendment, the grant of nonsuit, and the refusal to reinstate the case are all before us for review.

Chester A. Williams at the time of his death was a “maintainer” at the yards of the defendant in Fulton county, Georgia. A part of the work of a “maintainer,” as shown by the evidence, was to. keep up the telephones that connected the towers in which the men who handled the switch-levers worked, and that were used for the purpose of giving the léverinen information as to-the movement of. trains; and to look after the repairs to switches, signals, and targets, “which control the movements of all trains running over those tracks.” The evidence.also shows that all the trains passing over the tracks where 'the decedent' was “maintainer,” including all that went out of and came into Georgia on the track of the defendant, and trains “operated over the N., C. & St. L. and L. & N. Railroads, are all operated by .those switches- and run over those tracks.” As it was shown (Shanks v. Delaware &c. R. Co., 239 U. S. 551, 36 Sup. Ct. 188, 60 L. ed. 436; Pedersen v. Delaware &c. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. ed. 1125, Ann. Cas. 1914C, 153; St. Louis &c. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. ed. 1129, Ann. Cas. 1914C, 156) that the deceased and the defendant, at the time of the homicide, were both engaged in interstate commerce, it is held:

1. That the cause of action, if any, arises under the Federal employers’ liability act, and under the petition as filed “the ease pleaded was not proven and the case proven was not pleaded,” and the court properly granted the nonsuit. Toledo, St. L. &c. R., Co. v. Slavin, 236 U. S. 454-456 (35 Sup. Ct. 306, 59 L. ed. 671); Eng v. Southern Pac. Co., 210 Fed. 92; St. Louis &c. Ry. Co. v. Seale, supra.

2. Granting' that the proffered amendment was sufficient to change the suit to one under the Federal statute, the refusal to allow the amendment was not harmful to the plaintiffs, because, with such amendment allowed and the case proceeding under the Federal statute, there would have been no presumption of negligence against the railroad company, arising upon proof of injury to' the employee; and as there was no substantive proof that the defendant was guilty of any act of negligence, the nonsuit was proper. L. & N. R. Co. v. Kemp, 140 Ga. 657 (79 S. E. 558). See also Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707, 41 L. ed. 1136); Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 36.1); Looney v. Metropolitan R. Co., 200 D. S. 480 (26 Sup. Ct. 303, 50 L. ed. 564); Stepanovich v. Pittsburg & Baltimore Coal Co., 218 Fed. 604 (134 C. C. A. 362).

’ 3. As the court did not err in granting the nonsuit, it nécessarily follows that there was no error in failing to reinstate the óase. .

Judgment affirmed.

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

ON REHEARING.

In preparing the original opinion in this case this court did not overlook any material fact in the record, or any decision “which is controlling as authority and which would require a different' judgment from-that rendered.” After thoroughly reviewing the evidence and the authorities cited in all the briefs on the case and examining many other authorities, we still think the opinion as originally written is correct.

In their briefs on the motion for rehearing the attorneys for the plaintiffs in error urge that the doctrine of res ipsa loquitur should be applied, and because of it the case should have been sent to the jury. In the case of the Southern Ry. Co. v. Derr, 240 Fed. 73, and which is cited by the plaintiffs in error, a distinction is drawn between the application of the maxim res ipsa loquitur in actions by passengers against carriers and its application in suits by injured employees. In that case the first and third headnotes are as follows: “1. Negligence can not be inferred merely from the fact of disaster; the burden being on plaintiff to establish by proof that negligence did exist.” “3. A case may not be submitted to the jury where there is at most only a balanced probability that actionable negligence existed. ” Circuit Judge Denison, in the opinion in that case, quotes from the opinion written by Judge Lurton in Cincinnati &c. Ry. Co. v. South Fork Coal Co., 139 Fed. 528, 532 (71 C. C. A. 316, 1 L. R. A. (N. S.) 533), in part as follows: “Manifestly a presumption of negligence does not arise upon mere evidence of an injury sustained. . . The maxim ‘res. ipsa loquitur’ does not, therefore, apply when the circumstances in evidence are of doubtful solution. . . In each action for a tortious injury the question as to what evidence will make a prima facie case of negligence and require an explanation from the defendant will depend upon the nature and circumstances of the injury and the measure of care due from the defendant.” Judge Denison then says: “Applying these principles to this case, and in the manner and for the reasons above stated, we think the plaintiff’s proof failed to show a satisfactory, tangible, and substantial basis upon which the action of negligence could be so supported that it would be au inference and not a guess.” In the instant case as there is no direct proof as to how the gas escaped or accumulated, and no such proof that the door or windows were closed, nor any evidence of what the deceased did after entering the room, is there any “substantial basis upon which the action of negligence could be so supported that it would be an inference and not' a guess?”

In the. case of Stepanovich v. Pittsburg & Baltimore Coal Co., supra, the first headnote is as follows: “In an employee’s action for injuries, claimed to have been caused by the employer’s failure to provide a reasonably safe brake for use on a coal pit car which he was required to handle, the happening of the accident was not proof of negligence on the part of the employer, and the burden was on the employee to prove that the employer’s negligence caused the. accident,” and in the opinion the circuit judge said: “In a case like this, an accident is not proof of an employer’s negligence, but-the employee must go further and prove the employer’s negligence caused the accident. The principle on which this case must be determined is laid down by the Supreme Court of the United States in Looney v. Metropolitan R. Co., supra, where that court said: ‘To hold a master responsible a servant must show that the appliances and instrumentalities furnished him were defective. A defect can not be inferred from the mere fact of an injury. There must be some substantive proof of the negligence. Knowledge of the defect or some omission of duty in regard to it must be shown.’” The facts in the case of Carnegie Steel Co. v. Byers, 149 Fed. 667 (8 L. R. A. (N. S.) 677), make that case directly in point, and the decision in that case concludes as follows: “There was no substantial evidence from which the jury might reasonably find that this accident was due to negligence. Its cause is wrapped in doubt and uncertainly. It may have happened from some cause for which the defendant was not liable or from actionable negligence. It was the duty of the plaintiff to make a ease from which a jury might reasonably find negligence.”

The case of Courtney v. New York &c. R. Co., 213 Fed. 388, is one where an engineer was filling a locomotive headlight with oil, and an explosion occurred, and injury to the engineer resulted. District Judge Thomas said (p. 390): “The maxim res ipsa loquitur does not apply where the accident might have been due to improper handling as well as to improper furnishing the thing causing the accident. In the case of Lennon v. Rawitzer, 57 Conn. 583, 587 (19 Atl. 334, 336), the court said: ‘But, assuming it to be as cited, there are several conditions which are essential to lay the foundation for any presumption. One is that the thing must be under the management of the defendant or his servants. Here the actual management at the time was controlled by the plaintiff, which would at least require caution in applying the rule, lest the plaintiff’s own carelessness be visited on the defendants.’” In Patton v. Public Service Ry. Co., 227 Fed. 210, 813 (142 C. C. A. 334), the circuit judge said: “Recognizing the lack of testimony upon the element of negligence, the plaintiff urged that the case is one in which the maxim of res ipsa loquitur applies. This maxim does not relate to a situation susceptible of proof yet not capable of proof merely because of the absence of witnesses. It applies where the accident itself bespeaks negligence, that is, where the accident is such as to necessarily involve negligence, and for that reason further proof of negligence is not required.” In the case of Looney v. Metropolitan Railroad Co., supra, it is said (p. 448): “A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption can not be built upon another. Douglas v. Mitchell, 35 Pa. St. 440; Philadelphia &c. Railway Co. v. Henrice, 92 Pa. St. 431 [37 Am. R. 699]; Yarnell v. Kansas City &c. Railroad Company, 113 Missouri, 570 [21 S. W. 1, 18 L. R. A. 599].”

The nonsuit was properly granted, because the allegations in the petition were not supported by the evidence.

Judgment adhered to.


text:
    8258.
    Fairburn Banking Company v. Citizens Bank of East Point et al.

   Jenkins, J.

1. Where, under a money-rule petition setting up equitable grounds of complaint, the issues are tried before the judge without a jury, and proof is made by affidavits and other documentary evidence, presented by each of the parties, a bill of exceptions assigning error upon the finding of the judge must incorporate such affidavits and" documentary evidence, or the same must be attached thereto as exhibits properly identified, or else be embraced in an approved brief of the. evidence. Civil Code of 1910, §§ 6140, 6141; Jennison v. Jennison, 136 Ga. 202 (71 S. E. 244, Ann. Cas. 1912C, 441); Lee v. Porter, 63 Ga. 345. If only a portion of such evidence is thus presented to this court, so that it is impossible to ascertain therefrom whether the trial judge erred in rendering the judgment complained of, a judgment of affirmance must be entered. Harman v Strange, 62 Ga. 167; Masland v. Kemp, 70 Ga. 786; Chism v. Varnedoe, 96 Ga. 777 (22 S. E. 334) ; Kirby v. Lippincott, 98 Ga. 426; Williams v. Childers, 145 Ga. 91 (88 S. E. 557). But where, as in this case, under the provisions of section 6149 of the Civil Code of 1910, the defendant in error causes the omitted evidence to be sent up, and in this way all the evidence material to a clear understanding of the errors complained of is supplied, the exceptions will be considered and passed upon. Roberts v. Cairo, 133 Ga. 642, 645 (66 S. E. 938).

Decided August 3, 1917.

Money rule; from Fulton superior court—Judge Bell. MaTch 23, 1916.

J. H. Longino, J. F. Golightly, for plaintiff in error.

Moore & Pomeroy, A. 0. Broom, contra.

2. Where both the- plaintiff and the defendant in such a proceeding go to trial before the judge and present in the manner indicated their proof upon the issues made by the pleadings, and the judge, withholding judgment, directs the filing of briefs therein, a party will not be heard to raise in such brief, for the first time, the contention that he is entitled to have the issues of fact presented to a jury for determination. Pelham Mfg. Co. v. Powell, 8 Ga. App. 38 (68 S. E. 519).

3. The judgment was supported by the proof submitted, and the judge was authorized to find that the previous levy on personal property had been accounted for.

Judgment affirmed.

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