text:
    9134.
    FELKER v. CITY OF MONROE.
    1. This case having been transmitted by this' court to the Supreme Court, and by that court transferred back to this court, this action by the Supreme Court was equivalent to a holding that the constitutional question which it was sought to raise in the affidavit of illegality was not properly made, and that no such question was actually raised for determination on review.
    2. When á statute confers on an official body the power of appointment to office, their appointment of one or more of their own members, is contrary to public policy, unless expressly authorized by the statute. Such an appointment being without color of right, but void on its face, the appointee is not a de facto officer, and .official acts of the body wherein he participates as such appointee are at least prima facie invalid.
    Decided May 15, 1918.

      Affidavit of' illegality of execution; from Walton superior court— Judge Cobb. July 16, 1917.
    The plaintiff in error filed separate affidavits of illegality to the proceeding of two tax fi. fas. issued against him by the City of Monroe. By consent of counsel the cases were consolidated and submitted to the presiding judge, under an agreed statement of facts. The affidavits are specified by the bill of exceptions as material portions of the record, and the grounds of illegality as contained therein are in each case stated as follows:
    “1. Because the said execution is'null and void for the reason it is not issued by the proper officer of said city.'
    “3. Because the amounts therein claimed are not due, in accordance with the-laws of the State and the decisions, rendered by the Supreme. Court.
    “3. Because one of the assessors of deponent’s property for taxation was at the time a member of the council appointing the assessors and he was ineligible to hold-such office, and the assessment for this reason is null and void.
    “4. Because said execution, levy and advertisement is contrary to article 1, section 1, paragraph 3 of the constitution of the State of Georgia, as embodied in section 6359 of Park’s Code, as well as article VIII, section 14 of the constitution of the United States, as embodied in section 6700 of Park’s Code, in that it violates the due process clause of said constitution arid each of them, upon the ground that there is no provision made in the charter or ordinances of said City of Monroe, according to law and the constitution, which affords a hearing to the taxpayer in the matter of fixing the value of his property for taxation.
    “5. Deponent has never received any notice of said assessment, was never served with any notice of the hearing whereon said execution is based, nor did he waive service, nor did he appear at any hearing and oppose said assessment. Nor was he served with any notice of said levy, nor was he given any opportunity of pointing out property for levy and sale, and the property levied on is partly owned by the Walton Hotel Company and the City of Monroe.”
    The agreed statement of facts is as follows: “That James M. Day and Eobert Aycock was one of the council at the time he was appointed or elected one of the city, tax-assessors, and that he was one of the assessors who made the assessments in question; that the defendant did not give in or return his property in said city for taxation, and that the same was assessed by a board of tax assessors, composed of three assessors, one of whom was J. M. Day ip one case and Eobert Aycock in the other, who occupied the dual position of councilman and assessor, as aforesaid; that the defendant had no notice of any such assessment, and that there has never been any hearing regarding same; that paragraph 5 of the affidavit of illegality is true, except that the defendant waives and does not insist on the latter part of said paragraph, to wit: ‘nor was he served with any notice of said levy;’ also that in 1914 sufficient property was levied on to pay it as set out-in paragraph 2;” that-the 125 feet, 50 feet wide, levied on, crosses a 15-foot alley and runs for 5 feet and 50 feet wide on Walton Hotel' (property) lot; that the other statements of facts (not meaning statements of law) in said affidavits are true and not contested.”
    The affidavit of illegality as to tax fi. fa. No. 208 was sustained by the trial judge, “upon the first ground therein, the execution not having beén issued in the. manner prescribed by the charter of the city,” All the other grounds were overruled. In dealing with the affidavit of illegality as ’to tax fi. fa. No. ’201, the trial . judge overruled all of the .grounds thereof, and in his order made the following statement: “The third ground of illegality has given me serious trouble, but after mature consideration I have ' reached the conclusion that in the absence of a charge of actual fraud or other illegal conduct perpetrated upon the other members of the board of assessors by the disqualified assessor, that the action of the two qualified members would be valid.” The assignment of error is as follows: “To the judgment of the court on illegality No. 201, overruling the same on all of the grohnds, 1 to 5 inclusive, plaintiff in error, J. H. Felker, excepted, now excepts, and assigns the same as error, upon the ground that it was contrary to law.” Error is likewise assigned upon the judgment of the 'court in overruling grounds 2 to 5, inclusive, of the affidavit interposed to. fi. fa. No. 208.

      J. H. Fellcer, for plaintiff in error.

      O. Roberts; contra.
   Jenkins, J.

(After stating'the foregoing facts.) It is provided by section 862 of the Political Code (1910), that- “The mayor and council of each town or city are authorized, at their option, to elect three freeholders, residing in the town or city, as assessors, who shall value and assess all the property within said town or city liable for taxation.” It will be seen by the statement contained in the order passed by the learned judge who tried the case that it was not his opinion that the selection made by the council of one of their own members for a place upon .the board of assessors was a lawful one. It is well settled that such an appointment is wholly illegal, and that, since the act of his selection is void on its face, the appointee does not occupy the status of a de facto officer. Parrish v. Town of Adel, 144 Ga. 242 (86 S. E. 1095); Hawkins v. Intendant, 63 Ga. 527; 29 Cyc. 1381 (b); Meglemery v. Weissinger, 140 Ky. 353 (131 S. W. 40, 31 L. R. A. (N. S.) 575). The difficulty which existed in the mind of the trial judge, and which likewise presents itself to us, is whether the act of the board itself in making the assessments is rendered invalid by reason of the fact that it was participated in by one whose selection and appointment was wholly void, where no charge is made “of actual fraud or other illegal'conduct perpetrated upon the other members of the board of assessors by the disqualified member.” It is provided by section 4, paragraph 5, of the'Political Code that “A joint authority given to any number of persons, or-officers, may be executed by a majority of them, unless it is otherwise declared.” But where, as in this, case, the authority was not in fact exercised by the majority qualified members, but by them in conjunction with another person whose appointment was absolutely void,, it would not seem that the section which we have just cited would have application, but that any action so taken would be at least prima facie invalid. In the case of Crawford v. Crow, 114 Ga. 282 (40 S. E. 286), it was held that the recommendation of a grand jury putting into effect the alternative road law was not invalidated on account of the fact that one of its members was disqualified by reason of his non-residence, where it also affirmatively appeared that, irrespective of his vote, there was a majority ini favor of the recommendation. In this decision the court says: “It is now well settled that the ineompetency of one grand juror renders an indictment void, no matter how many unexceptionable jurors join with him in finding the bill. This rule in reference to indictments does not apply, however, to the recommendation of a grand jury that the provisions of the ‘alternative road law’ shall become- operative when it affirmatively appears that, irrespectively of the vote of a disqualified juror, there was ■ a majority in favor of the recommendation. The legislature, in authorizing grand jurors, by a recommendation, to put into effect such law, evidently intended to confer the power upon them as a representative body of citizens of the county who' might be serving as grand jurors, and who, on. account of their uprightness, intelligence, and experience, would be well qualified to determine, under all existing conditions, whether the interests of the county and its citizens would be promoted by having the public roads worked under the ‘alternative road law;’ and in passing upon such question, a majority of the votes of those qualified to act as grand jurors must control. In the present case, as we have seen, the recommendation in question was adopted by a large majority, if not by the unanimous vote, of the members of the grand jury, 'all of whom were qualified except Ertzberger, and his vote could not have changed the result of their action.” The doctrine that the acts of an official disqualified to' serve whose appointment is not void on its face may still be valid, for the reason that he is an officer de facto, doe.s nof seem to have application with respect to jurors. Ordinarily, the mere non-residence of an official does not deprive him of his rights and powers as a de facto officer, but such was not the theory on which the case just quoted from was decided. The.clear intimation in that case, however, was to the effect that the action was prima' facie illegal, but that since it was affirmatively shown that the action was taken without the aid of the disqualified member, and that his vote could not have changed the result, the recommendation was upheld as a legal one. In the casé which is now before us it is not made to appear that the action of the board of assessors was. taken without the aid of the disqualified member; it is not shown that the action was not in fact dependent upon his aid. It would seem, moreover, from the language of the excerpt which we have quoted from the Crawford case, supra, that such a recommendation by the majority members of a grand jury stands upon a somewhat different footing from the ordinary official acts of public boards. In such a grand jury recommendation it is the majority opinion of the representative citizens constituting its membership which the law seeks to arrive at and give effect to. Here it is not a question .of what was the majority opinion of such representative citizens, but tbe act which is called into question is simply the .operative function of an official board. In the case of Wright v. State, 124 Ga. 84 (52 S. E. 146), the Supreme Court held that' “Even if a person be ineligible to hold the office of jury commissioner, yet if he is appointed to such-office and acts therein, he is, while so acting, a jury commissioner de facto, and the official acts of the board of jury commissioners wherein he participated are valid, and can not be collaterally attacked upon the ground that such person was incompetent to hold the office of jury commissioner.” The ruling here upholding the official acts of that board is thus based specifically and entirely upon the proposition that the disqualified official who participated therein was in that case an officer de facto, the clear intimation necessarily being that had he not been such, the holding would have been otherwise. To the same effect see Smith v. Bohler, 72 Ga. 546 (7), where it was held that, “'Although the board may have consisted in part of persons who were not freeholders, they were all de facto in office, and competent to act until ejected.” In the instant case the act of the board of assessors, participated in by a person whose appointment is so wholly and palpably illegal as to prevent him from occupying the status of an officer de facto, would seem to be at least prima facie illegal, if indeed not wholly void. See Hardy v. Gainesville, 121 Ga. 327 (48 S. E. 921). But whether wholly illegal or not, such an act by such a board can not, under the facts as presented by the record, be upheld upon the theory of having been taken by its legally constituted members, since, so far as the record goes, the action is at least prima facie illegal as being in part the act of a stranger.

There is no cross-bill of exceptions to the judgment sustaining the affidavit of illegality as to execution No. 208 on the ground that it had been improperly issued,- and that judgment stands affirmed; but the judgment overruling ground 3 thereof is reversed, as is the order and judgment overruling ground 3 of 'the affidavit of illegality filed to execution No. 207. <

Judgment affirmed in part and reversed in .part.

Wade, O. J., and Lulcej J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    9211.
    Duane Chair Company v. Lewallen.
    Decided May 15, 1918.
    Action for damages; from Whitfield superior court—Judge'Tarver. September 18, 1917.

      Maddox, McCamy & Shumate, for plaintiff in error.

      James J. Copeland,, Glenn & House, contra.
   Luke, J.

1. Lewallen sued .tlie Duane Chair Company for damages, alleging that the Automatic Sprinkler Company had a contract with the Duane Chair Company to install a sprinkler system in the chair company’s plant, and employed him to perform the mechanical labor of installing the system, agreeing to pay him $2 a day for his time and labor; and that, with knowledge of this, the president of the chair company, acting with authority for the chair company,' after Lewallen had worked a part of a day,- tortiously forbade his working or coming on the premises, and run him off and had the sprinkler company discharge him, to his loss and damage, for which he sued. Keld, that the petition set forth a cause of action. See Southern Railway Co. v. Chambers, 126 Ga. 404 (55 S. E. 37, 7 L. R. A. (N. S.) 926); Civil Code (1910), § 4405.

2. The evidence authorized the verdict for the actual loss sustained by Lewallen by reason of the tortious conduct of the defendant, and the verdict has-the approval of the trial judge., Eor none of the reasons assigned did the court, err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Wade, C. J.

text:
    9220.
    Sutton et al. v. Griner et al.

   Wade, C. J.

1. While, in this suit on the bond of a deputy sheriff for failure to execute final process, the presumption was that the plaintiffs were damaged, and the burden was upon the defendants to mitigate the damages or show that the plaintiffs were not injured by the breach of official duty, the burden might be shifted and the presumption be rebutted “by proof of facts mitigating the plaintiff’s damages, or by showing that,the money could not have been collected on the fi.. fa. by the exercise- of reasonable diligence.” Beck & Gregg Co. v. Knight, 121 Ga. 287, 290 (48 S. E. 930, 3 L. R. A. (N. S.) 420, 2 Ann. Cas. 9), and cases there cited.

2. In a rule against a sheriff for failure to levy executions on property • shown to have been in the possession of the defendant, and so likewise in a suit against him and his bondsmen for a like dereliction of duty, it may be shown by way of defense, as rebutting the presumption of injury sustained by the plaintiff, “that the property in the possession of the defendant .belonged to some one else.” Cowart, v. Dunbar, 56 Ga. 418. It is likewise “competent for a sheriff, in defense to a rule brought against Mm for neglect, to show that the property levied upon was not subject to the execution.” Brannon v. Barnes, 111 Ga. 850 (2) (36 S. E. 689). See also Wilkin v. American Freehold &c. Co., 106 Ga. 182 (32 S. E. 135); Smith v. West, 134 Ga. 11, 13 (67 S. E. 405).

Decided May 15, 1918.

Action upon bond; from Berrien superior court—Judge Thomas. September 10, 1917.

Hendricks, Mills & Hendricks, for plaintiffs.

W. D. Buie, J.,0. Smith, G. A. Christian, for defendants.

4. In the light/of the entire record, there- is not such merit in any of the special assignments of error as to require a reversal; and the trial judge did not err in overruling the motion for a new trial. ’

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9255.
    KNIGHT v. ROGERS.
    “The right to rule an attorney for money alleged to be in his hands as such depends upon the existence ofNthe relation of attorney and client, and is limited to the client;” and where, from .a petition for a rule to require an attorney to pay over money collected on an execution purchased by the petitioner, it appeared that the attorney made the collection before the purchase and before he was the petitioner’s attorney, the petition was properly dismissed on demurrer. ■
    Decided May 15, 1918.
    Money rule; from Jeff Davis superior court—Judge Highsmith. September 26, 1917.

      Newton Gaskins, for plaintiff, cited:
    Civil Code (1910), §§ 4954, 5342; 6 Corpus Juris, 713; Gillespie v. Mulholland, 33 N. Y. Supp. 754, 12 Misc. 40; Haygood v. Haden, 119 Ga. 463 (distinguished) .

      S. D. Dell, for defendant, cited:
    Civil Code, § 4954; Haygood v. Haden, supra.
   Luke, J.

Knight brought a petition for a rule against Rogers, alleging that Rogers as an attorney at law was entrusted with a claim in favor of Leroi Turpentine Company, which was sued to judgment and was in the hands of Rogers for collection; that upon the representation of Rogers that the execution was collectible and that he would act as attorney for the petitioner in collecting it, -he (Knight) purchased the execution, and Rogers agreed to and did become attorney for the petitioner for the purpose of collecting the entire amount shown by the execution; that prior to the purchase of the execution. Eogers had collected $2,050 of the amount due thereon, but he concealed this fact from the 'petitioner until after the purchase of the execution; and that after the purchase the petitioner demanded that Eogers turn over to him the money so collected, and Eogers refused to turn over the money. He prayed for d rule requiring Eogers to turn over the money so collected. Eogers demurred on the ground that the petition sets forth no cause of action, because it shows on its face that the .relation of attorney and client as between Knight and himself did not exist at the time of the alleged collection, and therefore a money rule could not be maintained-; and that Knight could not be subrogated to the relation held by the plaintiff in fi. fa. sThe court sustained the demurrer and. dismissed the petition.

“The right to rule an attorney for money alleged to be in his hands as such depends upon the existence of the relation of attorney and client, and is limited to the client.” Haygood v. Haden, 119 Ga. 463 (46 S. E. 625). The petition in this case shows that the money sought to be recovered by money rule was collected prior to. the purchase of the execution upon which the money was alleged to have been colledted, and at' a time when the relation of attorney and client did not exist between the plaintiff and defendant.- The court did not err in sustaining the demurrer and dismissing the petition. -

Judgment affirmed.

TVade, G. J., and Jenldns, J., concur.


author: Jenkins, J.

text:
    9257.
    International Cotton Mills v. Webb.
   Jenkins, J.

1. The term “viee-prineipal,” as used in the fellow-servant law, includes any servant who represents the master in the discharge of those personal or absolute duties which every master owes to his servants; such duties being often referred to as the non-assignable duties of the master, among which are, providing suitable machinery and appliances, a safe place to work, the proper inspection and repair of premises and appliances, the selection and retention of suitable servants, the establishment of proper rules and regulations, and the instruction of servants as to the kind and manner of work to be done by them. Augusta Factory v. Barnes, 72 Ga. 217 (53 Am. R. 838); Taylor v. Georgia Marble Co., 99 Ga. 513 (27 S. E. 768, 59 Am. St. R. 238); City Council of Augusta v. Owens, 111 Ga. 464 (36 S. E. 830); Moore v. Dublin Cotton Mills, 127 Ga. 609 (56 S. E. 839, 10 L. R. A. (N. S.), 772).

Decided May 15, 1918.

Action for damages; from city court of EaGrange—-Judge Harwell. September 28, 1917.

The original petition alleged: The defendant has damaged petitioner in the sum of $2,000, by reason .of the following facts:(Paragraph 2) On January 9, 1917, petitioner was employed by the defendant in the cotton mills operated by it at Hogansville, Georgia, and had been placed at work therein raising certain beams. He was directed by one Cole, vice-principal of the defendant, to raise a beam much shorter than any that hqd been raised before. Under .directions of the said Cole he attached to it the chains directed to be used by the said Cole, and raised it, and began lowering it “into [?] when the said [?] began to loose from one end of the said beam, and the beam fell upon'plaintiiFs foot, causing the injuries hereinafter stated.” (Par. 3) Plaintiff had never raised so short a beam before, and asked the said Cole if the chains formerly used on long beams could safely be used in raising the shorter beam; whereupon the said Cole advised him that this would be all right, to go ahead, as he wanted plaintiff to get started as quickly as he could. Acting on the directions and assurance of the said Cole, plaintiff attempted to handle the said beams with the chains provided by the defendant and directed to be used by the said Cole, and as a result the beam fell and plaintiff was injured. But for the assurance of the said Cole, “plaintiff would [not?] have [been?] injured.” (Par. 4) The chains and appliance provided by the defendant for raising the said beam were insufficient and unsuited, in that the apparatus to which the said chains were fastened was too wide to be properly used upon so narrow a beam as plaintiff was directed to raise therewith. (Par. 5) Plaintiff had never raised a short beam before with this appliance and was ignorant of the danger in using the same, but relied upon the assurance and representation of the vice-principal of the .defendant, in using the same. (Par. 6) The said Cole was the representative and vice-principal of the defendant and was the person upon whom rested the duty of providing a safe place and a safe appliance for plaintiff in his work, and of inspecting the place in which work was to be done and the appliance to be used, for the purpose of seeing that both the place and the appliance were safe. (Par. 7) Defendant was negligent in all the respects heretofore stated, and in failing to provide plaintiff a safe place imjyhich to wort; in failing to provide a safe appliance for plaintiff with which to work, and in giving the directions to plaintiff to work with the-unsafe appliance, and in assuring him that these appliances were safe, when as a matter of.'fact they were not. (Par. 8) Defendant knew or could have known, by the exercise of ordinary care, of the fact alleged above and of the defect and danger stated, and plaintiff, did not know and could not by exercise of ordinary care have known thereof, and did not have equal means of knowing thereof. Allegations were made as to the nature and extent of the injuries received.

2.. Among the absolute, continuous, and non-assignable duties of the master to the servant is the duty of the former to furnish the latter- a safe place to -work, and to refrain from giving orders which will require the servant to put himself in a position where he will be subject to risk of injury from a dangerous instrumentality. Moore v. Dublin Cotton Mills, supra; Columbus Mfg. Co. v. Gray, 9 Ga. App. 738 (72 S. E. 273); Cherokee Brick Co. v. Hampton, 16 Ga. App. 53 (84 S. E. 328). But even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with the command in such cases, the servant he injured, he can not recover of the master therefor. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259 (6), 264 (58 S. E. 249). If, however, a servant, although an adult and fully cognizant of his general duty in reference to the machine, arid aware of the dangers ordinarily incident to its operation, obeys a direct order of a servant authorized by' his master to give the direction, in reference to the mode and manner of operating the machine, and injury results, the master is liable, provided the. act required to be done is not so obviously dangerous that no reasonably. prudent man would undertake to perform it. Moore v. Dublin Cotton Mills, supra.

3. While ordinarily the law reads into contracts of employment an agreement on the servant’s part to assume the known risks of the employment, so far as he has the capacity to realize and comprehend them, yet this implication may be abrogated by an (express or implied contract to the contrary. Thus, if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands him to proceed with the work and assures him there is no danger, then, unless the danger be so obvious and manifest that no prudent man would expose himself thereto, the law implies a quasi new agreement whereby the master relieves the servant from his former assumption of risk, and places responsibility for resulting injuries upon the master. Bush v. West Yellow Pine Co., 2 Ga. App. 295 (58 S. E. 529); Massey & Felton Lumber Co. v. Ivey, 12 Ga. App. 583 (77 S. E. 1130); Cherokee Brick Co. v. Hampton, supra.

4. Under the allegations as made by the. petition in this ease, the one who furnished the alleged defective and unsafe instrumentality to the employee, and who assured him that it might be safely used, occupied the position of vice-principal to the master. Questions as to diligence and negligence, including- contributory negligence, being questions peculiarly for the - jury, the court will decline to solve them by decision on demurrer, .except in plain and indisputable cases.

5. The petition in this case, as amended, set forth a cause of action, and , the court did-not-err in overruling the general and special demurrers.

Judgm'ent affirmed.

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

The defendant demurred, on the ground that the petition set out no cause of action; and the allegations in paragraphs 2 and 6, to the. effect that Cole was vice-principal and representative of the defendant, were demurred to, on the ground that they stated a mere conclusion, without stating the scope of. Cole’s duties or the extent of his authority. Paragraph 4 was demurred to, on the ground that the allegations therein were insufficient to specify any defect in the chains and appliances. By amendment the word “agent” was substituted for the word “vice-principal,” in paragraphs 2 and 6 of the petition, and paragraph 6 was amended by adding: The said Cole was the agent of the defendant, who had control of the kind, place, and manner of the work of plaintiff, and whose duty it was to give orders to plaintiff as to the kind, place, and manner of work, and as to the instrumentalities to be used by plaintiff in work. It was plaintiff’s duty to obey the orders of the said Cole, and particularly the duty of plaintiff to obey the order of ,Cole to use the' appliance which caused the injury to plaintiff, and to use jt in the manner ordered by Cole. Paragraph 4 was amended by adding: “The apparatus which plaintiff was directed to use and did use in„raising the heamer consisted of a beam from which a chain was suspended at each end, .and these chains were attached to the beamer to raise it. By reason of the fact that the beamer was shorter than the beam to which the chains were attached, the chains did not pull at right angle to the beamer, and the attachments to the beamer were not constructed so as - to hold fast as against the pull of the chains in this position, and when the beam had been raised it fell and injured plaintiff. Plaintiff had never raised a shorter beam before, and did not know that the attachment to the beamer would pull 'off, and could not have so known by the exercise of ordinary card. Plaintiff- did not have equal means of knowing this fact, and'it was not the duty of -the plaintiff to inspect, examine, and test this apparatus to see whether it would hold; but it was the duty of the defendant to inspect and test this apparatus before ordering plaintiff to use it. Plaintiff had a right to-believe that the defendant had inspected and tested this apparatus, which he was ordered to use, and he •had a right to believe that this apparatus '. . was safe and that the defendant had discharged the duty placed on it by the law. - If the defendant had discharged its duty and tested this apparatus, it would have discovered the danger; and defendant failed to exercise ordinary care, in not testing the apparatus and in not warning the plaintiff of the danger of using it.”

The demurrer was renewed as to the petition as amended, and it was further contended that the allegations as to Cole failed to show that he was more than a fellow servant of the plaintiff, or that he was such a representative of the master that the plaintiff would have the right to rely upon his .assurances, which were contradicted by the plaintiff’s own judgment, as to the ¡safety of the appliance used; that the petition showed that the plaintiff was injured by the negligence of a fellow servant, as well as his own negligence; and that the danger described would be obvious to any man of ordinary intelligence, and was observed and commented on by the plaintiff before he undertook to do the work, and therefore he took the risk upon himself. The court overruled the demurrers, and the defendant excepted.

. A. H. Davis, for plaintiff, in error, cited:-

Whitfield v. L. & N. R. Co., 7 Ga. App. 268; Mills v. Bartow Lumber Co., 9 Ga. App. 171; Hamby v. Union Paper Mills, 110 Ga. 1; Labatt, M. & S., § 433 et seq.; Worlds v. Ga. R. Co., 99 Ga. 283; Daniel v. Forsyth, 106 Ga. 568; Hendrix v. Vale Royal Co., 134 Ga. 712; Sou. Ry. Co. v. Taylor, 137 Ga. 704; Banks v. Schofield’s Sons Co., 126 Ga. 667; Pollard v. Sou. Ry. Co., 8 Ga. App. 337, and cit.; Niblett v. La Grange Mills, 18 Ga. App. 173, and cit.

Hatton Love joy, contra, cited eases cited in the decision.-


text:
    9419.
    WESTERN AND ATLANTIC RAILROAD COMPANY v. JARRETT et al.

    1. There was evidence from which the jury could infer negligence on the part of the defendant; and whether the. consequences- of that negligence could have been avoided by the exercise of ordinary care on the part of the deceased or her husband was an issue of fact for their determination, .and not for determination by this court. The trial judge .having declined to exercise the discretion vested by law in him alone, and to set aside, under the general grounds of the motion for a new trial, the verdict for the plaintiff,' which was supported by some evidence, this court must of necessity hold that-there is no merit in those grounds.
    2. There is nothing in the record to suggest bias or prejudice on the part of the jury, and the verdict can not be set aside as excessive, since the amount thereof could have been arrived at under the proof submitted, taking-into .consideration that the deceased was a wife and mother. “In estimating the value of ordinary domestic service rendered by a wife, the jury are authorized to take into consideration what may be the value of many serviced incapable of exact proof, but measured in the light of their own observation and experience. ‘Some wives perform manual labor—others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to compensation from wrong-doers for causing inability to perform service. . . There need be no direct or Express evidence of the value of the wife’s services, either by the day, week, month, or any other period of time, or of any aggregate sum.’ Metropolitan St. R. Co. V. Johnson, 91 Qa. 466, 471, 472 (18 S. E. 816).” Standard Oil Co. v. Reagan, 15 ©o'. App. 571 (9), 599 (84 S. E. 69).
    3. While the plea denied negligence.on the part of the defendant and distinctly alleged that the homicide resulted from a failure on the part of the deceased or her husband (one of the plaintiffs) to exercise ordinary care, contributory or comparative negligence was not pleaded in reduction or mitigation of damages, and therefore this defense was not direptly involved in the case, and in the absence of any timely request in writing for such an instruction, the failure of the court to instruct the jury in regard thereto does not constitute reversible error.
    4. While it may be true as a matter of fact that a railroad-track is a place of danger, and one going thereon must exercise such a degree of .care and diligence for his own safety as a man of ordinary care and prudence would exercise under similar circumstances, the judge did not err in 'declining so to instruct the jury in compliance with a written request. Neither did he err in declining to give a requested charge as to the duty of the plaintiff J. E. Jarrett in attempting to pass over a railroad public crossing in an automobile. Both requests called for an intimation of opinion as to what would constitute negligence and as to a matter of fact, and the requested charge last mentioned was decidedly argumentative in form. While in the ease of Western é Atlantic R. Co. v. Ferguson, 113 ©a. 708, 713 (39^3. E. 306, 54 S. E. 802), it is declared that a railroad-track is a place of danger, 'and that one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track, it is not there held, nor has it been elsewhere ruled by our Supreme Court or this court, that an instruction to the jury, to this effect would be proper, in view of the mandatory inhibition of section 4863 of the Civil Code, and of tlie reported rulings of the Supreme Court and this court that questions of negligence are for the jury.
    5. Considered in connection with the entire charge, there is no.merit in the various grounds of the motion for a new trial assigning error upon the instruction given as to the measure of damages for the life of the deceased. The court expressly- instructed the jury that in estimating the present cash value of that life, they should diminish or decrease the figures us,ed in the mortality table, in accordance with “the facts in the particular case under investigation,” and further expressly called attention to the diminished capacity to earn money, resulting from advancing years, and directed them “to be governed by the facts and circumstances as proved, feebleness of health, actual sickness, the loss of employment, voluntarily abstaining from work, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes,” and directed them to make proper allowance and deduction' for any diminution in earning capacity resulting from any of these causes. The remaining objections urged as to the instruction as given are without merit.
    6. There is no substantial merit in any of the other assignments of error, and the trial court did not err in overruling the motion for a new trial.
    Decided May 15, 1918.
    Action for damages; from Bartow superior court—Judge Tarver. October 9, 1917.

      Tye, Peeples & Tye, Neel & Neel, for plaintiff in error.

      Atkinson & Born, J. B. Whitaker, contra.
   Wade, C. J.

We do not deem it necessary to consider in detail -all the questions passed upon in tAe beadnotes above, or to refer specifically to-the grounds of the motion for a new trial which are covered by the 'general holding in the last headnote. Two of the grounds of the motion, for a new trial which are not specifically referred to in the headnotes may perhaps require some slight reference. The 4th ground of the motion for a new trial assigns error upon the following charge: "If the defendant company and its employees were negligent, and the plaintiff, J. F.. Jarrett, or his wife, Mrs. J. F. Jarrett, were negligent, the plaintiffs might nevertheless recover if the negligence of the plaintiff, J. F. Jarrett, or the negligence of his wife did not amount to a failure to exercise ordinary care, and if they could not by the exercise of ordinary care have avoided the homicide.” It is insisted (a) that this charge authorized the jury to, find a verdict against the defendant for any negligence of the defendant of its employees, without restricting the same to the apts of negligence complained of in the plaintiff’s petition. The reply to this objection may be found in the explicit' instruction elsewhere given to the jury that “the plaintiffs,.if entitled to recover, would he entitled to recover solely on account of the acts of negligence alleged in their petition, if those acts occurred, and if they were negligent acts, and if the homicide occurred as a proximate result thereof.” Neither is the objection (&) well taken, that this chargé authorized the jury to find a verdict against the defendant if the. negligence of either the plaintiff J. F. Jarrett or the negligence of his.wife (the deceased) did not amount to a failure to exercise ordinary care,—that it permitted “a recovery by plaintiffs if either the plaintiff J. F. Jarrett, or his wife, Mrs. J. F. Jarrett, was negligent in' a less degree than the exercise of ordinary care, even though the other one of said persons was negligent to a degree 'amounting to a failure to exercise ordinary care.” The court instructed the jury that a recovery might be had if the defendant was negligent and Jarrett and his wife were likewise negligent, in the event “the negligence of the plaintiff, J. F. Jarrett, or the negligence of his wife, did not amount to ,a failure to exercise ordinary care, and if they [italics ours] could not by the exercise of ordinary care have avoided the homicide.” Clearly, the jury must have understood from this instruction that a failure on the part of either the plaintiff Jarrett or his deceased wife to exercise ordinary care would defeat any recovery. Likewise the objection (c) that this instruction was lacking in cléarness and was confusing, when considered in connection with the entire charge, is without merit. The last objection (d) suggested as to this excerpt is that it authorized the jury to award a verdict in favor of the plaintiffs without diminishing the amount in proportion to the amount of default attributable to the plaintiff, J. F. Jarrett, or his deceased wife. . This last objection is covered by the ruling in the third headnote above, which is hereinafter discussed..

The 5th ground of the motion for a new trial complains of the following excerpt from the charge of the court: “When the injury is shown, or the homicide is shown as I have stated,’ tvhich is admitted by the defendant company in this case, to have taken place in the operation of its train, of cars, the presumption arises that the railway company was negligent in each' of the particulars alleged in the declaration, and the burden would be upon the railway company to show that its employees exercised ordinary and reasonable care and diligence on thev occasion in question, and unless it does so, the plaintiffs can recover, provided the plaintiff J. F. Jarrett, or his wife, Mrs. J. F. Jarrett, could not by the exercise of ordinary cáre have avoided the injury;” the complaint being that this charge “authorized the jury to find a verdict for thé plaintiffs, on the failure of the defendant to show that its employees exercised ordinary and reasonable care and diligence,oh 'the occasion in question, provided, the plaintiff, J. F. Jarrett,, or [italics ours] his wife, Mrs. J. F. Jarrett, could not by the exercise of ordinary care have avoided the injury.” It is urged that this instruction permitted the plaintiffs to recover if either Jarrett or his wife could not have avoided the injury by the exercise of 'Ordinary care, notwithstanding the other one of- said two persons could have avoided the injury by the exercise of such care. The court told the jury that the plaintiffs could only recover provided the-plaintiff Jarrett “or” his wife could not by - the exercise of ordinary care have avoided the injury. Clearly, under this instruction, the jury would have been compelled to find for the defendant if they had determined under the evidence that Jarrett himself could have avoided the injury by the exercise of ordinary care, or that Mrs. Jarrett could have avoided the injury by the exercise of a like degree of care; so that, under this instruction, a failure to exercise ordinary care by either or both of the plaintiffs would have prevented a recovery. This ground is therefore obviously without merit.

The grounds of the motion for a new trial covered by the 3d headnote are the only grounds that we think it necessary to discuss. That headnote covers the exceptions taken in the 6th, 7th, and 8th grounds.. To state briefly'the-points raised thereby, it is insisted that the court erred in failing to give, in any portion of the charge, instructions as to the diminution of damages in proportion to the amount of default attributable to the plaintiff J. F. Jarrett or to his deceased wife, in the event they should find from the evidence' that the agents and employees of the defendant were guilty of negligence amounting to a lack of ordinary and reasonable care and diligence in causing the homicide complained of, and that there was also some degree of negligence, though not amounting to a lack of ordinary care, on the part of said Jarrett and his said wife, or either of them, in causing or contributing to the homicide complained of, or in failing to prevent or avoid the same. It is complained that the court'instructed the jury that if the negligence of.the plaintiff J. F. Jarrett “did not amount to a failure to exercise ordinary care, he might nevertheless recover in accordance with the rules as to apportionment of damages, which I will hereafter give you in charge,” and that the court failed altogether to thereafter give in charge any rules as to the apportionment of damages in such cases, but later -instructed them, “in the event you find for the plaintiffs, you should find for them the full value of the life of the deceased, unless you decide to apportion the damages in accordance with the rules I have heretofore given you in charge.” The judge advised the jury of his intention to instruct them thereafter touching the diminution of the damages to be awarded on account of the comparative negligence of the deceased and of the plaintiff J. F. Jarrett, not amounting to a want of ordinary care, and subsequently directed them to award damages in accordance with the rules previously given, and at no time did he instruct the jury how or in what manner they should diminish the damages awarded to the plaintiffs in the event they concluded that the plaintiffs were entitled to a recovery, but the plaintiff J. F. Jarrett and his wife, or either of them, had been guilty of some negligence which contributed to the injury, not amounting to a failure to exercise ordinary care. It is too well settled to require more than a reference thereto that where there is no plea setting up contributory negligence on the part of the deceased or the plaintiff, it is not a' good ground for a new trial that the court fails, in charging the. jury upon the measure of damages, to instruct them that contributory negligence would go in mitigation thereof, unless a timely written request for such instructions is made. See Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388, 393 (80 S. E. 916), and cases there cited. It is conceded by able counsel that both the Supreme Court and this court have repeatedly held that where contributory negligence is not pleaded by the defendant, the failure of the court to charge on the subject of the apportionment o(f damages will not be reversible error'in the' absence of a request from the defendant for such a charge. See, in this connection, Louisville & Nashville R. Co. v. Smith, 136 Ga. 455 (77 S. E. 774). However, it is urged by the plaintiff in error that since the plea filed by the defendant in this case specifically alleged a failure on the part of the deceased wife and of her husband (one of the plaintiffs) to exercise ordinary care in seeking to avoid the collision with a train of the defendant company, which furnished the. basis for this suit, the contributory negligence or comparative negligence of the plaintiff J. E. Jarrett was so far pleaded as to require a charge on the question of apportionment of damages, without any written request therefor, as it was one of the vital contentions raised by the pleadings and directly involved in the case. It is urged in support of this view that the plea charging such negligence on the part of' the husband of the deceased (who was with her at the time of the fatal occurrence) as amounted to a lack of ordinary care “necessarily included contributory negligence of less degree than lack of ordinary care,” and therefore the judge, without request, should have charged on the subject of apportionment of damages and comparative negligence. The sole point for decision is whether or not the failure of the judge to charge on this subject, in the absence of a request or of a specifice plea setting up this defense, is nevertheless reversible error, for the reason that the plea actually filed alleged such a lack of ordinary care on the part of one of the plaintiffs and of the deceased as would bar any recovery whatever.

It is clear to us that a plea setting up as a complete bar to any recovery lyhatsoever an alleged want of ordinary care on the part of the deceased and of her husband was an entirely distinct and separate defense from the defense of comparative negligence, authorizing the jury to diminish the recovery where the negligence of the plaintiff or of the deceased did .not amount to an entire lack of ordinary care, and that the former plea would not include the latter. In the case of Louisville & Nashville R. Co. v. Smith, supra, it was said: “Where contributory negligence of the plaintiff is not pleaded either as a complete defense or in mitigation of damages, it is not ground for new trial, in the absence of a written request, that the court omitted from his instructions the principle that if plaintiff and defendant are both at fault, the former may recover, but that his damages will be diminished in proportion to the amount of default attributable to him.” This would seem to intimate that where the contributory negligence of the plaintiff is pleaded only as a'complete defense, the court should instruct the jury, without any request, that where the plaintiff and the defendant are both at fault, the former may recover, but his damages will be diminished in proportion to the amount of default attributable to him. However, in the ease of Southern Ry. Co. v. Hooper, 110 Ga. 779 (36 S. E. 232), which is cited in support of this ruling, it is squarely held that “It was not erroneous to fail to charge on the subject of contributory negligence and apportionment of damages, there being no request to charge to this effect, and it affirmatively appearing that no such contention was made at the trial.” It was likewise held in Daniels v. Athens, 55 Ga. 609 (7), that “The law in regard to negligence and its effect, both as respects the plaintiff and the defendant, having been substantially. given by the court, and no request having been made in writing or otherwise, to amend the charge by calling the attention of the court to the doctrine of contributory négligence, this court will not direct a new trial, although the court below omitted to charge upon that subject, especially as the verdict of the jury probably turned upon the other points made by the pleadings.” In Cavanaugh v. Biggin, 9 Ga. App. 466 (71 S. E. 779), this court held that there was no error in the failure of the court to submit to the jury the law relating to comparative, negligence or diminution of damages in the absence of any request, notwithstanding it appears from the recitals in that opinion that the defendant insisted that the plaintiff was not entitled to recover any damages whatever, both because the defendant was without fault and'because the injuries complained ■ of were due, entirely to the negligence of the plaintiff. However, it 'appears that in that case the decision was based upon the fact that the evidence introduced in behalf of the defendant tended to establish the theory, insisted upon by the defendant, that the injuries complained of wére due entirely to the negligence of the ■plaintiff, and therefore the law of comparative negligence, or diminution of damages, was not necessarily applicable. -A somewhat different question was consequently, there involved than the question we now find it necessary to decide.

In Savannah Electric Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056), the issue was presented whether the court erred in failing ’to charge the law in regard to the apportionment of damages if the plaintiff was at fault, but the fault of the plaintiff was not such as to bar a recovery, and Mr. Justice Lumpkin said, in delivering the opinion of the court: “It has been held several times, in suits of this character, that where the law upon the question of negligence, as it affects the plaintiff’s right to recover and the right of the defendant to have a judgment rendered in its favor, has been substantially and fairly submitted to the jury, and where the law in reference to contributory negligence (comparative negligence affecting the amount of the recovery) is not, under the contentions of the parties, directly involved in the ease, this .court will not reverse the judgment of the lower court, overruling a motion for a new trial, because the court failed to charge the law applicable to such negligence, when there was no request to charge upon that subject.” It will be seen from this excerpt from the opinion that the law in reference to contributory negligence in that cas.e was not,'“under the contentions of the parties,” directly involved in the case; or, in other words, no distinct plea was interposed by the defendant which set up any claim for a diminution of damages on account of negligence of the plaintiff, not sufficient to bar a recovery. The learned Justice said in the same case (pp. 424, 425): “Confusion sometimes arises from the use of the expression ‘contributory negligence.’ In most jurisdictions contributory. negligence is used as referring to siich negligence on the part of the plaintiff, contributing to causing the. injury to hjmself, as will prevent a recovery by him. In this State we have a doctrine, which is sometimes called that of comparative negligence, under which, if the plaintiff is not without fault, but his negligence does not amount to such a failure to use ordinary care as will prevent a recovery, he may recover damages of the defendant, in a proper case, but the amount of his recovery will be reduced in proportion ■ to the amount of default attributable to him. In this sense the term ‘contributory negligence’ will generally be found to have been used in Georgia,'rather than in the sense of negligence which will prevent a recovery. The pleadings in this ease did not make any distinct issue as to comparative negligence and apportionment of damages. It may be gravely doubted whether the evidence presented any such theory. Certainly, under the decisions above cited, it was not so involved in the case as a distinct and essential issue that the court was required to charge on the subject without a request. In his order overruling the motion for a new trial, he stated that no request oral or written was made for such a charge. The issue of liability or no liability, which was directly involved, was fully covered by the charge, and also the effect of the negligence of one party or that of the other upon that issue.” It will be observed that in this last quotation from that opinion it is distinctly asserted that “the pleadings in this ease did not make any distinct issue [italics ours] as to comparative negligence and apportionment of damages.”

In the recent case of Central of Georgia Ry. Co. v. Hill, 31 Ga. App. 231 (94 S. E. 50), it was held that there was-no reversible error in the failure of the court to give in charge to tire jury the law of contributory negligence (comparative negligence) and apportionment of damages where the question was not raised by the pleadings, and there was no written request so to charge; and it was further said that “it is not reversible error'for the court to fail to give in charge to the jury the law of contributory negligence, and apportionment of damages, where it is not, under the contentions of the parties [italics ours], directly involved in tlie case, and when there is no request to charge upon that subject.” By reference to the original record in the case last, referred to, it will be found that it was distinctly pleaded by the defendant in that case that if the defendant was injured “it was on account of his own negligence, and the defendant company'owed him no duty at said time and place, and by the exercise of ordinary care he could have avoided any injury to himself.” It will likewise appear from an examination of the record in that case that there was no effort to specifically plead comparative negligence, or to set up the right of' the defendant to have the damages assessed against it diminished on account of negligence of the plaintiff not amounting to a want of ordinary care. The ruling, therefore,, of this court in the Sill ease, supra, is an exact adjudication of the precise question involved in this ease. The record in the case sub judicé discloses that the defendant, 'in detail, explicitly, definitely, and repeatedly pleaded a want of ordinary care on the part of the deceased and of her husband (one of the plaintiffs), as a complete defense and entire bar to any recovery whatsoever against it. However, in the plea of the defendant it is nowhere suggested or intimated that either the plaintiff J. E.' Jarrett or the deceased or both were chargeable with such negligence not amounting to a want of ordinary care, and not constituting an entire bar to any recovery, as would serve to diminish the amount of damages to be awarded by the jury. The ruling in the Sill case, supra, therefore is directly applicable.. It is evident from the record that the -trial judge-intended, and only, by oversight omitted, to instruct the jury on this subject, notwithstanding no such issue was distinctly raised by the pleadings in'the case, but he altogether failed to do so, and we do not think his reference to the subject was sufficient in the light of the entire charge to have confused or misled the jury.

In Western & Atlantic R. Co. v. Smith, 145 Ga. 276, 281 (88 S. E. 983), Mr. Justice Lumpkin, in delivering the opinion of the Supreme Court on this subject, expressed his individual opinion to the effect that in an action to recover damages for a personal injury two questions were necessarily involved: first, whether plaintiff is entitled to recover at all; and second, if so, what is the proper measure of damages; and that both of these questions were directly involved, and in order properly to instruct the jury as to the measure of damages, if the evidence so authorized, the rule for diminishing such damages should be given. He suggested very fitly that “it. might also be urged if the defendant denies liability altogether, that for it to plead negligence of the plaintiff to diminish damages would have the effect of causing the jury to believe that it substantially admitted that some damages should be recovered.” He concluded this expression of his personal opinion, however, with the observation that the contrary rule is established by a number of decisions, and with the ruling by the court that “in the present case it would have been better to have given in charge the rule of comparative negligence and its effect in reducing damages. But it can not be held that a reversal will result from a failure to do so, in the absence of any request for such an instruction.” While in the average suit of this character it would be apparently bad policy on the part of the defendant to file a' plea setting up a claim for a diminution of damages, where it is insisted that no recovery whatever is authorized against the defendant, for the reasons suggested by Mr. Justice Lumpkin, referred to above, a defendant can nevertheless obtain, by a timely written request for a charge on this subject, all the benefit that'might be gained by precisely and explicitly pleading this defense, and this without the attendant disadvantages. The defendant in this case neither interposed a plea setting up this special defense, nor made a timely written request for a charge on this’ subject, and consequently can not obtain a reversal on account of a failure of the trial judge to submit to the jury a special defense not raised by the pleadings and as to which no charge was requested.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodwoeth, J.

text:
    8992.
    Sparks, agent, v. Yatesville Gin Company et al.

    Decided May 15, 1918.
    ■ Certiorari; from Upson superior court—Judge Searcy. May term, 19 Í 7.

      Claude Wormll, for plaintiff in error. J. B. McDonald, contra.
   Bloodwoeth, J.

1. In the petition for certiorari the only errors alleged, other than that the verdict was contrary to law and the evidence, were: (1)' The-overruling of the petitioner’s objections to an amendment to the defendant’s plea'; and (2) the allowance of certain testimony, over .the objections of the petitioner. In the answer of the magistrate (to which no tr.averse or exception was filed) it does not appear what were the petitioner’s, objections to the allowance of the amendment, or to the admission of the testimony. Under such.a condition of the record this court can not say that the trial court erred, either in allowing the amendment or in admitting the testimony.

2. There was some evidence in support of the 'verdict, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, P. J., and Harwell, J., coneur.


text:
    9343.
    Newman v. Redwine.
    Decided May 15, 1918.
    Complaint; from city court of Newnan—Judge Post. October 5, 1917. , ' .

      J. C. Newman, W. L. Stallings, W. G. Post, for plaintiff..

      W. Y. Atkinson> for defendant.
   Bloodwoeth, J.

The grounds of the amendment to the motion for a new trial are without merit; there is ample evidence to support the verdict; and the judgment is

Affirmed.

Broyles, P. J., and Harwell, J., coneur.


author: Harwell, J.

text:
    9368.
    OZBURN v. MORRIS & COMPANY.
    1. A local agent of a mercantile firm-engaged in the business of buying and selling goods for profit has no authority to "pledge the credit of his principal by buying goods in the name of the principal for the accommodation of a third person.
    2. Accordingly, in the instant case, the agreement between the local agent - of the plaintiff and the defendant, for the purchase of the car of tomatoes in the name of the plaintiff for the accommodation of the defendant, was not binding on the plaintiff, and the defendant was not entitled to recover on his plea of set-off. The trial judge did not err in directing a verdict for the plaintiff.
    Decided May 15, 1918.
    Certiorari; from Fulton superior court—Judge Bell. October 2, 1917. ' . ' "
    .Morris & Company sued Ozburn, doing business as C. P; Ozburn & Company, on an open account, and he'filed a plea of set-off, alleging that he had, with the consent of the local manager of Morris & Company, ordered a car of tomatoes in the name of Morris & Company, and that when the tomatoes arrived Morris. ,& Company refused to turn the car over to him, and, instead of this, paid'for them'and accepted, the shipment. Ozburn claimed that Hogg, former local manager of Morris & Company, had agreed to turn over the tomatoes to him. ■ The district manager of Morris & Company claimed that Hogg, stated to him that he had ordered tomatoes, and that as these tomatoes came shipped to Morris & ■ Company, with draft and bill of lading attached drawn on Morris & Company, they belonged to Morris & Company. After the introduction of testimony, the court directed a verdict for Morris & Company, on thé .open account, which Ozburn in his answer admitted to be correct; the court holding that Ozburn was not entitled to recover on his plea of set-off. Ozburn’s certiorari was overruled, and .he excepted. . -.

      Moore & Branch, Bachman & Simmons, for plaintiff in error,
    Lovick. G. Fortson, contra.
   Harwell, J.

(After stating the foregoing facts.) It is insisted by Morris & Company that the local manager, Hogg, had no authority to lend the name and credit of the company for accommodation to another. It is- insisted that if, when the shipment arrived, Ozburn had declined to accept the tomatoes in the event of a decline in price, Morris'& -Company -would have been bound to accept and pay for them. The merchandise was ordered in the name of Morris & Company, and if the agreement between Hogg, the local agent of Morris &. Company, and Ozburn was binding on Morris & Company, the transaction amounted to the pledging of the credit of the company for the purchases made by and on behalf of another. The question is, did Hogg have authority to bind the company by any such transaction? We think not. He was local manager of a branch house in Atlanta of this mercantile firm'. He' had such authority as was-necessary in the conduct of its business in Atlanta, which was the buying and Selling of goods for a profit on behalf of the company. The district manager of. the company testified that no instructions were ever, given by Morris & Company to permit-brokers or third persons to order in the name of Morris & Company and to turn .over goods on arrival, as a matter of accommodation. Ozburn testified that he had done that several times before with Hogg, and had extended favors to Hogg; that it had been the custom between Hogg and himself, and that he had never heard any one raise any objection. It did not appear from the evidence, however, that the company had any knowledge of these transactions between Ozburn and Hogg, or that they had ever ratified such acts on the part of Hogg, or. had ever given Hogg 'any such authority. The authority to borrow money or to make or indorse negotiable paper is a power similar to the pledging of one’s credit. Mr. Justice Lamar, in Exchange Bank v. Thrower, 118 Ga. 433 (45 S. E. 316), said:' “Authority to borrow money is among the most dangerous powers which a principal can confer upon an agent, and must be created by express terms, or be necessarily implied from the very nature of the agency actually created. . . So strict, is the rule that it will not be presumed even from an appointment of one as general agent, unless the character of the business or the* duties of the agent are of such a nature that he was bound to borrow in order to carry out his instructions and the duties of the office.” The power to pledge credit for third persons would be just as extensive and as dangerous. “It is well settled that the mere general power of endorsing promissory notes does not confer upon the agent authority to make an endorsement for the accommodation of third persons.” Myers v. Walker, 104 Ga. 317 (30 S. E. 842). See also Carter v. Pembroke National Bank, 11 Ga. App. 479 (75 S. E. 824). It is held that “A business corporation can not, in the absence of express power in its charter or governing statute so to do, bind itself by endorsing negotiable paper for the accommodation of third persons or corporations, even for a consideration paid therefor.” “Officers of corporations have no such power. The officers óf a corporation have no power to execute or to authorize the execution of. a note for the accommodation of a third party, for a matter which has no relation to the business of the corporation and in which the corporation has no interest.” 10 Cyc. 1115. See also National Park Bank v. German-American Mutual &c. Co., 116 N. Y. 281 (22 N. E. 567, 5 L. R. A. 673, 676.

'“The broadest possible authority to make and indorse paper presumptively is to be exercised in the principal’s interest only, and does not impliedly extend to making or indorsing paper for the accommodation of third persons.” 2 Corpus Juris; 642, § 285; 31 Cyc. 1385; Gulick v. Groover, 33 N. J. L. 463 (97 Am. D. 728, 731). “If the authority of the agent to bind his principal by negotiable instruments, executed in the principal’s business and on his account, is thus so doubtful, a fortiori has he no -authority to bind his principal by making, accepting or indorsing negotiable paper for the benefit of himself or third persons. Nor can he pledge his principal’s credit for the debt of third persons.” 1 Mechem on Agency, § 1003, p. 724; Ruppe v. Edwards, 52 Mich. 411 (18 N. W. 193); Bullard v. De Groff, 59 Neb. 783 (82 N. W. 4); Union Pacific Townsite Co. v. Page, 54 Kan. 363 (36 Pac. 993).

The plaintiff in error cites as authority Lauchheimer v. Jacobs, 136 Ga. 261 (55 S. E. 55). It will be seen from an examination of that case that the custom relied upon which the court held might be proved and taken into consideration, either for the purpose of construing the contract of agency as between the parties or for-the purpose of determining the extent of the agent’s authority, was an established custom or usage in' the particular’ business in question in that case, i. e. the universal custom of traveling salesmen at the end of the season in selling their samples. We have not overlooked the cases of Noble v. Burney, 124 Ga. 964 (53 S. E. 463), and Hopkins v. Armour, 8 Ga. App. 442 (69 S. E. 580), cited by the plaintiff in error, but, upon an examination of those eases, as well as the case of Lauchheimer v. Jacobs, supra, they are easily differentiated from the instant case.

It appearing, from the facts in evidence, that Hogg had no authority to ’purchase the merchandise for Ozburn in the name 'of Morris & Company, and thereby pledge its credit for the accommodation of another, it was not error to direct a verdict for the plaintiff.

Judgment affirmed.

Brpyles, P. J., and Bloodworih, J., concur.


text:
    9371.
    COOK v. COBB & ROPER.
    There being no allegation as to a breach of warranty within the period of eight months alleged to have been covered by the warranty, and it not appearing that the warranty whs a part of the consideration of the purchase, the court did not err in striking the affidavit of illegality, by which it was sought to set up breach of warranty as a defense to the foreclosure of a purchase-money mortgage on personal property.
    Decided May 15, 1918.
    Mortgage foreclosure; from Harris superior court—Judge Kent presiding. October 8, 1917.
    To the foreclosure of a mortgage of Cook upon an .automobile and other personal property he interposed an affidavit of illegality, setting up. that he was not indebted to the plaintiffs as alleged; ■ that the mortgage and the note secured by it were signed by him under the following circumstances, to wit: that upon a certain date he purchased from the plaintiffs an automobile for a stated price, and that the note and mortgage were for a part of the purchase-price, and he has paid all of the purchase-price “except the amount now sued for;” that the automobile “was guaranteed and warranted by [the plaintiffs] to run perfectly for a period of eight months,” and they “further guaranteed and warranted to replace all broken and defective parts on said automobile for a period of eight months;” but the carburetor was defective, and he had to pay out for repairs to the carburetor and magneto a stated sum; that the gasoline leaked out on account of defects, and that this cost him a stated sum,- and that by reason of the said defects the consideration of the note and mortgage partially failed, and that the automobile was not worth more than $300, though sold to him for $669; that the motor was defective and insufficient to generate the power necessary to propel the ear, and that the‘plaintiffs refused, upon his request, to take the car and replace it with another; that a new motor was furnished him by the automobile' company, and the freight and installation of this cost him a stated amount; and that the plaintiffs damaged him in the said amounts, on account of the defects and breach of warranty as heretofore set out. The court, on oral motion, passed an order striking the affidavit of illegality; and a verdict for the plaintiffs was rendered, and judgment was entered thereon. Cook, excepted, assigning error 'on the striking of the affidavit of illegality, and'upon the action of the court in permitting the verdict to be- rendered and the judgment to be entered.

      B. J. Mayer, for plaintiff in error. Meadors & Wyatt’, contra.
   Harwell, J.

(After stating the foregoing facts.) The general denial that the defendant was indebted set up no defense. Civil Code of 1910, § 3300; Woods v. Roberts, 97 Ga. 254 (22 S. E. 986); Woods v. Almand, 97 Ga. 255 (22 S. E. 982). The remainder of the affidavit of illegality attempts to set up as a defense a breach of an express warranty. The express warranty was that the plaintiffs warranted or guaranteed the automobile to run perfectly for a period of eight months; and that they further guaranteed to replace all broken and defective parts of said automobile for a period of eight months. It nowhere appears in the affidavit of illegality that the defects complained of- occurred during the eight months period covered by the warranty. It does not appear that the automobile did not run perfectly during that eight months. It does not appear when these alleged defects occurred. It does not appear tha-t the refusal to replace any defective parts occurred during this eight-months period. In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may avail himself of the ^defense, of recoupment. Arnold v. Carter, 125 Ga. 319 (54 S. E. 177). “The plea of recoupment being a cross-action by the defendant against the plaintiff, its allegations as to damages must be as specific and certain as if made in a petition.” Whitt v. Blount, 124 Ga. 671 (53 S. E. 205); Beck Duplicator Co. v. Fulghum, 118 Ga. 836 (45 S. E. 675); Atlanta Glass Co. v. Noizet, 88 Ga. 43 (13 S. E. 833). The burden is upon the mortgagor or affiant of establishing the allegations of fact in the nature of an affirmative defense. Civil Code of 1910, § 3302; Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). The plea of recoupment must therefore set up all the facts necessary to make out a complete defense, just as if it were a petition or declaration. The express warranty, where that is relied upon, must be alleged and a breach thereof shown, and damage to the' defendant. Moulton v. Baer, 78 Ga. 215 (2 S. E. 471). It should also appear that the express warranty was a part of the consideration of his purchase. -We do not think that the affidavit of illegality measures up to the requirement of the law, in that it does not show a breach of the warranty that the automobile would run perfectly for a period of eight months and that the plaintiffs would replace all 'broken and defective parts for the period of eight months. It does not clearly appear that the alleged warranty was made at the time of the purchase, and was part consideration of the purchase. Eor these reasons we think that th'e court did not err in striking the affidavit of illegality, and permitting verdict and judgment to be entered in favor of the plaintiffs.

Judgment affirmed.

Broyles, P. J., and Bloodyjorih, J., concur.


author: Harwell,

text:
    9382.
    MARBUT v. SOUTHERN RAILWAY COMPANY.
    Under the facts as shown by the record the trial judge did not err in disallowing the amendment' offered by the plaintiff and in dismissing the petition.
    Decided May 15, 1918.
    Action for breach of contract; from Fulton superior court— Judge Bell. September 22, 1917.
    Marbut brought suit against the Southern Railway Company and Atlanta Lodge No. 354, Brotherhood Railway Carmenjof America. The defendants filed separate, but identical demurrers to the petition. In the first and third paragraphs of these demurrers it was contended that no-cause of action was set out, and that the matters and things alleged in the petition deprived the plaintiff of the right to maintain a cause of action against the defendants. The second paragraph is that “there is no joint cause of action against this defendant' and its codefendant.” The other paragraphs of the demurrer contain .special grounds. The court by an order on -May 4,1917,.overruled paragraphs 1 and-3, and sustained the other paragraphs of the demurrer with leave to amend within ten days from date. Orders were afterwards passed extending the tinie for amendment to May 26, 1917, and on that day an amendment was allowed and ordered filed, subject to demurrer. By this amendment it was sought to remedy the defects pointed out by the special grounds of the demurrers, but the amendment did not meet paragraph % of the demurrers, viz., that no joint cause of action was set out against the defendants. On September 14 the defendants filed a motion to dismiss the petition. This motion recited the second ground of the demurrers, and the orders of the court on the demurrers, and-stated that, “the amendment [of plaintiff] failing in any way .to meet the judgment of the court sustaining paragraph 2 of the respective demurrers of the defendants,' the judgment as to said paragraph two became final and absolute. Paragraph 2 was a -general demurrer, and the effect of the order of the court in sustaining this general demurrer was to dismiss the petition upon said general demurrer. The plaintiff having failed by the amendment filed by him to remedy this situation, the sustaining of this general demurrer became-final, -and by reason of the sustaining-of such general demurrer, set forth in paragraph 2 of the respective demurrers of the defendants, the case was ended. Defendants show that'-they are now entitled to an order dismissing the case, based upon the said order of the court sustaining the general demurrer of defendants as set forth in paragraph two of their respective demurrers.” The plaintiff -was ordered by the court to show cause why the motion should not be' sustained and the ease dismissed. On the hearing of this motion, on September 22, an amendment striking the defendant Atlanta Lodge No. 354, Brotherhood Bailway Carmen of America, from the petition, tyas offered by the defendant and was' disallowed, and the court thereafter passed an order sustaining the motion and dismissing the case. -The plaintiff excepts to the order- disallowing this amendment, and to the order sustaining the motion to dismiss.

      Lawton Halley, for plaintiff.

      McDaniel & Black, for defendant.
   Harwell,

(After stating the foregoing facts.) The question in this case is, did the court err in disallowing the amendment offered by the plaintiff, striking the brotherhood as a defendant, and in sustaining the motion to dismiss the suit. The court had passed an order sustaining certain demurrers of the defendants, one of which was that there was no joint cause of action against the defendants, and giving the plaintiff a certain length of time in which to amend, this time being extended by order of. the court. The plaintiff, within the time allowed, tendered an amendment, which was allowed by the court, but this .amendment did not meet the attack made on the petition, that no joint cause of action was set out against the defendants.' No- exceptions to the order sustaining the demurrer were filed by the plaintiff. The order sustaining the demurrer was therefore an adjudication that no joint cause of action was set out against the defendants; and, since no exceptions to this order were filed by the plaintiff, it became the law of the case, and the suit was subject to be dismissed, upon motion of the defendants, for misjoinder of parties defendant. The plaintiff having failed to amend within the time allowed, the court properly disallowed the amendment offered at the hearing of the motion to dismiss, on September 22, and dismissed the case. Lovelace v. Browne, 126 Ga. 802 (55 S. E. 1041); Blackwell v. Ramsey &c. Co., 126 Ga. 812 (55 S. E. 968); Waller v. Clarke, 132 Ga. 832 (64 S. E. 1096); Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241); Babb v. Thomasville Live Stock Co., 17 Ga. App. 384 (87 S. E. 159); Miller v. Southern Railway Co., 21 Ga. App. 367. (6) (94 S. E. 619).

Judgment affirmed.

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


author: Harwell, J. Broyles, P. J.,

text:
    9383.
    GEORGIA COAST AND PIEDMONT RAILROAD COMPANY v. SMITH.
    1. The excerpts .from the charge of the court complained of were not, when considered with the remainder of the charge, .erroneous for any reason assigned. . .
    2. There was some evidence authorizing the jury to. And that the killing of the mule was due to the negligence of’the railroad employees in running the train; and, the trial judge having approved the verdict, this court will not interfere.
    Decided May 15, 1918.
    ■ Action for damages; from Liberty superior court—Judge Sheppard. September 29, 1917.
    Bert Smith sued the Georgia Coast and Piedmont Railroad Company for damages on account of the killing of his mule by a train of the defendant. The jury trying the case found for the plaintiff. The railroad eompahy excepts to the overruling of its motion for a new trial, based upon the general grounds and grounds which were merely amplifications of those grounds, and upon special grounds alleging error in the following excerpts from the charge of the court:, (a) “Of course, when the railroad company makes that appear [referring to its using all ordinary and reasonable care and diligence to avoid the injury], why then that presumption is removed, and- the burden will again be shifted to the shoulders of the plaintiff to make it appear that the railroad company was negligent in the manner and form alleged in the petition.” (i) “If they were negligent in not stopping, and the evidence disclosed that some defective machinery about the engine or ears preventd the train from being stopped, that would be the same thing as if it had been alleged.” ' (c) “Then see whether or not that presumption raised against the company has been rebutted by any of the testimony introduced for the plaintiff or the defendant, and if it does, then look further to the evidence and see whether the evidence discloses, by a preponderance of the evidence, that the defendant was negligent as charged in this petition. If the evidence discloses that fact, why then, even though the presumption of negligence cast by the mere fact of the injury may have been overcome, the plaintiff would be entitled to recover, if you find evidence showing that the defendant was .negligent as .'alleged in the petition.”

      Collins & Stanfield, for plaintiff in error.

      Way & Burlchalter, contra.
   Harwell, J.

(After stating the foregoing facts.) Where stock is killed by the running of the cars of a railroad company,- and there is some evidence other than the presumption' against the company, authorizing the jury to find that the employees in charge of the train were negligent and that the killing was the result of that negligence, a verdict against the railroad company should not be disturbed. Negligence, like any other fact, may be " established by circumstantial evidence as well as by direct evidence. In Southern Railway Co. V. Carter, 139 Ga. 237 (77 S. E. 21), Mr. Justice Beck said: “In passing upon the question as to whether or not the presumption of negligence- which arose upon proof of the killing of the stock in the operation of the defendant’s train had been overcome, the jury had the right to consider all the circumstances proved in the case, as well as the direct testi-' mony given by the witnesses for the plaintiff and the defendant. Whether the killing of the stock was the result of a failure to exercise due care and diligence or not was one for the jury; and there being some evidence to support their finding contrary to the contention of the defendant, this court should not disturb it on the ground that the verdict is contrary to the evidence.” In Central of Ga. Ry. Co. v. Dozier, 117 Ga. 793 (45 S. E. 67), it was said: “In a suit for damages for killing stock the plaintiff offered no eye-witness to the transaction. While weak and unsatisfactory, the testimony as to the tracks of the animal and other physical facts was sufficient, when aided by the presumption of negligence, to warrant a verdict in favor of the plaintiff, notwithstanding the evidence of the engineer and fireman tended to show the exercise of ordinary care and diligence.” See also Central of Ga. Ry. Co. v. Harden, 113 Ga. 455 (38 S. E. 949), s.c 114 Ga. 548 (40 S. E. 738). In the Harden ease a mule was killed, and the employees in charge of the train testified that they did all that they could to prevent the killing. There was, however, some evidence of tracks showing that the mule had run down the railroad, and the Supreme Court finally upheld the verdict against the railroad company, the court stating that there was some evidence to sustain the jury’s finding. Compare also the following cases: Southern Ry. Co. v. Lang, 11 Ga. App. 8 (74 S. E. 443); Atlantic Coast Line R. Co. v. Strickland, 125 Ga. 352 (54 S. E. 168); Southern Ry. Co. v. Patton, 10 Ga. App. 678 (73 S. E. 1075); Ga. So. & Fla. Ry. Co. v. Tyson, 11 Ga. App. 233 (74 S. E. 1098); Atlantic Coast Line Railroad Co. v. Chastain, 15 Ga. App. 707 (84 S. E. 167); Central of Ga. Ry. Co. v. Trammell, 114 Ga. 312 (4) (40 S. E. 259). “It was for the jury to determine whether the explanation offered in behalf of the defendant completely rebutted the- presumption of negligence created by the killing . . ; and they might legitimately have concluded that the explanation of the killing was insufficient; the credibility of the witnesses as well as the question of negligence being exclusively for them.” Atlantic Coast Line Railroad Co. v. Chastain, supra.

In the instant ease the plaintiff’s right to recover did not rest solely upon the statutory presumption of negligence, but there was direct evidence as well as circumstantial, as shown by the record, which., in our opinion, authorized the finding of the jury that the employees in charge of the train were negligent, and that the killing could have been prevented by the use of proper diligence, notwithstanding the testimony of the engineer and the fireman that they did all they could to prevent it. The evidence was sufficient to authorize the verdict, which was approved by the trial judge, and, no error of law appearing, this court will not interfere. The head-notes dealing with, the special grounds of the motion need no elaboration, v

Judgment affirmed.

Bloodworth, J., concurs.

Broyles, P. J.,

dissenting. ¡ In my opinion the evidence for the plaintiff, beyond showing that his mule was injured by the running of a train of the defendant (and thus raising the statutory presumption of negligence against the defendánt), was without any probative value whatever. The undisputed evidence of the engineer, and the other employees of the defendant, upon the train which struck the mule, completely rebutted this presumption of negligence, and the'recovery for the plaintiff ’ was unauthorized. I think the court erred in overruling the motion for a new trial. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202 (7 S. E. 639); Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (7) (20 S. E. 550, 36 L. R. A. 553, 44 Am. St. R. 145); Georgia Southern & Florida Railroad Co. v. Sanders, 111 Ga. 128 (36 S. E. 458); Macon & Birmingham Railroad Co. v. Revis, 119 Ga. 332 (46 S. E. 418); Atlantic Coast Line Railroad Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34); Atlantic Coast Line Railroad Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268); Whiddon v. Atlantic Coast Line R. Co., 31 Ga. App. 377 (94 S. E. 617).


author: ■Bloodwoeth, J.

text:
    9384.
    WILLARD v. STONE.
    An act creating the city court of Baxley limits each term of the court to four weeks from the actual beginning of the term. Where an at-' tachment is returnable to a certain term of that court, a declaration based thereon, filed more than four weeks from the actual beginning of the term, should be dismissed.
    Decided May 16, 1918.
    Attachment; from city court of Baxley—Judge Lawrence. November 8, 1917.

      Padgett & Watson, for plaintiff in error.

      W: W. Bennett, contra.
   ■Bloodwoeth, J.

On November 26,-1915, Cassie Stone sued out an attachment against T. B. Willard, returnable to the February term, 1916, of the city court of Baxley, -which convened on the first' Monday in February,’ 1916, and the attachment was levied on certain personal property and returned to that term of the court. On March 10, 1916, the. plaintiff filed her declaration in attachment, and on November 27, 1916, the defendant filed a motion to dismiss the action, upon the ground that the declaration was’not filed at the first term, as required by law.

The act approved August 17, 1911 (Ga. L. 1911, p. 209), amending the act creating the city court of Baxley (Ga. L. 1897, p. 423), provides, that “the regular terms of said city court of Baxley shall be held on the first Monday in February, May, August, and November of each year. The judge shall have power to hold said court in session from day to day for a period of not longer than four weeks from the beginning of each term.” While the point was not directly involved, we think the Court of Appeals, in the case of Walker v. Lott-Lewis Co., 15 Ga. App. 769 (84 S. E. 195), properly construed this law,, when it said: “It seems to us that the only purpose of the General Assembly in the act creating the city court of Baxley, in enacting this provision, was to limit all terms of the court to four weeks from the actual beginning of the term, no matter whether it begins on the date fixed by the act, or at a later date, fixed by an order of adjournment, which may defer the session in accordance with law.” Under that ruling, when the February term of the city court of Baxley began on the 7th day of the month, the term automatically expired four weeks therefrom, even though the court may not have been in continuous session from day to day during that period; and a declaration in attachment, filed with the clerk of the court on March 10, was not filed at the first term, and it was error to overrule a motion to dismiss the declaration on the ground that'it was not filed at the first term of the court. Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), and cases cited. Even if it were legal, as contended, for the judge to adjourn the court to a time after the expiration of four’weeks from the beginning of the term, he could do so only by proper order, and it is not claimed that such an order was taken.

Judgment reversed.

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


text:
    8928.
    Rothschild & Company v. Arenson & Company.
    Decided May 16, 1918.
    Complaint; from Butts superior court—Judge Searcy. May 5, 1917.

      G. L. Redman, Little, Powell, Smith & Goldstein, for plaintiffs.
    A. W. Lane, W. B. W-athins, for defendants.
   Wade, C. J.

1. The charge of the court was fair, and presented the vital issues to the jury with sufficient fullness; and there is no substantial merit in any of the special assignments of error:

2. The jury were authorized, under some of the testimony, to find that the purchaser of the goods sued for was not a general agent of the. defendant, and was without special authority to make such purchases, and that the purchases were made without the knowledge of the defendant and were never ratified in any way by him.

3. The alleged newly discovered evidence, when considered in connection with the precise allegations in the original petition, clearly indicates that its existence would have been revealed to the plaintiff by the exercise of proper diligence, and therefore furnishes no sufficient ground to set aside the verdict.

4. Notwithstanding some evidence authorizing a contrary conclusion, the verdict was supported by direct and positive testimony which the jury .accepted as the truth of the transaction; and the trial judge having approved their finding, his judgment overruling the motion for a new trial is Affirmed.

Jenkins and Luke, JJ., concur.