text:
    8147.
    CHAPMAN v. CENTRAL OF GEORGIA RAILWAY CO.
    1. “Where a petition setting out a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a ease authority, at or after the return term, to order a new process to issue.”
    2. A suit by a widow to recover for the negligent homicide of her husband must be brought within two years from the accrual of the right of action.
    3. The court did not err in sustaining the demurrer and dismissing the petition.
    Decided June 15, 1917.
    Action for damages; from Monroe superior court—Judge Searcy. June 24, 1916.

      Persons & Persons, R. B. Blaclcburn, for plaintiff.

      Cleveland, & Goodrich, Willingham & Willingham, for defendant.
   Luke, J.

Mrs. A. D. Chapman filed with the clerk of Monroe superior court on August 26, 1913, a petition alleging that her husband was negligently killed by the Central of Georgia Railway • Company on October 8, 1911. The clerk did not attach process to the petition, and there was no service on the defendant, and on February 4, 1914, at the term of court which would have been the return term of the suit if there had been due process and service, the court passed the following order: “It appearing to the court that the clerk of the court failed to attach process to the within petition and cause the same to be served as required by law so that the same would have been returned to this the February term, 1914, it is therefore ordered that the clerk do now attach process to said petition and process be served on' the defendant, and that said case of A. D. Chapman v. Central of Ga. Ry. Co. do stand returnable to the August term, 1914, of this court.” The petition, with process attached, as directed by the order of the court, was served on July 12, 1914. The defendant demurred upon the following grounds: “The petition shows on its face that plaintiff’s husband, W. L. Evans, received his injuries on the 8th day of October, 1911, and died on the same day. The petition shows on its face that it was filed in office August 26, 1913, but no process was attached to said petition until the 4th day of February, 1914. Defendant shows that said action was not commenced within two years from the time of the death of her husband, and for this reason the suit is barred by the statute of limitations. The order of the judge, dated February 4, 1914, was without authority of law, and did not stop the running of the statute, and the filing of the petition without attaching process was not the commencement of the suit as provided by law, and the petition shows on its face that it was not commenced within the time prescribed by law.” The demurrer was sustained and the case dismissed, and the plaintiff excepted.

Is the mere filing of a petition in the court, without process being attached, the commencement of a suit? Did the court have authority to pass the order in question, and did the passing of that order at the term to which the cause would have been returnable had there been due service of the petition with process attached have the effect of making the day of filing the petition the day of commencement of the suit, so as to bring the suit within the statute of limitations? All suits in the superior courts must be by petition to the court, signed by the plaintiff or his counsel, setting forth the complaint with prayer for process. Civil Code (1910), § 5538. “Upon every petition the clerk shall indorse the date of its filing in office, which shall be considered the time of the commencement of the suit.” Civil Code (1910), § 5551. To every petition the clerk shall annex a process requiring the appearance of the defendant at the return term of the court. Civil Code (1910), § 5552. The mere filing of a petition, without service, will not suffice to authorize the action to be treated as commenced and pending. There must be service, to create a suit pending between the parties dating from the date of filing. Stallings v. Stallings, 127 Ga. 464 (56 S. E. 469, 9 L. R. A. 593). In construing what is now section 5551 of the Civil Code (1910), Justice Hawkins, in Cherry v. North &c. R., 65 Ga. 633, 636, said: “It is . true the code says the filing of the declaration with the clerk is regarded as the commencement of the suit, but this must be construed with kindred regulations for suits and the service thereof.” In Ferguson v. New Manchester Mfg. Co., 51 Ga. 509, it was held: “The filing of a declaration in.the clerk’s office, when service has been perfected as required by law, will be considered the commencement of the suit; aliter where there has been no service.” It is now well settled that the filing of the petition will not be considered the commencement of the suit, unless followed up by proper service. McLendon v. Phosphate Co., 100 Ga. 219 (28 S. E. 152); Florida Central &c. Co. v. Ragan, 104 Ga. 353 (30 S. E. 745); Jordan v. Bosworth, 123 Ga. 879, 880 (51 S. E. 755).

Before the date of filing of a petition shall be considered the day of the commencement of the suit, there must be process, as well as service. In Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004), it was held: “Where a petition setting out. a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is ■ the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending.” See also Toole v. Cook, 15 Ga. App. 133 (82 S. E. 772). There being no suit pending, the court could not, at the term to which, had there been, process attached to the petition, and service, the suit would have been returnable, give life to the cause, as of the date of filing, by directing that process be issued and service be made.

“An action by a wife to recover damages for the negligent homicide of her husband is an action for an <r injury done to the person/ and must be brought within two years after the date of the death of the husband.” Atlantic, Valdosta, and Western Railroad Co. v. McDilda, 125 Ga. 468 (54 S. E. 140, 114 Am. St. R. 240). A void suit will not prevent the running of the statute of limitations. Williams v. Wardlaw, 46 Ga. 126; Edwards v. Ross, 58 Ga. 147. This suit was not commenced within two years, and was barred by the statute of limitations. The court did not err in sustaining the demurrer and dismissing the petition:

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8176.
    Montgomery v. Western Union Telegraph Company.
    Decided June 15, 1917.
    Action for damages; from Webster superior court—Judge Littlejohn.. April 5, 1916.

      J. F. Souter, Shipp & Sheppard, for plaintiff.

      Dorsey, Brewster, Howell & Heyman, G. 7. Harrell, Marie Bolding, for defendant.
   Luke, J.

The evidence for the plaintiff did not establish the cause of action alleged; the errors assigned do not require a reversal, and a nonsuit was properly granted.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    8184.
    Lamb, receiver, v. Floyd et al.

   Wade, C. J.

1. There was evidence to sustain the verdict for the amount recovered by the plaintiff ($10,000), and nothing appears in the record which would authorize a holding by this court that the verdict was the result of prejudice or bias on the part of the jury.

2. In a suit for personal injuries resulting from the “running of the locomotives, cars, or. other machinery” of a railroad company, brought against a receiver appointed by the district court of the United States _ for the northern district of Georgia, then in charge of the property of the company and operating its cars and machinery, the court did not err in giving in charge to the jury section 2780 of the Civil Code of 1910, as to the presumption of negligence. See Lamb v. Davis, ante, 240 (92 S. E. 1009).

Decided June 15, 1917.

Action for damages; from Ben Hill superior court—Judge George. April 13, 1916.

Brandon & Hynds, Bolling Whitfield, Bllcins & Xoplin, for plaintiff in error.

James H. Dodgen, George F. Gober, W. I. Heyward, contra.

3. There is no merit, for any of the reasons given, in the various special grounds of the motion for a new trial as to other excerpts from the charge of the court, when they are considered in connection with the entire charge, which was fair and impartial; nor in those grounds based upon the conditional agreement by the judge to admit certain testimony relating to a municipal ordinance, and his failure thereafter to instruct the .jury not to consider the said ordinance, which was not in fact introduced.

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

Judgment affirmed,

Broyles, P. J., and Luke, J., concur.


author: "G-eokge, J.

text:
    8203.
    Allison et al. v. Thomas.
    Decided June 15, 1917.
    Appeal; from Dougherty superior court—Judge Cox. September 9,1916.

      T. H. Milner, for plaintiff in error.
   "G-eokge, J.

1. When a party contracts for property of a specific kind and character, and property of a different kind and character is tendered, the party may treat the contract as at an end and have his action for the recovery of such part of the purchase price as he may have paid at the time of the making, of the contract. In such ease he is not required to accept the property and sue for a breach of the contract.

2. The evidence, while weak, was sufficient to support the verdict. Accordingly, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, 0. J., and Luke, J., concur.


text:
    8215, 8216.
    Elliott v. Currie et al.

    Decided June 15, 1917.
   Luke, J.

Upon the record, the agreement, and the answer of the ordinary to the writ of certiorari, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and George, J., eoneur. .

Certiorari; from Wbeeler superior court—Judge Graham. September 9, 1916.

O. M. Dulce, for plaintiff in error.

A. C. Saffold, J. P. Tomlinson, contra.


text:
    8228.
    Dixie Cotton Company v. Ocean Steamship Company.
    Decided June 15, 1917.
    Action on contract; from Laurens superior court—Judge Kent. May 29, 1916.

      W. G. Davis, for plaintiff in error.

      Pi. W. Johnson, J. 8. -Adams, contra.
   Luke, J.

1. The evidence showed tljat the plaintiff contracted with the defendant to ship 500 bales of cotton from. Savannah to Genoa, Italy, at a given freight rate. .The plaintiff, to carry out its contract with the defendant, contracted with Hamburg-American Line to transport the cotton from New York to Genoa. The defendant failed to carry out its contract with the plaintiff; whereupon the Hamburg-American Line brought suit against the plaintiff for the agreed freight, rate, and,, obtained a judgment, which was- paid by the plaintiff, and the plaintiff instituted this suit for the amount of damages sustained by it resulting from defendant’s breach of its contract. The only conflict in the evidence was as to the time when the defendant notified t'he plaintiff that it would not comply with its contract to ship the cotton. Held, that such conflict in the evidence did not as a matter of law raise the issue that the plaintiff was lacking in ordinary care and diligence to lessen the damages by reason of advanced knowledge of defendant’s intention to breach the contract. Mimms v. Betts Co., 9 Ga. App. 718 (2) (72 S. E. 271).

2. The assignment of error on the judgment overruling the defendant’s demurrer to the plaintiff’s petition, ■ not having been argued in the brief of counsel for the plaintiff in .error, will be treated as abandoned.

3. The evidence demanded the verdict, and- the court did not err in directing the jury to find for the plaintiff.

Judgment affirmed.

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


text:
    8253.
    Poole v. Powell.
   Luke, J.

1. The exceptions to excerpts from the charge of the court to not require a reversal of the judgment in this case. The charge of the court, as matter of law, was abstractly correct, and if thfe defendant wished a more specific charge, it was incumbent on him to request it in writing.

Decided June 15, 1917.

Action on contract; from Fulton superior court—Judge Fibs. January 27, 1916.

James L. Key, for plaintiff in error.

Walter A. Sims, contra.

2. The court did not err in overruling the defendant’s demurrer.

3. The evidence authorized the verdict, and there is no assignment of error that requires a reversal of the judgment.

Judgment affirmed.

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


text:
    8282.
    Southern Railway Company v. Waggoner.
   Luke, J.

1. There was evidence authorizing the jury to find that the plaintiff was on the tracks of the defendant as a licensee, in the exercise of ordinary care, and was injured by the alleged negligence of the defendant.

2. Upon the facts of this ease this court can not say that the verdict (of $1,250) was excessive.

3. There was error in the following instructions to the jury: “The law required of the defendant in this case the exercise of ordinary care, and the legal meaning of ordinary care is just that care that every prudent man would exercise under the same or similar circumstances. As applied to this defendant it means just that care that every prudent railroad company, acting through its servants- and employees, would exercise under the same or similar circumstances. If that degree of care was exercised, there could have been no negligence. If that degree of care was not exercised, in so far as the particulars charged against it are concerned, that would constitute negligence.” The charge here quoted is inaccurate, because, as was said in Southern Ry. Co. v. Sill, 139 Ga. 549, 554 ( 77 S. E. 803), “Ordinary care is a relative term, and what is ordinary care is to be measured by the nature of each particular ease, and can not be determined abstractly. A railroad corporation, considered as a legal fiction, is an abstraction; but looked at from the point of an aggregation of persons using certain instrumentalities and engaged in the performance of a particular act, it becomes a concrete entity. When we speak colloquially of a railroad company doing a; particular- act, we have in mind, and are understood to mean, that the act is being performed by the agents of the company. The standard of ordinary care is not what a prudent railroad company, or a prudent industrial corporation, or a prudent merchant, or a prudent manufacturer would have done under given circumstances, but it is that care which ordinarily prudent men engaged in the particular act complained of would have exercised. The jury may have understood the reference to the care exercised by a prudent railway company as that care which ordinarily prudent men, acting for and in behalf of the company, would exercise under the same or similar circumstances, or they may have fixed some artificial standard of what they considered would have been the duty of a prudent railroad company.” The part of the charge in question, however, when considered in the light of the charge as a whole, was perhaps more harmful to the plaintiff than to the defendant; at any rate is not reversible error.

Decided June 15, 1917.

Reheaeing denied Judy 9, 1917.

Action for damages; from DeKalb superior court—Judge Smith-. May 27, 1916.

McDaniel & Blade, for plaintiff in error.

Hewlett, Dennis & Whitman, contra.

4. Ho assignments of error as to other parts of the charge of the court, when the charge is considered as a whole, require a reversal of the judgment in this ease.

Judgment affirmed.,

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


author: George, J.

text:
    8550, 8581.
    ROBERTSON v. EASLEY; and vice versa.

    Where the election of a county officer was contested under sections 121 to 123, inclusive, of the Political Code (1910), and the evidence which was taken before a justice of the peace of the county, together with all the papers filed in the contest, was duly transmitted to the judge of the superior court of the circuit in which the contest arose, the decision by the latter therein is final, and the writ of certiorari will not lie to review the same. Consequently, the judge of the superior court succeeding the judge by whom the contest was decided did not err in dismissing the certiorari by which it was sought to review the decision of his predecessor in office. He did, however, after sanctioning the certiorari, err in reviewing, reversing, and declaring void the judgment of his predecessor.
    Decided June 15, 1917.
    Certiorari; from Catoosa superior court—Judge Tarver. February 7, 1917.

      W. B. Mann, M. L. Harris, for Robertson.

      G. G. Glenn, F. K. McGutchen, G. D. McOutchen, Maddox, Mc-Camy & Shumate, contra.
   George, J.

C. L. Easley, the defendant in error in the main bill of exceptions, was declared elected tax-collector of Catoosa county by a majority of 96 on the face of the returns. A. B. Robertson, plaintiff in error in the main bill of exceptions, contested the election on the grounds, that he received a majority of the legal votes cast in the election; that a number of votes cast for Easley were illegal, because of nonpayment of taxes, and for various other reasons; that a large number of persons who voted for Easley were not legally registered; that is, their names did not appear upon the permanent registration book; and that there was a sufficient number of illegal votes east for Easley to change the result of the election. Testimony was taken, as required by law, before a justice of the peace of the county, who duly certified the case, together with the evidence, to Hon. A. W. Eite, the judge of the superior courts of the Cherokee circuit. Judge Eite set the case for hearing and both sides were duly notified. Both parties to the contest appeared before the judge, and, after argument, the following order was entered: “This ease of A. B. Eobertson, contestant, vs. C. L. Easley, contestee, Catoosa county, Georgia, coming on for a hearing, and it appearing that the contestant A. B. Eobertson has a greater number of legal votes than C. L. Easley, contestee, it is therefore considered, ordered, and adjudged by the court that the said A. B. Eobertson be and he is hereby declared tax-collector in and for said county for four years beginning January 1st, 1917; the court holding that the supplemental list of voters made up, filed, and furnished by the registrars was unauthorized by the law and in contravention thereof, and that all votes 'cast by persons whose names appear on such supplemental list are illegal.” Eobertson was duly commissioned by the Governor prior to January 1st, 1917. His honor M. C. Tarver, on January 1st, 1917, succeeded Judge Eite as judge of the superior courts of the Cherokee' circuit. - Counsel for defendant' in error then applied by -petition to Judge Tarver for' the writ of certiorari, to review and to correct the judgment of Judge Eite in the said contested election case; the ground of attack being that the judgment of Judge Eite was erroneous in that the judge did not find the number of legal votes cast for the respective parties, and did not determine which party had received the greatest number of legal -votes cast 'for the respective parties, and did not determine which party had received the greatest number of legal votes cast in the election, but determined that certain voters whose names appeared upon a supplemental list were not entitled to vote in the election. Judge Tarver sanctioned the writ of certiorari and it was duly issued; a hearing was had before him, and he found in effect that Judge Eite had not acted within the terms of the authority conferred by sections 131 to 123, inclusive, of the Political Code (1910), and that the judgment of Judge Fite in the election contest was therefore void, and upon this ground dismissed the certiorari. Robertson filed exceptions to the order then entered by the judge. No exception was taken by him to the dismissal of the certiorari, but he excepted specially to that part of the order which in effect ruled that the decision of Judge Fite was void. Easley filed a cross-bill of exceptions, and therein complained that the judge should not have dismissed the certiorari, hut should have heard and determined the ease, and should have corrected the decision of Judge Fite. He insisted that the action of Judge Fite was outside the authority conferred upon the judge as a special tribunal under sections 121 to 123, inclusive, of the Political Code (1910).

The Supreme Court, in construing the act of 1893 (Acts 1893, p. 124) from which the code-sections as to contested elections are taken, held, in the case of Carter v. Janes, 96 Ga. 280 (23 S. E. 201), that no bill of exceptions would lie to that court from the decision of the judge of the superior court in contested election cases. In the case of Harris v. Glenn, 141 Ga. 687 (81 S. E. 1103), the Supreme Court held that “where a contest arises over the election of municipal officers, and the same is filed with and heard and determined by the ordinary of the county wherein such contest may arise, the decision by the ordinary in such contest is final, and in rendering it he does not act in a judicial capacity. Consequently the judge of the superior court did not err in refusing to sanction the certiorari which the plaintiffs in error sought to sue out for the purpose of having the decision of the ordinary, in a contest of the nature indicated above, reviewed and reversed.” The act of 1893 conferred upon the judge of the superior court of the circuit the right to hear and determine certain election contests, and conferred upon the ordinary of the county the right to. hear and determine contests arising over the election of constables, municipal officers, and other officers “not hereinabove provided for.” With respect to the contests to be heard by the ordinary it is provided that “the same shall be filed with, heard, and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor.” Political Code (1910), § 125. Under the act of 1893, as construed by the Supreme Court, the judge’s decision in a contested-election case is final, and can not be reviewed either by direct bill of exceptions or by writ of certiorari.

Counsel for the defendant in error rely upon the decision in the case of Simpson v. Rimes, 141 Ga. 833 (82 S. E. 291). In that case it was held that “The jurisdiction conferred upon ordinaries to hear and determine contests arising over elections for municipal officers is limited, and in such cases the ordinary has no power other than those conferred by the statute.” Accordingly, it was there ruled that a judgment of the ordinary, which on its face was based upon the finding that certain persons were qualified voters at the election, and that they would have voted for the contestants if they had been allowed to vote, and that these votes, when added to the votes cast and counted at the election, would have resulted in the election of the contestants, was void, and that the judge of the superior court erred in giving it effect and ousting the defend-^ ants from office. The Supreme Court in that case, in speaking of the statute now under consideration, said (p. 824): “This au- 1 thorizes the ordinary to inquire into the legality of votes cast on both sides and decide on the legality thereof.” Also: “There is no provision whatever for the ordinary to enter into a general consideration of supposed equitable rights or other rights of contestants, and base his decision upon assumptions of how voters would have voted had they been permitted to vote.” That decision, in our view of it, is not authority for the position taken by counsel for the defendant in error. By the terms of the order of Judge Fite, set out in the statement of facts in this case, the judge found that Bobertson had received the largest number of legal votes and was therefore entitled to the office. Whether right or wrong, this-question was for decision by the judge, and his judgment is final.

Counsel for defendant in error have called our attention to the case of Johnson v. Jackson, 99 Ga. 389 (27 S. E. 734), and insisted that the decision in that case reviews and practically overrules the decision in Carter v. Janes, supra, and that the decision in Harris v. Glenn, supra, did not reverse the decision in the Johnson case, because that case is not referred to in the Harris ease. Inasmuch as there is an apparent conflict in the decision in these cases, it is suggested that the matter be certified to the Supreme Court, iu order that this apparent conflict may be reconciled. We do not agree that there is a conflict in the decisions of the Supreme Court upon the question here involved. Since counsel may have the question reviewed by writ of certiorari from the Supreme Court, we decline to certify the question.

Our chief difficulty in this ease is to determine the proper judgment to be entered. We are clear that the judge of the superior court had no authority to grant the writ of certiorari to review the decision of Judge Fite in the election contest. It was therefore right to dismiss the certiorari. The judge of the superior court did not stop, however, with a dismissal of the certiorari. He at once reviewed, overruled, and declared void the decision of Judge Fite in the contest, and dismissed the certiorari because it attempted to review a void judgment. From the brief of counsel in the case it appears that the judge of the superior court, after the dismissal of the certiorari, entertained jurisdiction of the contest, heard, and determined the same, and ousted the plaintiff in error, and declared the defendant in error legally elected as tax-collector of Catoosa county. He was right in dismissing the certiorari, but he was wrong in reviewing, reversing, and declaring void the decision of Judge Fite. He had ho authority to do so, under our view of the law, as we understand the decisions of the Supreme Court. On the main bill of exceptions we will, therefore, affirm the judgment dismissing the certiorari, and reverse so much of the judgment as declared the decision of Judge Fite void.

Judgment on main bill of exceptions affirmed, with direction; cross-bül of exceptions dismissed.

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


text:
    8580.
    Phinazee v. Godard, constable, for use, etc.
    Decided June 15, 1917.
   George, J.

In order for this court to review the refusal of a judge of the superior court to sanction a certiorari, the petition for certiorari must he incorporated in the hill of exceptions, or be verified as a part thereof by the trial judge; an unsanctioned petition can not be specified as a part of the record. Taylor v. Omega, 12 Ga. App. 693 (78 S. E. 144), and cit.; Wood v. County of Tattnall, 115 Ga. 1000 (42 S. E. 403), and cit.

Writ of error dismissed.

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

Petition for certiorari; from Monroe superior court—Judge Searcy. February 5, 1917.

J. M. Smith, for plaintiff in error. A.- M. Zellner, contra.


text:
    8731.
    Neal v. City of Dublin.
    Decided June 15, 1917.
    Petition ior certiorari; from Laurens superior court—Judge Kent. February 21, 1917.
    By demurrer to the charge against the accused in tbe recorder’s court it was contended that the ordinance on which the charge was based is void and unconstitutional, because: (1) "it abridges, curtails, and affects the liberty of this defendant without due process of law, and is violative of section 1, paragraph 3, of the constitution of the State of Georgia;” and (2) "it undertakes to prosecute persons of bad character or reputation, which bad character or reputation must be proved to make out said case; and to prove said bad character or reputation will be putting in evidence the character of the defendant, which is violative of the general law of the State of Georgia providing that character or reputation of any one can not be inquired into unless first put in evidence by the defendant; and therefore is violative of section 1, paragraph 3, of the constitution of the State.”
   George, J.

1. Under the amendment to the constitution of this State, ratified at the election held on November 7, 1916, which provides that the Supreme Court shall have jurisdiction “for the trial and correction of errors of law . . in all cases in which the constitutionality of any law of the State of -Georgia or of the United States is drawn in question,” the Court of Appeals has authority to determine as to the constitutionality of a municipal ordinance. Cf. Wright v. Macon, 5 Ga. App. 750 (64 S. E. 807).

2. The ordinance of the City of Dublin forbidding, under penalty, “any ■ woman of disreputable character to loiter about the streets or stores of the city . . , who can not prove that [she is] on unavoidable business,” is not unconstitutional for any of the reasons assigned.

3. Upon the trial of one charged with violating the ordinance in question, the evidence for the city was as follows: The character of the accused •was bad; she had been seen on the streets of Dublin since Christmas; she was merely walking along the street. The evidence for the defense was as follows: The accused was a house-servant, and as such she was sent to the city after groceries every day. She had been out of employment about two weeks, and on the morning of the arrest her former employer had requested her to come to the express office and pay him a debt which she owed him. While on the trip she was arrested by the officer. Meld, that the evidence did not warrant the conviction of the accused for “loitering” on the street.

4. The judge of the superior court erred in refusing to sanction the certiorari.

Judgment reversed.

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

W. A. Dampier, for plaintiff in error.


text:
    8765.
    Plummer v. City of Dublin.
    Decided June 15, 1917.
    Petition for certiorari; from Laurens superior court—Judge Kent. February 14, 1917.

      W. A. Dampier, for plaintiff in error.
   George, J.

This case is in principle controlled by the decision in Neal v. Dublin, ante, 263.

Judgment reversed.

Wade, O. J., and Lulce, J., concur.


author: Bloodworth, J.

text:
    7989.
    GRIMES v. MURRAY, administratrix.
    1. When the competency of a witness depends upon the determination of a question of fact, the decision of the judge as to his competency will not generally be disturbed, if there is any evidence to authorize such a finding.
    2. If it is found by any one calculation authorized by law and evidence, whether it be one adopted by the jury or not, that the verdict can he sustained, this court will not control the discretion of the presiding judge in overruling the motion for a new trial.
    Decided June 15, 1917.
    Complaint; from city court of Newnan—Judge Post. November 3, 1916.

      W. 0. Wright, for plaintiff in error. Hall & Jones, contra.
   Bloodworth, J.

The first ground of the amendment to the motion for a new trial in this case is "as follows: “Because the court erred in not permitting the defendant to prove by the witness Lou Grimes that for the money paid to S. M. Murray, deceased, on the purchase price of which the notes sued on were partly given, S. M. Murray always gave receipts for such payments, and that about the year 1913 the witness and the defendants went to said S. M. Murray for a statement as to said land transaction, and carried the said receipts, and said S. M. Murray took them and looked them over and made out a statement of the amounts which had been paid on the land, and then took the receipts and wadded them up, threw them in the fireplace or on the floor, and witness picked some of them up; that the two memorandums which defendants offered in evidence, and which show that John had paid $395.62, Andy $380.74, Henry $424.74, and Lou $397, were made out and turned over to witness by the said S. M. Murray, and show the amounts which each of said persons had paid on the purchase price of said land. Defendants offered to prove all of the above by the said Lou Grimes, but the court refused to allow said evidence to go to the jury, on the ground that said S. M. Murray, being agent of the plaintiff, and being deceased at the time of the trial, and that said Lou Grimes, under her evidence, was a party at interest in said transaction, the said evidence was not admissible. Movants contend that said evidence was admissible, and that the evidence did not show that the said Lou Grimes was interested in the result of said trial or in the subject-matter of the suit in such a way as to disqualify her as a witness; that her only interest was that which a wife would naturally feel in her husband and which a mother would naturally feel in the affairs of her sons.” Our Supreme Court has held that “When the competency of a witness depends on the determination of a question of fact, the decision of the judge will not generally be disturbed, if there is any evidence to authorize his finding.” Carroll v. Barber, 119 Ga. 856 (2) (47 S. E. 181). There seems to be abundant evidence to sustain the ruling of the judge holding the witness Lou Grimes incompetent and rejecting her evidence, as she herself swore that she was the wife of one of the defendants and the mother of the other two, and that there was an agreement between her and her husband and sons that she and her husband were to have one hundred acres of the land, and her sons fifty acres each; that while her name was not on the bond, still, by agreement with her husband and sons, who held the bond for title, she was to have an interest in the land, and that she did help and had paid part of the purchase price; and that she did not know what part of the land she was to get, as the land was not to be divided between them until paid for. Even if the rejection of the evidence referred to in this ground of the motion was error, it was harmless. To show that “ S. M. Murray always gave receipts for such payments, and that about the year 1912 the witness and the defendants went to said S. M. Murray for a statement as to said land transaction, and carried the said receipts, and said S. M. Murray took them and looked them over and made out a statement of the amounts which had been paid on the land, and then took the receipts and wadded them up and threw them in the fireplace or on the floor, and witness picked some of them up,” could not have had any effect on the ease. The only part of the excluded evidence referred to above that was of any probative value was that “the two memorandums which defendant offered in evidence, and which show that John had paid $395.62, Andy $380.74, Henry $424.74, and Lou $397, were made out and turned over to witness by the said S. M. Murray, and show the amounts which each of said persons had paid on the purchase price of said land” at the time the memorandums were made out, which was “about the year 1912;” and the brief of evidence shows that Lou Grimes did testify ,to these facts in practically the same language, and the memoranda themselves were introduced.

The second ground of the amendment to the motion for a new trial is as follows: “Because under no view of the evidence offered could the jury have legally rendered such a verdict as was returned in said case.” This does not point out the iniquity in the verdict, and is but another way of saying that the verdict is contrary to the evidence. If the jury had accepted the evidence of the plaintiff, the verdict would have been for a much larger amount. The evidence of the defendant is not sufficiently definite to demonstrate that the verdict should have been for a less amount. “If it is found by any one calculation authorized by law and evidence, whether it be the same adopted by the jury or not, that the verdict can be sustained, then this court will not control the discretion of the presiding judge in overruling the motion for a new trial.” Donaldson v. Cothran, 60 Ga. 603 (1). There appears to be ample evidence to support the verdict, and the motion for a new trial was properly refused.

Judgment affirmed.

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


author: Jenkins, J.

text:
    8178.
    Kerr Glass Mfg. Co. v. Americus Grocery Co.
    Decided June 15, 1917.
    ■ Trover; from Sumter superior court—Judge Littlejohn. June 17, 1916.

      B. L. Maynard, for plaintiff. Shipp & Sheppard, for defendant.
   Jenkins, J.

It appearing that in a former suit on open-account for the purchase price of certain personal property the defendant, in substance, really entered only one defense, and this court having so adjudged,—viz, the defense that the goods purchased were worthless, and that the defendant’s right to a rescission depended entirely on the establishment of that plea, a finding for the defendant in that suit precludes the maintenance of a subsequent action in trover for the recovery of the same property. See report of the former case—Kerr Glass Mfg. Co. v. Americas Grocery Co., 13 Ga. App. 512 (7) 515 (79 S. E. 381).

Judgment affirmed.

Broyles, P. J., and Blood-worth, J., concur.


text:
    8283.
    PAXSON v. PLANTERS WAREHOUSE & LOAN CO. et al.

    In a proceeding to foreclose a mortgage on personalty, the fact that a dismissal of the counter-affidavit was caused by the plaintiff, on the ground that the bond given by the defendant and his surety did not meet the statutory requirements, does not preclude the plaintiff from - maintaining an action on the bond as a common-law contract, where the defendant has obtained a substantial benefit under the bond by receiving and withholding the property involved.
    Decided June 15, 1917.
    Action on bond; from Wilcox superior court—Judge George. February 19, 1916.
    Jordan, a tenant of Parsons during the year 1911, made a promissory note as principal, with Parsons as surety, to Planters Warehouse & Loan Company, for the price of guano to be used on the crop of that year, secured by. mortgage on the crops of J ordan grown on the land of Parsons. Jordan proceeded to raise a crop of corn and cotton, and, having failed to pay the debt, the mortgage was foreclosed and his crop levied on; and he filed an affidavit of illegality and gave a bond with Paxson as surety. The affidavit of illegality was dismissed by the court on the ground that the bond did not meet the statutory requirements. By reason of the giving of the bond the crop of J ordan had been released from the levy of the mortgage and turned back to Jordan. The mortgage fi. fa. was subsequently paid off by Parsons, the surety on the note, and, on failure of Jordan to account for the property, Planters Warehouse & Loan Co., for the use of Parsons, filed suit against the principal and Paxson, the surety on the bond. A demurrer to the plaintiff’s petition was overruled by the court, and Paxson excepted.

      M. B. Cannon, Max E. Land, for plaintiff in error.

      Hal Lawson, contra.
   Jenkins, J.

(After stating the foregoing facts.) An instrument may be void as a statutory bond and yet be good as a common-law obligation. Where the obligors have secured an advantage arising from its being treated as valid, they are not entitled to the additional advantage of having it treated as invalid. Wall v. Mount, 121 Ga. 831 (49 S. E. 778); Awtrey v. Campbell, 118 Ga. 464 (45 S. E. 301); Anderson v. Blair, 118 Ga. 211 (45 S. E. 28); Farmers Co-operative Mfg. Co. v. Middle Ga. Mfg. &c. Co., 94 Ga. 673 (20 S. E. 117); Salmon v. Lynn, 16 Ga. App. 298 (85 S. E. 203). This doctrine, which would estop the principal on the bond from denying its validity, would apply in like manner to his surety and privy in contract. Stroud v. Hancock, 116 Ga. 332, 337 (42 S. E. 496). It is urged, however, that since the plaintiff in the present case did not stand upon the bond, but caused the affidavit of illegality to be dismissed because of the alleged. failure of the bond to meet the requirements of the statute pertaining thereto, he is estopped from now coming in and assuming the inconsistent position that the bond is good even as a common-law' undertaking, despite the fact that the defendant in fi. fa. had obtained a benefit thereunder by receiving back and withholding the property embraced in the levy.

Section 5516 of the Civil Code of 1910 declares: “As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.” And it has been often held that in order for one to maintain a suit for the use of another, there must be a legal right of action in the party bringing the suit. State v. Bank of Quitman, 117 Ga. 849 (45 S. E. 236); Norwich Union Fire Ins. Society v. Wellhouse, 113 Ga. 970 (39 S. E. 397); Terrell v. Stevenson, 97 Ga. 570 (25 S. E. 352). Thus, in this case, if the Planters Warehouse & Loan Company can not maintain its action, the fact that the suit is brought for the use of Parsons, the surety on the note, who paid off the fi. fa., will not alter the rule. It is also a familiar principle of law that “When a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position.” Haber-Blum-Bloch Eat Co. v. Friesleben, 5 Ga. App. 123 (62 S. E. 712); Vaughn v. Strickland, 108 Ga. 659 (34 S. E. 192); Luther v. Clay, 100 Ga. 236, 241 (28 S. E. 46, 39 L. R. A. 95); Central of Ga. Ry. Co. v. Waldo, 9 Ga. App. 182 (70 S. E. 1021). But it does not appear to us that the doctrine we have just stated can properly be'made to apply in the present case, since the plaintiff would seem to have been entitled to whatever rights were his pertaining to the statutory requirements of the bond, as necessary to the maintenance of the illegality proceeding, without forfeiting any contractual benefits which were his arising under such obligation, when treated as a common-law contract whereby the defendant had received a substantial benefit by the return of the property involved. In order to avail himself of the alleged deficiency in the bond as failing to meet the requirements of the statute in the illegality proceeding, it did not become necessary for the plaintiff to renounce his contractual rights under the bond as an ordinary obligation. To challenge the one is not inconsistent with the maintenance of the other. In order for a defendant to be heard to defend such a foreclosure, he must comply with the law governing the requirements of the bond to be given in such a proceeding, but if, under a valid but different contract,' he should obtain possession of the property involved and continue to withhold it, the terms of the agreement requiring its production will not be rendered invalid merely because of the alleged insufficiency of the bond when viewed in its relation to the illegality proceedings.

Judgment affirmed.

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


text:
    8187.
    Forbes Drug Co. et al. v. Bernard Manufacturing Co.
    Decided June 15, 1917.
    Complaint; from Dooly superior court—Judge George. July 10, 1916.
    The action was on certain promissory notes of the defendant to the plaintiff. The defendant pleaded failure of consideration and illegality of consideration; that the consideration was that the plaintiff was to put on sale for the defendant what was known as “The Bernard Manufacturing Company’s Trade Booster Methods,” the scheme being that the plaintiff would advertise the defendant’s retail drug business in the city of Vienna, Georgia, by the formation of clubs, the putting on of different kinds of contests, the giving of prizes to the successful contestants, the prizes to be furnished by the plaintiff, and the plaintiff to do all the work with the exception that the defendant was to handle the votes and distribute them among the contestants; that the plaintiff was to send-one of its men experienced in such business to start the sale and put on the different contests, but never did so; that no sale was put on, no club organized on the part of the plaintiff, and no bond was executed by the plaintiff to the defendant, as stipulated in the contract; that the defendant’s sales did not increase by reason of anything done by the plaintiff, and the defendant was not benefited by the contract; and that the scheme referred to was a lottery gift-enterprise scheme or device for the purpose of drawing customers, and therefore was illegal and immoral. The defendant alleged also that the plaintiff sent to the defendant a piano and some silverware, to be used as prizes, and that, the plaintiff failing to comply with the contract, the defendant tendered this property back to the plaintiff.
   Jenkins, J.

The contract which was the basis of the notes sued on was not subject to the criticism made that it was a lottery scheme or device, and therefore illegal and non-enforceable. The evidence shows, by the admissions of the defendant, that he failed to comply with the terms of the contract, and was responsible for its non-performance. The written agreement between the plaintiff and its own salesman, admitted in evidence, if irrelevant, was harmless. - The court having charged the jury that the plaintiff could not recover if the consideration of the contract had failed, no injury to defendant was occasioned by failure to charge the law of rescission.

The verdict was clearly authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., eoneur.

The written agreement which was the basis of the notes sued on was as follows: “Vienna, Ga., June 11, 1914, Bernard Mfg. Co. Gentlemen; On your approval of this order, deliver to me at your earliest convenience, f. o. b. factory or distributing point, the piano, silverware, and advertising matter described on this and reverse side, in payment of which I hereby hand you my six notes, payable to your order, aggregating $400.00. If order is not approved and shipped by you-, the notes are to be cancelled and returned to me. Clause 2: My last twelve months sales were $18,000.00; my next twelve months sales to be $22,000.00; and that if .01 9/11 per cent, of my gross sales does not amount to four hundred dollars ($400.00) for the" next'twelve months, you will pay me the deficiency in cash, and to send,your bond for $400.00 to cover this agreement with me. To make the last above clause binding upon you I agree to make the shipment promptly, carry out the contest plan, promptly meet all obligations entered into under this agreement, keep the piano well displayed in my store, issue piano votes for each cent purchased, and every sixty days of this contest to report to you my gross sales, and promptly furnish you with all the information you request to enable you to assist in pursuing the contest. In consideration of the special methods set forth in your copyrighted plan, and the special terms and agreements herein, this order can not be countermanded.” This part of the writing was followed by an order, signed by the defendant, for one book, “The Bernard Manufacturing Company’s Trade-Booster Methods,” instructions for newspaper advertising, posters, display-card signs, certificates for “piano votes,” a piano, silverware, watches, etc. The plan as stated in the defendant’s testimony was, that the plaintiff was to write to 150 persons, whose names were furnished by the defendant, to induce them to form clubs of ten, who would, make cash purchases at the defendant’s place of business and receive from the- defendant vote coupons, representing the amounts of their purchases, which could be voted for contestants for prizes furnished by the plaintiff, and the lady receiving .the highest number of votes was to receive the piano as a prize: As to the contract and the- plea of illegality of consideration the court, charged the jury as follows: “I instruct you that the contract referred to and set out in this writing, the agreement between the parties, does not disclose an illegal and void contract, as a gift enterprise or lottery scheme, and that part of the plea is withdrawn from your consideration.” In the motion for a new trial it is alleged that the court erred in giving this instruction; in admitting in evidence an agreement of employment between the plaintiff and its salesman who conducted the transaction with the defendant; in not charging the law of rescission, and in charging the jury as follows: "It is insisted by the defendant that no bond was sent for the sum of $400, as provided by clause 2 of this contract. I charge you that you will not consider that complaint or contention, because, under the construction given the contract by the court, the bond is not required to be sent to the defendant himself.”

Busbee & McDonald, for plaintiff in error.

L. L. Woodward, contra.


text:
    8198.
    BELL v. HIGDON.
    The law of this ease was settled by the decision of the Supreme Court on the former writ of error (144 Ga. 485, 87 S. E. 385), when it was held that the demurrers to the plaintiff’s petition “should have been sustained except as to Joe Higdon, the partner signing the name of the [defendant] firm as accommodation indorsers,” and the judgment of the court below, overruling the demurrers, was affirmed as to him, with direction that the petition be dismissed except as to him. Under that decision it was error for the court below thereafter to dismiss the plaintiff’s petition on the motion of Joe Higdon, on the ground that the plaintiff, by amendment on the former trial, had stricken him from the suit so far as his individual liability was concerned, and had elected to proceed against him ' and the other individual defendant solely on their joint and several liability as copartners.
    Decided June 15, 1917.
    Complaint; from Grady superior court—Judge Cox. March 8, 1916.

      Roscoe Lulce, C. E. Hay, Christopher Mathewson, Bell & Weathers, for plaintiff.

      Titus, Delete & Hoplcins, M. L. Ledford, for defendant.
   Jenkins, J.

1. Bell brought suit for contribution against his cosureties, jointly and severally,—“Joe & Ira Higdon,” as a partnership, and Joe Higdon and Ira Higdon as individuals. The copy note attached to the petition showed indorsements as follows: “Joe & Ira Higdon, per Joe Higdon, Cairo, Ga. T. L. Perry, W. E. Bell.” The petition showed that the Higdon Trading Company, the principal, and T. L. Perry were nonresidents, and that the former was insolvent. Separate demurrers to the petition were filed by the partnership and by each of the individuals named as defendants; upon which the plaintiff amended his petition as follows: “The said ‘Joe & Ira Higdon’ being at the time hereinafter referred to a copartnership composed of Joe Higdon and Ira Higdon, and the individual liability of both said Joe Higdon and said Ira Higdon hereinafter' set forth being based solely on their joint and several liability as such copartners.” All the demurrers were overruled, and the Supreme Court, on exceptions thereto, held as follows: , “Ordinarily it is not within the scope of a partnership business for the firm to become accommodation indorsers upon a promissory note. If so doing was within the scope of the partnership business, or if the partner who signed the partnership name to such an indorsement had authority so to do, such facts should have been alleged in the petition. Prima facie the contract of accommodation indorsement was the individual contract of the partner making it. The two individuals alleged to constitute the firm excepted. Held, that the demurrer should have been sustained except as to Joe Higdon, the partner signing the name of the firm as accommodation indorsers.” Higdon v. Bell, 144 Ga. 485 (87 S. E. 385). Judgment was rendered by the Supreme Court in said case as follows: “This case came before this court upon a writ of error from the superior court of Grady county; and, after argument had, it is considered and adjudged that the judgment of the court below be reversed as to Ira Higdon; affirmed as to Joe Higdon. Direction’ is given that the petition be dismissed except as to Joe Higdon. All the Justices concur.” The remittitur from the Supreme Court was made the judgment of the court below, and, upon the call of the case therein, then proceeding against Joe Higdon only, defendant moved that the case against him be dismissed on. the ground that, during the progress of the former trial, the plaintiff, by the amendment above set forth, had stricken him from the suit so far as his individual liability was concerned, and had elected to proceed against him and the other individual defendant solely on their joint and several liability as copartners. This motion was sustained by the court and the suit dismissed. " Under the ruling and judgment " of the Supreme Court in the former proceeding, such dismissal was error.

Judgment reversed.

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


text:
    8240.
    CLARK v. SOUTHERN RAILWAY COMPANY.
    1. A suit against a railway company for personal injuries to a minor, brought in Ms behalf by. his mother as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the mother in her own right against the railway company for loss of the minor’s services, occasioned by those injuries.
    2. The allegations as to the negligence of the defendant are too general; and even if it were permissible to plead the verdict and judgment in the former suit as an estoppel on the question of negligence, the allegations as to that suit, and the copy of the verdict and the judgment, therein, are not sufficient for that purpose.
    Decided June 15, 1917.
    Action for damages; from Pulton superior court—Judge Bell. October 4, 1915.
    The petition alleges that the defendant has injured and damaged the plaintiff in the sum of $2,000, by reason of the following facts: (3) Plaintiff is the mother of Henry Grady Clark, a minor, and is his sole surviving parent. (4) On or about the 7th day of August, 1913, solely by and through the negligence of the defendant, its agents and employees, plaintiff was deprived of the services of said minor child. (5) On the day aforesaid the said Henry Grady Clark sustained the loss of both legs through the carelessness and negligence of said defendant, and without the fault or contributing negligence of the plaintiff. (6) In an action instituted by the said Henry Grady Clark, by and through petitioner, as next friend, the said Henry Grady Clark did recover verdict and judgment against said defendant. (7) Said verdict and judgment were rendered in-case number 31,423, superior court of Pulton county, and in suit number 146 in the United States district court for the northern district of Georgia, the said action having been removed by defendant herein from the State court to the Federal court.- Copies of said verdict and judgment are hereto attached, marked exhibits A and B, respectively, and made a part hereof. (8) The action hitherto brought by the said Henry Grady Clark was predicated upon the negligence of defendant through which the said Henry Grady Clark received certain injuries to his person; all of which appears at length in his petition filed in said case; and the verdict of the jury found in- said case and the judgment entered thereon conclusively establish the fact that the said Henry Grady, son of petitioner, sustained his said injuries through the preponderating negligence of said defendant. (9) Through the negligence of said defendant, its agents and employees,, as alleged by the said Henry Grady Clark in his said petition, and as established by verdict and judgment in said case, the said son of petitioner lost his right leg just below the knee, and his left leg at the ankle, besides numerous injuries to his head and a shock to his nervous system which permanently impaired his health and usefulness. (10) At the time the said son of petitioner sustained the injuries aforesaid he was a tall, strong, and healthy youth, nineteen years of age, an experienced cotton-mill operative, and capable of earning $10 per week at his trade. (11) Plaintiff was a widow with several small children at the time her son was injured as herein set out, and Henry Grady was the only one of her children who was old enough to contribute substantially to her support. (12) As the sole surviving parent of the said Henry Grady she was entitled to his services during minority, and the injuries he received at the hands of the defendant not only deprived her of his services but rendered him a helpless cripple, incapable of rendering any service to her and absolutely dependent upon her for support. (13) His services from the day he was injured to the attainment of his majority will be reasonably worth to her the sum of $10 per week; and prior to the time he was injured as aforesaid he had contributed substantially to the support of petitioner. Wherefore plaintiff prays judgment of defendant, and that process issue, etc. The verdict and the judgment referred to in the petition were attached to it as exhibits.
    The demurrer was on.the following grounds: (1) No cause of action is set forth. (2) The facts set forth do not entitle the plaintiff to recover. (3, 4) Paragraphs 4 and 5 are demurred to because the allegations therein are conclusions of the pleader, and are too general, indefinite, and uncertain, no specific allegation of negligence being set forth. (5) Paragraphs 6 and 7 are demurred to . because the allegations therein are irrelevant and immaterial. (6) paragraph 8 is demurred to because the allegation therein is a copelusion of the pleader. It endeavors to establish negligence by reference to another case; and the allegation that the verdict in another case established any fact in connection with this case is an erroneous conclusion of law. (7) Paragraph 9 is demurred to because the allegations therein are irrelevant and immaterial; they constitute a conclusion of the pleader. No negligence is sufficiently set forth, and the allegation therein is an attempt to allege negligence by reference to another and different case. (8) Paragraph 11 is demurred to on the ground that the allegations therein are irrelevant. (9) Paragraph 13 is demurred to because it does not show when. Henry Grady Clark will arrive at majority. (10) The exhibits refer to another and different case and are irrelevant. The judgment on the demurrer was that “the special grounds of demurrer, 3, 4, 5, 6, 7, 8, 9, and 10, are sustained. Upon the statement of counsel for the plaintiff that he relies in this case upon the record and judgment in the case pleaded as establishing the negligence of the defendant in this case, the general demurrer is sustained and the ease dismissed.”

      McCollum & Sims, for plaintiff.

      McDaniel & Bloch, for defendant.
   Bloodworth, J.

Mrs. Maggie Clark brought suit against the Southern Railway Company for $2,000 damages, alleging that she was the mother and sole surviving, parent of Henry Grady Clark, a minor. The allegations in the petition are very general, and no direct and specific act of negligence is charged, but the petitioner seeks to plead that the question of negligence as to this ease is settled by reason of a former action instituted by the said Henry Grady Clark by and through the petitioner as his next friend, in which there was a recovery by the plaintiff.

The court did not err in sustaining the demurrers and dismissing the suit. The allegations in the several paragraphs of the petition were general and uncertain, and lacking in the definiteness necessary to good pleading. There is no direct and specific allegation of negligence, and even if it were permissible to plead in this case the verdict and judgment in the suit of Mrs- Maggie Clark, as next friend of Henry Grady Clark, against the Southern Railway Company, as an estoppel on the question of negligence, the petition must be definite and certain, complete within itself, and leave . nothing to conjecture. In the petition in this case there are some general references to the former case, but no part of the petition in that case is attached to the present petition; a copy of the verdict and judgment only is attached. However, we think the principle involved in this case is settled by the case of Hooper v. Southern Ry. Co., 112 Ga. 96 (37 S. E. 165). The first headnote of that decision is as follows: “A suit against a railway company for personal injuries to a minor, brought in his behalf by his father as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the father in his own right against such company-for loss of the minor’s services, occasioned by those injuries.”

Counsel for the plaintiff in error say that “The petition in this case is drawn with the express purpose of aligning it with the case of Anderson v. R. Co., 9 Daly (N. Y.), 487, and every allegation which, in the Hooper case, the court said distinguished that case from the New York -ease just cited has been carefully eliminated from the instant ease; and counsel for plaintiff in error respectfully submit that the case before the court now is on all-fours with the New York case reported in 9 Daly.” The New York case, supra, which was discussed in the Hooper case, supra, was decided by three judges, no authority was cited to sustain it, its soundness has been questioned by text-writers, and in the ease of Maisky v. Schumacher, 27 N. Y. Supp. 331, decided by a full bench, it was practically overruled. In the latter ease the decision said: “The complaint in this action sets out the recovery of judgment in an action by plaintiff’s father for loss of service by reason of the accident here complained of, which was not denied by the answer. Upon the trial he offered the judgment roll in the father’s action ‘as an estoppel by record.’ The court excluded it and the plaintiff excepted. He then offered the roll ‘as some evidence of the fact that the injury was caused solely by reason of the negligence of the defendant.’ The court again excluded it, and plaintiff excepted. We think both rulings were correct. The judgment in favor of the father could not be ‘some evidence of negligence’ unless it were conclusive evidence. If it were conclusive evidence, it operated by way of estoppel, and estoppel, to be effectual, must be mutual. Booth v. Powers, 56 N. Y. 33; Collins v. Hydorn, 135 N. Y. 320, 323, 325 (32 N. E. 69). The case last cited holds that a judgment against a party in his representative capacity as an assignee for the benefit of creditors does not include [conclude ?] him in an action brought in his individual capacity, although the same questions are involved in both actions; and in Rathbone v. Hooney, 58 N. Y. 467, it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action for the same cause, in which he sues, or is sued, in another capacity or character (citing many authorities). The same point substantially was decided in Landon v. Townshend, 112 N. Y. 93 (19 N. E. 425). There can be no estoppel unless there is privity of property, parties, estate, or heirship between the plaintiff and his father as to this cause of action. Bigelow, Estop. (5th ed.) 130, 131; Wells, Res. Adj. § 21; Collins v. Hydorn, supra; Neeson v. City of Troy, 29 Hun. 173; Groth v. Washburn, 39 Hun. 324. Here there was no such privity. The father sued for the loss he claimed to have sustained, while in this action the son seeks to recover for himself the damages he claims to have' sustained. Anderson v. Railroad Co., 9 Daly, 487, was decided on a motion to strike out a part of a complaint, and can be regarded as an authority on that subject only; and, in the light of the authorities above cited, it may well be doubted whether it can be regarded as controlling, even on the question then under consideration.” See also: Guy v. Lumber Co., 93 Tenn. 213 (23 S. W. 972); Bartlett v. Rochel, 88 Ind. 425.

The writ of error in the instant case was made returnable to the Supreme Court, and by that court was transferred to this. There is a request in the brief of counsel for the plaintiff in error that the decision in the Hooper cáse, supra, be reviewed, but this court, on considering the question, is not satisfied that the decision in the Hooper ease should be “modified or overruled, or that the question is one* of so much doubt that it should be referred to the Supreme Court for consideration.” This court, therefore, will not certify the question to the Supreme Court.

Judgment affirmed.

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


text:
    8271.
    BISHOP-BABCOCK-BECKER CO. v. HAMMACK.
    The evidence authorized the judgment on the issues of fact raised by the traverse to the garnishee’s answer.
    Decided June 15, 1917.

      Garnishment; from Fulton superior court—Judge Ellis. September 18, 1916.

      Horton Brothers, for plaintiff in error.

      Joseph W. & John D. Humphries, contra.
   Bloodworth, J.

Bishop-Babcock-Becker Company sued out an attachment against William F. Mims and George F. White as nonresidents, and had summons of garnishment served on W. F. Ham-mack. Hammack filed his answer to the garnishment, and to this answer the plaintiffs filed a demurrer and a traverse. The demurrer was overruled and the question raised by the traverse was submitted to the court without the intervention of a jury. In the brief of plaintiffs in error they abandoned all questions except that raised by the traverse of the answer to the garnishment. The issues of fact raised by the traverse were submitted to the judge without the intervention of a jury, and the evidence, as shown by the agreed statement of facts, authorized the judgment rendered.

Judgment affirmed.

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


author: Bkoyles, P. J.

text:
    8402.
    Lawrence v. Stephens.
    Decided June 15, 1917.
    Complaint; from Baldwin superior court—Judge H. C. Hammond presiding. January 8, 1917.
    The action was on a promissory note of the defendant to Mrs. M. L. Stephens, the plaintiff, for $1,620, besides interest and attorney’s fees. The defendant pleaded that except as to a sum which he tendered by his plea, he had paid the note by delivering to the plaintiff certain notes of G. S. Sumner for $1,466, which the plaintiff accepted in payment. The additional plea referred to in the foregoing decision was as follows: Defendant says that the notes of G. S'. Sumner heretofore referred to in his answer were indorsed by defendant, and that on the 18th day of March, 1914, since the filing of this suit, the plaintiff filed in the superior court of Worth county, Georgia, suit against this defendant and the said G. S. Sumner upon a certain promissory note in the sum of $533, which was one of the notes referred to in his answer as having been accepted by the plaintiff as part payment of the note sued on, and at the October term, 1914, of'Worth superior court a verdict and judgment were entered up against the said G. S. Sumner in said case, and against this defendant as security, for principal, interest, attorney’s fees, and costs. Defendant avers further, that on the 17th day of September, 1914, after this suit was filed, the said Mrs. M. L. Stephens filed in Worth superior court a suit against the said Sumner and this defendant on two promissory notes, the aggregate principal sum of which was $1,007.64, which notes are more fully described in said petition, and that the notes therein sued on are the identical notes delivered by this defendant ..to the said Mrs. Stephens as part payment of defendant’s note which i.s sued on in this court. Defendant avers that he was indorser on these two notes sued on in Worth superior court, and that the said Mrs. Stephens has obtained judgments thereon or is seeking to obtain the same against the said Sumner and this defendant in that court. Defendant has filed no defense thereto, and the time in which such defense is required by law to be filed has passed, and if the said Mrs. Stephens is allowed to maintain this suit and judgment is rendered for her, and this plea and defense is not allowed, she will be recovering twice on the same cause of action against this defendant. Defendant avers that the superior court of Worth county in which the suits referred to are pending is a court of competent jurisdiction to render judgments therein against this defendant.
   Bkoyles, P. J.

1. Under the facts as disclosed by the- record, the plea in abatement, which was filed by the defendant and allowed by the court, set up no valid defense to the plaintiff’s suit, and the court did not err in thereafter striking it on an oral motion made by the plaintiff’s counsel.

2. The plea in abatement having been stricken, and the defendant having introduced no evidence to sustain his other pleas, the court did not err in directing a verdict for the full amount sued for.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Sibley & Sibley, for plaintiff in error, cited:

Howes v. Chester, 33 Ga. 90; Cook v. Ga. Land Co., 120 Ga. 1068 (1); Merritt v. Bagwell, 70 Ga. 578 (3a); Civil Code (1910), §§ 4331, 5678; Rogers v. Hoskins, 15 Ga. 270, 273.

Allen & Pottle, contra, cited:

Augusta R. Co. v. Dorsey, 68 Ga. 228 (2); Dykes v. McVay, 67 Ga. 502; Heath v. Bates, 70 Ga. 633; Civil Code (1910), § 5522; Georgia Mills &c. Co. v. Clarke, 112 Ga. 253 (2); Clark v. Havard, 122 Ga. 274.


author: Broyles, P. J.

text:
    8405.
    Ward & Tinsley v. Jennings.
    Decided June 15, 1917.
    Complaint; from city court of Dawson—Judge Edwards. December 16, 1916.
    W. H. Gurr, for plaintiffs in error.

      Yeomans & Wilkinson, contra.
   Broyles, P. J.

1. The only ground of the motion for a new trial, other than the general grounds, is based upon an alleged error in the charge of the court. The portion of the charge excepted to is not erroneous for any reason assigned. This ruling is not in conflict with the former decision in this case (18 Ga. App. 323, 89 S. E. 350), where it was held by this court that a somewhat similar charge was error for the reason that it was not authorized by the evidence. Upon the last trial of the ease the evidence was different from that adduced on the first trial, and this time authorized the instructions given.

2. There was some evidence to support the verdict, and, it having been approved by the trial judge, this court has no authority to interfere.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Wade, O. J.

text:
    7679.
    Campbell v. Ætna Life Insurance Company.
    Decided June 18, 1917.
    Rehearing denied June 27, 1917.
    Action on insurance policy; from city court of Atlanta—Judge Eeid. May >13, 1916.
    The action was on a policy which insured against death by accident. The defendant pleaded that under the terms of the policy the insurance did not cover suicide, and that the insured committed suicide within the meaning of the policy. The agreement as to the facts included the following statement: “The insured, on November 19, 1914, discharged into his face and head a shotgun, and thus inflicted wounds which caused his -death shortly thereafter. At the time he shot himself he was insane. There was no element of accident in the act, in that, had the insured been sane at the time, the act would have been intentional and not accidental. The insured did not appreciate the moral consequences of the act of self-destruction. He did appreciate the physical eon-sequence of such act.” The policy provides as follows: “The iEtna Life Insurance Company, of Hartford, Conn, (hereinafter called the Company), in consideration of the agreements and statements in the schedule of warranties hereinafter contained, which statements the insured makes on the acceptance of this policy and warrants to be true, and which are made a part hereof, and of the premium of twelve dollars, does hereby insure under 'preferred’ classification, and subject to all the provisions and conditions herein contained or endorsed hereon, the person described in the aforementioned schedule for a period of twelve months, from twelve o’clock noon (standard tjme) of the date this contract is dated, against the effect of bodily injury, provided affirmative proof shall be furnished the Company, within the limit of time hereinafter set forth, that such injury was caused solely and directly by external, violent, and accidental means, and was not in consequence of nor contributed to by intoxication, altercation, or any bodily or mental disease or infirmity of the insured, as follows, to wit: Part 1. If any of the following disabilities shall result solely from such injury within ninety days from the date of accident, the Company will pay in lieu of any other indemnity: For loss of life [a stated sum]. . . In witness whereof the iEtna Life Insurance Company, of Hartford, Conn., has caused these presents to be signed by its president and secretary,” etc. The bill of exceptions states that “a provision and agreement . . as follows, 'This insurance shall not cover suicide, sane or insane,’ . . is embraced in the following stipulations and conditions endorsed upon the original policy and following the face of the policy and preceding the 'schedule of warranties’ in the policy as copied in the original petition, to wit: 'This policy is issued to and accepted by the insured subject to the following provisions and agreements;’” which are set out and which include the provision as to suicide, quoted above. The “schedule of warranties,” referred to above, contains the following language: “Schedule of warranties made by Mr. "W. J. Campbell (hereinafter called the insured). The issuance of this policy is based upon the following statement of facts, all of which I hereby warrant to be true and complete. I agree that any statements made by me to the agent or solicitor of this insurance shall not bind the company unless written hereon. . . I hereby agree that the application heretofore made by me and the warranties contained herein, together with the premium paid by me, shall be the basis of this contract, which I accept subject to all of the conditions and provisions contained herein or indorsed hereon, which I understand can not be altered or changed by any agent of the Company.” The policy was issued in 1904 and was continued from year to year.
   Wade, O. J.

Under the pleadings and the agreed statement of facts appearing in the record, the court, sitting without the intervention - of a jury, did not err in rendering judgment in favor of the defendant.

Judgment- affirmed.

George and Luke, JJ., concur.

It was contended on the part of the plaintiff that “the provision, ‘This insurance shall not cover suicide, sane or insane/ did not become a part of the policy, so as to operate as an exception to or limitation of the risk insured;” that under section 2471 of the Civil Code of 1910, in order for such a provision to become a part of the policy, it must be contained in the face of the policy; that the language used in the face of this policy is not sufficient for that purpose; that if this provision was a part of the policy, the death of the insured “did not occur within the meaning thereof, it not being shown that at the time of death the insane assured intended to take his own life;” that the burden of showing this was upon the insurance company. These contentions and others are elaborated in the briefs of counsel.

Payne & Jones, for plaintiff.

Anderson & Rountree, R. W. Crenshaw, for defendant.


text:
    7798.
    LOWDEN v. MERCHANTS AND MINERS TRANSPORTATION COMPANY.
    1. Where suit against a common carrier is brought by and in the name of the consignor, for the loss or destruction of goods delivered to the carrier for transportation, under an ordinary contract of affreightment, not indicating any reservation of title to the goods in the consignor, it must clearly appear, from the allegations in the petition, that the title to the goods was in the consignor at the time the right of action for their loss or destruction accrued.
    2. After the loss or destruction of the property, and therefore after the accrual of the right of action in the person in whom the title to the property was then vested, an assignment or transfer of all of his rights on account of the tort by. the consignee to.the consignor will mot ser.ve to invest the latter with such title to the goods destroyed as would authorize the consignor to maintain an action in tort therefor.
    Decided June 18, 1917.

      Complaint for damages; from city court of Savannah—Judge Freeman. August 9, 1916.

      W. B. Stubbs, G. N. Alford, for plaintiff.

      Adams & Adams, for defendant.
   Wade, C. J.

George W. Lowden brought suit against the Merchants & Miners Transportation Company, a corporation having an office and agency in Chatham county, Georgia, alleging: that on January 30, 1913, and from that date until the date on which this action was brought, the defendant had been continuously engaged in the business of transporting, for compensation, goods from place to place, wholly within the State of Georgia, and from points within to points without said State; that the defendant had injured and damaged petitioner in the sum of $1,998.50, for on January 30, 1913, defendant received from petitioner at its warehouse in Savannah, Georgia, a carload of oysters for transportation to Chicago, Illinois, which, for a consideration named, it then and there undertook and agreed to safely transport from its said warehouse in Savannah, Georgia, to Chicago, Illinois, and to there deliver in good condition to John H. Leslie & Company; that petitioner delivered said goods to the defendant in good condition on the date and at the place aforesaid, loading said oysters in a “certain named ear at its warehouse, and the defendant then and there received said property for transportation under the aforesaid agreement; that defendant transported said car of oysters to its wharf in Savannah, Georgia, and there on February 2, 1913, while said goods were being delayed by defendant, in order that they might be loaded on a ship belonging to the defendant company, they were completely destroyed by fire; “that petitioner was [italics ours] the owner of said goods,” and when the same were delivered to defendant as aforesaid, they were of the following invoice (description here given); “that heretofore John H. Leslie & Company has assigned in writing to petitioner all rights and claims it may have against defendant by reason of the facts set out in this petition;” that petitioner filed a verified notice of its claim as required by the act of the legislature of Georgia (Acts of 1916, p. 102), but defendant has not adjusted said claim, though more than 90 days have elapsed since the same was filed with it, and defendant wholly fails and Tefuses to pay the same; that by reason of the facts above recited the petitioner has been damaged in the sum of $1,998.50 with interest from February 2, 1913, and is entitled to $50 penalty, according to the statute, in such cases made and provided, wherefore petitioner prays for process and judgment, etc.

To the original petition the defendant interposed a general demurrer on the ground that the petition set forth no cause of action against the defendant. The petition was thereupon amended, so that as amended it contained the recitals set out above,- and the court thereupon passed the following order: “A number of foregoing grounds of demurrer are not now good, because of the amendment made to plaintiff’s petition. The case as it now stands sounds in tort. Eight of action for tort is not assignable. I think the special demurrers should be and they are overruled. But I also think the general demurrer is good, and it is sustained and the case dismissed.” The plaintiff thereupon made a motion to reopen the demurrer, and in his motion submitted the following: “It appears from the order set out above that the court was under the impression that plaintiff was relying entirely upon the assignment of John H. Leslie & Company of the right of action for the tort. The twelfth' paragraph of the petition alleges that petitioner was the owner of the property and this allegation was admitted for the purposes of the demurrer. There is nothing in the amended petition to show that any person other than plaintiff had any interest in the property.” The court thereupon vacated the said order on the demurrer and allowed an argument thereon, but, after argument, entered up another order, reaffirming the original order sustaining the demurrer, as follows: “Upon reconsideration, upon plaintiff’s motion, of above demurrers, my opinion is unchanged, and the foregoing order on demurrers dated May 22, 1916, is reentered of this date. August 9, 1916.” Thereupon the plaintiff filed a bill of exceptions.

It will be observed from the petition as amended, which is set forth practically in’full in the foregoing statement, that the plaintiff alleges therein that by reason of the facts therein recited, “petitioner has been damaged in the sum of $1,998.50,” etc. It further appears that the judge, in the order sustaining the general demurrer and dismissing the petition, based his action upon the view, that the case, as it stood after the original petition had been amended, sounded in tort; and in the petition to’ reopen the demurrer for further argument the plaintiff raised np issue on this point. The bill of exceptions itself recites that the action was in tort, and this view is adhered to in the briefs of counsel for the plaintiff in error. It is therefore unnecessary to consider or determine whether the petition as amended sought a recovery for breach of contract or for a tort, but the case will b^ treated as one arising ex delicto, and not ex contractu.

It is a fundamental principle of pleading that where a petition is susceptible of more than one construction, the construction most unfavorable to the pleader must be adopted. The petition in this ease nowhere alleges in so many words that at the time the loss originated or the tort occurred the plaintiff was in fact the owner of the property for the destruction of which suit was brought. The petition alleges generally that the petitioner had been injured and damaged by reason of the facts recited in the 10th paragraph thereof. Further on, the specific statement is made “that petitioner was the owner of the said goods, and when delivered to the defendant as aforesaid they were of the following invoice,” etc.; and again, that by reason of the premises recited “petitioner has been damaged in the sum,” etc. The allegation that “petitioner ■was the owner of the said goods,” when taken in connection with ■the further connected statement, “and when delivered to defendant as aforesaid they were of the following invoice,” etc., by no means amounts to a definite assertion that the goods were still the property of the plaintiff Lowden after they had been delivered to the defendant company for transportation, or after possession thereof had been surrendered to said company in order that the same might be transported to John EL Leslie & Company at Chicago, Illinois.

The consignor who is the owner of goods lost in transit may, it is true, maintain an action in tort against the carrier for breach of duty as a common carrier. Savannah &c. Ry. Co. v. Commercial Guano Co., 103 Ga. 590, 598 (30 S. E. 555); Southern Railway Co. v. Miko, 136 Ga. 272 (71 S. E. 241, 36 L. R. A. (N. S.) 68); Lamb v. Mitchell, 15 Ga. App. 759, 764 (84 S. E. 213). “However, it is generally found stated in the books that the consignee is prima facie the person entitled to sue for an injury to or the loss of a shipment of goods, and this principle holds true whether or not in the particular jurisdiction the strict view is entertained that the owner alone can bring an action, since it is a presumption of law that on the delivery of goods to a common carrier the title thereto vests in the consignee, .and this presumption the carrier has the- right to rely on, in the absence of express notice from the consignor to the contrary. Indeed, where the property is received on an unconditional-and unrestricted consignment, the carrier not only may, but must, treat the consignee as the absolute owner until he receives notice to the contrary.” 4 R. C. L. 941. It is further said in the same volume (p. 940): “That the real owner, whether consignor, consignee, or neither of these, as for instance, a bailor of the consignor, may sue for such a loss or injury •on proof of title is well established,” .And again (p. 942): “Proof that the ‘consignor is the owner of goods shipped entitles him to maintain an action against a carrier for their loss.” It follows, as a necessary' corollary, since a recovery by the consignor is allowable only where proof of title in him is well established, that to render a petition good against general demurrer, where the action is brought by a consignor to recover damages on account of the destruction of goods delivered by him to a common carrier (under, so far as appears, an ordinary contract of affreightment reserving no title in the consignor), it should be distinctly and definitely alleged therein that at the time the property so delivered to the carrier was actually destroyed the title thereto was' i-n the consignor, and not in the’ consignee or another—the presumption being in such a case that the title was in the consignees.

Having in mind the rule above referred to, that a petition must be construed most strongly against the rights the plaintiff therein seeks to set up, -it can not be reasonably maintained that the allegation in the petition under consideration, “that petitioner was the owner of said goods” (especially when taken in connection with the statement referring to the invoice thereof when delivered to the carrier for transportation), amounts to a distinct statement that the petitioner was the owner of said goods after they had been delivered to the defendant for transportation and at the time they were thereafter destroyed by fire at the warehouse of the defendant. In fact the more reasonable construction to be placed upon this allegation of ownership is that the goods were the property of the petitioner when delivered to the defendant for shipment on the 30th day of January, 1913, consigned under an ordinary bill of lading for delivery to John H. Leslie & Company at Chicago, lilinois; and the fair legal conclusion to be arrived at from the particular statement referred to, when taken in ■ connection with the entire petition, is that no allegation of ownership in the plaintiff at the time of the injury is made in the petition. To the contrary, it would appear from the statement in the 13th paragraph of the plaintiff’s petition, “that heretofore John H. Leslie & .Company has assigned in writing to petitioner all rights and claims it may have against defendant by reason of the facts set out in this petition,” that in fact, at the time of the destruction of the goods by fire, after their delivery to the common carrier for transportation to the consignee under an ordinary bill of lading that did not reserve title in the consignor, the title had passed to John H. Leslie & Company, and was vested in them as consignees and not in the consignor on February 2, when the property was destroyed and this right of action accrued. The suggestion is made by learned counsel for the plaintiff in error that this paragraph, alleging an assignment in writing to the petitioner of all rights and claims against the defendant that John H. Leslie & Company might have by reason of the facts set out in the plaintiff’s petition, was not intended as a basis for the suit as brought, but was intended merely to show definitely that John H. Leslie & Company were claiming no interest in the property destroyed, and hence the defendant would be protected from further claims for damages from the consignees in the event of a recovery against the defendant by the consignor. This is aside from the issue, the sole point for decision by the lower court or by this court being whether or not the petition sufficiently alleged ownership in the consignor, not dependent upon or growing out of the written assignment to him by the consignees, to sustain his right of action for the destruction of the property delivered to the common carrier. It is provided by our code that “a right of action for personal tort” can not be assigned (Civil Code, § 3655); and it is unnecessary to discuss the proposition that a right of action growing out of my tort generally can not be assigned in this State. See Gamble v. Central Railroad & Banking Co., 80 Ga. 595 (7 S. E. 315, 12 Am. St. R. 276); Central R. Co. v. B. & W. R. Co., 87 Ga. 386, 389 (13 S. E. 520); Allen v. Macon, Dublin & Savannah R. Co., 107 Ga. 838 (33 S. E. 696). Whatever may be the rule in other jurisdictions, the above rule is clearly fixed by the decisions of our Supreme Court.

No right of recovery, therefore, can be based upon the allegation that John H. Leslie & Company had assigned to the plaintiff all of its rights growing out of the facts alleged in regard to the property destroyed while in the custody of the carrier; and since no distinct, definite, and clear allegation of ownership in the consignor himself can be found in the petition (construing it most strongly against him), and without even considering that the statements made in reference to a transfer from John H. Leslie & Company would imply of themselves that prior to such transfer the right of action, and hence the title to the goods destroyed, was in fact in the consignee and not in' the consignor, we think it clear that the trial judge correctly sustained the demurrer and dismissed the petition.

If clear proof of ownership by the consignor is necessary to sustain a suit by him for the loss or destruction of property delivered under an ordinary contract of affreightment to a common carrier, it follows that as a necessary preliminary to the submission of such proof the petition itself must clearly and definitely allege such ownership in the consignor, and, if it fails to do this, should be dismissed where its insufficiency is brought into question by a timely demurrer. Of course, where no demurrer is interposed, and no issue is thus raised as to the ambiguity, uncertainty, or insufficiency of the allegations of ownership in the consignor, the case might proceed to trial, and, upon clear and satisfactory proof of such ownership in the consignor, a verdict in his favor be returned. In this case, however, the uncertainty and ambiguity in the allegations as to the ownership of the property by the consignor and the consequent insufficiency of the petition were objected to by demurrer; and on the failure of the plaintiff to remove the defects thereby pointed out, the court properly declined to allow the ease to proceed, and refused to permit counsel to submit testimony to support a necessary allegation not in fact made in the petition.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    7953.
    Southern Railway Company v. Simpson.
    Decided June 18, 1917.
    Action for damages—appeal; from Henry superior.court—Judge Searcy. October 17, 1916.

      Harris, Harris & Witman, Smith & Turner, for plaintiff in error.

      E. J. Reagan, E. L. Reagan, contra.
   Wade, C. J.

1. The bill of lading which evidenced the contract of carriage in this case was signed both by the consignor and by the carrier, and contained in its face a recital “that every service to he performed herein shall be subject to all the conditions, whether printed or written, therein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and assigns.” On the back of the contract the following condition appears: “Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in ease of failure to make delivery, then withic fqur months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.” The undisputed evidence showed that the claim for the loss of the goods for which this suit was brought by the consignee was not filed with the carrier until after the lapse .of nearly a year from the date of the shipment.

(а) The provision in the contract requiring that notice of claim for damages be given within a certain time, in order to hold the carrier liable, does not amount to an attempt to exempt the carrier from liability for ■ negligence. See Post v. Atlantic Coast Line R. Co., 138 Ca. 763 (3) (76 S. E. 45); Southern R. Co. v. Adams, 115 Ga. 705 (42 S. E. 35).

(б) When a shipper signs and accepts from a carrier a bill of lading containing a clause stipulating that all claims for loss or damage shall be made in writing to the carrier at the point of delivery or at the .point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed, such a clause is not void upon the ground that the carrier thereby seeks to limit liability, and does not give as a consideration therefor any extra service or special rate or other monetary consideration to the shipper, or that it is contrary to the public policy of the State. Mitchell v. Atlantic Coast Line R. Co., 15 Ga. App. 797 (84 S. E. 227).

(c) The evidence did not show that any claim for damages was made, . as required by the contract, within four months after a reasonable time for delivery had elapsed.

2. The trial court therefore erred in directing a verdict in favor of the plaintiff.

Judgment reversed.

George and Luke, JJ., concur.


text:
    8033.
    SEABOARD AIR-LINE RAILWAY v. YOUNG.
    A heavy two-wheeled truck used for moving freight in a depot was not so attractive as a- plaything for children and so dangerous in its nature as to come within the rule of the “turn-table cases,” and the railway company was not liable for leaving it accessible to a child who was in the habit of playing at the depot and who was injured.by it.
    Decided June 18, 1917.
    Action for damages; from McIntosh superior court—Judge Sheppard. March 25, 1916.

      Bolling Whitfield, for plaintiff in error.

      Oliver & Oliver, contra.
   Wade, C. J.

1. “One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied, but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings.” Savannah Railway Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314). See also O’Connor v. Brucker, 117 Ga. 452 (43 S. E. 731); Nashville Ry. Co. v. Priest, 117 Ga. 769 (45 S. E. 35); Southern Ry. Co. v. Chatman, 124 Ga. 1030 (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675). See generally, Harden v. Ga. R. Co., 3 Ga. App. 344 (59 S. E. 1122). Under the doctrine laid down in the above-cited eases, a railroad company having at a freight depot an ordinary heavy and' cumbersome two-wheel truck for handling freight, “beyond the strength of petitioner [a man] to handle with ease,” is not chargeable with the consequences arising from an attempt on the part of a child, approximately eight years old at the time, to push or wheel the truck around, notwithstanding his habit of playing around said depot was known to the employees of the railroad company, because of the failure of the railroad company to place the truck inside the depot building, during the absence of its agent in charge of the same, and to secure and lock the doors of the warehouse to prevent any interference with the truck by the child, on the theory that the company was negligent in leaving open, exposed, inseoure, and accessible to the child an attractive plaything which the company should have known, in the exercise of ordinary care and diligence, would attract the child, to his injury and damage. Such a truck is not itself so palpably attractive as a plaything for children, and an implement or thing so dangerous in its nature, as to come within the rule of the "turn-table cases,” and render a railroad company liable for leaving it accessible to the child. See, in this connection, Southern Cotton Oil Co. v. Pierce, 145 Ga. 130 (88 S. E. 672). The-court erred in overruling tlie general demurrer to the petition alleging damages on the state of facts here indicated. What followed was therefore nugatory, and need not be considered.

Judgment reversed.

George and Luhe, JJ., concur.


text:
    8034.
    Seaboard Air-Line Railway v. Young.
    Action for damages; from McIntosh superior court—Judge Sheppard. March 25, 1916.

      Bolling Whitfield, for plaintiff in error.

      Oliver & Oliver, contra.
   Wade, C. J.

This ease is controlled by the ruling in Seaboard Air-Line Ry. v. Young, ante, 291. The trial judge erred in overruling the general demurrer.

Judgment reversed.

George and Luhe, JJ., concur.