text:
    9676.
    Creswell v. Williams.
   Jenkins, J.

1. The writ in this case pertains to a cause of action in what was originally 'an equitable petition, in which it was. sought to restrain the defendant from disposing of certain lumber which the petitioner claimed he had purchased from the defendant under the terms of a written contract; but the cause was amended on the trial by striking from the petition all prayers for equitable relief, and proceeded solely for the recovery of damages by virtue of the alleged breach of the contract of sale. The contention of the plaintiff on the trial was that the defendant had breached the contract of sale by refusing to deliver to him the lumber purchased. The defendant, on the other hand, contended that the plaintiff had himself breached the contract by reason of his failure to count and receive each car of lumber before removing it from the mill-yard, and also by his failure to remove such lumber within a reasonable time. Reid:- While the testimony going to show a breach of the terms of the contract on the part of the plaintiff himself is not to our minds altogether clear, still it can not be said that the jury were wholly unauthorized to thus construe it, and therefore the verdict must not be set aside as being without evidence to support it. Nor can the verdict be disturbed upon the ground of the alleged error in the charge, since the finding of the jury, to the effect that the contract had been actually breached by the plaintiff, renders immaterial the propriety of the charge which it is complained improperly authorized the jury to limit a portion of the damages claimed under the terms of the contract as construed by plaintiff.

Decided January 14, 1919.

Action on contract; from Catoosa superior court—Judge Tarver. March 9, 1918.

M. L. Harris, for plaintiff.

W. E. Mann, Rosser & Shaw, for defendant.

Judgment■ affirmed.

Wade, C. J., and Luke, J., coneur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    9679.
    Wilkins v. National Life and Accident Insurance Company.
   Jenkins, J.

1. Where answers to questions in an application for life or accident insurance, which form the basis of the contract, are not prepared and entered for the applicant by the soliciting and forwarding agent of the insurer, but are made and entered by the applicant himself, who warrants them to be true, and where such application is attached to and made a part of the policy, any material variation as to any of such answers, whereby the nature or character or extent of the risk is changed, will avoid the policy, whether the statement was in good faith or was wilfully and fraudhlently made. Supreme Conclave v. Wood, 120 Ga. 328 (47 S. E. 940).

2.. (a) Under the act of August 17, 1906 (Ga. L. 1906, p. 107; Civil Code of 1910, § 2471), the application on which an insurance policy is based is not to be considered as a part of the insurance contract, unless a copy of the application is attached to or accompanies the policy; and this is true even though it bo sought by the express terms of the policy itself to make such unattached application a part of the agreement. But while it is true that the representations as made in such an unattached' application can not be treated as a part of the contract, and are not to be taken as covenants or warranties, still if such statements furnished the actual basis on which the policy was issued, and they were not only false but were also fraudulently made by the applicant acting for himself, the insurer may set up such facts as a means of avoiding the policy, not under and by virtue of the terms of the contract, but for the reason that the insurance is thus shown to have been fraudulently procured. Johnson v. American Nat. Life Ins. Co., 134 Ga. 800 (68 S. E. 731) ; Bankers Health & Life Ins. Co. v. Murray, 22 Ga. App. 495 (96 S. E. 347).

(b) Where, however, it appears that the soliciting and forwarding of applications for policies of insurance was within the scope of the duties of an agent of an insurance company, and the agent himself prepared' such unattached application, and in doing so fraudulently misled and deceived the applicant by inserting, without the latter’s knowledge, false answers to material questions, knowledge of such fraud on the part of the agent will not be legally imputed to the insured, and the agent will be regarded as having acted for the company alone, and with its knowledge only; and this is true although such unattached application may have been actually signed by the insured, and though it be therein stated that the answers are warranted to be time. Such was the rule even when such unattached application could have been, and in fact was, legally made a part of the contract itself. Insurance Co. v. Wilkerson, 80 U. S. 222 (20 L. ed. 617) ; Clubb v. American Accident Co., 97 Ga. 502 (25 S. E. 333) ; Travelers Protective Association v. Belote, 21 Ga. App. 610 (94 S. E. 834).

(c) But where, in conformity with the requirements of section 2471, supra, such application is actually attached to the policy of insurance, and by 'the terms of the contract is made a part thereof, the rule as to notice is otherwise, and the insured should not be permitted to claim under the contract, without being held to have had knowledge of the statements made in the application actually attached to and forming an integral part of the contract as delivered, accepted, and sued on. New , York Life Ins. Co. v. Fletcher, 117 U. S. 519 (6 Sup. Ct. 837, 29 L. ed. 934 (4)); Wyss-Thalman v. Maryland Casualty Co., 193 Fed. 55 (13 C. C. A. 383) ; Lumber Underwriters v. Rife, 237 U. S. 605, 609 (35 Sup. Ct. 717, 59 L. ed. 1140) ; Maryland Casualty Co. v. Eddy, 239 Fed. 477, 152 C. C. A. 355). In a suit at law where it appears that the application was in fact attached to the policy sued on, and was by its terms made a part thereof, the mere fact that the plaintiff fails to include the application in the copy of the policy as attached to the suit would not alter the rule.

(d) Under the ruling made by the Supreme Court in German American Life Asso. v. Farley, 102 Ga. 720 (29 S. E. 615),-mere constructive knowledge on the part of the applicant of the falsity of such warranted and material answers thus wilfully, knowingly, and fraudulently inserted by the agent will not of itself operate to avoid a policy which does not in terms provide that it shall be void’in the event such statement of fact should prove to be untrue, and where it also appears that even if the statements thus wilfully and fraudulently entered by the agent were false, there was no actual fraudulent purpose and intent on the part of the applicant himself. What would' be the rule in such a case if the policy in fact contained such a provision for its forfeiture as just indicated need not, under the facts of the.instant ease, be decided. See, in this connection, Ætna Life Ins. Co. v. Conway, 11 Ga. APP- 557, 558, 560 (75 S. E. 915). But the rule just stated does'not mean that the insured, with actual knowledge of the wilful fraud thus perpetrated by the agent upon his principal, could himself fraudulently connive and collude with such agent so as to claim the benefit of the latter’s deception. Faircloth v. Taylor, 147 Ga. 787 (95 S. E. 689).

3. While questions as to the truth and materiality of representations are generally .issues, of fact, for determination by the jury, yet where all the testimony relating to a question of fact excludes every reasonable inference but one, the issue becomes one of law, for determination by the court. Mutual Life Ins. Co. v. Bolton, 22 Ga. App. 566 (96 S. E. 422(2) ).

Decided January 14, 1919.

Action on insurance policy; from Floyd superior court—Judge Wright. February 15, 1918.

W. B. Mebane, M. B. Eubanks, for plaintiff.

Maddox & Doyal, for defendant.

4. Under the rule obtaining in this State, “in an action on an insurance policy, the defense that the contract of insurance is void because obtained by fraud practiced on the insurer by the insured may be pleaded . without repaying or offering to repay the premiums or any part thereof received by the insurer on the policy.” Columbian National Life Ins. Co. v. Mulkey, 146 Ga. 267 (91 S. E. 106).

5. The instant case was a suit upon an insurance policy, to which policy the application was attached as ..a part of the policy. A verdict was directed for the defendant. The- policy did not in terms provide that it should be void in the event the statements of facts contained in the application should prove to be untrue. It conclusively appears that a number of false answers to material questions were entered in the application. The plaintiff did not include a copy of the application with the copy of the policy attached to the declaration. According to the evidence of the plaintiff, the application was filled out by the soliciting and forwarding agent of the company, and when it was signed the false answers to the several material questions were not therein contained. They were, however, shown in the application actually attached to the policy as produced by the plaintiff and introduced in evidence by the defendant. According to the plaintiff’s evidence, the agent of the company had knowledge at the time the policy was issued that the answers to some of the material questions entered in the application were false; but the evidence entirely fails to show such knowledge on the part of the agent as to the falsity of certain other material answers; Held: Under the principles of law set forth above, the judge did not err in directing a verdict for the’ defendant.

Judgment .affirmed.

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


text:
    9683.
    Burgess v. Torrence.
   Jenkins, J.

B. W. Torrence brought, suit against Mattie L. Burgess, a .married woman, on a promissory note signed by her and given under . her written rent contract with the plaintiff. The defendant admitted • ■ signing the note sued on, but filed a defense setting up: (1) that she ■ was not indebted .to the plaintiff, and received no consideration .or benefit from the signing of the Hots' sued on; that the note was given < for the rent of a farm rented’ by the plaintiff to her husband, Gillám Burgess; that she was forced by the plaintiff, acting through her husband, to sign tbe note; that her husband “threatened her until she was by fear forced to sign the said note; that she would not have signed the same had it not been for such threats and such other frauds and menaces heaped upon her by the plaintiff, B. W. Torrence, through her ignorant and unlearned husband;” and (2) “that it is not her dtebt or obligation; that she is not responsible to the plaintiff in any sum whatever; that she is now, and was at the time of signing the note, a married woman, and she wishes to take advantage of the statute making her exempt from the payment of her husband’s debts in such cases; that the note was secured through fraud, force, and threats and fears.” Upon the-trial of the case the jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and she excepted'. Held:

1. “Eraud voids all contracts” (Civil Code of 1910, § 4254), and the free assent of the parties being essential to a valid contract, duress, either by threats or other arts, by which the free will of the party is restrained and his consent induced, will void the contract. Civil Code (1910), § 4255. But in order for a married woman to defeat a recovery by the payee on a promissory note made by her, upon the ground that her signature thereto was procured by the fraud and duress of her husband, she must not only show that such was the fact, but must also show that the payee of the note was either a party to such fraud and duress, or'that he had knowledge thereof. Pate v. Allison, 114 Ga. 651 (40 S. E. 715); Johnson v. Leffler Co., 122 Ga. 670 (3) (50 8. E. 488) ; Bateman v. Cherokee Fertilizer Co., 21 Ga. App. 158 (93 S. E. 1021). The court therefore did not err in charging the jury as complained of in the first ground of the amendment to the motion for a new trial.

2. While under our law a married' woman can not assume the debts of her husband (Civil Code of 1910, § 3007), still tbe issue as made by the evidence in this case was not one -in which this principle was involved. Even if it should appear that the plaintiff in the first instance rented the land to the husband, and subsequently entered into a new and different agreement with the wife, whereby she was to take over the land and become the tenant instead of the husband, such a procedure could not properly be called an assumption by the wife of the husband’s obligation, but would be an original undertaking on her part; and unless it be shown that the new contract was brought about by fraud or duress practiced upon the wife by the plaintiff, or by another with his knowledge, there would be nothing to render' such an agreement on her part invalid. The consideration going to the wife in such a case is not the incidental extinguishment of the prior promise of the husband, but the taking over by her of the land itself under the rent agreement. Simmons v. International Harvester Co., 22 Ga. App. 358 (5) (96 S. E. 9), and cases there cited. That the negotiations leading up to the signing of the rent notes by the wife were had through the husband would not change the rule. Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).

Decided January 14, 1919.

Complaint; from city court of Nashyille—Judge Christian. April 9, 1918.

R. A. Hendricks, William Story, for plaintiff in error.

W. R. Smith, contra.

3. The verdict was authorized by the evidence, and the charge of the court is not subject to the exceptions taken.

Judgment affirmed.

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


text:
    9703.
    Dove et al. v. Alford.
    Decided January 14, 1919.
    Complaint; from Madison superior court—Judge W. L. Hodges. March 4, 1918.

      Alex. S. Johnson, for plaintiffs in error.

      C. E. Adams, contra.
   Jenkins, J.

Where the defendant to a suit in the superior court fails to answer at the appearance term, but the judge fails during that term to enter the case as in default, it is the right and privilege of the defendant, so long as the case is pending and not so marked, to file his defense at a subsequent term. But the mere failure of the judge during the first term to mark the case on the docket as in default does not give the defendant the additional right to treat the subsequent term at which his plea is filed as the appearance term, and to require that the case go over to still another term for trial.

Judgment 'affirmed.

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


author: Wade, C. J.

text:
    9747.
    MITCHELL v. SOUTHERN RAILWAY COMPANY.
    1. Tt does not appear that the discretion vested in the judge was abused by his refusal to allow additional evidence in behalf of the plaintiff after announcing that a nonsuit would be awarded, it appearing both that counsel for the plaintiff had knowledge of the existence of the proposed' additional evidence and that the same evidence was available before closing the case, and no reason being assigned why it had not been previously presented. Cushman v, Coleman, 92 Ga. 772 (19 S. E. 46) ; Penn v. Georgia So. Ry. Co., 129 Ga. 856 (60 S. E. 172) ; Polhill v. Postal Telegraph-Cable Co., 16 Ga. App. 601 (3) (85 S. E. 936); Moore v. Dixie Fire Insurance Co., 19 Ga. App. 800, 807 (92 S. E. 302).
    2. There was no error in awarding a nonsuit on the 1st and 2d counts of the petition, as the evidence failed to establish that at the time of the injury the defendant was engaged and the plaintiff employed in inter* state commerce. According to the plaintiff’s testimony he was “inspector for engines, tanks, wheels, and all siich as that—engine carpenter,” and inspected engines engaged in both intrastate and interstate commerce. He inspected any engine that came into the roundhouse; and an engine might run to Chattanooga, Tennessee, on one day, to Jacksonville, Florida, on another day, or to Macon, Georgia, on still another day. Minneapolis &c. R. Co. v. Winters, 242 U. S. 353 (37 Sup. Ct. 170, 61 L. ed. 358, Ann. Cas. 1918B, 54). The answer of the defendant to the allegation as made in the petition (which was afterwards made more definite by amendment), that the plaintiff was ' injured while employed in interstate commerce, was not so evasive as to constitute an admission of the truth of the alleged fact and to supply, when introduced in evidence, sufficient proof that the plaintiff was engaged in interstate commerce.
    Decided January 14, 1919..
    3. The court erred in granting the second application to remove the case from the State to the Federal court, after sustaining the motion to award a nonsuit .as to the two counts in the declaration alleging that the plaintiff was employed in interstate commerce at the time of the injury, since he did not admit any failure of proof' as’ to the character of the employment; nor did he amend his complaint, but at all times insisted and still insists that the allegation was supported by the evidence; and- it did not appear that the allegations as to employment in interstate -commerce were made for the fraudulent purpose of evading the removal of the ease from the State court.
    Action for damages; from Fulton superior court—Judge Pendleton. March 26, 1918.

      Colquitt & Conyers, for plaintiff.

      McDaniel & Black, for defendant.
   Wade, C. J.

In the case of Great Northern R. Co. v, Alexander, 246 U. S. 276 (38‘Sup. Ct. 237, 62 L. ed. 713), it was said: “It is, of course, familiar law, that, the right of removal being statutory, a suit commenced in a State court must remain there until cause is shown for its transfer under some act of Congress (Little York Gold-Washing & Water Co., v. Keyes, 96 U. S. 199, 24. L; ed. 666; Judicial Code, c. 3, §§ 28, 39 [36 Stat. 1094, 1099, c. 231, Comp. Stat. 1916, §§ 1010, 1021]). The allegation of the complaint that the deceased was- employed in interstate commerce when injured brought the ease within the scope of the Federal employers’ liability act [U. S. Comp. St. §§ 8657-8665], and it would have been removable either for diversity of citizenship or as a case arising under a law of the United States, except for the prohibition against removal contained in the amendment to the act, approved April 5, 1910 (36 Stat. 291, e. 143). - But'this allegation rendered the case, at «the time it was commenced, clearly not .removable on either ground. Kansas City Southern R. Co. v. Leslie, 238 U. S. 599 (59 L. ed 1478, 35 Sup. Ct. Rep. 844); Southern R. Co. v. Lloyd, 239 U. S. 496 (60 L. ed. 402, 36 Sup. Ct. Rep. 210). . . It is also settled that a case'arising under the laws of the TJriited Stgtes, non-removable on the complaint, when commenced, cannot be converted into a removable one by evidence of the defendant or by an order of the court upon any issue tried upon the merits, but that such conversion can only be accomplished by the voluntary amendment of his pleadings by the plaintiff, or, where the case is not removable because of joinder of defendants, by the voluntary dismissal or nonsuit by him of a party or of parties defendant. Kansas City Suburban Belt. Ry. Co. v. Herman, 187 U. S. 63 (47 L. ed. 76, 23 Sup. Ct. 24); Alabama G. S. R. Co. v. Thompson, 200 U. S. 206 (50 L. ed. 441, 26 Sup. Ct. 161, 4 Ann. Cas. 1147); Lathrop, S. & H. Co. v. Interior Constr. & Improv. Co. 215 U. S. 246 (54 L. ed. 177, 30 Sup. Ct. 76); American Car & Foundry Co. v. Kettlehake, 236 U. S. 311 (59 L. ed. 594. 35 Sup. Ct. 355). The obvious principle of these decisions is,- that, in the absence of a fraudulent purpose to defeat removal, the plaintiff may, by the allegations of his complaint, determine the status with respect to removability of a case arising under a law of the Hnited States, when it is commenced, and that this power to determine the removability of his case continues with the plaintiff throughout the litigation, so that -whether such a case, non-removable when commenced, shall afterwards become removable, depends not upon what the defendant may allege or prove, or what the court may, after hearing upon the merits, in invitum, order, but solely upon the form which the plaintiff by his voluntary action shall give to the pleadings in. the case as it progresses towards a conclusion. . . The plaintiff did not at any time admit that he had failed to prove the allegation that the ’ deceased was employed in interstate commerce when injured, and he did not amend his complaint, but, on the contrary, he has contended at every stage of the case, and in his brief in this court still contends, that the allegation -was supported by the evidence. The first holding to the contrary was by the State supreme court; and the most that can be said of that decision is that the defendant prevailed in a matter of defense which he had pleaded; but, as we have seen, this does not convert a non-removable case into a removable one, in the absence of voluntary action on the part of the plaintiff, and it therefore results that the defendant did not at any time.have the right to remove the case to the Federal court, which it claims was denied to it, and that therefore, there being no substance, in the claim of denial of Federal right, this court is without jurisdiction to review the decision of the Supreme Court of Montana, and the writ of error must be dismissed.”

It is not necessary to add anything further to the rulings stated in the headnotes.

Judgment reversed.

Jenkins and Luke, JJ., concur.


author: Luke, J.

text:
    9767.
    Levens v. Arp, guardian.
    Decided January 14, 1919.
    Complaint; from Heard superior court—Judge Terrell.. February 13, 1918.

      S. Holderness, Hatchett & Hatchett, for plaintiff in error.

      A. B. Taylor, Griffith & Matthews, contra.
   Luke, J.

Under the Civil Code (1910), § 5385 (see Hindman v. Raper, 140 Ga. 775, 79 S. E. 945), the owner of leased premises cannot recover double rent from a tenant holding over, unless demand is made for the surrender of the leased premises and possession is not delivered by the tenant after such demand. Accordingly, it was error for the court to charge the jury that the plaintiff was entitled to recover double rent for a year prior to the demand and the refusal to deliver possession of the properly so rented. There is' no other error of law complained of which would require a new trial. The court erred in overruling' the motion for a new trial.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


author: .^ade, C. J.

text:
    9777.
    Atlanta, Birmingham & Atlantic Ry. Co. v. Smith.
   .^ade, C. J.

1. Even if the injury to the plaintiff'resulted from the carelessness and negligence of inexperienced and incompetent servants, the petition was nevertheless subject to general demurrer, since the law presumes that the master exercised ordinary care in the selection of his servants (Georgia Railroad Co. v. Nelms, 83 Ga. 70, 74, 9 S. E. 1049, 20 Am. St. R. 308; Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S. E. 730; Gunn v. Willingham, 111 Ga. 427, 434, 36 S. E. 804; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (2), 86 S. E. 82), and it is not alleged that the master knew of such incdmpeteney, or by the exercise of due diligence could or should have known of it, at the time of employment, or negligently retained such. servants with knowledge of their ineompetency. Gunn v. Willingham, supra.

Decided January 14, 1919.

Action for damages; from city court of Brunswick—Judge Krauss. April 20, 1918.

Bolling Whitfield, for plaintiff in error.

Frank H. Harris, contra.

2. The petition was likewise subject to general demurrer for the reason that it affirmatively appears therefrom that the plaintiff was at the time of his injury a foreman in charge of a gang of laborers, whose negligence he alleges caused his injury, and he had at least equal opportunity with the master of discovering, or in the exercise of ordinary care should have known, their negligent propensities. “A servant can not recover for injuries resulting from a fellow servant’s incompetency, if he had equal opportunity with the master of discovering it, or in the exercise of ordinary care should have known of it.” Kilgo v. Rome Soil Pipe Mfg. Co., supra. See hlso Civil Code (1910), § 3131; R. & D. Railroad Co. v. Worley, 92 Ga. 84 (18 S. E. 361) ; Crown Cotton Mills v. McNally, 123 Ga. 35, 38 (51 S. E. 13). .

3. The court erred in overruling the general demurrer.

Judgment reversed.

Jenhins and Luke, J.J., concur.


text:
    9784.
    Posey v. Floyd County.
    Decided January 14, 1919.
    Action for damages; from city court of Floyd county—Judge Nunnally. March 8, 1918.

      Maddox & Hoyad, for plaintiff.

      Graham Wright, for defendant.
   Luke, J.

.The conflict in the evidence in this ease made a jury question. A discussion of the evidence is not had here, because of the possibility that it might jeopardize the rights of the parties in another trial of this case. The court erred in directing the verdict and in not submitting the issues, under an appropriate charge, to the jury. See City , of Rome v. Brooks, 7 Ga. App. 244 (66 S. E. 627).

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9837.
    Dodge v. Royal Mining and Milling Company.
   Luke, J.

The grounds of the motion for a new trial which have the approval of the trial judge do not show material error in the admission of testimony. -The charge of the court is subject to some slight criticism, because of inapt expressions, but upon the whole was full and submitted the issues to the jury, and could not have misled them in such a way as to work injury to the plaintiff. The evidence, though conflicting, authorized the verdict, which has the approval of the trial jud'ge. ■ There is no error or harm shown to the plaintiff by reason of the ruling,s upon the demurrers to the answer of the defendant. Eor none Of the reasons assigned did the court err in overruling the motion for a new trial.

Decided January 14, 1919.

Complaint; from I-Iaralson superior court—Judge Bartlett. April 15, 1918.

Griffith & Matthews, Hutchens & McBride, for plaintiff.

Price Edwards, Lloyd Thomas, for defendant.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9847.
    SOUTHERN RAILWAY COMPANY v. STEPHENS.
    Decided January 14, 1919.
    1. Where there is no demurrer to a petition fatally defective in that it does not set forth a cause of action, and by motion for a new trial a verdict against the defendant is complained of as being contrary to law, the petition may still be attacked by timely bill of exceptions to a judgment overruling the motion for a new trial. -
    2. A passenger on a railway train has no legal right to leave the cars unnecessarily on personal business or pleasure at an intermediate station, where his train is detained for an unusual length of time because of a wreck elsewhere on the line; and where he does so at his own instance and makes inquiry of the conductor as to the length of time the train is expected to remain at the station, the conductor can not be presumed to know that it is the desire and intention of the inquirer to absent himself from the station-grounds, merely to gratify idle curiosity concerning a' nearby mill; and consequently the answer of the conductor, under such circumstances, expressing his opinion as to the length of the delay, apparently made in good faith, could neither increase nor diminish the duty or liability of the carrier to the passenger.
    3. The plaintiff had no legal right of recovery in this case, and the verdict in his favor must therefore be set aside as being contrary to law.
    Action for damages; from’ city court of Eloyd county—Judge Nunnally. May 13, 1918.

      Hamilton & Hamilton, C. J. Carey, Maddox, McCamy & Shumate, for plaintiff in error.

      W. B. Mebane, McHenry & Porter, contra.
   Wade, C. J.

The following is a fair statement of the- case as made by the pleadings and the evidence: On July 19, 1917, the plaintiff boarded a train of defendant’s railway at Pryor’s Station, Borne, Georgia, for Birmingham, Alabama, and paid his fare to the conductor in charge of the train to Anniston, Alabama, taking a receipt therefor. The train stopped an unusual length of time at Jacksonville, Alabama, and, as it was very warm in the coach, the plaintiff left the train, with several other passengers, in order to ascertain from the conductor the cause of the delay, and was informed by him that there was “a wreck down the road,” and that they would be there “an hour—till twelve o’clock.” Belying upon this information the plaintiff and a fellow passenger sought a nearby restaurant, and after lunch, thinking they had ample time, as it was then only 30 minutes after eleven, they decided to inspect a mill, about a quarter of a mile distant. They staid at the mill only a few minutes, and returned to the depot 10 or 15 minutes before twelve o’clock, when they discovered to their surprise' that the train had departed. They then decided to go to Anniston, (which was approximately only 13 miles away, by taxicab, and it cost them 50 cents each to make the trip in this manner, and the plaintiff reached Anniston in time to continue his journey to Birmingham by the same train he would have traveled on had he not been delayed at Jacksonville. The jury returned a verdict in favor of the plaintiff for $350. The defendant filed a motion for a new trial, and exception is taken to the judgment overruling the motion.

“ ‘Proving a case as laid’ will prevent a nonsuit, and may possibly prevent a motion for a new trial from being granted on the ground that the verdict is contrary to evidence, but it will not authorize a recovery unless the case as laid.so authorizes. Mere proof -of a fact will■ not in law authorize a recovery unless the existence of such fact so authorizes. [Italics ours.] One of the prerequisites to a recovery by a plaintiff is that his pleadings and evidence be in substantial accord, but it is not the only prerequisite. A failure to demur does not confess the action either in law or in fact. A defendant who passes over, without demurring, a petition which is fatally defective in that it does not set forth a cause of action may still attack the same on this ground by an oral motion to dismiss the case at any time before verdict; after verdict, by motion in arrest of judgment made during the term at which the judgment was rendered; or by assigning error on the judgment by a direct writ of error sued out in due time; or within three years from the date of the judgment, by motion to set aside. ... On such a writ of error the whole case as shown by the record is before the court of error for inspection and revision. Where the defect appears on the face of the declaration, it is settled law that a court of error is bound to notice it. When it is clear that in point of law the action will not lie, a judgment in favor of the plaintiff will be reversed on writ of error.” Kelly v. Btrouse, 116 Ga.'872 (43 S. E. 280). Although in the present case there was no demurrer to the petition and no motion to dismiss the case before verdict, and no motion after verdict to arrest judgment, the writ of error excepting to the overruling of a motion for a new trial, in which motion it is complained that the verdict is contrary to law, is sufficient to raise for adjudication in this court the question whether or not the facts alleged by the plaintiff authorized a lawful recovery against the defendant. Notwithstanding the absence of any demurrer or motion to dismiss on account of the legal insufficiency of the allegations in the plaintiff’s petition, and notwithstanding the proof submitted may as a whole establish without conflict every essential allegation made, if the facts alleged and proved in themselves fix no burden of liability upon the defendant, or do not charge the defendant with responsibility for the injuiries on account of which the plaintiff sought to recover damages, the total insufficiency of the facts alleged and proved can nevertheless be taken advantage of under general grounds of a motion for a new trial, and a bill of exceptions assigning error on the judgment' overruling the motion for a new trial presents for determination the question as to the existence of any cause of action, based upon the allegations and proof as made.

In order to determine whether the petition set forth a cause of .action against the defendant, it is necessary to ascertain whether the defendant owed any duty to the plaintiff, under the allegations set forth, which were substantially supported by proof; for, in the absence of such an obligation to the plaintiff, no negligence on the part of the defendant could exist of which plaintiff had a right to complain. The plaintiff was a passenger on the defendant’s train, under a contract, to be carried to Anniston, but on arriving at the town of Jacksonville, where the train was delayed several minutes on account of a -wreck, he voluntarily left the train and its vicinity, and by so doing ceased to be a passenger until he again entered the train for the purpose of being conveyed to his destination, or at least came' again upon the premises of the defendant for the purpose of boarding the train. To enable the plaintiff to hpld the defendant responsible for his safe carriage to Anniston, he should at least have remained at the station, or in close proximity thereto, where he could have been looked after by the officers or agents of the company. Such is the rule announced in King v. Central Ry. Co., 107 Ga. 754, 757 (33 S. E. 839). Where a passenger actually leaves the premises of the company, he ceases to be a passenger. 2 Am. & Eng. Enc. L. 745; Brunswick & Western R. Co. v. Moore, 101 Ga. 684 (28 S. E. 1000); Ga. R. &c. Co., v. Richmond, 98 Ga. 495 (25 S. E. 565). Elliott, in his work on the Law of Railroads, vol. 4, § 1592, says that where a passenger leaves the train and voluntarily walks along the track, the relation of carrier and passenger is severed. The contract of a railroad company with a passenger is to carry him to his point of destination. He is-not expected to leave the cars at intermediate stations, and the carrier does not engage to afford him an opportunity to do so except at the usual stopping-places for refreshments. It is not the rule that once a passenger always a passenger. DuBose v. Atlantic Coast Line R. Co., 81 S. C. 271 (62 S. E. 255); 10 C. J. 612. See also-Palmer v. Williamette Valley Southern R. Co., 88 Or. 322 (171 Pac. 1169, L. R. A. 1918D, 1114).

It is therefore no longer an open question in Georgia, that where a passenger voluntarily leaves the station-grounds of the carrier his status as such terminates.

However, the plaintiff contends that this general rule is inapplicable to the instant ease, in view of the statement of the conductor, —“We will be here an hour—till 12 o’clock.” This contention is unsound. It will be observed that the conductor made no'misstatement as to the facts of the existing situation, and there is nothing that tends to show that when he expressed his opinion that the train would remain at the station until 12 o’clock, he knew it would depart before that time, or that he made any wilful misrepresentation to the passenger with intent to deceive. The train was held at the station on account of a wreck further along the line, and was directed to remain there until the. way was cleared, rhieh it was estimated or conjectured would take until 12 o’clock. Being apprised of the facts causing the delay, the plaintiff must . nave known, as an ordinarily intelligent man, that the future operation of the train upon which he was a passenger, and especially the time of its departure from that station, would altogether depend .upon the tiine when the obstruction was removed from the track. Notwithstanding such knowledge, he nevertheless, without any legally sufficient reason and without the consent or knowledge of the conductor, absented himself from' the vicinity of the station at which the train was delayed, in order to go a quarter of a mile distant merely to satisfy his curiosity as to the situation in and about a certain mill. Under- these circumstances he had no legal right to rely blindly upon the purely gratuitous and casual 'statement of the conductor that the train would- not leave until 12 o’clock; and it seems to us only reasonable that by leaving the station grounds altogether he assumed the obvious risks incident to a subsequent change in the situation which might permit the train to leave earlier than was conjectured at the time the conductor made the statement as to its prospective time of departure. If this were not true, then the plaintiff’s action in leaving the station would have made the departure of the train not' only dependent upon the removal of the wreck, but upon the time he'might elect to return—before 12 o’clock. In other words, to agree with the plaintiff’s contention, we would have to hold that the true statement of the conductor as to the cause and possible duration of the delay (made merely from- courtesy and not in the discharge of any legal duty) so changed the rights of the parties as to make any movement of the train up Ao the hour of 12 o’clock wholly dependent on the passenger’s pleasure. It could not be required or expected that a conductor in charge of a train en route between terminal points should call the roll of his passengers at every intermediate station where the train might stop for a longer or shorter interval, before permitting it to proceed on its way, lest by some chance he might have unguardedly, though in perfect good faith, expressed his personal opinion to some one or more.of his passen-' gers as to the probable length of stay the train would make at that station, or as to the time of its departure therefrom. A different question might possibly be presented if the passenger had acquainted the conductor with his intention to absent himself from the station or the adjacent grounds, and had been thereupon assured by the conductor that he could do so with safety, provided he boarded the train by or before a time named, anterior to which time the train would not take its departure, and the passenger returned to the station before the time mentioned and found the train had already gone.

The ruling we make is not without precedent. In the case of Missouri Pac. R. Co. v. Foreman, 73 Tex. 311 (11 S. W. 336, 15 Am. St. E. 785), where upon nearing an intermediate station a passenger asked the conductor how long the train would stop at that station, and he answered, “five minutes,” and on the arrival of the train at the station the passenger left the cars to inquire after some business matters, and had gone but a few steps when he heard the train start, and in attempting to get on it while in motion he was thrown down and injured, and it appeared that the train started in much less time than five minutes, it was held that the answer of' the conductor that the train would wait five minutes created no obligation to hold the train that length of time.

It follows from what has already been said that when a conductor is merely asked how long a train will stop at a certain intermediate station, he is not presumed to know that it is the desire of the inquirer to leave the vicinity of the station and consume in pleasure or business the time of the, halt.-' Such questions are frequently asked by passengers from idle curiosity or other motives, and it would be unreasonable to hold that by answering them the conductor assumes for the company the obligation to watch at all times the movements of the passengers, or unnecessarily to delay the train or to make its movements coincide with answers made in good faith to such apparently idle questions. We think the obligation of the defendant to the passenger was neither increased nor diminished by the conductor’s answer in this case; and therefore the verdict for $350 in favor of the plaintiff (who suffered in actual damages only the small amount of 50 cents) must be set aside as being contrary to law.

In view of -the foregoing ruling it is unnecessary to pass upon the several,special grounds of the motion for a new trial.

Judgment reversed.

Jenkins, J., concurs. Luke, J., concurs dubitante.


text:
    9858, 9859.
    COTTON STATES SEED &c. CO. v. MACON, DUBLIN & SAVANNAH R. CO.; and vice versa.

    Decided January 14, 1919.
    Where a trial jud'ge, in overruling a motion for a new trial based on the general grounds only, fails to exercise that discretion with which he Is charged by law, this court, on proper exception, is compelled to reverse the judgment, unless the evidence demanded the verdict.
    Action for damages; from city court of Macon—Judge Guerry. May 8, 1918.

      Miller & Jones, Warren Grice, for plaintiff.

      Minter Wimberly, Jesse Harris, Charles Akerman, for defendant.
   Luke, J.

The Cotton States Seed and Fertilizer Company sued the Macon, Dublin and Savannah Eailroad Company for damages alleged to have been occasioned by the negligence of the defendant. The petition alleged: that the plaintiff was a fertilizer factory on the outskirts of the City of Macon, with its plant located on the low lands of the Ocmulgee river, up-stream from the defendant’s railroad embankment, over which its tracks approach and cross the Ocmulgee river below the plant of the plaintiff. Around the property of the plantiff there had been erected a 'levee sufficient to keep out the water in ordinary freshets. The railroad embankment filled up the natural drains and outlets of the river in times of freshet, and, by impeding and preventing the overflow waters, backed them up on the plaintiff’s property and caused them to overflow its levee and occasioned the damage sued for. The water which inundated the plaintiff’s plaiit was an ordinary freshet; and had it not been for the impounding of the water by the defendant, the damage would not have been done. The jury returned a verdict in favor of the defendant. The defendant filed a motion fox a new trial, based on general grounds. The court overruled the motion, and, as a part of the order overruling and denying the motion,-filed an opinion. To this order the plaintiff excepts upon the ground that the evidence demanded a verdict in favor of the plaintiff, and upon the ground that the court, in the judgment overruling the motion for a new trial, did not exercise that discretion with which the trial judge is charged by law.

1. The order of the trial judge in overruling the motion for a new trial is as follows: . “The movant alleges in its petition that the freshet, the waters of which it says were obstructed by the defendant’s embankment, so as to cause tbe overflow and injury of its property, was an ordinary freshet. The defendant denied this allegation in its answer, and pleaded that the freshet was extraordinary and unprecedented. There was evidence strongly supporting each contention, and the court, in its instructions on this issue, gave the petitioner the full benefit of its contention, and the court cannot say that the finding of the jury thereon is without sufficient evidence to support it, or strongly and decidedly against the weight of the evidence. While, under the pleadings and issues thereby made, the court may not have been authorized to do so, it instructed the jury in this connection as follows: Tf the freshet was extraordinary and unprecedented, but would not for this reason have overflowed and damaged the plaintiff’s property without being obstructed by defendant’s embankment, 'and defendant’s embankment did obstruct such freshet, and thereby caused it to overflow and damage the plaintiff’s property when it would not have been otherwise damaged, the defendant is liable.’ The court believed during the trial, and now believes, that the petitioner’s right of recovery on this theory was shown by a preponderance of the evidence, but the court cannot say that the verdict of the jury to the contrary is without sufficient evidence to support it, or strongly and decidedly against the weight of the evidence. , The court was during the trial, and is now, of the opinion, from the evidence, that while the waters of the freshet were detained by the defendant’s embankment, and were thereby finally ponded around three sides of petitioner’s levee, so that they rose to the point where some of them ran over its western levee and over the gate' in the switch-way through its southern or front levee, and must have increased the depth of submergence and the extent of the damages, the breaking through of the waters at -these points was not chiefly the result of the pressure of ponded water, but of the violence of the water flowing from the river through the crevasses of the city’s levee which they made, and through the trestle of the old Macon & Augusta (or Central) Railroad embankment against the western levee of petitioner, where it broke at a point much in the line of said waters after they rose high enough to reach said levee, and against the gate, sand-bags, and abutments at the switch entrance in the southern levee of petitioner, while the waters in that vicinity were passing violently through what must have been a gorge between the petitioner’s levee and the defendant’s embankment. Possibly the court should have instructed the jury on this theory of increased overflow and damages, and in doing so have charged them on the subject of nominal, and general damages, but there was no request or claim or contention on the subject,'the petitioner asking the special damages sued for only, and it did not occur to the court to give instructions in relation thereto. Petitioner, in paragraph 11 of the petition, avers, That the entire injury and damage it has suffered'by reason of said freshet was caused solely by the faulty construction and maintenance of the defendant’s; roadway embankment, and that petitioner was wholly without fault in regard thereto, and could not have avoided, even by the exercise of extraordinary diligence, the result of .the wrong-doing on the part of the defendant.’ This paragraph the defendant denied in its answer, and the court cannot say that the verdict of the jury in its favor was without evidence to support it, or strongly - and decidedly against the weight of the evidence.

“The two great causes of the catastrophe were the .breaks through the city’s levee by the waters of the freshet, and their subsequent detention by the defendant’s embankment. The court cannot say, as a matter of law or fact, the. latter was the proximate cause. The waters overflowed the gate in the switch way, .but never overflowed the petitioner’s southern levee through which the switchway entered, and which was higher than the gate, and the petitioner was at least equally responsible for the existence of the switchway. Whether the switchway precipitated or increased the overflow of petitioner’s property, or did both, or whether, if the switchway'had not been there, the overflow of the petitioner’s western levee at the break therein or elsewhere would have increasd or diminished the overflow of petitioner’s property, are questions that are very problemat-. ical. ■ Although there was much discussion thereof during' the trial, there was not in the pleadings any reference to the evident fact that the great mass of the waters of the freshet which oVer-flower petitioner’s property and vicinity escaped from the river through the two crevasses in the city’s levee, which, together with the petitioner’s river levee and the river levees of other owners below, and a portion of the Macon. & Augusta embankment, extended from the front of the city’s park to the defendant’s embankment, and constituted one continuous river levee. While it is true that prior to the construction of this levee many years ago, the waters of the river in times of ordinary freshet, as well as in times of extraordinary freshet, must have overflowed the lowlands described, and had established drains through the same, it did not appear that such had been the case since 1900', or definitely so since the construction of the river levee, except in 1916 when the alleged freshet occurred, and in 1913 during another freshet; and on both of these occasions the overflow occurred by means of breaks through the river .levee, when, according tó the record of high-water marks of the river kept at Macon by the United States Government, covering the period from 1900 to 1916 inclusive, that of 1916 reached 23.1', and that of 1913 23.6', the lowest stage in the record being 18' in 1916. It appears from the evidence that the freshet in dispute, that of 1916, was larger and more violent and destructive than that of 1913, at and upon the property of petitioner and vicinity, although its high-water mark at Macon was 5/10 of an inch lower. The defendant constructed its embankment in 1912, and the question of its negligence should be determined in the light of the conditions at that time and in view of the -notice it may have then had of the dangers of the situation with reference to -the petitioner’s property and its own. The defendant, probably relying upon the existing system of river levees as safe for all concerned, apparently provided culverts in its embankment for surface-water only; whereas it is also apparent that the petitioner did not rely upon the river levees only, as it had .additional levees of its own for the further or ultimate protection of its property, and the defendant had notice of this'fact through the obvious presence of the same.

“Did the defendant, under all the circumstances, have the right, when it built its embankment, to rely upon the river levees and the levees of the petitioner so far as the property of the petitioner was concerned? If it did not have such right and it nevertheless did so, and such security proved inadequate, and the disaster occurred partly for this reason and partly for the reason that the waters could not escape through the culverts of defendant’s embankment, because they were inadequate for the purpose, was the defendant thereby guilty of negligence, making it liable for the damages that ensued? Georgia Railroad Co. v. Bohler, 98 Ga. 188 (26 S. E. 739.) If conditions and 'structures partly natural and partly artificial are safe for adjoining and neighboring landowners while operative, and some person should contribute another structure, and the then-existing conditions and structures should cause damages to one of such owners, which would not have occurred without the co-operation of the added structure, such person would be liable. In this case, however, if the existing conditions and .structures on which defendant relied had all remained operative, the overflow and damage to the petitioner’s property would not have occurred by means of the defendant’s embankment or otherwise,—that is to say if the river levee had ¡performed its function. This being true, which was the proximate cause,— the breaking of the freshet through the river levee, or its inability to break through the defendant’s embankment? While the continuation of the river levees, including a part of the Macon So Augusta Railroad and the river levees of the petitioner and the owners below, as well as that of the city, may have been a system as to the petitioner, it may not have been as to the city. The petitioner was evidently enjoying the protection of it as a system, but the city had connected its levee not with petitioner’s levee or any other levee, but with the Macon So Augusta embankment, and was not concerned beyond that, and may not have been responsible to landcwner’s below and outside the city limits, for that or other reasons, for á failure, if any, to properly maintain its levee and the consequent injury. Savannah, Florida & Western Railway Co. v. Lawton, 75 Ga. 193. According to the verdict the defendant is not liable, and according to the preceding view the city is not liable, or may not be liable, because it is a municipal corporation. It therefore seems that the petitioner, notwithstanding the fact that it has suffered serious damages, without any fault on its part, and without responsibility on the part of others, because of the absence of wrong intent and culpable negligence on their part, is without remedy and right against any one whomsoever. The jury probably believed that the freshet was extraordinary and unprecedented, an act of God, and left the parties where the freshet left them, the petitioner with its damaged levees, machinery and material, and the defendant with its broken embankment; and the court cannot say that their verdict is without sufficient evidence to support it, or strongly and decidedly against the weight of the evidence. The court is not presuming to enlighten the court of review, but is seeking to take its judgment refusing a new trial away from the general principles and presumptions in its favor by exposing its controlling error or errors, if any, so that it or they may be detected and corrected by reversal. The motion to set aside the verdict and judgment and grant a new trial is refused.”

In view of the statement of the trial judge in his order, we are-constrained to hold that there is no such unqualified approval of the finding of the jury by the court as convinces us that the trial judge exercised that discretion with which he is by law charged, in passing upon the motion for a new trial in this case. It was said by Judge Powell in Walters v. State, 6 Ga. App. 565 (65 S. E. 357): “If the judge meant to say that the verdict of the jury had convinced his mind and conscience of the defendant’s guilt, the approval is' sufficient; but if he meant to say that he did not have the power to set aside, or that there was no duty upon him to set it aside, if his mind and conscience were’ not convinced of the defendant’s guilt, then the approval is insufficient. Before the verdict of the jury becomes final it should, where defendant requires it by a motion for a new trial, receive the approval' of the mind and conscience of one more man—the trial judge. Until all thirteen, the twelve jurors and the judge, agree upon the prisoner’s guilt, his conviction is not legally final. The finding of the jury is not binding on the judge. It may be, and for the most part should be, highly persuasive upon him, but he is authorized to set it aside, and indeed is under the duty of doing so if he does not approve it as a finding of fact,” See also Livingston v. Taylor, 132 Ga. 9 (7) (61,S. E. 694) ; Thompson v. Warren, 118 Ga. 644 (45 S. E. 912); McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. E. 71, 1 Ann. Cas. 169).

2. We have carefully examined the cross-bill of exceptions, and are of the opinion that the trial court committed no error in any of the rulings complained of therein.

3. The defendant in error in its brief requests that if this court should be of the opinion that the trial judge did not exercise his discretion in passing upon the motion for a new trial, the judgment be not unqualifiedly reversed, but that the case be returned to the court below with direction that the judge pass upon the motion in the exercise of his legal discretion. The defendant in error relies upon the decision in Central Railway v. O’Kelley, 16 Ga. App. 594 (3) (85 S. E. 938). We do not think that the O’Kelley case is a precedent for the request. In the O’Kelley case a motion for a new trial had been overruled, and the judgment was affirmed by the appellate court, and thereafter a motion for a new trial was made, upon extraordinary grounds, and the trial court determined that it had no jurisdiction to pass upon the motion. This court held merely that the trial court did have jurisdiction, and the motion was returned to the trial court with direction that .it pass upon the case in the exercise of that discretion with which it was charged by law.

4. We do not mean to intimate that the verdict in this ease was wrong, or that there was not evidence upon which it might stand. The reversal of the order of the trial judge, overruling and denying the motion for a new trial, is solely upon the ground that .in his order and opinion, taken altogether, he did not unqualifiedly approve the finding of the jury.

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

Wade, C. J., and Jenkins, J., concur.


text:
    9862.
    E. TRIS NAPIER COMPANY v. BROWN.
    Decided January 14, 1919.
    Jurisdiction to try and determine issues made under dispossessory warrants against tenants bolding over is not given by tlie act creating the municipal court of Macon.
    Certiorari; from Bibb superior court—Judge Mathews. April 24, 1918.

      C. H. Garrett, for plaintiff in error.

      J. P. Burnett, Napier & Maynard, contra.
   Jenkins, J.

The sole question in this case is, whether, by the terms of the act of the General Assembly creating it, the municipal court of Macon is given jurisdiction to try and determine issues made under dispossessory warrants. The legal purpose and intent of the act in this respect will suffice to determine the only question involved in the case. ' The Supreme Court has held that an act giving to a city court concurrent jurisdiction to try an issue formed by a counter-affidavit to dispossessory warrants is not unconstitutional as being a special law where there is an existing general law. McDonald v. Vaughn, 130 Ga. 398 (60 S. E. 1060). Moreover, the municipal court of Macon was established under an act passed in pursuance of a constitutional amendment which had authorized the legislature to confer upon such a court jurisdiction to try any case which, under the constitution, was not within the exclusive jurisdiction of some other court. The constitution itself does not give to any court exclusive jurisdiction in the matter of evicting tenants holding over. While section 5388 of the Civil Code (1910) provides that if the counter-affidavit and bond provided for in such a proceeding shall be made 'by the alleged holding-over tenant, and delivered by him to the sheriff or constable, the proceedings to evict shall be stayed, and the officer shall return the papers "to the next superior court of the county where the -land lies, and the fact in issue shall be there tried by a special jury .as in case of appeal,” it is nevertheless true that this provision of the code can not be taken as giving to the superior court exclusive jurisdiction of such cases, since it is plainly modified by the provisions relative to the jurisdiction given to county courts (Park’s Ann. Code, § 4775 (mm) ); and the Supreme Court ruled in Harper v. Tomblin, 127 Ga. 390 (56 S. E. 433), that a county court, by virtue of this section pertaining to it's jurisdiction, • has full authority to hear and determine such an issue.

In .the case just mentioned, the statement made in Stephenson v. Warren, 119 Ga. 504 (46 S. E. 647), to the effect that "exclusive jurisdiction over such a proceeding is, by statute, conferred upon the superior courts,” is stated to be obiter, since the point in the Stephenson case was not at all whether a county court had such jurisdiction, but pertained solely to the question as to whether or not such jurisdiction was in the city court of Moultrie. The ruling made in the Stephenson case, however, to the effect that the city court of Moultrie was without such authority was in nowise overruled. By reference to the act of the legislature creating the city court of Moultrie, and cited in the Stephenson case (Ga. L. 1901, p. 136, § 2), it will be seen that the jurisdiction of that court is at least fully as broad as that which is conferred upon the municipal court of Macon. The city court of Moultrie was given general and sweeping authority to "try and dispose of all cases of whatever nature, except cases over which exclusive jurisdiction is vested in other courts,” whereas the jurisdiction given to the municipal court of Macon is defined (Ga. L. 1913, p. 253, § 2) as follows: “Said Municipal Court of Macon shall have jurisdiction within the incorporate limits of the City of Macon, as aforesaid, concurrent with the Superior Court to try and dispose of all civil causes or proceedings of whatever nature, whether arising ex contractu or ex delicto, under the common law or by statute, in which the principal sum sworn to or claimed to be due, or the value of the property in dispute, does not exceed five hundred dollars, and of which jurisdiction is not vested by the Constitution and laws of the State of Georgia exclusively in other courts.” (Italics ours.) Section 15 of this act is as follows: “Be it further enacted by the authority aforesaid, that all warrants, summary processes and writs issuing out of said Municipal Court, in which the principal sum claimed to be due or the value of the property in dispute does not exceed five hundred dollars ($500.00), shall be returnable t® said Municipal Court in the same manner and under the same rules as such writs are required to be returned to the Superior Courts or the Justice Courts of this State as the case may be.”

While, as we have seen, the jurisdiction given by section 5388 of the code to the superior courts is not exclusive, since the code itself gives concurrent jurisdiction to the county courts, and since the provisions of various acts of the legislature creating city and municipal courts have legally given and may legally continue to give concurrent jurisdiction in such cases, still, before any other court shall have such concurrent jurisdiction, it must first have been actually granted to it by the law-making body. In other words, all dispossessory warrant cases shall, in accordance with section 5388 of the code, be returned to the superior court of the county in which the land lies, except in so far as concurrent jurisdiction may be or has been given, either under other provisions of the code or under the special acts of the legislature creating city and municipal courts. Can the language of the act creating the municipal court of Macon be taken as giving to it such concurrent jurisdiction? The summary process by which claims for rent are to be collected is that of distress warrant. The primary purpose and intent of a dispossessory warrant against a tenant holding over is to obtain possession of the premises thus wrongfully withheld. Section 5386 of the code provides that when the affidavit provided for to be made by the owner of the property against tenants holding over has been made, he is entitled to a writ or process directed to the sheriff, or his deputy, or any lawful constable, commanding and requiring him to deliver to the owner possession of the land or tenements mentioned. When such possession has been thus obtained, there is an end to the matter, since, unless the tenant holding over sees proper to file a counter-affidavit and bond, no issue has been raised for trial. Clarke v. Lee, 80 Ca. 617 (.6 S. E. 170). It is true that if the tenant sees proper to arrest the proceeding and prevent the removal of himself and goods from the land, he may do so by declaring on oath any of the defenses specified by the code, and at the.same time furnishing a bond with good security payable to the landlord for the payment of such sum, with costs, as may be recovered against him on the trial of the ease; and if upon the trial of the case the issue should be determined against the tenant, then the person taking out the warrant would not only be entitled to an enforcement of the writ of dispossession against the tenant, but would also be entitled to a judgment against him for double the rent reserved or stipulated to be paid, or if he should be a tenant at will or sufferance, then for double the amount of what the rent of the premises is shown to be worth. The purpose of such a proceeding is, however, to obtain possession of the premises, and not the incidental penalty which may or may not be imposed, according to whether the tenant may wrongfully seek to resist the proceeding of the writ. In a proceeding against a tenant holding over, it is not even necessary that any mention as to rent shall be made in the affidavit, in order for such penalty to be recovered. Pettis v. Brewster, 94 Ga. 527 (19 S. E. 755). It was held by this court in the case of Tomlin v. Harper, 6 Ga. App. 808 (65 S. E. 1093), that upon the trial of such an issue in the county court, certiorari, and not appeal from that court to the superior court, is the proper procedure, inasmuch as the purpose of the writ is merely to obtain possession of the premises, whereas an appeal is allowed only in a ease where the principal sum or the damages claimed exceeds $50.

The municipal court of Macon is given very large and important powers and functions, but it is nevertheless a court of limited and not general jurisdiction, and thus can claim only such jurisdiction and authority as has been specifically granted to it. The provisions of the act by which it was created confers general power and authority to try and dispose of all civil cases or proceedings of whatever nature in which the principal sum sworn to or claimed to be due, or the value of the property in dispute, does not exceed $500, and of which jurisdiction is not vested by the constitution and laws of the State of Georgia exclusively in other courts. Since a dispossessory warrant .is not a proceeding in which a sum not exceeding $500 is sworn to or claimed to be due, and the property itself is not properly in dispute, and since the only questions involved and to be determined in such a proceeding axe whether the relation of landlord and tenant 'existed between the parties, and, if so, whether the relation terminated in such a way that'the landlord is entitled again to the possession of the premises (Jordan v. Jordan, 103 Ga. 482, 30 S. E. 265), we do not think that the jurisdiction conferred by the act above quoted can be properly taken as covering the subject-matter of a dispossessory proceeding. The judgment of the superior court sustaining the certiorari is therefore

Affirmed.

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


text:
    9869.
    THE COSMOPOLITAN LIFE INSURANCE CO v. HEAD.
    Decided January 14, 1919.
    1. Where suit against the maker of a promissory note originally payable to his own order and indorsed by him in blank was brought thereon by a corporation entitled “The” Cosmopolitan Life Insurance Company, to which company it was indorsed in the name of another corporation by the insurance commissioner of this State, signing thus: “Cosmopolitan Insurance Company, by Wm. A. Wright, Ins. Com’r, State of Georgia, in charge,” the plaintiff was entitled to the benefit of the presumption that it was a bona fide purchaser of the note, before maturity, without notice of the defense set up by the maker’s plea of failure of consideration. The fact that the transfer of such a note is by the insurance commissioner, described as “in charge,” does not prevent this presumption from applying.
    2. The receipt offered in evidence by the defendant, signed in the name of “Cosmopolitan Insurance Company,” was properly excluded.
    3. There being no evidence to overcome the prima facie case in' favor of the plaintiff, the verdict for the plaintiff necessarily followed; and the judgment of the trial judge, granting a new trial to the defendant, must be reversed.

      Complaint; from Whitfield superior court—Judge Tarver. May 11, 1918.
    The consideration recited in the note sued on was “value received.” The defendant pleaded failure of consideration, and alleged: “The note ’sired upon . . was executed as a part of an offer to purchase two shares of the capital stock of the Cosmopolitan Life Insurance Company of Atlanta, Georgia; . . no stock-has ever been issued and tendered to defendant in compliance with the consideration in said note. On the date of the execution of said note said Cosmopolitan Life Insurance Company executed and delivered to defendant receipt for said note, stipulating in said receipt the consideration mentioned, in said note, and agreeing in said receipt to notify defendant if his subscription to said stock was accepted, and agreeing therein to promptly return said note if the settlement for said subscription to said stock was not accepted. Defendant . . ,was never notified that his subscription to said stock and the note given therefor was accepted by said Cosmopolitan Life Insurance Company. Therefore the consideration of said note . . has wholly -and entirely failed. . . The defendant, for further plea, avers that after said note became due, the company became insolvent, and the Hon. William A. Wright, insurance commissioner of the State of Georgia, took over the affairs, the assets, and all of the property of the said Cosmopolitan Life Insurance Company, as evidenced by his indorsement on the back of said note. Said company is now unable to comply with the contract made with this defendant in the effort of the defendant to purchase said stock.”
    On the trial the plaintiff introduced in evidence the note sued on, and closed. The only evidence offered by the defendant was the receipt set out in the second division of the following opinion. The receipt bore the same date as the fióte. The court excluded it from evidence on objection by plaintiff’s counsel, on the ground that it was signed-by Cosmopolitan Life Insurance Company, and that the suit was by The Cosmopolitan Insurance Company. The • court directed a verdict for the plaintiff, but, on motion for a new trial, set it .aside and granted a new trial; to which .the plaintiff excepted. The exclusion of' the receipt is complained of in the motion for a new trial as follows: “Movant says that the action of the court in excluding the paper on the objection was error, because, being executed contemporaneously with the signing of the note, it showed that the note was an offer' to purchase stock in Cosmopolitan Life Insurance Company, movant being prepared to show, as he insists, and intending to show by other evidence upon the introduction of the paper, that such acceptance by Cosmopolitan Life Insurance Company had never been made; movant further insisting that the plaintiff in this case, having purchased the note from the insurance commissioner of the State of Georgia, who had taken possession of it as part of the assets of the payee, upon the insolvency of the payee and by virtue of his office as insurance commissioner, was not a bona fide purchaser for value before due, so as to cut out defendant's defense to the mote, but was the purchaser of said note at a judicial sale, and acquired no better rights than those of the original payee, Cosmopolitan Life Insurance Company.” To this ground the court added a note that “no statement was made by counsel as to what evidence they proposed to .offer in connection with the receipt.”

      Moise & Riddell, for plaintiff.

      Maddox, McCamy & Shumate, for defendant.
   Wade, C. J.

The note sued upon was by its terms payable to the order of the maker. It appears to have been simply indorsed by him, “H. J. Head,” and to have been further indorsed as follows: “Pay to The Cosmopolitan Life Ins. Co. of Atlanta, Ga., or order. Cosmopolitan Life Insurance Company, by Wm. A. Wright, Ins. Com’r, State of Gedrgia, in charge.” “Cosmopolitan Life Insurance Company” and “The Cosmopolitan Life Insurance ComjDany” were entirely different and distinct corporations. Suit thereon was brought by “The Cosmopolitan Life Ins. Company,” as holder. “A promissory note payable to the order of the maker thereof and properly indorsed by him is a negotiable instrument, and the holder is presumed to be such bona fide and for value, and is protected from any defense set up by the maker, acceptor, or indorser, except non est factum, gambling, or immoral and illegal consideration, or fraud in its procurement by the holder.” Pryor v. American Trust &c. Co., 15 Ga. App. 822 (84 S. E. 312); Civil Code (1910), §§ 4286, 4288. None of these defenses were pleaded in the instant case. Knowledge on the part of a bona fide holder of a negotiable note that it was given in consideration of an executory contract or agreement of the payee, even though the consideration be expressed in the instrument itself, will not deprive the indorsee of the character of ’ a bona fide holder, unless he had notice of the breach of such agreement by the payee; and it has been often held that such a transferee is not bound to make inquiry as to whether or not there has been such a failure. Bank of Commerce v. Barrett, 38 Ga. 136 (95 Am. D. 384); Post v. Abbeville & Waycross Railroad Co., 99 Ga. 333 (35 S. E. 405); Citizens Bank of Vidalia v. Green, 13 Ga. App. 49 .(76 S. E. 795); Simmons v. Council, 5 Ga. App. 386 (63 S. E. 338); Brooks v. Floyd, 13 Ga. App. 530 (77 S. E. 877); Fryer v. State, 12 Ga. App. 533 (77 S. E. 830); McMillan v. First. National Bank, 13 Ga. App. 33 (78 S. E. 734); Hudson v. Best, 104 Ga. 131 (30 S. E. 688); 3 R. C. L. 1067, § 373. Defendant, however, contends that the indorsement “Cosmopolitan Life Ins. Co., by Wm. A. Wright, Ins. Com’r. State of Georgia, in charge,” was a sufficient fact of itself to prevent the presumption from applying that the plaintiff was a bona fide purchaser without notice. This contention is without merit. In Wade v. Elliott, 11 Ga. App. §46 (75 S. E. 989), it was held that the law presumes that a holder of a negotiable paper bought it before maturity and for value, and that a transfer by a bankrupt court did not prevent the transferee from being a bona fide purchaser.

The following documentary evidence was inadmissible: “Cosmopolitan Life Insurance Company of Atlanta, Ga.

Series No. 3-A 39 No. Shares 3.

Eeceipt for stock settlement.

Receipt. $400.

Received of H. J. Head four hundred dollars (note) $400, in full payment for two shares of the capital stock of the Cosmopolitan Life Insurance Company, of Atlanta, Ga. It is understood that no person except an executive officer of the company has or shall have power to bind the company by the making of any contract for the acceptance of the subscription of the same number as this receipt. If the settlement is accepted, notice will be promptly mailed. If not accepted the settlement will be promptly returned. Not valid unless countersigned by the agent. Dated at Tunnel Hill, Ga., 6/38/1913.

J. L. Holbrook, Agent, Cosmopolitan Life Insurance Company.”

A transferee of a negotiable paper who receives it before it is due cannot be affected by an agreement between other parties thereto, in the absence of notice. Dorris v. Farmers & Merchants Bank, 22 Ga. App. 514 (96 S. E. 450). It will be noted that the receipt is signed by “Cosmopolitan Life Insurance Company,” an entirely different and distinct corporation from “The Cosmopolitan Life Insurance Company,” which sued on the note. No statement was made by counsel as to what evidence they proposed to offer in connection with the receipt, and' no foundation was laid for its introduction, and the rejection thereof was therefore proper. See Hatcher v. National Bank, 79 Ga. 542 (2) 544 (5 S. E. 109).

The defendant, having admitted a prima facie case, thereby assumed the onus of proving his defense, and there being no evidence whatever introduced in his behalf, a verdict in favor of the plaintiff was demanded; the trial judge did not err in directing such a verdict, and his judgment granting a first new trial to the defendant must be

Reversed.

Jenkins and Luke, JJ., concur.


text:
    9935.
    FANNIN COUNTY v. DAVES.
    Decided January 14, 1919.
    The official bond of the former treasurer of the county did not impose upon his sureties any obligation with reference to the county funds received by him after his term of office from his successor, for which execution was issued by the ordinary against the principal and the sureties; and the affidavit of illegality, interposed by the surety in this- ease, was properly sustained. '
    Affidavit of illegality; from Fannin superior'court—Judge Morris. May 31, 1918.
    On September 3,1917, an execution for $156,75 and interest was issued by the ordinary of Fannin county against M. K. McKinney, county treasurer for the years 1913 and 1914, and the sureties' on his official bond as treasurer, the execution reciting that the said sum was due to the county as county money in his hands, collected for county purposes. Daves, one of the sureties, on whose property the execution was levied, filed an affidavit of illegality, in which it was alleged'in substance that the execution was for money which McKinney, after .he had ceased to be treasurer, received from his successor in office, Wheeler; and it was contended that the sureties were not liable for money thus received; that if the money paid by Wheeler to McKinney was more than was due McKinney by the county, the remedy of the county was against Wheeler and the sureties on Wheeler’s bond as treasurer, and not against sureties on the bond of McKinney. The judge of the superior court (who by agreement tried the case without a jury, upon an agreed statement of facts, set out in the following opinion), rendered a judgment sustaining the' affidavit of illegality; and the county excepted.

      William Butt, for plaintiff.

      Thomas A. Brown, B. L. Smith, for defendant.
   Luke, J.

1. .The following facts were set out in the agreed statement of facts: M. K. McKinney was elected county.treasurer of Fannin County,' Georgia, .for the years 1913 and 1914. On January 1, 1913, he entered upon the discharge of the duties of that office, and discharged them for those years, going out of office December 31, 1914. He was succeeded on January 1, 1915, by E. H. Wheeler as county treasurer. The bond of McKinney as county treasurer was made payable to A. S. J. Hall, ordinary of said county, and his successors in office, and was signed and sealed by McKinney as principal, and by J. M. Daves and others as securities, as required by law. It was dated November 9, 1912, and was attested and approved by A. S. J. Hall, ordinary, on November 14, 1912, and was recorded in the office of the ordinary, together with -the oath of office, as required by law. It recited that said M. K. McKinney was elected county treasurer for the years 1913 and 1914, and contained the following condition:- “Now, the condition of the above obligation is such that if the said M. K. McKinney shall faithfully discharge all and singular the duties required of him by virtue of his said office as county treasurer of said county as aforesaid, during the time he continues therein or discharges any of the duties thereof, then the above obligation to be void; otherwise to remain in full force and virtue.” It is agreed that this bond was a legal bond, required by law of county treasurers. On January 11, 1915, after McKinney had retired from office and while E. H. Wheeler was county treasurer, Wheeler, as such treasurer, signed and delivered to M. K. McKinney a check as follows: “The North Georgia National Bank, Blue Eidge, Ga., January 11, 1915. Pay to the order of M. K. McKinney, retiring treasurer, $336.08, three hundred thirty-six and 08/100 dollars, balance on commissions for 1914. E. H. Wheeler, county treasurer. No. 1.” On the back of the check appears McKinney’s indorsement. McKinney received the amount of the check out of county money collected for county purposes for the year 19Í4 and due to the county, and thus received $156.75 in excess of the legal fees and commissions due him as such county treasurer for the year 1914. No order authorizing the issuance of the check and the receiving of the said county money was issued by the ordinary of the county, and there does not appear upon the records or minutes of court in the office of the ordinary any order, writing, or statement which shows any final settlement between the County of Fannin and M. K. McKinney, as required by sections 586 and 587 of the Civil Code of 1910.

The court did not err in sustaining the affidavit of illegality. The agreed statement of facts shows that the money received by McKinney was not received by him as and while treasurer of the county, but was received after his term of office had expired and when his successor was discharging the duties of that office. The payment to him was the voluntary act of the county treasurer who succeeded him. The surety on the bond, Daves, is not, by reason of any obligation in the bond, liable to the county for the money thus received by his principal. See McDonald v. Bradshaw, 2 Ga. 348 (46 Am. D. 385); Civil Code (1910), §§ 291 (1), 3540.

Judgment affirmed.

Wade, C. J., and Jinkins, J., concur.


text:
    9957.
    Neal v. Hudgins.
    Decided January 14, 1919.
    Action on contract; from Pike superior court—Judge Searcy. May 17, 1918.
   Luke, J.

Before a recovery may be had upon a contract for the sale of goods of the value of more than fifty dollars, the contract must be in writing, or there must be part performance or payment of earnest money, or some memorandum which is specific as to parties and terms, etc. The contract declared upon in this case is clearly within the statute of frauds. See Civil Code (1910), § 3223 (7); Oglesby Grocery Co. v. Williams Manufacturing Co., 112 Ga. 359 (37 S. E. 372) ; Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67), and cases cited. The court did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

The petition alleged: “Defendant is indebted to petitioner in the sum of $326.25, for that the said defendant did, on the —• day of-, 1916, execute to petitioner his contract for his delivery of certain cotton, and which he failed to do, thereby causing a breach of said contract, to the injury and damage of petitioner in the . sum mentioned above.” By amendment it was alleged: “The defendant wanted to sell plaintiff 9 bales of cotton at 12 cents per pound, each to weigh 500 pounds, to be delivered at Neal, Ga., between the first day of October and the 30th day of November, 1916, said cotton to grade ‘Atlanta Middling (4s).’ Plaintiff told défendant that he did not care to buy the cotton. Defendant then insisted that plaintiff sell said cotton for him. This the plaintiff agreed to do as an accommodation to the defendant, and this was to be done without any profit or compensation to the plaintiff at all, and in March or April, 1916, did sell said cotton to George W. Cavenaugh & Co. for 12 cents per pound. When said cotton was to be delivered by defendant, under his agreement with plaintiff, he failed and refused to deliver the same, and plaintiff, to comply with the contract he had made for defendant, was forced to buy on the market 9 bales of cotton, and had to pay for it 19-1/4 cents per pound, that being the market price for that grade of cotton at the time and place of delivery, to wit, Neal, Ga. By reason of defendant’s failure to comply with his said contract, plaintiff has been injured and damaged’ in the sum of $326.25, this being the difference between the price for which plaintiff sold said cotton for defendant and the market price that plaintiff had to pay for the same grade of cotton at the time and place of delivery.”

E. F. Dupree, for plaintiff. W. Y. Allen, for defendant.


text:
    10149.
    Davis v. The State.
   Luke, J.

In an application for a change of venue, “where the evidence is conflicting upon the, issue .as to whether or not under the petition such a ease is made as requires the judge to grant the motion, the judge hearing the same passes upon the issues that are to he determined upon evidence, . .' and his finding and judgment upon the same is final and controlling, unless manifestly erroneous.” Wilburn v. State, 140 Ga. 138, 141 (78 S. E. 819). See also Park’s Ann. Penal Code, § 964; Coleman v. State, 141 Ga. 737 (82 S. E. 227) ; Bivins v. State, 145 Ga. 416 (89 S. E. 370) ; Marshall v. State, 20 Ga. App. 416, 426, 427 (93 S. E. 98). In the present ease the ■ evidence before the judge of the superior court was conflicting, and it can not be said that it was manifestly erroneous to refuse to grant a change of venue.

Decided January 14, 1919.

Indictment for murder—petition for change of venue; from Burke superior court—Judge Henry C. Hammond. October 3, 1918.

E. K. Overstreet, E. V. Heath, Joseph Law, Archibald Blackshear, C. H. & R. S. Cohen, for plaintiff in error.

A. L. Franklin, solicitor-general, W. H. Davis, H. J. Fullbright, contra.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9495.
    Southern Express Company v. Hughes.
    Decided January 15, 1919.
    Action for damages; from city court of Atlanta—Judge Reid-December 15, 1917..

      Robert C. & Philip H. Alston, for plaintiff in error.
   Luke, J.

1.- Under the facts developed in this ease, the principles of law (1) that if both_ the plaintiff and the defendant were free from fault, the injury will be attributed to accident, and no recovery can be had, and (2) that it was incumbont upon the plaintiff to exercise ordinary care and diligence in using the streets, and (3) that if both parties were at .fault, the damages should be apportioned, were entirely germane, and the judge erred' in refusing to give in charge the requested instructions embodying these legal doctrines, which were couched in appropriate form and language, and were not covered by his charge to the jury. As to the principle of accident, see Holliday v. Athens, 10 Ga. App. 709 (74 S. E. 67) ; as to-the failure to exercise ordinary care, see Park’s Code, § 4426, and notes; and as to diminution of damages, see Americus &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 S. E. 105) Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (70 S. E. 234) ; Central Ry. Co. v. Madden, 135 Ga. 205 (69 S. E. 165, 31 L. R. A. (N. S.) 813, 21 Ann. Cas. 1017); Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442). _

2. The remaining special grounds of the motion for a new trial are without substantial merit, or the alleged errors are such as are not likely to recur on another trial.

Judgment •reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9539.
    WESTERN & ATLANTIC RAILROAD CO. v. SLATE.
    Decided January 15, 1919.
    1. The exceptions taken pendente lite are without substantial merit; and' the evidence was sufficient to authorize the verdict.
    2. While the testimony as to the time when the previous and similar derailments took place was of doubtful admissibility and not as explicit ' as it might be, its reception on the theory of tending to show notice to the defendant of the physical conditions was not such harmful error as to authorize this court to set aside the verdict.
    3. It was not illegal to reject the testimony of an employee of the defendant, that he had been accustomed to pass every night by the watchman’s shanty in which the plaintiff was injured by the derailed car, that he had seen the plaintiff in there several times, usually asleep (he thought), and that several times he looked in and saw him asleep; since the “several” occasions not particularized, and referred to as having occurred within an indefinitely stated period, could not properly show a general habit of the plaintiff.
    4. The instruction to the jury upon the presumption of negligence and' the burden of proof was not erroneous.
    (а) In an action against a railroad company for damages on account of negligence resulting in injury to an employee but not in his death, the presumption of negligence was the same after the act of 1909 (Civil Code, §§ 2182 et seq.) as before its passage.
    (б) The injury having been caused by a derailment of the defendant’s cars, a common-law presumption of negligence arose against the defendant, independently of the statutory presumption.
    (c) The duties of the defendant’s watchman were such as to demand a finding that he could not have been connected with the derailment that caused the injury, and could not have assumed the risk of such danger.
    Action for damages; from city court of Atlanta—Judge Reid. December 15, 1917.

      Tye, Peeples & Tye, for plaintiff in error.

      Colquitt, Conyers & Latimer, contra.
   Jenkins, J.

The exceptions taken pendente lite are without substantial merit; and since the evidence was sufficient to authorize the verdict, it can not be disturbed on the assignments made in the general grounds of the motion for a new trial.

It is the general rule that in a suit for personal injuries, the negligence complained of can not be shown by evidence of similar negligence on the part of the defendant on some other and different occasion (Central Railway Co. v. Ross, 107 Ga. 73, 32 S. E. 904; Pullman Co. v. Schaffner, 126 Ga. 609, 611, 55 S. E. 933, 9 L. R. A. (N. S.) 407; L. & N. Railroad Co. v. Roberts, 7 Ga. App. 562 (67 S. E. 690); but where it is alleged that the injury was caused by the derailment of the defendant’s cars at a certain named place, and that it was brought about by the dirt, coal, and cinders which had been allowed to accumulate upon that portion of the track, evidence of similar derailments at the same point while the same conditions existed relative to the track would be admissible upon the theory that they tenet to show notice of such condition on defendant’s part, if the prior derailments occurred at a time sufficiently close to the date of the injury to have probative value for that purpose. Gilmer v. Atlanta, 77 Ga. 688; C. C. & I. Railway Co. v. Newell, 104 Ind. 264 (3 N. E. 836, 54 Am. R. 312); Morse v. Railway Co., 30 Minn. 465; (16 N. W. 358); Brown v. Benson, 101 Ga. 753 (3) (29 S. E. 215). While in this case the evidence as to the time when the previous and similar derailments took place is not as explicit as it might be, the admission of such doubtful testimony, when received for the purpose indicated, would not amount to harmful error and authorize this court to set the verdict aside. See, in this connection, Central Railway Co. v. Duffey, 116 Ga. 346 (42 S. E. 510), where the evidence admitted related to an accident occurring on a different but nearby track. See also Savannah &c. Ry. Co. v. Flahnagan, 82 Ga. 579 (3) (9 S. E. 471, 14 Am. St. R. 183).

Defendant offered as a witness an employee who would have testified that he had been accustomed to pass every night by the watchman’s shanty in which the plaintiff employee was injured by the derailed car, and that he had seen the plaintiff in there “several times,” usually, he thought, asleep, and that “several times” he looked in and saw him asleep. The rejection of this evidence is assigned as error. Evidence as to the general character for prudence or recklessness of the parties to such a litigation ,is not admissible (A. & W. P. Railroad Co. v. Newton, 85 Ga. 517, 11 S. E. 76; Central Railroad Co. v. Kent, 87 Ga. 402, 13 S. E. 502; A & W. P. Railroad Co. v. Smith, 94 Ga. 107, 20 S. E. 763); nor is it permissible to show particular instances of such negligence not manifesting such general habit and conduct (Fast Tennessee Ry Co. v. Kane, 92 Ga. 187 (4), 18 S. E. 18, 22 L. R. A. 315); and whether or not it is even permissible to prove “habitual acts of recklessness or negligence at pcvrlicular times and places” for the purpose of showing such general habit, character, and conduct (see the ruling on this subject in Savannah, Florida & Western Ry. Co. v. Flannagan, supra, and the comment made in A. & W. P. Railroad Co. v. Smith, supra, on that ruling), we do not think that the evidence thus offered was illegally rejected; since the “several” indefinite and not particularized occasions referred to as having 'occurred within an indefinitely stated period could not properly show such habitual acts on the plaintiff’s part. See also Georgia Southern &c. Railway Co. v. Thornton, 144 Ga. 481 (87 S. E. 388).

As being an erroneous statement upon the burden of proof, the following excerpt from the charge is excepted to: “If the plaintiff makes it appear to you, from the evidence, that he was injured by the running of the cars of the defendant, as alleged •in his petition, the law would then presume that the defendant was negligent, and the burden would be upon the defendant then to show that it was not negligent, in so far as the particulars charged against it are concerned; or that if the plaintiff was injured he was injured by his own negligence; or .that the plaintiff by the exercise of ordinary care should have avoided the consequences to himself of the defendant’s negligence, if there was such, or that if the plaintiff was injured his injuries were due to some' cause other than the defendant’s negligence, if there was such, or that if the' plaintiff was- injured his injuries were due to some cause other than the defendant’s negligence.”

(a) In an action for damages against a railroad company for negligence resulting in injury to an employee, but not resulting in his death, the presumption of negligence remained the same after the passage of the act approved August 16, 1909 (Civil Code (1910), §§ 2782 et seq.) as theretofore provided by law.

(b) The injury to the plaintiff having been brought about by the derailment of the defendant’s cars, a common-law presumption of negligence on the defendant’s part arose independently of any statutory presumption similar to that imposed by section 2780 of the Civil Code. Stokes v. Saltonstall, 13 Peters (U. S.), 181, (10 L. ed. 115); Yonge v. Kinney, 28 Ga. 111, 113; Savannah &c. Railway v. Williams, 117 Ga. 420 (43 S. E. 751, 61 L. R. A. 249).

(c) The duties of the plaintiff watchman were such-as to demand a finding that he himself could not have been connected with the accident by derailment from which his injury resulted, and that he could not have assumed the rislc from such a danger. See Louisville & Nashville R. Co. v. Barrett, 143 Ga. 742 (3) (85 S. E. 923), in which the latter question was properly an issue for the jury.

(d) Plaintiff employee not having participated in the transaction from which the injury flowed, either by reasoh of any act performed by him or by virtue of the fact that his duties were so related to the transaction as to charge him with an assumption of the risk which occasioned the injury, this excerpt from the charge of the court, even were it to be considered as a statement of what is in effect the statutory presumption (Civil Code of 19.10, .§ 2780), was nevertheless not erroneous. See Atlanta &c. Ry. Co. v. Campbell, 56 Ga. 586, in which Campbell v. Atlanta &c. Ry. Co., 53 Ga. 488, and Thompson v. Central Railroad &c. Co., 54 Ga. 509, are explained and reconciled; Central Railroad & Banking Co. v. Kelly, 58 Ga. 108 (5), 112; Western & Atlantic R. Co. v. Vandiver, 85 Ga. 472 (11 S. E. 781); Wrightsville &c. R. Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 955); Hopkins, Personal Injuries, § 240; Park’s Ann. Code, § 2787, p. 1335, catchword “Presumption.”

(e) , Had the act which occasioned the injury been one in which the plaintiff in fact or in law could be held to have participated, the rule would be otherwise. Western & Atlantic R. Co. v. Jackson, 113 Ga. 355 (38 S. E. 820), cited in Louisville & Nashville R. Co. v. Barrett, supra.

The remaining grounds of the motion for a new trial are without substantial merit.

Judgment affirmed.

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


text:
    9548.
    REYNOLDS BANKING CO. et al v. BEELAND, sheriff, et al.

    Where a claim to property under levy is filed and the claimant executes a forthcoming bond and takes possession of the property, a subsequent dismissal of the claim on motion of the plaintiflt in fi. fa. does not .of itself amount to an adjudication of the title to the property, since the claim might ordinarily be renewed (American Investment Co. v. Cable Co., 4 Ga. App. 106, 60 S. E. 1037); but where the property taken possession of under the bond has been subsequently disposed of by the claimant, so as to prevent the interposition of another claim (Oatts v. Wilkins, 110 Ga. 319, 35 S. E. 345), the judgment dismissing the claim becomes conclusive as to the title, and the claimant, having elected his remedy, is precluded from thereafter contesting the title of the property as being subject to the fi. fa:, either in a suit upon the forthcoming bond or in a proceeding to distribute the fund paid into court in satisfaction thereof. See Reynolds Banking Co. v. Southern Pacific Guano Co., 140 Ga. 498, 501 (79 S. E. 132); Heard v. Duke, 98 Ga. 136 (26 S. E. 485).
    Decided January 15, 1919.
    Money rule; from Taylor superior court — Judge Howard. December 1, 1917.
    Reynolds Banking Company brought a petition for a money rule against Beeland, sheriff, alleging, that in a suit of the Southern ■ Pacific Guano Company against Reynolds Banking Company, upon a forthcoming bond given by the bank in a claim case, a judgment was rendered in favor of the guano company, which judgment (having been affirmed) was satisfied by the Reynolds Banking Company paying the money into court; that the property for which the forthcoming bond had been given belonged wholly to the Reynolds Banking Company; that while the bank had previously interposed its claim to this property, the claim had been dismissed upon motion of the plaintiff in fi. fa. because of a defect in verification, and over the objection of the claimant, and that it had been unable to .renew its claim, for the reason that it had disposed of the’ property after obtaining possession thereof under the bond. It was prayed that the money thus held by the sheriff be turned over to the petitioners. To this petition the defendant demurred generally and specially, the demurrer was sustained, and the plaintiff excepts. Little, Powell, Smith & Goldstein, Jere M. Moore, for plaintiff. J. G. Jones, R. S. Foy, W. F. Weaver, for defendants.
   Jenkins, J.

(After stating the foregoing facts). In Reynolds Banking Co. v. Southern Pacific Guano Co., 140 Ga. 498 (79 S. E. 132), which was a former proceeding by which the "bank sought to enjoin the suit on the forthcoming bond referred to above, it is said in the opinion of the Supreme Court: “It follows from these decisions that the claimants had no right in an equitable petition to set up their title to the properly levied upon, after having elected to try that title by the remedy, of claim. It may be said that the claimants are precluded from ever contesting with their adversary the title to the property as being subject to the fi. fa. To this we reply that they should have left the property in the possession of the -sheriff, or, if they took possession of it under a forthcoming bond, they should have retained the property' until the final disposition of the claim case. They were allowed by the statute, if the property was in their possession, or in the possession of the sheriff/ to file a second claim- after the dismissal or withdrawal of the first claim. Their inability to file a second claim, or contest with the plaintiff in fi. fa. the title to the property-, comes, not from any defect in the law, but from a failure on their part to observe the law, in that they appropriated the property to their own use before the litigation was ended.” (Italics ours.)

Judgment affirmed,.

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