text:
    8040.
    SAUNDERS v. PARKER.
    TKe provision of the code, that “In actions of assault and battery, and in all other personal actions, wherein the jury upon the trial thereof shall find the damages to be less than ten dollars, the plaintiff shall recover no more costs than damages, unless the judge, at the trial thereof, shall find and certify on the record that an aggravated assault and battery was proved” (Civil Code of 1910, § 5984), applies to actions for positive torts to the person, and not to suits for mere negligent injury.
    Decided June 18, 1917.
    Action for damages; from Evans superior court—Judge Sheppard. June 1, 1916.
    The plaintiff, a rural mail-carrier, was accustomed to carry his mail on a motorcycle over a private road running through the defendant’s land. The defendant, without notice or warning to him, stretched a wire fence across the private roadway, and the plaintiff ran into the fence and was injured. He claimed damages in the sum of $2,000, and the jury returned a verdict in his favor in the sum of $5. His motion for a new trial was overruled, and he excepted.

      J. P. Moore, 8. T. Brewton, for plaintiff.

      Daniel & Daniel, M. H. Elders, for defendant.
   George, J.

(After stating the foregoing facts.)

1. The plaintiff in error contends that his action falls within the provision of section 5984 of the Civil Code of 1910, and that since he is, by the terms of that section, entitled to no more costs than the damages recovered, the verdict is contrary to law. He relies upon the decisions of the Supreme Court in Conley v. Arnold, 93 Ga. 823 (3) (20 S. E. 762), and Kirby v. Thompson, 138 Ga. 544 (75 S. E. 625). In Conley v. Arnold, supra, it was held that “in an action for a personal injury, where a plea of justification is filed, and the jury finds for the plaintiff damages to the amount of one dollar only, the verdict is contrary to law; for in such case failure of the defendant to prove justification entitles the plaintiff to a verdict which would carry all the costs of the action, and under section 3681 of the code [Civil Code of 1910, § 5984], a verdict for one dollar and costs would not have this effect.” This ruling is followed in Kirby. v. Thompson, supra. In each case the wrong was admitted, and a plea of justification filed. The jury having found against the plea, it necessarily followed that the verdict was contrary to law. The reasoning in those eases does not apply to the facts in the instant case. Here the negligence is not admitted, but is specifically denied. In addition, the contributory negligence of the plaintiff in error is specially pleaded. In our opinion, however, the present case does not fall within the provisions of § 5984 of the Civil Code, which is as follows: “In all actions-upon the case for slanderous words, in any court having jurisdiction of the same, if the jury shall render a verdict under ten dollars, then the plaintiff in such action shall have and recover no more costs than damages. In actions of assault and battery, and in all other personal actions, wherein the jury upon the trial thereof shall find the damages to be less than ten dollars, the plaintiff shall recover no more costs than damages, unless the judge, at the trial thereof, shall find and certify on the record that an aggravated assault and battery was proved.” The first and second sentences of this code-section, appear in all prior codes as separate sections. The history of the first sentence is given in the case of Hardin v. Lumpkin, 5 Ga. 452. It was derived from a provincial statute- of 1767, adopted by the legislature in 1784. The second sentence of the section was derived from an English statute (Statutes of 22d and 23d Charles II), which is given in Schley’s Digest, 251, as one of the- English statutes of force in the State of Georgia on the 14th day of May, 1776, and therefore of force under the act of 1784, making the common law and statute law of England prior to 1776 the law of this State. The English statute was as follows: “And for prevention of trivial and vexatious suits in law, whereby many good subjects of this realm have been and are daily undone, contrary to the intention of an act made in the three and fortieth year of Queen Elizabeth, for avoiding of infinite numbers of small and trifling suits commenced in the courts at Westminster, be it further enacted,' for making the said law effectual, that from and after the first of May aforesaid, in all actions of trespass, assault and battery, and other personal actions, wherein the judge, at the trial of the cause shall not find and certify under his hand upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaintiff’s declaration was chiefly in question, the plaintiff in action, in case the jury shall find the damages to be under the value of forty shillings, shall not recover or obtain more costs of suit than the damages so found shall amount unto.”

In 2 Tidd’s Practice (4th Am. ed.), 962, it is said: “It seems to have been the intention of this statute, that the plaintiff should have no more costs than damages, in any personal action whatsoever, if the damages were under forty shillings, except in cases of battery, or freehold; and not even in these, without a certificate; and this construction was adopted in some of the first eases that arose upon the statute. But a different construction soon prevailed; and it is now settled, that the statute is confined to actions of assault and battery; and actions for local trespasses, wherein it is possible for the judge to certify, that the freehold or title of the land was chiefly in question. Therefore it does not extend to actions of assumpsit, debt, covenant, trover, false imprisonment, or the like; or to actions for a mere assault; or for criminal conversation, or battery of the plaintiff’s servant.”

In Mangham v. Reed, 11 Ga. 137, Nesbit, J., speaking for the court, said: “Whether trespass for injuries to personal property is -within the provisions of this statute, I do very much doubt. I am, indeed, inclined to believe that injuries to personal chattels are not within it. It has certainly been ruled in the British courts that when a party goes for a substantive, independent injury, done to personal chattels, this statute does not apply.” Compare also Grant v. General Baptist Convention, 10 Ga. App. 392 (73 S. E. 422), to the effect that an action of trover, although the plaintiff elects to take a verdict for damages, is not within the section. Following the decision in Mangham v. Reed, supra, the Code of 1861 contained, as § 3607 thereof, the provision practically as it appears in the second sentence of § 5984 of the present code. This provision of our code ¿pplies to actions for assault and battery and all other personal actions, which we understand to mean other positive torts to the person of similar character to an unlawful beating. The present action for a mere negligent injury to the person of the plaintiff in error does not fall within the section. The defendant in error, having been cast in the suit, is liable for all the costs thereof.

2. The remaining assignments of error are without substantial merit. The negligence of the defendant was slight, the injury to the plaintiff in error was likewise slight, and his contributory negligence great. The evidence authorized the jury to find for the plaintiff actual damages, but did not require a verdict in his favor in excess of the amount returned.

Judgment affirmed.

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


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    8099, 8100.
    Louisville and Nashville Railroad Company v. Shelton; and vice versa.

   George, J.

1. In a suit for damages against a railroad company for the negligent homicide of plaintiff’s husband, the petition as originally filed alleged that “the defendant railroad company failed to comply with section 2675 of the Civil Code, in that, while running its fast north-hound mail-train past the said Red crossing at the time of the injury complained of, it failed to have its engineer begin to blow his whistle four hundred yards from the public-road crossing, and to continue to blow the same until reaching the crossing, and in that the said engineer failed to check the speed of said train,” etc. By amend* ment it was alleged that “said defendant company failed to comply with section 2675 of the Civil Code, in that, while running its southbound freight-train past and over said public-road crossing at the time of the injury complained of, it failed to have its engineer to blow his whistle,” etc. The paragraph in the original petition, describing the train, which is alleged to have frightened the horse driven by the plaintiff’s husband, was not withdrawn by the amendment. The amendment can not be treated as a separate count. Held: The petition was subject to special demurrer, in that it is indefinite, uncertain, and contradictory, and did not inform the defendant with reasonable certainty which of its trains was alleged to have frightened the horse. The defendant was entitled to know, with reasonable certainty, the theory upon which the plaintiff relied for a recovery. Central of Ga. Ry. Co. v. Prior, 142 Ga. 536 (83 S. E. 117); Girvin v. Ga. Veneer &c. Co., 143 Ga. 762 (5) (85 S. E. 922). The decision in Sims v. Western & Atlantic Railroad Co., 111 Ga. 820 (2) (35 S. E. 696), was criticized in Central Railway Co. v. Weathers, 120 Ga. 475, 479 (47 S. E. 956). Compare L. & N. R. Co. v. Moreland, 143 Ga. 414 (85 S. E. 341).

Decided June 18, 1917.

Action for damages; from Murray superior court—Judge Fite. February 16, 1916.

Tye, Peeples & Tye, D. W. Blair, C. N. King, for plaintiff in error. W. W. Sampler, contra.

2. The remaining grounds of demurrer are without merit. As the judgment of the trial court is reversed on account of the error in ruling upon the question raised by the demurrer, we will not deal with assignments of error relating to matters that may not recur on another trial.

3. The trial court did not err in refusing to dismiss the motion for a new trial filed by the plaintiff in error in the main bill of exceptions.

Judgment on main hill of exceptions reversed; on eross-bill affirmed.

Wade, C. J., and Lulce, J., concur.


author: Luke, J.

text:
    8115.
    THOMPSON v. MAYOR & ALDERMEN OF CALHOUN.
    No cause.of action against the municipality appears from the petition, by which a recovery was sought for damage from fire, alleged to have been caused by negligence of its ministerial agents in cutting off the water supply from waterworks maintained and operated by it.
    Decided June 18, 1917.
    Action for damages; from Gordon superior court—Judge Fite. September 1, 1916.

      Starr & Paschall, for plaintiff, cited:

      City Council of Augusta v. Owens, 111 Ga. 465 (7); Adepe v. Thomasville, 9 Ga. App.
      881; Eshberg-Gunst Cigar Co. v. Portland, 55 Pac. 963; Watson v. Needham, 161 Mass. 404 (2); 5 Am. Neg. Rep. 292; City of Atlanta v. Huey, 8 Ga. App. 599 (1); Political Code (1910), § 897; Collins v. Macon, 69 Ga. 542 (1); Mayor &c. of Savannah v. Jordan, 142 Ga. 411; City Council of Augusta v. Hudson, 94 Ga. 135 (5); Coy v. Indianapolis Gas Co., 146 Ind. 655; Stock v. Boston, 149 Mass. 410; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277.

      J. G. B. Erwin Jr\, for defendant, cited:

      Mayor &c. of Dalton v. Wilson, 118 Ga. 100; Tarbutton v. Tennille, 110 Ga. 90; City Council of Augusta v. Owens, supra; Wright v. Augusta, 78 Ga. 241; 29 Cyc. 419, 489, 492-3; Andrews v. Kinsel, 114 Ga. 390; Southern Ry. Co. v. Webb, 116 Ga. 152, and citations; 1 Thomp. Neg. (2d ed.) 4950; 5 Id. 5830; Whart. Neg. (2d ed.) § 134; Shaw v. Macon, 6 Ga. App. 306; Gaskins v. Atlanta, 73 Ga. 746.
   Luke, J.

Mrs. Thompson brought an action against the Mayor and Aldermen of Calhoun, Ga., alleging that the defendant had injured and damaged her in the sum of $1,800, as follows: “On March 20,1914 [?], your petitioner was the owner of a certain two-story, eight-roomed frame building located on College street in the tow.n of Calhoun, being in the northern portion of said town, the same being the residence of your petitioner, and in which she was residing on said date, and also of certain household goods, kitchen furniture, and other articles, a copy of which is attached to this petition and is marked Exhibit A; that on the 20th day of March, 1915, the house described in paragraph 2 of this petition, as well as the household and other articles referred to and particularly described in Exhibit A, hereto attached, were destroyed by fire; that the town of Calhoun, a municipal corporation, acting within the scope of its authority, and acting within its private or corporate capacity on said date of March 20, 1915, was engaged in maintaining and operating for hire and for private gain a system of waterworks in said town. On said date said town of Calhoun, acting through its ministerial servants or agents, undertook to make certain repairs in said system of waterworks, to wit, the removal of a certain fire-plug located in about the middle of the street in front of the Gordon county court-house, in said town. Petitioner shows that it was the duty of said town of Calhoun to carefully and skillfully perform said work of repairs described in paragraph 6 of this petition, but that, disregarding its said duty to your petitioner, said town through its ministerial agents, K. W. Montgomery, J. H. Wilkerson, and Chuck Wiley, did in a negligent, careless, and unskillful manner make said repairs in maintaining said system of waterworks,.as follows: The improvement or repairs being made, as heretofore stated, was the removing of a certain fire-plug. The defendant in this cause was careless and negligent, and used unskillful means, in that it cut off the water at a certain cut-off on Piedmont street, across the said street from the south of Hall’s Ten Cent Store, in said town (said cut-off will hereafter be referred to as Piedmont cut-off No. 2). The effect of cutting off the water at this point was to deaden all the water mains in said town, or to stop the flow of water from all the mains in said town, and shut off the water supply of the entire town, which was entirely unnecessary-in order to perform the work of' repairs, both of which facts were well known .to defendant. Petitioner shows that there-were three other cut-offs which defendants, in the exercise of ordinary care and diligence, should have used in cutting off the water, to wit: One cut-off in the middle of Wall street at a point about midway between the stores of M. Moss and J. M. Byrd (hereafter referred to as the Wall street cut-off); another cut-off in the middle of Court street between the Calhoun National Bank and W. S. Pritchett’s store (hereafter referred to as the Court street cut-off); and another cut-off on Piedmont street at the corner of Hall’s Ten Cent Store (hereafter referred to as Piedmont street cut-off No. 1).

“Petitioner further shows that, if defendant, its officers, agents, and employees had used the three cut-offs just described, the water would have been left turned on in all the water mains in Calhoun, and in the main from which your petitioner was obtaining her supply of water on March 20, 1915, said water main being located within 50 feet of petitioner’s residence, and at the same time the water would have been completely and effectively cut off from the fire-plug where defendant was at work and so as to in no way interfere with said work of repairs'. Petitioner shows further that failure on the part of defendant to use the three last described cut-offs was negligence and carelessness on their part, and a failure to use ordinary care and diligence. Petitioner shows that to effectively perform said work of repairs in removing said fire-plug it was entirely unnecessary to cut off the water at the Piedmont street cut-off No. 2 above mentioned, and further shows to the court that at the time the defendant, its agents, and employees, knew that it was negligent to do so, and that it was unnecessary to cut off the water as aforesaid and at the point ^aforesaid. Petitioner further shows that defendant and its agents were aware of the fact that by cutting off the water at the Piedmont No. 2 cut-off the water mains would be deadened all over said town, and in the main from which your petitioner was receiving her supply of water on said date, and that this was unnecessary in order to perform said work of repairs, and that it was hazardous to your.petitioner to leave the water off from her residence as aforesaid. Petitioner also shows that defendant, its agents and employees, in the exercise of ordinary diligence, could and should have foreseen that to leave the water unnecessarily cut off as aforesaid would expose your petitioner’s residence and other property above referred to to damage by fire, should one break out. Petitioner shows also that defendant and its officers and employees were aware of the existence and location of the three cut-offs in said town which, in the exercise of ordinary care and diligence, should have been used by said defendant, to wit, the Wall street cut-off, the Court street cut-off and the Piedmont street cut-off No. 1, by the use of which the water would have been completely and effectively cut off from the fireplug where defendant was at work, without in any way interfering with said work of repairs while the water would have beeii left turned on in all parts- of Calhoun, and in the water main from which petitioner was receiving her supply of water on said date, and that these facts were well known to defendant, its agents, and employees, and that, had ordinary care and skill been exercised by defendant, its agents and employees, they would have used the three cut-offs, and their failure to use the said three cut-offs was an act of negligence on the part of defendant and its agents, and that therein and thereby they failed to use ordinary skillful means in said work of repairs. Petitioner further shows to the court that the said acts of negligence herein alleged were the direct and proximate cause of the damages claimed by petitioner. Your petitioner shows that on said date of March 20, 1915, without any fault or negligence on the part of petitioner, your petitioner’s residence caught on fire; that immediately the fire alarm was sounded, and immediately responded to by a number of persons; that there was located very near to your petitioner’s residence, to wit, at a distance not greater than 60 yards a fire station, where was kept ample hose and apparatus for putting out fires, and that within a space of not more than 1% minutes, and before said fire had gained any headway, there had been a large hose connected to a fire-plug not more than 30 yards from your petitioner’s residence, and said fire-plug opened up, when it was discovered that through said negligent acts of the defendant, its officers and agents, in the performance of ministerial acts of defendant, by reason of the negligence aforesaid, there was no water in the said main. Petitioner shows that there was running within 50 feet of petitioner’s residence a water main carrying a large flow of water, and connected with the reservoir, from which the said town is amply supplied with water, and backed by strong pressure and sufficient flow to have enabled your petitioner to have quickly and easily extinguished said fire; that but for the negligent acts and conduct of defendant in cutting'off the water as aforesaid the said main would have been full of water, and thereby your petitioner could and would have prevented said burning and the destruction of her property set forth in this petition. Petitioner shows that 30 days before the filing of this suit your petitioner presented in writing to the governing hody of said town of Calhoun her claim for damages for the amount herein sued for, stating in said demand the time, place, and extent of the injury done to your petitioner, as well as the negligence causing the same, which claim the town refused to pay. Petitioner shows that by the unskillful and negligent acts of the ministerial agents of the defendant in this cause, and while they were engaged in the performance of acts and duties purely and solely ministerial in their nature, and not governmental, your petitioner was -injured and damaged in the sum of $1,800, for which sum your petitioner prays judgment against the defendant.”

The defendant demurred generally and specially to the petition. The court sustained the demurrer arid dismissed the petition and the plaintiff excepted.

The petition did not set forth such a cause of action as would authorize a recovery. “A municipal corporation is not liable to an action for damages resulting from the negligence or inefficiency of its fire department, or the insufficiency of the supply of water, although it may levy an annual water tax, and may have in its employment officers whose duty it is to keep the fire-plugs in good order and the mains filled with water, and although there may have been similar negligence by the firemen on previous' occasions.” Wright v. City Council of Augusta, 78 Ga. 241 (6 Am. St. R. 256). “A waterworks company operating under a franchise which gives to it the right to use the streets etc. of a city for the purpose of laying its mains etc., and carrying on its business, and which enters into a contract with the municipality to supply it, in its corporate capacity, with a sufficient supply of water from the city hydrants to extinguish fires, and to furnish private consumers, at fixed tolls, with water for domestic and manufacturing purposes, is under no public duty to a resident of the city to furnish the municipality with water to protect his property from loss by fire, and consequently can not be held liable to him, in an action of tort, for a fire loss sustained by him by reason of its failure to supply the city with water with which to extinguish the fire which consumed his property.” Holloway v. Macon Gas Light &c. Co., 132 Ga. 387 (64 S. E. 330). It is interesting to note the allegations of the petition in Wright v. City of Augusta, supra. “Wright brought suit against the City Council of Augusta, averring in his declaration that he was a citizen of Augusta and owner of two adjacent houses therein; that, without fault on his part, one of them caught fire; that the fire department promptly appeared, but were unable to open the fire-plug for that locality with their usual appliances; that it was found necessary to send ofE after a monkey-wrench wherewith to open it, thus consuming much valuable time; that on-the plug being finally opened, it was discovered there was no water in the main; that a special messenger was then dispatched to the city waterworks, and, a supply of water having been at last pressed into the main, the firemen at once extinguished the conflagration, but not until one of the plaintiffs houses had been wholly destroyed and the other much injured, to his damage $1,-200; that defendant is liable therefor; that it annually-levies a large water tax, and engages to have constantly available an abundant supply of water for all purposes; that it has in its employ certain officers whose duty it is, under the city ordinances, to keep the fire-plugs in good order and the mains filled with water at proper pressure; that on this occasion,' said officers failed and neglected to perform said duties, whereby plaintiff was endamaged as aforesaid,” etc.

The petition in the present case does not show that the alleged negligence of defendant was the proximate cause of the injury sustained; in fact the petition shows that there was an intervening agency other than the alleged acts of negligence. The allegations 'do not show that the damages claimed were the natural and probable consequences of the negligence charged against the defendant. Shaw v. Mayor of Macon, 6 Ga. App. 306 (64 S. E. 1112), and cases there cited.

The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

TVade, O. J., and George, J., concur.


text:
    8132.
    COLE et al. v. JORDAN.
    The court did not err in sustaining the motion to strike the caveat to the petition for appointment as administrator with the will annexed, it not being alleged in the caveat that the petitioner was not next of kin nor beneficially interested in the estate.
    Decided June 18, 1917.
    Petition for letters of administration—appeal; from Haralson superior court—Judge Bartlett. May 23, 1916.

      M. J. Head, for plaintiffs in error, cited:
    Civil Code of 1910, § 3943, subsections 2, 3, and 9; Jones v. Whitehead, 66 Ga. 292.
    • Griffith & Matthews, contra, cited:
    Civil Code of 1910, § 3943, subsection 2; Jones v. Whitehead, supra.
   Luke, J.

Grover Jordan filed with the ordinary of Haralson county a petition for letters of administration with will annexed upon the estate of J. M. Jordan, alleging that the said J. M. Jordan died testate, and that the petitioner is next of kin to the deceased, etc. A. B. Cole and M. J. Head filed a caveat on the following grounds: (1) -That “objectors own five shares of the estate, and are entitled to one half of said estate, there being only ten shares, and that the applicant, Grover Jordan, owns only one share thereof. (2) That said Jordan is not otherwise qualified; that he has been in possession of the estate for several years, and is debtor to said estate, in a large amount for rent. (3) That, being the owner of the said five shares, they are entitled to the administration on said estate.”

The court sustained a motion to strike the caveat, on the ground that it was not sufficient, and the caveators excepted. The court did not err in striking the caveat because of its legal insufficiency.

Judgment affirmed.

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


text:
    8137.
    HARDY v. ATLANTA AND WEST POINT RAILROAD COMPANY.
    The court erred in directing a verdict for the railroad company upon its special plea that the plaintiff’s husband was at the time of his death engaged in interstate commerce.
    Decided June 18, 1917.
    Action for damages; from Troup superior court—Judge Freeman. . February 11, 1916.
    . Mooty & Andrews, Meadors & Wyatt, 8. Holderness, for plaintiff. ■. Dorsey, Brewster, Howell & Heyman, A. H. Thompson, for defendant. ,
   George, J.

Mrs. Hardy filed suit against the Atlanta & West Point Railroad Company. On the trial of the case the court, at the conclusion of the testimony, directed a verdict in the ■ company’s favor on its plea that the plaintiff’s husband was at the time of his death engaged as an employee of the defendant in interstate commerce. In substance the evidence upon this issue was as follows: The plaintiff is the widow of Sim Hardy. Sim Hardy was killed by an interstate passenger-train of the defendant on September 33, 1913, in the company’s yard in the city of La-.Grange, Troup county, Georgia, within a few feet of an engine which he was employed to watch. He was employed by the defendant to watch a switch-engine from six o’clock in the evening until six o’clock in the morning, and it was his duty to turn water from the tank into the engine and keep the steam on the engine, so that it would be ready for service when the servants of the defendant took charge of it in the morning. It was also his duty to throw coal into the tender from a coal-car that stood by it at night, and to keep all intruders away from the engine. The engine that he was employed to watch was not operated out of the city of LaGrange. It was parked, or stationary, at a point in the defendant’s yards at LaGrange from six o’clock in the evening until six o’clock in the morning. It was not the duty of the deceased to operate or repair the engine. During the day the engine in question was employed in the switch-yards. On the date of the homicide and for a month prior thereto, and for several days subsequent thereto, the freight handled by this engine in LaGrange was ninety per cent, interstate and ten per cent, intrastate. The engine, during the day, was used for the purpose of switching and transferring both interstate and intrastate freight, substantially in the proportions indicated above. It was also used to deliver cars loaded with interstate freight to connecting carriers. 'Plaintiff’s husband was killed between the hour of six p. m. and the hour of six a. m. According to the testimony offered by the plaintiff, the deceased was at his post of duty on his engine, when he saw a pedestrian fall upon the defendant’s main-line track a short distance away. He ran to the rescue of the pedestrian, slipped and fell, and was killed by the interstate passenger-train of the defendant. According to the brief filed by counsel for the defendant, it was the defendant’s contention that the plaintiff’s husband was either drunk or asleep upon the main-line track at the time its passenger-train struck and killed him. The evidence in support of this contention was omitted from the brief as immaterial on the question presented. To the direction of the verdict the plaintiff excepted.

This suit was brought by the widow of the deceased, and not by his personal representative, and can not be maintained if the Federal employer’s liability act of April 33, 1908 (35 Stat. 65, c. 149, Comp. Stat. 1913, § 8657), governs. By the terms and provisions of that act, the right of action, if any, vests in a personal representative, in a case where suit is brought to recover for the death of one employed in interstate commerce. If, therefore, the deceased husband of the plaintiff was an employee of an interstate carrier, and if his duties were interstate commerce in character at the time of his death, the action must abate. The effort of the plaintiff is to show the Federal act does not apply; the contention of the defendant is that the Federal act does.apply, and that the evidence demanded the verdict directed in favor of the defendant upon its special plea. Counsel for both parties seem to attach some importance to that feature of the evidence, offered by the plaintiff, going to show that the deceased, at the time of his déath, was engaged in an act of humanity in attempting to rescue another person, who was in imminent peril of being run over and killed by the interstate passenger-train of the defendant. The evidence in the present record would warrant the jury in finding that the deceased met his death while engaged in an attempt to rescue another, but if it be conceded that this contention is the truth of the case, it does not, in our view of the matter, change the character of his employment or the nature of the service which he was actually performing at the time of his death. If he were ah employee of an interstate carrier and if his duties were interstate commerce in character at the time of his death, his conduct in responding to the dictates of humanity and in attempting to rescue another person from peril would not destroy the nature of his employment. If he were in the employ of an interstate carrier, but if his duties were not interstate commerce in character at the time of his death, the fact that he was killed by an interstate passenger-train of the defendant, under the circumstances appearing in the evidence in behalf of the plaintiff, would not bring the deceased within the operation of the Federal employer’s liability act.

Was the husband of the plaintiff employed in interstate commerce within dhe meaning of the Federal employer’s liability act, while engaged in the duty of watching the switch-engine in the defendant’s yard at LaGrange, under the circumstances appearing in the evidence? In so far as the words of the act are material here, it declares that “every common carrier by railroad, while engaging in commerce between any of the several States, . . shall be liable in damages to any person suffering injury while he is em- • ployed by such carrier in such commerce,” if the injury results wholly or in part from the negligence of the carrier or any of its officers, agents, or employees. It is essential to the right of recovery under the act not only that the carrier be engaged in interstate commerce at the time of the injury, but also that the person suffering the injury be then employed by the carrier in such commerce; and so it results, where the deceased employee is engaged in intrastate commerce, or in what is not in any proper sense commerce at all, that the party entitled to sue for the value of his life, in case of his death, must look for redress to the laws of the State wherein the injury occurs. It is to be noted that the death of the employee in this case did not result from the violation of some Federal statute, such as the safety-appliance acts.

What are the facts upon which the judge directed a verdict in behalf of the defendant upon its affirmative plea? The deceased was employed to watch and care for an engine, the property of-an interstate carrier, while the engine was parked, or stationary, in the yards of the defendant company at LaGrange, Georgia. He did not operate the engine, nor was the engine in use at any time during his hours of service. He was not required to repair the engine in any particular, but his duties were confined to such' things as throwing coal into the tender, turning the water from the tank into the engine, and keeping the steam on so that the engine might be ready for use at the time when his duties ended. It was an instrumentality used in both interstate and intrastate commerce before and.after his death. At the time of his death and during the whole time when he was on duty the engine was not engaged in commerce at all. The engine is not to be considered as upon the same footing as a bridge, a switch, or a part of a track of an interstate carrier, because the whole track of an interstate carrier is at all times an instrument employed -in interstate commerce. The most that can be said is that the engine in question was an instrumentality that had been used in both interstate and intrastate commerce, and therefore that it was an instrument that had been used in interstate commerce. There is nothing in the record to indicate that the carrier expected to use the engine, - after the night .of the homicide, in interstate commerce, or in any commerce whatever. It is true that the evidence shows that the engine was, for a few days after the death of the employee, used as an instrument in both interstate and intrastate commerce. That the defendant company intended to, and in fact did subsequently to the homicide of plaintiff’s husband, use the engine in interstate commerce alone would be of no relevancy.

It would be useless to enumerate the cases dealing with the question here involved. Many authorities are available in support of the contentions of both parties to this suit. However, the language of Justice Holmes, speaking for the Supreme Court of the United States in the case of Minneapolis & St. Louis Railroad Co. v. Winters, 242 U. S. 353 (37 Supreme Ct. 170, 61 L. ed.), would seem to be in point: “The plaintiff was making repairs upon an engine. This engine 'had been used in the hauling of freight-trains over the defendant’s line . . which freight-trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff’s injury.’ The last time before the injury on which the engine was used was on October 18, when .it pulled a freight-train into Marshalltown, and it was used again on October 21, after the accident, to pull a freight-train out from the same place. That is all that we have, and is not sufficient to bring the ease under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the States. An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was- not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events.”

Unless the verdict, directed by the court was demanded by the evidence, the judgment must be reversed. If the evidence, with all reasonable deductions therefrom, authorized a contrary verdict, a new'trial must be ordered. We rule that the evidence, with all reasonable deductions therefrom, did not authorize the court to ' conclude as a matter of law that the plaintiff’s husband was at the time of his death engaged in interstate commerce.

Judgment reversed.

Wade, G. J., and Luhe, J., concur.


text:
    8143..
    Matthews v. Southern Railway Company.
   Luke, J.

1. The petition alleged: that the plaintiff was in the employ of the defendant "as a member of a section-erew working on the defendant’s railroad tracks; that the section foreman under whom he was working directed the crew to load gome end? of cross-ties, on the tool or hand-car and carry them to the residence of the section foreman, a distance of about two hundred yards; that the foreman, after giving such orders, left the plaintiff and the other members of the crew and went to his home; that the plaintiff and other members of the crew loaded the said cross-tie ends on the car and proceeded with them, down grade, to the residence of the section foreman, where the car was kept; that the car stopped at a place near the foreman’s woodpile, and one of the other, members of the crew got off the car and moved one of the cross-tie ends to a position where the crank-handle on the car, in moving up and down, caught the plaintiff’s hand between the car-handle and that cross-tie end and injured his finger and hand; that as a result of this injury he lost several weeks from his work; that the defendant was negligent (1) in ordering the plaintiff to do such work as is set out above; (2) in carrying such material on the car; (3). in allowing the foreman of the section-crew to absent himself from the workmen of the ■ section; (4) in not securing for the plaintiff medical attention; (5) in allowing the said fellow servant to remove the position of the said cross-tie ends without notice to the plaintiff; (6) in loading the car in such way that the injury would occur, and in injuring the plaintiff in the ways set out in the petition; and that the plaintiff was free from fault. Held, that the court did not err in sustaining the demurrer to the petition and dismissing the suit. Porter v. Ocean Steamship Co., 113 Ga. 1007 (39 S. E. 470); McEwen v. Central of Ga., 127 Ga. 246 (56 S. E. 289).

Decided June 18, 1917.

Action for damages; from Fayette superior court—Judge Searcy. March 20, 1916.

The defendant demurred on the grounds: that no cause of action is set forth; that it appears that the injury was due to a mere transitory detail of the work in which the plaintiff was engaged; that it affirmatively appears that there was no negligence chargeable to the defendant of which the plaintiff can complain; that the petition shows that the plaintiff and the other section-hands were engaged at the time of the injury in a private work for their personal benefit and outside the scope of their work for the defendant; that it affirmatively appears that the alleged injury was due to an assumed risk and to a cause the existence of which the plaintiff had better opportunity to observe than did the defendant. Each specification of negligence was demurred to specially. The court sustained each of the grounds of the demurrer and dismissed the action.

W. B. Hollingsworth, for plaintiff.

Battle & Hollis, J. W. Culpepper, for defendant.

Judgment affirmed.

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


author: Wade, C. J.

text:
    8210.
    LOUTHER v. TIFT.
    1. An action for damages for the breach of a bond for title, being a demand founded on a sealed instrument, is not barred until twenty years after the breach.
    2. The equitable doctrine as to stale demands has no application where the action is a legal one and the period fixed by the statute of limitations for the assertion of the claim has not expired.
    Decided June 18, 1917.
    Action for breach of bond for’ title; from Tift superior court— Judge Kent presiding. July 7, 1916.

      B. G. Ellis, B. D. Smith, for plaintiff.

      Fulwood & Hargrett, for defendant. ■
   Wade, C. J.

Louther brought suit against Tift to recover damages arising from the breach of a covenant contained in a bond for title. His petition, briefly stated, shows that on December 18, 1894, defendant' executed to plaintiff a bond for titles-to certain described real estate, for which plaintiff agreed to pay the sum of $254; that $122.50 of the purchase-price was to be paid in cash, and that two notes, one for $67.75 and one for $63.75, were given for the remainder; that plaintiff paid defendant the sum of $122.50 in cash on the making of the contract; that he did not remember the maturity dates of the notes, but that they bore interest from date at the rate of eight per cent; that on November 7, 1898, he paid to defendant $35.79 as interest on said notes up to that date; that the land had increased in value between the date of the bond and the filing of this suit from $254 to $3,810; and that on December 5, 1912, defendant sold the land to Hughes and Rigdon.The petition further alleges that the defendant is liable to him in the sum of $2,810, with seven per cent, interest thereon since December 5, 1912, from which amount should be deducted the sum of $208.14, as principal and ,interest on the two notes above referred to and due defendant. The defendant demurred to the petition, on several grounds, and the case is before this court on exceptions to the sustaining of the demurrer.

The petition in this case, with the exception of the names, dates, amounts, and description of property, is substantially the same as the petition filed in the case of Buck v. Duvall, 9 Ga. App. 656 (72 S. E. 44), and we should probably content ourselves by simply holding that the ruling in that case controls the decision of this case. However, since it is contended in the brief of counsel for the defendant that this ease differs from the Buck case, in that the doctrine of “stale demand” was not urged or argued in that case, we will briefly discuss that doctrine. , This suit is a common-law action, instituted to recover damages caused by the breach of a contract. The legislative body of our State has seen proper to place a limitation on actions of this character. The Civil Code, § 4359, provides that “Actions upon bonds or other instruments under seal shall be brought within twenty years after 'the right of action accrues.” Under the pleadings in this particular' case, the plaintiffs cause of action arose on the date of the resale, and, notwithstanding his action would not have been barred until twenty years from that date, it was actually instituted within four years from the breach. The statutory period of twenty years, therefore, had not expired, and the cause of action was not barred by the statute of limitations. It seems to be well settled that the doctrine of stale demand is applicable only to equitable cases. In Ellis v. Smith, 112 Ga. 483 (37 S. E. 739), it was held: “The doctrine of stale demand is a purely equitable one, and only arises whenever from the lapse of time and laches of the plaintiff it would be inequitable to allow a party to enforce his legal rights.” In the very early case of Caldwell v. Montgomery, 8 Ga. 106, it was held that “A bill filed for the recovery of damages, for the breach of a bond for title, is a demand founded on a sealed instrument, and such a claim is not barred until twenty years after the. accrual of the right of action thereon.” In the decision it was said: “The plaintiff would not be barred at law, in an action on this bond; nor is he here, in chancery. His right of action had nearly ten years to run. We do not believe that the doctrine of stale demands applies to a claim not barred at-law, by half the statutory term.” It is clear, from what is said above, that the doctrine of stale demand could not be invoked in a case of this character, and it is extremely doubtful whether the doctrine would apply in an equitable ease where there is a statute of limitations covering the subject-matter, for in the case of Wyche v. Greene, 11 Ga. 159, 160 (which was an equitable proceeding), it was said, “But lapse of time can never be set up as a defense in equity, when it would not constitute a good statutable bar at law.”

The defendant in error contends that section 4369 of the Civil Code (1910) is applicable to this case, notwithstanding it is a suit at law for damages for the breach of a bond, and that the right of action on the bond is not affected by the statute of limitations, nor coextensive with the period fixed thereby. Section 4369 is as follows: “The limitations herein provided apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.” This contention is clearly without merit. In the ease of Georgia Railroad Co. v. Wright, 134 Ga. 596, 630 (53 S. E. 351), where the same code-section and the same contention were involved, the Supreme Court said: “This contention is plainly founded on a misconception of the equitable doctrine of stale demands. The principle that a. stale demand will not be enforced is peculiarly applicable to equity practice, is available to the defendant only, and can not be employed by the complainant in an equitable proceeding to enjoin the enforcement of a purely legal right. Indeed, by the terms of the statute cited [Civil Code of 1895, § 3777; Civil Code of 1910, § 4369] it is restricted to cases where the ‘complainant’ has been guilty of laches and time has elapsed to make his claim inequitable.” See also Bisph. Eq. (6th ed.) § 39. The point that this action was barred by the doctrine of stale demand is therefore not well taken, since the suit as brought was an action at law, which was not barred under the statute as a legal claim at the time the suit was instituted.

Under the facts alleged, we think that the petition set out a cause of action, and that the court erred in sustaining the general demurrer. As suggested above, the several remaining points raised by the demurrer, and insisted upon by defendant in his brief, are fully controlled by the rulings in Bucle v. Duvall, supra, and therefore need not be discussed.

Judgment reversed.

George and Lulee, JJ., concur.


author: Wade, O. J.

text:
    8283.
    Harris v. Longino, administrator.
   Wade, O. J.

1. The sole question properly before this court for review is whether the court erred in striking the caveat interposed by the plaintiff in error to the application for letters of administration cum testamento annexo and in dismissing her appeal from the court of ordinary.

Decided June 18, 1917.

Petition for administration—appeal; from Campbell superior court—Judge Smith. March 4, 1916.

J. J. Barge, Oscar Parher, for plaintiff in error.

J. E. Longino, contra.

(a) As the ease is presented in the bill of exceptions, it is unnecessary to consider or pass upon the validity of the claim against the estate of the deceased by virtue of which the defendant in error was appointed administrator. _

2. If the caveator had in fact any enforceable demand against the estate of the decedent, under an alleged contract to bequeath at her death a child’s part of her estate to the caveator, the caveator could only recover upon a quantum meruit; and no basis for the interposition of the caveat by the plaintiff in error, as a creditor, on the ground of services rendered or other consideration supplied to the decedent, is furnished by any definite allegation in the caveat as to the existence of a claim for money, or for any precise or fixed demand against the estate of the decedent. See Hudson v. Hudson, 87 Ga. 678; Hudson v. Hudson, 90 Ga. 581 (1); Weaver v. Cosby, 109 Ga. 310, 316; Banks v. Howard, 117 Ga. 94; Moore v. Smith, 121 Ga. 479, 481.

(a.) In the caveat the caveator’s alleged interest in the decedent’s estate is not based upon any implied promise to pay for services rendered, but is based upon an alleged express agreement on the part of the decedent, which is stated as follows: “To treat her [caveator] as a child, and at the death of the said Sallie Howard, she [decedent] would give her a child’s part of her estate, if she, the said Prances Harris, would remain with her, the said Sallie Howard, until- she, Prances Harris, became of age. She shows to the court that she remained with her said aunt, Sallie Howard, until she was 21 years of age and more. She shows to the court that her said aunt, Sallie Howard, repeatedly promised, from the time her said aunt took her from the home of her grandparents to the time of her marriage, that she was going to treat her as a child and give her a child’s part of her estate at the death of her said aunt.” It is not alleged that the caveator rendered any services whatever to the decedent, or that.there was any other consideration to support the mere naked promise to give her a child’s part of her estate. There was no attempt even to set forth any definite amount due to the caveator, as a charge against the estate of the deceased.

(6) The trial judge correctly held that under the allegations of the caveat the caveator did not appear to have any standing in court, or, in other words, any right to interpose an objection to the appointment of an administrator, and therefore properly dismissed her appeal from the judgment of the court of ordinary.

Judgment affirmed.

George and Lulee, JJ., concur.


author: Wajoe, C. J.

text:
    8307.
    Smith Brothers v. Webb & Maury.
   Wajoe, C. J.

1. It is insisted in the brief of counsel for the plaintiff in error that the refusal by the court to give to the jury the instructions set forth in the 3d and 4th grounds of the motion for a new trial presented for the consideration of this court but the one question of law. whether it was error for the judge to refuse to charge the law as to implied warranty, after having charged the law as to the express condition in the contract that the corn chops sold “must be dry.” “When the parties have reduced to writing what appears to be a complete and certain agreement, importing a legal obligation, it will, in the absence of fraud, accident, of mistake, be conclusively presumed that the writing contains the whole of the agreement between them; and if it contains an express warranty of certain qualities in the article sold, an implied warranty of other qualities is excluded.” Holcomb v. Cable Co., 119 Ga. 466 (2) (46 S. E. 671); Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E. 143). To instruct the jury as to the law of express warranty is not reversible error, where the purchaser relies also on an implied warranty merely coextensive with the express warranty as set up by the answer of the defendant and by his evidence. The requests presented were covered substantially by the charge given, which stated the contentions of the defendants as set forth in the contract between the parties and in the plea of the defendants.

2. There is no merit in the other assignments of error as to the refusal by the court to give certain requested instructions to the jury. The requested instructions presented theories of defense substantially covered by the charge given; and some of them were argumentative and tended to confuse the jury as to the precise issues for determination.

3. The court did not err. in declining to permit one of the defendants to testify, in explanation of the delay in inspecting the articles sold upon their arrival at destination, that the defendants held at that time a demand against the 'plaintiffs, growing out of a former shipment under the same contract, and that the delay in inspecting the shipment which was the basis of the pending suit, until an adjustment of existing conditions had been reached, was for that-reason not unreasonable.

4. The court did not err in charging the jury as follows: “It was the duty of Smith Brothers, upon the arrival of the carload of chops at Augusta, to promptly inspect the same and either accept or reject them, and if they delayed the inspection of the chops for an unreasonable length of time, that in law would amount to an acceptance, and if you find that the defendants, Smith Brothers, delayed for an unreasonable length of time in accepting the chops after their arrival in Augusta, then they would be liable to plaintiffs for such damages as they suffered by reason of the rejection of the chops.” This charge did not-exclude from the consideration of the jury the question whether the merchandise sold was, at the time of its arrival in Augusta, in the condition specified in the contract or purchase; nor did it, when considered with the entire charge, unfairly present the issue therein referred to. 5. The amount claimed in the suit was $241.14. The verdict was for $247.14. The only witness for the plaintiffs testified definitely and positively that “the amount that plaintiffs were damaged by Smith Brothers refusing to comply with the contract, and in rejecting the car of corn chops, was $206.12.” Since the evidence only authorized a re- • eovery for $206.12 (although the exhibit attached to the interrogatories of the plaintiffs’ only witness apparently warranted a recovery for a much larger amount), the judgment refusing the motion for a new-trial is affirmed, with the condition that the .plaintiffs write off, within ten days from the time the remittitur is received by the lower court from this court, the sum pf $41.02 principal, so that the judgment shall be for $206.12 principal, besides interest from the date of its rendition, June 14, 1916, at seven per cent, per annum; or otherwise that the judgment be reversed and a new trial granted.

Decided June 18, 1917.

Action for breach of contract; from Richmond superior court— Judge Henry C. Hammond. July 15, 1916.

Gallaway & Howard, for plaintiffs in error.

A. B. Williamson, C. H. & B. 8. Cohen, contra.

Judgment affirmed on condition.

George and Luhe, JJ., concur.


author: Wade, C. J. George, J.

text:
    8310.
    KNIGHT v. SAVANNAH ELECTRIC COMPANY.
    1-2. Since the act of 1910, amended by act of 1913, as to automobiles and conveyances of like character (in which motorcycles are held to be included) makes it unlawful to operate them on public roads, streets etc., without compliance with the provisions of that law, among which is a requirement that the machine shall be registered with the secretary of State and a registration fee paid, a person riding on an unregistered motorcycle along a public street when struck by á car of a street-railway company at a crossing is to be regarded as a trespasser, and is not entitled to recover from the company for negligence which is not wilful or wanton.
    3-4. Under the evidence in this case, there was no wilfulness or wantonness on the part of the defendant in the injury to the plaintiff, who was riding on an unregistered motorcycle; and the court did not err in awarding a nonsuit.
    Decided June 18, 1917.
    Action for damages; from Chatham superior court—Judge Charlton. September 10, 1915.

      W. B. Hewlett, H. P. Gobb, for plaintiff.

      Osborne, Lawrence & Abrahams, for defendant.
   Wade, C. J.

The act of 1910 (Acts of 1910, p. 90) amended in 1913 (Acts 1913, p. 75; Park’s Annotated Code (Political), § 828 (a) et seq., (Penal) § 528 (c)) makes it “unlawful for any person to run, drive, or operate any automobile, locomobile, or other vehicle or conveyance of like character, propelled by steam, gas, gasoline, electricity, or any power other than muscular power, . . upon or along any public road, street, alley, highway, avenue, turnpike, or any private road, or way, generally used by the public of this State, except and until such person shall comply with the provisions of this act.” Among the provisions of this law is a requirement that every person owning any one of the said machines shall register the same with the secretary of State, and pay a registration fee for each machine so registered, and that such registration shall be in lieu of all municipal licenses or registrations. A motorcycle propelled by gasoline “is, in contemplation of law, a vehicle ‘of like character' with an automobile.” Bonds v. State, 16 Ga. App. 401, 407 (85 S. E. 629).

One of the purposes of the act of 1910 was to safeguard persons lawfully using the highways from the serious risks of injury by machines of the character therein referred to, operated in defiance of law, the owners of which have furnished no means by which they may be identified and compelled to make proper compensation for injuries resulting from their negligence. “The act [of 1910] recognizes that the driver of an automobile has an equal right to the public highway with any other 'person, but it is provided that this right shall be exercised only in the manner and upon the terms and conditions prescribed by that act.” Sheppard v. Johnson, 11 Ga. App. 280, 282 (75 S. E. 348). See also Elsbery v. State, 12 Ga. App. 86 (76 S. E. 779); Bonds v. State, supra; O’Dowd v. Newnham, 139 Ga. 811 (78 S. E. 253). Furthermore, it was the evident intention of the legislature to outlaw unregistered machines propelled by gas, gasoline, etc., and to give them, as to persons lawfully using the highways, no other right than that of exemption from reckless, wanton, or wilful injury; and, as against one lawfully using the highway, one traveling on an unregistered motorcycle is a mere trespasser upon such highway, since he is violating the law made for the protection of others against him, and such another, lawfully using the highway, owes him no further duty than that of abstaining from injuring him by wantonness or recklessness. Dudley v. Northampton Street Railway Co., 202 Mass. 443 (89 N. E. 25, 23 L. R. A. (N. S.) 561, 563). See also Richards v. Enfield, 13 Gray (Mass.), 344; Higgins v. Boston, 148 Mass. 484 (20 N. E. 105); Sullivan v. Boston Elevated R. Co., 199 Mass. 73, 76 (21 L. R. A. (N. S.) 36, 84 N. E. 844); Fitzmaurice v. New York &c. R. Co., 192 Mass. 159, 162 (78 N. E. 418, 6 L. R. A. (N. S.) 1146, 116 Am. St. R. 236, 7 Ann. Cas. 586); Massell v. Boston Elevated R. Co., 191 Mass. 491, 493 (78 N. E. 108).

The plaintiff was riding along a public street on a motorcycle when his machine struck or collided with a street-car at a crossing. The evidence disclosed that intervening objects prevented those on the car from seeing him as he approached the crossing, and entirely removed any suggestion of wilfulness or wantonness on the part of the street-railway company. As the machine of the plaintiff was unregistered, he was a mere trespasser upon the highway, and therefore the defendant company was not liable for injuries resulting to him, brought about by negligence only.

The trial judge properly awarded a nonsuit.

Judgment affirmed.

Luke, J., concurs; George, J., concurs specially.

George, J.

In an action by a motorcyclist to recover for personal injuries received in a collision with an electric street-car on a public highway, the mere fact that the plaintiff had not registered his machine with the secretary of State and paid the license-tax or fee as required by the act of 1910 (Acts 1910, p. 90) did not bar his right of recovery. The failure to register and pay the tax is no concern of the street-car company. It also is bound by the l¿w of the State, and its general duty, under the law, is to so operate its cars and machinery as not to negligently injure the person or property of another. This duty exists with respect to a person on a public highway, although the person may be guilty of a violation of the law of the State. The fact that the motorcycle was not registered had no causal connection whatever with the injury to the plaintiff. If the.motorcycle had been duly registered, his injury would have occurred just as it did. Violation of certain of the requirements of the act of 1910, such as failure to carry lights, to observe the rules of the road, etc., may in certain instances bar a recovery by a motorcycle or an automobile driver,but failure to register and pay the tax required is in no sense the proximate cause of physical injury to a person driving a motorcycle or an automobile on a public highway. For these reasons, I do not agree that one driving an unregistered motorcycle is a mere trespasser upon the public highway, and therefore I dissent from the ruling announced in the second division of the majority, opinion in this case. I concur specially in the conclusion reached, and think that the trial judge properly awarded a nonsuit, because the.evidence in the record, with all reasonable deductions therefrom, shows that the plaintiff’s injury was the result of his own negligence.


text:
    8333.
    HADEN v. AUBREY, administrator.
    1. The case was not taken out of the statute of limitations by the allegations of the plaintiff’s petition, filed in May, 1916, by which he sought to recover an amount alleged to be due him as a balance from the proceeds of land sales which in April, 1907, the defendants, acting under a written contract between himself and the defendant corporation, made as his agents, and as to which, it was alleged, he discovered, in June, 1913, that they had deceived him by misrepresentations as to the price and the sums received as payments.
    2. The allegations of the petition were not sufficient to entitle the plaintiff to proceed against the individual defendant alleged to be the principal stockholder and the controlling power in the defendant corporation and the active agent in the transactions set forth in the petition.
    Decided June 18, 1917.
    Action on contract; from Fulton superior court—Judge Pendleton. December 5, 1916.
    Haden demurred on the following grounds: (1) No cause of action against him is set forth in the petition. (3) He was not a party to the contract between the plaintiff and the defendant corporation. (3) It is not alleged that he received or retained any ■of the money from thé salé of the land. (4) It is not alleged that a tender was made to him. (5) The petition seeks to revive á stale claim, barred by laches of the plaintiff. It fails to disclose how the plaintiff came .to be so long ignorant of his alleged rights, or what means were used by the defendant fraudulently to keep him in ignorance, or how he first came to a knowledge of the matters alleged. (6) The petition shows that after failure for more than six years to discover the alleged deception, the plaintifE acquiesced in it from June 1, 1913, to May 31, 1916, and it does not allege any actual hindrance or impediment caused by fraud or concealment on the part of this defendant, as an excuse, for such acquiescence. (7) The petition fails to disclose any authority, from the court appointing the plaintiff as administrator, for instituting this proceeding. (8-20) In the remaining grounds the defendant demurred specially to each paragraph of the petition except the first. All the grounds of the demurrer were overruled.
    Citations by counsel, as'to bar of action:
    Civil Code (1910), § 4369; Bryan v. Tate, 138 Ga. 321; Reynolds v. Martin, 116 Ga. 458; Johnston v. Preer, 54 Ga. 162; Haynes v. Urquhart, 63 Ga. 325.

      Robert G. & Philip H. Alston, for plaintiff in error.

      Colquitt & Conyers, contra.
   Luke, J.

Aubrey, as administrator, brought a suit against Georgia Title Guarantors Company, and Haden, based upon the following contract, to wit: “It is this day agreed by and between G. H. Aubrey, administrator de bonis non of the estate of John Forsyth, deceased, of the one part, and the Georgia Title .Guarantors Company, a corporation of Fulton county, Georgia, of the other part, that said company will, at its own expense, investigate the titles and the physical condition of 'the lands to which the estate of heirs of John Forsyth appear to have title, located in originally Appling, now Clinch, Echols, and Ware counties, Georgia, and such other lands as may appear to belong to said John Forsyth’s.heirs or estate, located in other parts of Georgia, and not in possession of any of said heirs or said estate. Said company will further undertake to take possession of said lands for said estate, or to sell the same, or, where necessary, to.recover the same, said company paying all lawyer’s fees or other expenses connected therewith, except actual court costs. For this service said company shall have one half of all recoveries, either in land or money, arising out of this contract, court costs to be first deducted. This agreement does not include Wayne or • Charlton county lands. Signed this 4th day of March, 1905. G. H. Aubrey, administrator de bonis non of the estate of John Forsyth, deceased. Georgia Title Guarantors Company, by B. W. Blackstock, assistant secretary.” The petition alleged: That, under the terms of the said contract, Aubrey turned over to Georgia Title Guarantors Company, as his agent, the matter of making contracts for the sale of said lands, and on April 3, 1907, the defendants, acting as agents for plaintiff in a fiduciary capacity, contracted to sell and. did sell several lots of land described; that Haden was the owner of practically the entire capital stock of Georgia Title Guarantors Company, was the moving spirit and the active agent in the conduct of said negotiations, made and concluded said sales, and handled and distributed all the money paid as the initial cash payment of said purchases ; that defendants represented to plaintiff that said lands had been sold for $200 per lot, one fourth of said purchase price to be paid.in cash, and plaintiff, in accordance with the representations of said agents, executed bond for title, conditioned to convey said lands upon the terms of one fourth cash and the other fourth in two installments; that, upon the request and under the instructions of his said agents’, plaintiff contemporaneously executed his deed for said land and delivered the same in escrow according to the instructions of his said agents in closing up said contract; that Haden, acting under the contract aforesaid, and as the controlling power in said Georgia Title Guarantors Company, directed that there b.e paid to plaintiff, and there was paid to plaintiff, the sum of $1,625, represented to plaintiff by his said agents to be one half of $3,250 constituting the purchase price of the said land at the represented price of $200 per lot; that plaintiff received the said sum of money relying upon the statement of his said agents, having confidence in their integrity and in the correctness of said representations, and executed the bond for title and deed as aforesaid, and that on the first day of June, 1913, plaintiff discovered that he had been deceived by his said agents in the matter of said sale; that the price at which said lands had been sold was $500 per lot, instead of $200 per lot, and that the amount of cash received as the initial payment was $6,500, instead of $3,250 as represented to plaintiff by his said agents; that, until his discovery of said breach of faith and said breach of contract on the part of defendants, plaintiff had no means of knowing of the deception aforesaid; that said lands were located hundreds of miles from the residence of plaintiff, and all the active negotiations in the sale of said lands had been conducted by defendants under their contract with plaintiff as aforesáid, that on discovery of said breach of eon-.tract plaintiff made repeated efforts to induce defendants to comply with said contract and to pay plaintiff the remainder due him from said cash payment, but they refused and still refuse to do so; and that, by reason of the facts stated, said defendants became indebted to plaintiff in the sum of $1,625, besides interest from April 31, 1907.' The suit was filed and process attached on May 31, 1916.

We hold: (a) The allegations of the petition are hot sufficient to take the case out of the statute of limitations. Bryan v. Tate, 138 Ga. 321 (75 S. E. 205). (5) The allegations are not sufficient to entitle the plaintiff to proceed as against the defendant Haden. (c) The court erred in overruling the general demurrer of Haden to the petition.

Judgment reversed.

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


text:
    8444.
    Strickland v. McElveen.
    Decided June 18, 1917.
    o Appeal; from Bulloch superior court—Judge Hardeman. December 27, 1916. ' ‘

      H. M. Jones, F. B. Hunter, for plaintiff ih error.

      Fred T. Lanier, contra. • ' I
   George, J.

1. The bill of sale conveying “the boiler and attachments thereto,” the consideration for the note up'on which the suit was brought, was ambiguous as to the articles conveyed under the term “attachments,” and the court did not err in admitting parol testimony to explain the ambiguity.

2. The exception to the charge of the court, upon the ground that it incorrectly stated the defendant’s contentions, is without merit.

3. On the question of failure of consideration the evidence, though conflicting, authorized the verdict returned by the jury.-

4. The alleged newly discovered evidence is of slight relevancy, and is purely impeaching and cumulative in character.

5. The court did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, O. J., and Luloe, J., concur.


text:
    8522.
    EXCHANGE BANK v. HORNE-ANDREWS COMMISSION CO.
    It was shown by undisputed evidence that the plaintiff was a commission merchant, and that the plaintiff’s sale of the cotton in question was a cash sale; and, under the provisions of the code as to cash sales of cotton by commission merchants (Civil Code of 1910, §4126), payment of the buyer’s checks for the cotton being refused and the plaintiff not being paid for it, title to the cotton had not passed from the plaintiff when the defendant bank received the bill of lading' for it, with the buyer’s draft on a subsequent purchaser for the purchase price, which the bank collected and applied to pre-existing indebtedness of the original buyer to itself. The court did not err in directing a verdict for the plaintiff.
    Decided June 18, 1917.
    Action for damages; from Baldwin superior court—Judge Henry C. Hammond presiding. January 9, 1917.

      Hines & Vinson, for plaintiff in error.

      Allen & Pottle, contra.
   George, J.

The Horne-Andrews Commission Company filed suit against the Exchange Bank, and alleged-: that the plaintiff, while engaged in the warehouse business and in the business of buying and selling cotton for its customers, as commission merchant, sold to J. J. Barrett, under the trade name of Barrett Cotton Company, on December 5, 1913, six bales of cotton for $336.56; on December 6, ten bales for $619.31; and on December 8, three bales for $183.92; that the cotton was delivered to Barrett, who in turn gave to it three checks, dated December 5, December 6, and December 8, covering these respective sales, each check indicating on its face the number of bales of cotton for which it was given; that after giving the checks Barrett sold and delivered the nineteen bales of cotton to one Ellison, who in turn delivered them to the Georgia Bailroad and received from the railroad a bill of lading covering this cotton and other cotton and naming the Barrett Cotton Company (the trade name of J. J. Barrett) as consignee, at Augusta, Georgia, “order notify Weil Bros.;” that the bill of lading was attached to a draft, drawn by Ellison, for $2,867.65, on Weil Bros., Augusta, Georgia, payable to the order of O. M. Conn, cashier of the defendant bank; that the bank indorsed this draft, and applied its proceeds, including the proceeds of the nineteen bales, of cotton bought by Barrett from the plaintiff,' to the payment in part of an already existing overdraft due the bank by Barrett, and declined to pay the three checks referred to;-that the checks were promptly presented to the bank on the dates given, and were again presented to the bank, and the bank declined to pay them. The suit was for the full value of the cotton as represented by the checks, and for punitive damages and counsel fees, on the added allegation of bad faith on the part of the. bank in refusing to pay the checks. The defendant in its answer admitted that it collected the draft described and applied the proceeds of the draft, including the proceeds of the nineteen bales of cotton referred to in the petition, to Barrett’s overdraft with it.

On the first trial of the case a verdict in favor of the plaintiff for the value of the cotton was returned by direction of the court, and the jury found for the defendant bank on the prayer for punitive damages and attorney’s fees. The case was reviewed by the Supreme Court on exceptions to the overruling of a demurrer, and to the refusal of a new trial (145 Ga. 870, 90 S. E. 55), and that court held that the action was not on contract, but in tort. The 4th division of the decision of the Supreme Court is as follows: “Upon the question whether the plaintiff was a commission merchant as contemplated by the statute, the evidence was equivocal. On other material issues the evidence was conflicting. It was therefore erroneous to direct a verdict for the plaintiff.” The decision of the Supreme Court is silent as to the other material issues upon which the evidence was conflicting. On the second trial the court again directed a verdict for the plaintiff, for the value of the cotton, as evidenced by the checks described in the petition, and referred the question of punitive damages and attorney’s fees to the jury. The jury again found for the defendant upon that issue. The ease is here on direct bill of exceptions.

Andrews, sworn for the plaintiff, testified: that he was secretary and treasurer of the plaintiff company; that the plaintiff is a commission merchant, selling cotton for farmers and charging a commission for selling it; that the plaintiff operates under a charter authorizing it to carry on the business of a commission merchant, and that on the dates named in the petition the plaintiff sold for its customers the cotton described in the petition, and for the amounts stated; that the checks referred to in the petition represented the actual market value of the cotton, and that they were presented to the defendant bank, and payment was refused; that for the six bales of cotton sold to Barrett on the 3d of December it received a check on the 5th; that for the ten bales sold Barrett on the 4th it received a check on the 6th; and that for the three bales sold on the 5th it received a check on the 8th. Tljis was in conformity with a custom between the warehouse and the buyer to allow two days from the purchase of the cotton to mark it, get it from the warehouse, and obtain a bill of lading covering the cotton. The testimony of this witness was not disputed.

Under the ruling in National Bank of Augusta v. Augusta Cotton &c. Co., 104 Ga. 403 (30 S. E. 888), this evidence demanded a finding that the plaintiff was a commission merchant. Indeed, the plaintiff seems to have sold the cotton directly for its farmer customers. On the authority of McCall v. Hunter, 8 Ga. App. 612 (2) (70 S. E. 59), and the cases there cited, the cotton was sold for cash, or delivered on cash sale. Compare especially Charleston &c. Ry. Co. v. Pope, 122 Ga. 577 (50 S. E. 374). Admittedly the checks were never paid, either by the defendant bank or by Barrett. The plaintiff accounted to its customers for the value of the cotton. The title to the cotton did not pass out of the plaintiff. The defendant bank received the bill of lading indorsed by Barrett, and in legal effect applied the plaintiff’s cotton to the payment of Barrett’s already existing overdraft. It was not even an innocent purchaser; had it been, that fact would have made no difference. See Flannery v. Harley, 117 Ga. 483 (43 S. E. 765). Whether the defendant bank knew, when it accepted the draft to which the bill of lading was attached, that the bill of lading covered, the specific lot of cotton in question is in doubt under the evidence in the Tecord. Fairly interpreted, the evidence clearly shows that the bank knew at or before the collection of the draft that the plaintiff’s cotton was included in the bill of lading attached to the draft. It certainly had knowledge of that fact before it made any application of the proceeds of the draft. Indeed, it finally applied the proceeds of the cotton to the payment of an already existing overdraft due to it by Barrett, ©r the Barrett Cotton Company. If any effect is to be given to section 4126 of the Civil Code (1910), which provides that cotton or other products sold by planters or commission merchants on cash sale shall not be considered the property of the buyer until fully paid for, although delivered to the buyer, it must be given effect in a case of this character. The defendant received and applied the plaintiff’s cotton, sold by the plaintiff for cash and for which it had not received payment, to the existing indebtedness of the purchaser. We have carefully examined the facts in the record, because we have been much in doubt as to the true meaning of the decision of the Supreme Court in the case. While there was, iu the record before the Supreme Court and in the record before this court, a conflict in the evidence as to whether the defendant bank knew at the time it received the draft and bill of lading that they covered the cotton sold by the plaintiff, we can not think that this question was material or controlling. This conclusion is compelled by the plain terms of section 4126, supra, and by the decisions of the Supreme Court. The opinion in National Bank of Augusta v. Augusta Cotton &c. Co., supra, in our opinion, forecloses the question against the bank. Compare also Postell v. Avery, 12 Ga. App. 507 (77 S. E. 666). The undisputed facts in this case lead to but one conclusion, and the court was right in directing a verdict for the plaintiff.

Judgment affirmed.

Wade, C. J., and Lulee, J., concur.


author: Geobge, J.

text:
    8536.
    Little v. McCalla.
   Geobge, J.

1. Section 4785 of the Civil Code of 1910 contains two provisions as to the procedure where the ordinary is disqualified,—one as to matters presented to the ordinary “ as such ordinary; ” in which event the statute declares, “he shall indorse such disqualification upon the papers, and the ordinary of any adjoining county shall pass upon the same and certify, to the ordinary of the county where the business arose, his action in the matter, who shall record the same,” etc. The second provision is that “When any ordinary is disqualified to try any case or issue pending before the court of ordinary,” he shall call upon the ordinary of any adjoining county to preside on the hearing of the ease or issue; and in such ease the statute does not in terms require that the disqualification shall be indorsed upon the papers. McAfee v. Flanders, 138 Ga. 403, 405 (75 S. E. 319).

2. When the matter is presented to the ordinary “as such ordinary,” the_ provision of the statute requiring that he shall enter his disqualification upon the papers is mandatory.

3. The removal of obstructions from a private way is a matter for the decision of the ordinary, not the court of ordinary. Fortson v. Maddox, 67 Ga. 282 (1).

4. Where the ordinary of Eulton county went into DeKalb county, assumed jurisdiction of, heard, and determined a proceeding for the removal of an obstruction from a private way, upon the invitation of and as a courtesy to the ordinary of DeKalb county, who declared himself disqualified in the matter, and where it affirmatively appears from the evidence and the papers in the case that the fact of disqualification was neither shown by the evidence ’nor certified by the ordinary of DeKalb county, the judgment of the ordinary of Eulton county is void.

Decided June 18, 1917.

Certiorari; from DeKalb superior court—Judge Smith. January 29, 1917.

L. J. Steele, for plaintiff in error.

Napier, Wright & Wood, A. G. & J. N. McCalla, contra!

5. The faet that the plaintiif in error appeared before the ordinary of Eulton county at the court-house in DeKalb county and failed to raise objection as to the qualification of such ordinary to pass upon the removal of an obstruction from a private way did not. confer jurisdiction upon the ordinary of Eulton county. Parties can not give a court jurisdiction of a subject-matter when it has none by law. Smith v. Ferrario, 105 Ga. 53 (31 S. E. 38) ; Epps & Leabow v. Buckmaster, 104 Ga. 700 (30 S. E. 959) ; Block v. Henderson, 82 Ga. 23 (8 S. E. 877, 3 L. R. A. 325, 14 Am. St. R. 138); Ragan v. Standard Scale Co., 123 Ga. 14 (50 S. E. 951).

C. The writ of certiorari will not lie to review a void judgment by a court legally constituted, or any pretended judgment by an individual or body of individuals assuming to exercise judicial powers without any lawful authority so to do. Bass v. Milledgeville, 122 Ga. 177 (50 S. E. 59), and eases there cited; Simpkins v. Hester, 3 Ga. App. 160 (59 S. E. 322).

7. The judgment overruling the' certiorari was in effect a dismissal of the petition, and was to this extent right, since there could not have been any other legal disposition of the case; but it was wrong in so far as it attempted to confirm and give legal effect to the void judgment of the ordinary of Eulton county. The judgment will, therefore, be affirmed with direction that the writ be dismissed.

Judgment affirmed, with direction.

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


text:
    8564.
    STOKES v. WRIGHT.
    1. “When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely solely upon the other.” Civil Code (1910), § 4407.
    2. When a person has two or more conflicting and inconsistent remedies for the same wrong, his election and actual prosecution' of the one to a favorable or an adverse decision is a bar to the. others.
    3. In the ease of conflicting and inconsistent remedies, the remedies are not concurrent, and where a choice between them is once made, with knowledge of all the facts, the right to follow the other is forever gone.
    4. Owing to the nature of the relation between‘a physician and a patient, the latter, in the case of malpractice by the. former, ordinarily has a choice of remedies, and may sue the physician either in contract or in tort. If he elects to sue in tort, and actually commences and prosecutes his action to a final adverse decision, his right to sue as for a breach of the contract, or a breach of the duty imposed by law, by reason of the defendant’s calling and the relation between the parties, is lost. And .this is true although at the time of the commencement of the action for the tort it was barred by the statute of limitations. The election to sue in tort and the prosecution of such suit to final 'judgment relates back to’ the original transaction out of which the action arose, and constitutes an irrevocable election between remedies as they then existed on the part of the patient.
    Decided June 18, 1917.
    Complaint; from Richmond superior court—Judge Henry C. Hammond. February 17, 1917.

      D. T. RougMon, A. R. Williamson, for plaintiff.

      Callaway & Howard, for defendant.
   George, J.

This is the second suit brought by the plaintiff against the defendant, a practicing physician and surgeon, to recover damages for alleged negligence in an operation performed by defendant on plaintiff. The first suit was filed to the January term, 1916, of the superior court of Richmond county, and was an action in tort, claiming damages for the alleged negligence of the physician in performing an operation upon the plaintiff on November 25, 1913. By demurrer the defendant raised the question of the statute of limitations, and the plaintiff’s right to recover was challenged on the ground that the petition set forth no cause of action. Hpon the hearing of this demurrer, on June 5, 1916, the court passed the following, order: “Demurrer sustained and petition dismissed.” There was no exception to this ruling, but instead the plaintiff filed the present suit to the September term, 1916, alleging the same facts as his cause of action, but claiming damages for the breach of the implied contract between plaintiff and defendant, which resulted from the alleged negligent operation. By amendment the plaintiff attached to his present suit a copy of the former suit, the defendant’s demurrer thereto, and the court’s decision thereon. The defendant filed his demurrer to the petition as amended, and for cause of demurrer set out that the decision on the demurrer in the former ease was res adjudicata as to the plaintiff’s cause of action; that the plaintiff, having elected in the first action to sue on the alleged tort, is now bound by that election, and, his cause of action therefor being barred, he can not now prosecute his action for the alleged breach of contract. The demurrer was sustained.

The court had jurisdiction of the parties and of the subject-matter involved in the first suit. The defendant demurred generally, and also upon the special ground that the alleged cause of action, if any existed, was barred by the statute of limitations. In the view which we have taken of the question, it is not so much a matter of res adjudicata, but an election of remedy. The plaintiff had the right to bring his action in tort, or for the breach of duty arising out of the contract of employment, express or implied. It is settled law that one may pursue any number of concurrent and consistent remedies, but, as between conflicting and inconsistent remedies, he must elect. He will not be permitted, after the choice of one of several inconsistent and conflicting remedies, which he might originally have pursued at his option, to change his position and take a course wholly inconsistent with the remedy which he 'first selected.' When he elected to sue in tort and actually commenced his action for the tort, and prosecuted it to an adverse decision, his right to sue on the contract was lost. Under the decision of the Supreme Court in Board of Education v. Day, 128 Ga. 167 (57 S. E. 359), the election to sue in tort, evidenced by the commencement of his suit, would seem to bar his right to proceed subsequently on the contract. Certainly the prosecution of the action for the tort to final decision by a court of competent jurisdiction will bar his right thereafter to declare upon the contract. It is of no avail that the statute of limitations had already barred the action in tort at the time of the filing of the plaintiff’s first suit. His election to sue in tort relates back to the original wrong, and to his rights as they then existed. The court properly sustained the demurrer to the present suit. Compare Brunswick Co. v. Dart, 93 Ga. 747 (2), 749 (20 S. E. 631); Rowe v. Sam Weichselhaum Co., 3 Ga. App. 504 (60 S. E. 275); Padgett v. Ford, 117 Ga. 510 (43 S. E. 1002); Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29); Board of Education v. Day, supra; Blalock v. Phillips, 38 Ga. 221; 1 Corpus Juris, 1030, 1039, 1040; Hartland v. Hackett, 57 Vt. 96; Goss v. Mather, 46 N. Y. 689; Hooker v. Hubbard, 97 Mass. 177; Washburn v. Great Western Ins. Co., 113 Mass. 1764.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7851.
    WARFIELD & ROBINSON v. YOUNG, adm’r.
    In the payment of tlie debts of a decedent, a lien on personal property, evidenced by a purchase-money mortgage which expressly states that it is executed and delivered for the purpose of securing the debt for such purchase-money, is inferior to a lien for expenses of the decedent’s funeral.
    Decided June 18, 1917.
    Attachment; from city court of Macon—Judge Guerry. September 1, 1916.

      Robert W. Barnes, for plaintiffs.

      Feagin & Hancock, for defendant.
   Broyles, P. J.

The decedent’s estate consisted of a solitary-mule, which was covered by a purchase-money mortgage reciting that it- was given for the purpose of securing the purchase-money debt. The funeral expenses of the decedent amounted to more than the value of the mule. The trial judge held that the lien for the funeral expenses was superior to the lien for the balance of the purchase-money of the mule, and directed the administrator to pay such expenses ahead of the payment of the mortgage. The mortgagees excepted. In our opinion that decision was correct. Under section 4000 of the Code of 1910, which provides how liens shall rank in priority in the payment of the debts of a deceased person, a year’s support for the family comes first, and the funeral expenses of the deceased come next. Mortgage liens are ranked in the sixth place. By the act of 1903 (Acts of 1903, p. 76, Park’s Ann. Code, § 4049) it is provided that a lien of a purchase-money mortgage on personal property shall be paid out of the estate of the deceased ahead of the year’s support for the family, where it is expressly stated in the mortgage that it is executed and delivered for the purpose of securing the debt for such purchase-money; and it is contended by counsel for the mortgagees that this act necessarily made the lien of such" a mortgage superior to the lien for the funeral expenses, since, under the code-section cited above, the payment of the year’s support for the family is ranked ahead of payment of the funeral expenses. We can not agree with this contention. The act of 1903 did not purport or attempt to regulate or change the general law as to the priority of the payment of the debts of a deceased person, as set forth in code-section 4000. It provided for one specific change in the law only, and that was, to make the year’s support for the family of the deceased inferior to the lien of a purchase-money mortgage on personal property, where the mortgage expressly states that it is given for the purpose of securing the debt for the purchase-money. The heading of the act shows that this alone was the intention of the legislature. The construction placed upon the act by counsel for the mortgagees would read into the body of the act matter which is vitally different from its title; and it is well settled law that the legislature is without authority to pass an act which contains matter entirely different from the title of the act. Civil Code (1910), §§ 6437, 6445. The act of 1903 affects property rights and must be strictly construed, and under such a construction it does not amend section 4000 except as to the particular matter therein stated, which is to make a year’s support for the. family inferior to the lien of a purchase-money mortgage.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.