text:
    7489.
    CINCINNATI, HAMILTON & DAYTON RAILWAY COMPANY v. QUINCEY & ROGERS.
    A common-law action against a connecting carrier for loss or damage to freight, where it is expressly alleged that the injury or damage complained of was caused by the negligence of the defendant carrier, is not prohibited by the terms of the act of Congress of June 29, 1906 (34 Stat. 595, c. 3591, § 7, pars. 11, 12), known as the Carmack amendment to the Hepburn act of February 4, 1887 (24 Stat. 386, c. 104, § 20).
    Decided January 23, 1917.
    Attachment; from Irwin superior court—Judge George. April 20, 1916.

      Rogers & Rogers, for plaintiff in error.

      Quincey & Rice, W. M. Rogers, H. E. Oxford, contra.
   Jenkins, J.

Suit was brought by attachment, in the city court of Irwin county, to recover damages from the Cincinnati, Hamilton & Dayton-Railway Company for a tort alleged to have been committed by the defendant in the handling of certain shipments of freight which had been entrusted to it as a connecting carrier, whereby the plaintiffs were injured and damaged. At the trial term of this case, which had been transferred by operation of law to the' superior court of Irwin county, the defendant filed a motion to dismiss the action upon the ground “that the declaration shows upon its face that the contract of affreightment was for shipment of interstate commerce, and that said shipment, being an interstate shipment, was controlled by the Carmack amendment to the Hepburn act, which is paramount and exclusive of any State regulation;” “that, under the Federal statute, embodied in the said Carmack amendment to the Hepburn act, the initial carrier, the Ocilla Southern Railroad Company, alone is liable for any loss, damage, or injury to the shipment, caused by any transportation company over whose line the shipment might have passed, and the remedy of plaintiffs, if any they have, is confined to an action against the said Ocilla Southern Railroad, which road issued the bill of lading.” His honor Judge George, trying the case, overruled the motion to dismiss, and the defendant excepted to this .ruling. The sole question for determination by this court is whether or not, under the Carmack amendment of June 29, 1906, to the Hepburn act of February 4, 1887, a connecting carrier of an interstate shipment of freight may be sued on its common-law liability, where it is expressly alleged that the injury complained of was committed by such defendant.

1. The provisions of the Carmack amendment, pertinent to an understanding of this question, are as follows: “That any common'carrier, railroad, or transportation company, receiving property for transportation from a point in one State to a point in another State, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” 34 Stat. 584, 595, c. 3591; U. S. Comp. Stat. 1913j §§ 8563, 8593.

Congress having, by this act, intended to take possession of the subject-matter of interstate shipments, its law is paramount as to all transactions covered by the act; and the decisions of the Supreme Court of the United States construing it are, of course, binding upon the State courts; but, as pointed out by this court in the case of Atlantic Coast Line Railroad Co. v. Thomasville Live Stock Co., 13 Ga. App. 103 (78 S. E. 1019), the act of Congress, in making the initial carrier liable for damage to goods on any part of the route, created no new remedy, but is merely declaratory of the common law as enforced in this State. The shipper, as there stated, could always have exercised his rights to sue the initial carrier, and he could have always exercised his right to bring his action at common law against the road actually at fault. Thus, the Federal act was designed, primarily to fix the liability under the contract of affreightment, and make the rules governing the same uniform throughout the several States. There appears to have been some misapprehension growing out of the misinterpretations of a ruling of the Supreme Court of the United States in the case of Adams Express Co. v. Croninger, 336 U. S. 491 (33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. (N. S.) 357), in which reference was made to the question here involved, but in the later case of Cincinnati &e. Ey. Co. v. Eankin, decided by that court and reported in 341 U. S. 319 (36 Sup. Ct. 555, 60 L. ed. 1033), Mr. Justice McBeynolds, speaking for the court, said: “Properly understood, neither this [referring to the case of Adams Express Co. v. Croninger, supra] nor any other of our opinions holds that this amendment has changed the common-law doctrine heretofore approved by us in respect to a carrier’s liability for loss occurring on its own line.” In the recent case of Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 341 U. S. 190 (36 Sup. Ct. 541, 60 L. ed. 948), carried from this court to the Supreme Court of .the United States, that court, in an opinion rendered by Mr. Justice Hughes, said: “There are only two questions presented here, and these are thus set forth in the brief of the plaintiff in error: 1st. That the plaintiff’s exclusive remedy was against the initial carrier, the Baltimore & Ohio Southwestern Railroad Company, under the Carmack amendment of section 20 of the Hepburn bill. . . . . The first contention is met by repeated decisions of this court. The connecting carrier is not relieved from liability by the Car-mack amendment, but the bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation and thus fixes the obligation of all participating carriers to the extent that the terms of the bill of lading are applicable and valid.”

This doctrine thus appears to be well recognized and fully.'established by the Supreme Court of the Hnited States. It has also been followed by the Supreme Court of this State in the case of Western & Atlantic Railroad Co. v. White Provision Co., 142 Ga. 246 (82 S. E. 644), in which the following language was used: “It was contended that the suit, if it could be maintained at all, should have been brought against the Nashville, Chattanooga .and St. Louis Railway, because, by the amendment of 1906 (U. S. Comp. St. 1911, p. 1307), above referred to, the initial carrier was made liable. But it was expressly provided in that amendment that “nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.’ The wrong here complained of was committed by the defendant, not by the initial company, and the plaintiff is not excluded from suing the wrong-doer.” The rule here given was distinctly recognized in the case of Atlantic Coast Line R. Co. v. Thomasville Live Stock Co., supra, and the interpretation there announced as to the common-law remedy has never been altered by any decision of this court.

Furthermore, there are various decisions, rendered by different Státe courts of last resort, which plainly follow the rule herein ■adopted: for example, in the case of Elliott v. Chicago &c. R. Co., 35 S. D. 57 (150 N. W. 777), the following language is used: “The Carmack amendment merely places the shipper in a position where he may be able to recover for injured property and relieve himself, oftentimes, from the task of locating the active -tortfeasor. But if the shipper knows which one among a number of carriers caused the injury, he may sue that one alone.” In Baltimore, C. & A. Ry. Co. v. Sperber, 117 Md. 595 (84 Atl. 72), the court lield that the Carmack amendment is intended merely to give a cumulative remedy, and does not prevent the shipper from maintaining an action against the connecting carrier at fault. In the case of Varnille Furniture Co. v. C. & W. C. Ry. Co., 98 S. C. 63 (79 S. E. 700), the following language was used by the court: “The Federal statute does not limit the right or remedy of the holder of the bill of lading, in case of loss or damage, to an.action against the initial carrier receiving' property for interstate transportation. While it says that that carrier shall be liable, on the principle that succeeding carriers in the route are its agents, it does not say that it alone shall be liable, or that the holder of the bill of lading shall pursue that carrier only. . . To hold that, the initial carrier alone is liable to the holder of the bill of lading would, in many cases, cause the very expense and inconvenience which the statute was designed, in part at least, to obviate.”

Thus it appears that the rule indicated as laid down by the Supreme Court of the United States and followed by the Supreme Court of this State and by this court is fortified by the rulings of various courts of highest resort in other States.

Judgment affirmed.

Broyles, P. J., and Bloodworbh, J., concur.


source: Caselaw Access Project

author: Beoyles, P. J.

license: Public Domain

text:
    7511.
    Norwich Union Fire Insurance Society v. Bainbridge Grocery Company et al.

    Decided January 23, 1917.
    Complaint; from city court of Bainbridge—Judge Spooner. April 10, 1916.

      King & Spalding, Brie M. Donalson, for plaintiff.

      T. S. Hawes, W. V. Guster, for defendants.
   Beoyles, P. J.

1. The exceptions to the repelling of certain documentary evidence offered by the plaintiff in error, and the exception to the refusal of the court to allow the plaintiff in error to prove certain facts by the witness R. V. Custer, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

2. Under the pleadings, and the evidence admitted, no error appears in the award of a nonsuit, the prima facie case shown in the petition not being supported by proof.

Judgment affirmed.

Jenlcms and Bloodworth, JJ., concur.


author: Jenkins, J.

text:
    7526.
    FOY-ADAMS CO. v. SMITH.
    Where the payee of a promissory note for the purchase-price of personal property, in which title is reserved in the vendor, takes a new note, and cancels and surrenders the old note, the consideration of the new note being partly a renewal of the old note and partly the sale of additional property, and title to both the original and the additional.. property being reserved therein, these facts constitute such a novation of the first contract as will work a discharge of the original lien, as to an intervening purchaser for value of any part of the original property.
    Decided January 23, 1917.
    Levy and claim; from .city court of' Tifton-—Judge Eve. May 16, 1916.
    On April 23, 1913, the Foy-Adams Company sold to R. T. Tatum, for the agreed price of $244, certain property described in the purchase-money note as follows: “one black mare mule, about six years old, known as the Marehant mule; also one gray mare, named Bess; also one 2-% White Hickory wagon.” By the terms of the note, title to this property was to remain in the Foy-Adams Company until payment of the debt. The contract was duly recorded on April 26, 1913. On October 29, 1913, at which time this note was unpaid, the Foy-Adams Company sold Tatum additional personal property described as one top Norman buggy and harness, and one open stick seat Blount buggy and harness, and took from him a new note in the sum of $390.37., the consideration of which was partly a renewal of the old note and partly the purchase of the additional property. The new note reserved title to both the original and the additional property purchased, and was duly recorded. At the time of the execution of the second note the Fo3,'-Adams Company surrendered to Tatum the original note and gave an order authorizing its cancellation on the record. In the agreed statement of facts it is stated that after the surrender of the first note, the Foy-Adams Company no longer claimed any rights thereunder.
    At the time the first note was taken, the mare “Bess,” described therein, was with foal, and, before the giving of the second note, gave birth to the colt mentioned in the second note, and this colt is the sole subject-matter of this litigation. After its birth R. T. Tatum sold the colt to his brother, W. T. Tatum, and he in turn, four months prior to the making of the second note, sold it to the claimant in this case, who, it is admitted, paid full value therefor. On September 10, 1914, the Foy-Adams Company instituted an action of trover against E. T. Tatum in the city court of Tifton, for the recovery of the property described in the second note, including the colt in dispute; the defendant gave a replevy bond, which was signed by M. A. Howard as security, and, on January 14, 1914, the plaintiff recovered a judgment in that ease, against Tatum as principal and M. A. Howard as security on the above-mentioned bond, which judgment provided that the plaintiff should have a special lien against the property sued for. Execution issued on the judgment and was levied on the property described in interposed by Eric Smith, the purchaser of the colt. Hpon the issue thus formed (which was tried on an agreed statement of the second note, including the property in dispute. A-claim was facts, before the judge of the city court, without the intervention of a jury) judgment was rendered, finding the property m dispute cution excepted.
    not subject to the levy; and to this judgment the plaintiff in exe-

      B. B. Smith, for plaintiff.

      J. S. Biclgdill, G. G. Hall, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) 1. It is granted by each of the parties litigant that, the mare being with foal at the time the first note was taken and the reservation of title made, the increase, as a matter of law, followed the dam, and that up to the taking of the second note the lien attached to the colt under the reservation made in the first note in favor of the payee thereof. Therefore, the sole question for this court to determine is whether the surrender of the first note and the taking of the new note, under the facts as stated, amounted to such a novation of the original contract as would divest the title thereto held by plaintiff, in so far as the rights of claimant are concerned. We think that it did. The law is well recognized that a contract may be renewed between the same parties, as to the same subject-matter and upon the same consideration, without working a novation. Civil Code (1910), § 4226.

In the case of Partridge v. Williams, 72 Ga. 807, the Supreme Court said: “We think the m'ere renewal of a note, at the same rate of interest, is not a novation; no new parties are added, and no new consideration passes.” In Bonner v. Woodall, 51 Ga. 177, the court said: “The renewal contract was to pay him the same amount, with the lawful interest due thereon, for the same eon•sideration, and there is no pretense that there was any other consideration.” From Wofford v. Gaines, 53 Ga. 485, we quote as follows: “If it be renewed, it is renewed with one of the parties to it, and the renewal is simply a contract fixing a new day as to the same matter and with no new or different consideration.” In the case of Farkas v. Third National Bank, 133 Ga. 755 (66 S. E. 926, 26 L. R. A. (N. S.) 496), this language is used: “While it is the law that the mere taking of a new note or mortgage, the debt evidenced by the former and the property embraced in the latter being the same, will not discharge or displace the lien of an existing mortgage, it is equally well-settled law that where the new transaction involves the payment and satisfaction of the first mortgage, the mortgagee’s rights are dominated by the intervening liens of third persons, liens acquired subsequently to the execution of the first, and prior to the execution of the second mortgage.”

Counsel for the plaintiff in error, in his thorough and painstaking brief, calls special attention to the rule announced in the case of Carlton Supply Co. v. Battle, 142 Ga. 605 (83 S. E. 225, L. R. A. 1916A, 926), as controlling the case at bar, but we do not think that there is any lack of harmony in the ruling there announced with the principle of law already recognized by our Supreme Court in the cases from which we have quoted. In the case of Carlton Supply Co. v. Battle, supra, there were a number of notes executed and.payable at different times, reserving title to different mules. Different payments had been made on different notes; the amounts of the unpaid notes were consolidated and one new contract was made, in which the title to all of the property described in the various notes was reserved.. We do not think that the facts in that case are at all analogous to those of the case at bar. The renewal note in that case contained the following language: “All the above property being the same property bought and mortgaged to J. J. Battle as indicated by Nos. from 1 to 8, and this note is given to extend the old notes only, and to stand in lieu of said notes.” In the opinion in that case it was said: “The taking of a second mortgage for the same debt, upon the same property, does not of itself extinguish the first.”

The descriptions of the property embraced in the first and second notes respectively would indicate that a substitution was made as to the mule upon which the lien existed; and this, if true, would constitute an additional reason sufficient to operate a discharge of the lien under the original contract; but in the agreed statement of facts we find it stated' that the property set forth in the two notes is the same, with the exception that the colt, born after the making of the first note, was included in the second; and we therefore consider that this point, if the facts be as they appear, is waived.

It is our opinion that the trial judge did not err in finding the property not subject; and the judgment of the court below is

Affirmed.

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


author: Broyles, ,P. J.

text:
    7539.
    Nash v. Savannah Electric Company.
    Decided January 23, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. May 23, 1916.
    The petition alleged, that when a car of the defendant’s electric-railway, on which the plaintiff was being transported in the city of Savannah, “reached the western side of the Gwinnett-street subway, it was flooded with water, so that it was impossible for the car to pass; whereupon the conductor in charge of the said ear, who personally knew petitioner, said to her, 'Mrs. Nash, you •will have to cross the railroad tracks and take the car on the other side,’ and pointed out to petitioner the place where she should cross said tracks, and the pathway she should follow;” that she then left the street-car and proceeded to-attempt to cross the tracks of the Atlantic Coast Line Eailroad Company at the Gwinnettstreet subway; that on each side of these tracks there had been a barbed-wire fence, fencing in the right of way of that company from the street, but a partial opening had been made through this fence, and through this partial opening she was instructed by the officers of the defendant to pass; that she passed in safety through the fence on the western side of these tracks, and, as she attempted to pass through the partial opening'on the eastern side of the tracks, her foot was caught in one of the loose strands of barbed wire on that side of the tracks, and it threw her to the ground and severely cut her foot and leg and caused other injuries described, by reason of which she was damaged in the sum sued for; that at the time of receiving her injuries she was acting under the express direction and orders of the defendant’s conductor, who she supposed was acting within his rights, and to obey whom was her right and duty; that she did not know of the .dangers she was to encounter, or of the defective, rough, and uneven pathway over which she was to go, or of the hazard of crossing the barbed-wire fence. The petition alleged that the plaintiff’s injuries were due entirely to fault and negligence on the part of the defendant, (1) in not furnishing to her safe and suitable access from one ear to another in completing her trip; (2) in directing her to cross the tracks of the Atlantic Coast Line Railroad Company, when the defendant knew, or in the exercise of ordinary care should have known, that the way was rough and uneven and the pathway obstructed by a barbed-wire fence; (3) in not affording to her the assistance and care due by a carrier to its passenger, to enable her to cross from one car to another, and to cross a rough, uneven, defective, and dangerous pathway in thus moving from one ear to another; and (4) in failing to afford to her the care, diligence, and protection due by a common carrier to its passengers.
   Broyles, ,P. J.

Under the particular facts of the case, the petition, construed (as it must be) most strongly against the plaintiff, did not set forth a cause of action, and the court committed no error in sustaining the general demurrer and dismissing the suit.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

Oliver & Oliver, for plaintiff,

cited: Georgia Ry. &c. Co. v. McAllister, 126 Ga. 448; Georgia Ry. &c. Co. v. Norris, 135 Ga. 838, 843; Macon Ry. Co. v. Vining, 120 Ga. 511; G., C. & N. Ry. Co. v. Brown, 120 Ga. 381; Atlanta Terminal Co. v. Johnson, 15 Ga. App. 22; A. & B. Railroad Co. v. Douglas, 119 Ga. 658; Dorsey v. Central Ry. Co., 113 Ga. 565; King v. S. A. L. Ry., 1 Ga. App. 88; Ellison v. Ga. R. Co., 87 Ga. 692 (8); Central R. Co. v. Thompson, 76 Ga. 770; Wilkes v. W. & A. R. Co., 109 Ga. 794; Central R. Co. v. Gleason, 72 Ga. 742; Central R. Co. v. Perry, 58 Ga. 461 (3).

Osborne, Lawrence & Abrahams, for defendant, cited and distinguished cases cited above.


author: Bboyles, P. J.

text:
    7581.
    Little Rock Furniture Manufacturing Company v. Jones & Company.
    Decided January 23, 1917.
    Complaint; from city court of Macon—Judge Hodges. May 5, 1916.

      W. D. McNeil, for plaintiff.

      Robert W. Barnes, Miller & Jones, for defendant.
   Bboyles, P. J.

1. While, under the pleadings and the evidence, a finding of some specific amount, either for the plaintiff or (by way of recoupment) for the defendants, was strongly authorized, it can not be held that there was no evidence which authorized a general verdict for the defendants. The verdict returned, to wit, “We, the jury, find in favor of the defendants,” having been approved by the trial judge, this court has no authority to interfere.

2. The excerpts from the charge of the court to which exception is taken are subject to some criticism, but, when considered in the light of the entire charge (which as a whole was a full, fair, and correct presentation of the contentions of the parties and of the law applicable thereto), do not require a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., eonewr.


text:
    7586.
    BANK OF OMEGA v. WINGO, ELLETT & CRUMP SHOE CO.
    1. Neither the cashier nor any official or set of officials of a bank has authority to create a valid obligation whereby it shall guarantee the payment of the debt of another, or become surety thereon, solely for the benefit of the debtor. This is true independently of any question as to the scope of authority of any such agent; for the reason that such an attempt on the part of the bank itself would be ultra vires, illegal, and void.
    2. Where a bank, holding for collection a draft with bill of lading attached, notifies the drawer, through its cashier, that it has sufficient collateral in its possession to pay the draft, and guarantees the payment thereof by a fixed day, and the bank has authority from the drawee to make such application, and where, on the faith of the representation thus made, the drawer no longer looks to the drawee for the payment of the obligation, but consents to the delivery of the bill of lading, and thereafter relies solely upon the bank for payment, such conduct on the part of the' bank, despite its use of the word “guarantee,” constitutes an original undertaking, within the scope of its general business, and is enforceable as such.
    Decided January 23, 1917.
    Complaint; from city court of Tifton—Judge Eve. June 6, 1916.

      Wingo, Ellett & Criunp Shoe Company sued the Bank of Omega, alleging an indebtedness in the principal sum of $360.' The ground of complaint, as set out in the petition, is substantially as follows: In October, 1915, Mitcham, who was engaged in the mercantile business in the town of Omega, purchased from the plaintiff, for the sum of $362.20, certain merchandise which was shipped, with the bill of lading attached to a sight draft, drawn through the Bank of Omega. Mitcham failed to pay the draft, and while it, with the bill of lading attached, was being held by the bank, Ragsdale, the bank’s duly authorized agent and cashier, wrote a letter to the shippers as follows:
    “Bank of Omega. Deposits insured. Omega, Ga. “Wingo, Ellett & Crump Shoe Co., Richmond, Ya.
    “Gentlemen: With reference to your invoice to W. C. Mitcham of this place to the amount of approximately $360.00, will say that they offer good security for a loan sufficient to take this up, but, owing to the fact that we are carrying a great deal of cotton at this time, we are not in position to make them the loan, but we are willing to guarantee the payment of .this amount by the fifth day of January, 1916. We have the security in’our possession, and hereby guarantee the payment of the amount of $360.00 by the fifth day of January, 1916.
    “Yours very truly, H. E. Ragsdale, Cashier.”
    It was alleged that when the bank thereby assumed the said indebtedness, the plaintiff no longer looked to Mitcham for the payment thereof, but authorized the bank to deliver the bill of lading, and thereafter .looked solely to the bank on its obligation as an original undertaking. The plaintiff further showed, by its amended petition, that the representations as to the collateral held by the bank, referred to in the letter, pertained to facts peculiarly within the knowledge of the defendant; and that the bank had the right and the express authority from Mitcham to apply the money of the loan on the said collateral to the indebtedness owing the plaintiff.
    The defendant-filed a general and special demurrer to the petition, contending that the letter of the bank cashier was nothing more than an ultra vires undertaking to guarantee the payment of the account owing by Mitcham, and that the bank could in no wise be held liable thereon, and further contended that even were it an attempt on the part of the bank, through its cashier, to obligate itself to pay for this merchandise as an original undertaking, the bank could not be bound therefor, because no authority existed on the part of the cashier to bind the bank by such an obligation. The court overruled the demurrers, and it is to this judgment that the plaintiff in error excepts.

      B. D. Smith, for plaintiff in error.

      J. S. Bidgdill, S. F. Mitchell, contra.'
   Jenkins, J.

(After stating the foregoing facts.) 1. The rule announced in the first headnote is a -well-recognized principle, supported by abundant authority in this and other jurisdictions. See First National Bank of Tallapoosa v. Monroe, 135 Ga. 614 (69 S. E. 1123, 32 L. R. A. (N. S.) 550); 1 Bolles on Banking, § 25; McGee on Banks and Banking, § 248; Bolles’ National Bank Act, Annotated (4th ed.), 40, §.10.

2. Despite the fact that the cashier of the bank, in his letter to the plaintiff, agreed to "guarantee” the payment of the obligation, we think the legal effect of the facts of the case as alleged is to make out an original undertaking on its part, and the use of the word indicated must he treated as merely an inaccuracy of statement, inconsistent with the general purport of the bank’s act and intent. A contract of suretyship exists where one pledges his credit for the benefit of another, and it is distinguished from that of guaranty in that in the latter form of obligation the consideration is a benefit flowing to the guarantor. In either of such contracts, however, the person assuming the obligation of another must pledge his credit therefor. The contentions of the petition in this case, fairly construed, show that the bank had agreed to extend a loan to Mitcham in order that the obligation in question might be discharged, and that, in. pursuance of that purpose, it had actually taken into its possession and held for its protection as security certain collateral belonging to Mitcham. The only condition of the loan was that the money would not need to be actually furnished until a later date, named in the letter to plaintiff. It is alleged that Mitcham had agreed that the proceeds of the agreed loan should be applied to the payment of plaintiff’s debt. Thus, when the bank, by its agreement with the plaintiff, acted on by it, assumed, or, as cálled by the cashier, "guaranteed,” the payment of this obligation and thereby became liable therefor, the securities of Mitcham in the hands of the bank became subject to the -purpose agreed on, and Mitcham himself had then no power to withdraw the same or apply the proceeds of the loan to any other purpose.

Counsel for the plaintiff in error, in his admirable brief and argument before this court, himself makes the statement (which of course is not subject to question) that the cashier might have extended a loan to Mitcham for the purpose of discharging his obligation to the plaintiff. Then, since the allegations of the petition show that such a loan had in effect been made, and the securities therefor actually placed in the hands of the bank, to be held by it for the purpose named, it appears that the promise of the bank was one wherein it simply agreed with the plaintiff, by Mitcham’s permission, to apply to the plaintiff’s debt the funds of Mitcham so held by it. In so doing it in no wise pledged its own credit, nor in any way became liable for any possible default of him who had been the original debtor. Thus it is that since no pledge of the bank’s credit is involved, an essential element of a contract of guaranty is lacking; and as the promise of the bank is founded on a good consideration to the bank by reason of its loan to Mitcham and by reason of the surrender by plaintiff of its bill of lading, we think its promise an original and not a collateral one.

It is contended, however, by the defendant bank that even had its cashier attempted to obligate it to the plaintiff as an original undertaking and not as a guarantor, the same rule of non-liability would apply, because of the want of authority by the cashier to enter into such a contract. It is maintained that such an undertaking on the part of the cashier would be wholly beyond the scope of his authority, and, if so, the principal would not be bound by any such act of its agent. Dismissing now the question' of acts which are ultra vires, and therefore illegal for the bank itself to perform, we see no reason why we should hold that the executive officer of a bank could not act for it in arranging a loan to one of its customers, and, by his authority, agreeing with another to pay over to it the proceeds thereof. Indeed, our Supreme Court, in the case of Bullard v. Bank of Madison, 121 Ga. 527 (49 S. E. 615), seems to hold, at least by clear implication, that such an act would be neither illegal on the part o‘f the bank nor unauthorized on the part of its cashier as the agent thereof. The principle announced in that case is as follows: “A promise by the cashier of a bank, made without consideration to the drawer of a draft, to pay the same out of funds of a customer on whom the draft is drawn and who has been credited with the proceeds of negotiable paper which he as owner transferred to the bank, is not enforceable against the bank, unless the customer assents that the bank shall make such an application of the funds so placed to his credit.”

This court is inclined to think that even if the facts alleged in the petition were to be construed so as to set up a contract in the nature of a guaranty on the part of the bank, there would be ground for holding it liable to the plaintiff in the present suit. While it is true that a bank can never be permitted to render itself liable under a contract of suretyship whereby it would seek to pledge its credit for the benefit of another, still, as already indicated, a contract of guaranty differs from that of a surety, in that the consideration in the case of a guaranty is a benefit flowing to the guarantor. And while it should be the settled policy of our courts to scan closely all contracts entered into by a bank, whereby it may seek in any way or for any purpose to become responsible for the obligation of another, still in the case of First National Bank v. Monroe, supra, the Supreme Court limited its ruling upon the prohibition of a guaranty to those cases in which the bank undertakes to guaranty solely for the benefit of another. Bearing constantly in mind that in the present case the defendant bank in effect holds funds belonging to Mitcham under an agreement with him that they are to be used in extinguishment of the plaintiff’s debt, we think that -the reasoning of the Supreme Court of the United States in the case of Citizens’ Central National Bank of New York v. Appleton, 216 U. S. 196 (54 L. ed. 443), is pertinent to the case at bar. In that case the court spoke as follows: “The plaintiff in error insists that the guaranty given by the Central National Bank to the Cooper Exchange Bank was beyond its power, was in violation of the national banking act, and, therefore, could not be made the foundation of an action against the guarantor bank. But this action need not be regarded as one on the written contract of guaranty, but as based on an implied contract between the Cooper Exchange Bank and the Central National Bank, whereby the latter . . came under a duty to account to the former for the $10,000 of the $12,000 actually paid to Samuels at its request and on its guaranty. The law would be very impotent to do justice if it could not, under these circumstances, and without violating legal principles, compel the Central National Bank to recognize and discharge that duty. Samuels owed the Central National Bank $10,000, and—with knowledge perhaps of his financial condition—he was put forward by that .bank to obtain $12,000 from the Cooper Exchange Bank, so that it could get $10,000 out of that sum, for its own use. The circumstances show that the latter bank would not have loaned the money to Samuels except at the request and on the guaranty-of the Central National Bank. ... In short, the Central National Bank, by means of the device mentioned, got $10,000 of the money of the Cooper Exchange Bank for its own use, and having used it for its own benefit, it now seeks to avoid liability therefor, upon the ground that it was not allowed by the law of its creation to execute the guaranty in question. We know of no adjudged case that stands in the way of relief being granted as asked by the plaintiff. . . Whatever may be said as to the validity of the written guaranty, now alleged to be illegal, the judgment can be supported as based wholly on the implied contract, which made it the duty of the Central National Bank, under the facts disclosed, to account to .the Cooper Exchange Bank for the money obtained from the latter in execution of the agreement made by the former with the borrower.”

In the case of Aldrich v. Chemical National Bank, 176 U. S. 618 (20 Sup. Ct. 498, 44 L. ed. 611), Mr. Justice Harlan, speaking for the court, said, that “as the money of the Chemical Bank was obtained under a loan negotiated by the vice-president of the Fidelity Bank, who assumed to represent it in the transaction, and, as the Fidelity Bank used the money so obtained in its banking business and for its own benefit, the latter bank, having enjoyed the fruits of the transaction, can not avoid accountability to the New York bank, even if it were true, as contended, that the Fidelity Bank could not, consistently with the law of its creation, have itself borrowed money. . . If the latter bank in this way used the money obtained from the Chemical Bank, it is under obligation to pay it back, or account for it to the New York bank. It can not escape liability on the ground merely that it was not permitted by its character to obtain money from another bank. . . Suppose a national bank, in violation of the act of Congress, takes as security for a loan by it a deed of trust of real estate, and subsequently causes the property to be sold and the proceeds applied in payment of its claim against the borrower, a surplus being left in his hands, which it uses in its business or in discharge of its obligations. If used by the borrower for the amount of such surplus, could the bank successfully resist payment upon the ground that the statute forbade it to make a loan of money on real estate security? Common honesty requires this question to be answered in the negative. But it could not be so answered if it be true that the Fidelity Bank could use in its business and for its benefit money obtained by one of its officers from another bank, under the pretense of a loan, and be discharged from liability therefor upon the ground that it could not itself have borrowed from the other-bank the money so obtained and used. There is nothing in the acts of Congress authorizing or permitting a national bank to appropriate and use the money or property of others for its benefit without liability for so doing.”

In the case of Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24 (11 Sup. 478, 35 L. ed. 55), the court said: “A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain an action upon the unlawful contract, have always striven to do justice between the parties so far as could be done consistently with adherence to law, by permitting property or money, parted with on the faith of the unlawful contract, to be recovered back, or compensation to be made for it. In such a ease, however, the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for, property or money which it has no right to retain. To maintain such an action is not to affirm, but to disaffirm, the unlawful contract.”

The ruling of this court in the present ease, however, is based upon the principles announced in the headnotes thereof; and, for the reasons therein stated, the judgment of the court below, overruling the demurrer, is

Affirmed.

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


author: Broyles, P. J.

text:
    7598.
    Horton v. Union Store.
    Decided January 23, 1917.
    Levy and claim; from city court of Sparta—Judge Moore. May 27, 1916.

      T. M. Hunt, for plaintiff in'error. Burtvell & Fleming, contra.
   Broyles, P. J.

1. Where a tenant sublets land without the landlord’s permission, the landlord is entitled to make his rent out of the crop grown on the land by the subtenant, on a distress warrant issued against the principal tenant. Civil Code, § 3340; Alston v. Wilson, 64 Ga. 482; Andrew v. Stewart, 81 Ga. 53 (7 S. E. 169) ; Thompson v. Commercial Guano Co., 93 Ga. 282 (20 S. E. 309) ; Hudson v. Stewart, 110 Ga. 37, 40, 41 (35 S. E. 178); Leonard v. Fields, 143 Ga. 479, 481 (85 S. E. 315) ; Long v. Clark, 16 Ga. App. 355 (85 S. E. 358).

2. Under the ruling of the authorities cited in the preceding headnote and the agreed statement of facts in the instant case, the court, exercising by consent the functions of both judge and jury, did not err in rendering judgment in favor of -the plaintiff in the distress warrant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    7617.
    Cleary & Company v. Fawcett.
    Decided January 23, 1917.
    Garnishment; from city court of Savannah—Judge Davis Freeman. May 15, 1916.

      Shelby Myriclc, for plaintiffs in error.

      J. B. Fawcett, Fdwin A. Cohen, contra.
   Broyles, P. J.

1. Under the evidence submitted, the written assignment ■ by one Sipple to the defendant in error of all moneys, debts, claims, or demands then due or thereafter to become due to him by the Geor- ■ gia-Carolina Lumber Company was a valid assignment.

2. The evidence authorized a finding that the defendant in error did not waive or abandon his rights under the assignment; and that although he allowed Sipple from time to time, .after the making of the'assignment, to collect money from the lumber company, Sipple in so doing was acting merely as the agent of the defendant in error, and that he turned over the money so collected to the defendant in error.

3. The court, exercising by consent the functions of both judge and jury, did not err in rendering a judgment in favor of the defendant in error.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    7628.
    Hancock v. Tipton Guano Company.
    Decided January 23, 1917.
    Affidavit of illegality; from- city court of Nashville—Judge Christian. June 5, 1916.

      J. W. Powell, for plaintiff in error. R. D. Smith, contra.
   Bloodworth, J.

1. A ground of an affidavit of illegality that “the execution was issued, to the best of affiant’s knowledge and belief, before the overruling of a motion for new trial in the case,” is without merit. Civil Code, § 6020. Besides, this ground is not verified positively and was properly stricken. Sprinz v. Vannucki, 80 Ga. 774 (6 S. E. 816).

2. “If the defendant has had his day in court, he can not go behind the judgment by an affidavit of illegality.” Civil Code, § 5311; Tumlin v. O’Bryan, 68 Ga. 65; Brantley v. Greer, 71 Ga. 11.

3. “Where a court has jurisdiction, it is to be presumed that it had before it pleadings and evidence authorizing the verdict rendered.” Bedingfield v. First National Bank, 4 Ga. App. 197 (3), 204 (61 S. E. 30).

4. Where an affidavit of illegalityxis filed, the grounds of which are.absolutely without merit, and at thé trial term of the cause the defendant in fi. fa. is excused from the court for providential cause, it is not error requiring a reversal that afterwards and during the term the. affidavit of illegality, on motion of plaintiff in fi. fa., and over objection of the defendant in fi. fa. (who neither offered to amend nor made any other motion), is dismissed on the ground that the grounds of illegality are insufficient in law. Injury must result before there is error. Goodman v. Brown, 17 Ga. App. 778 (88 S. E. 593).

5. blot being fully convinced that this case was appealed for delay only, the request of the defendant in error that ten per cent, damages be assessed against plaintiff in error is refused.

Judgment affirmed-.

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


text:
    7631.
    Morrow v. Albany Warehouse Company.
    Decided January 23, 1917.
    Trover; from city court of Albany—Judge Clayton Jones. May 23, 1916.

      Walters & Redfearn, for plaintiff.
    * R. J< Bacon, R. H. Ferrell, Pottle & Hofmayer, for defendant.
   Broyles, P. J.

Under the facts of the ease as disclosed by the record, there was no error in awarding a nonsuit.

Judgment affirmed.

Jenlcins and Bloodworth, JJ., concur.


text:
    7644.
    REALTY BOND & MORTGAGE CO. v. HARLEY.
    1. The evidence authorized a finding for the plaintiff.
    2. The question of amount of damages is for the jury, and.the court should not interfere unless there is something in the record or in the amount awarded to indicate that the verdict was the result of prejudice or bias on the part of the jury.
    3. The alleged newly discovered evidence is largely cumulative and impeaching, and is not sufficient to warrant the granting of a new trial.
    4. “The motion of the defendant in error to assess damages for delay is denied. While there is no reason for the grant of a new trial, still the verdict is not so manifestly correct as to exclude a bona fide insistence on the part of the plaintiff in error that a new trial should be granted.”
    Decided January 23, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. May 15, 1916.

      Wilson & Rogers, for plaintiff in error. •

      Twiggs & Gazan, contra.
   Bloodworth, J.

Lloyd Harley, a minor, by his father and next friend, P. L. Harley, brought suit against the Realty Bond and Mortgage Company, alleging, that said company was the owner of a certain house, and lot in the city of Savannah; that P. L. Harley rented an upstairs apartment, and after renting discovered that “the premises were in a fearful state of disrepair,” that window panes were broken out, and that the railing of 'the upstairs balcony had several palings or rails missing, so as to leave open spaces two or three feet wide in the banister; that his father notified the defendant of the condition of the premises, and of the railing in particular, and that this notice was given several times, but the company failed and neglected to. repair the same; that Lloyd Harley, a child of tender years, went through the space in the window where the ¡Dane was missing, out upon the balcony, and fell through the space in the railing to the street below, striking upon his head and thereby depressing the skull and affecting the brain; that the child was knocked unconscious and had to be taken to the hospital, where it remained for two weeks; that after leaving the hospital the said child remained at home in bed for three weeks; that there is a depression in the skull, and said child has been dull and stupid ever since; that said Lloyd Harley was of such tender years as to have been incapable of negligence, and that the injuries to said child were due solely and entirely to the negligence of the defendant company, its agents, servants, and employees. The special acts of negligence alleged were: “(a) In not repairing said house and the windows and balcony thereof by putting in the necessary panes and railings so as to make the said house a safe one for the occupants. (&) In failing to put said house in a condition of good repair when notified by the tenant of the defects therein, (c) In maintaining said house in a dangerous and defective condition, to wit, the panes and glass missing and railings missing from the balcony banister, when the defendant knew, or ought to have known, that such condition created a dangerous place for children.” Petitioner sued for $5,000 for physical injuries, for deformity of his head, for mental pain and suffering, for injury to his mental faculties, and the permanent handicap which said weakness will entail. The Realty Bond and Mortgage Company denied all the- averments referring to negligence and damage. Upon a trial of the issue the jury returned a verdict for the plaintiff in the sum of $1,000, and defendant made a motion for a new trial on the general grounds and on two additional grounds, one that the verdict was excessive, and the other based upon alleged newly discovered evidence.

1. Did the evidence authorize the verdict for plaintiff? The allegations in the petition, which are paraphrased above, if true, make a good case. Practically every allegation is proven as stated in the petition. The allegata and probata are in unison. This being true, there is ample evidence to support the verdict. “This court is a court for the correction of errors in law and in equity alone. It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict.” Bell v. Aiken, 1 Ga. App. 36 (57 S. E. 1001). “There is nothing in the evidence in the record to take the case out of the established rule that the verdict of the jury, approved by the trial judge, is conclusive as to all issues of fact.” Atlantic Coast Line R. Co. v. Locklear, 9 Ga. App. 344 (71 S. E. 683).

2. "Was the verdict so excessive as to clearly show prejudice or bias on the part of the jurors, and thus require this court to set it aside ? There is no proof in the record of prejudice or bias, and nothing therein to indicate it, unless it be in the amount of damages awarded. Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear “exorbitant,” “flagrantly outrageous,” and “extravagant.” “It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.-” It must carry its death warrant upon its face. We find in this verdict no such inherent iniquity. The presiding judge, in the order refusing a new trial, said: “There was ample evidence to support the verdict. . . The strongest claim is that concerning the size of the verdict. . . I think the verdict is large, but I can not say that it is so large as to justify me in granting a new trial on that ground.”

It is presumed that when a judge refuses to grant a new trial he has exercised the discretion vested in him by law. In addition to this presumption, the above statement of the trial judge expressly shows that in this case he exercised his discretion; and when this is done, unless this discretion has been abused, the order refusing a new- trial should be final on this point. The jurors who saw and heard the witnesses fixed the amount of the verdict; it was approved by the presiding judge, “and if the court trying the case does not consider the damages excessive, any other court ought to be cautious in doing so.” Adkins v. Williams, 23 Ga. 222 (2). If the verdict in this case does not speak its own doom, the fact that the amount of the verdict may appear large is no reason why it should be set aside. Even though we should consider the verdict in this case “large and generous,” “courts will never, in the absence of -the most satisfactory evidence that the verdict is erroneous, substitute their impressions for the opinion of the jury.” Lang v. Hopkins, 10 Ga. 37 (3). In the case last cited Judge Lumpkin said: “As judges, we are not authorized to substitute our conjectures or apprehensions for the determination of that body on whom the law has devolved the duty of deciding, duly weighing all the circumstances of the ease. . . Judges should be very cautious, therefore, how they- overthrow verdicts given by twelve men on their oaths, on the ground of excessive damages, upon a matter left so entirely to their discretion; especially when the presiding judge before whom the case is tried, and who is presumed to have been familiar with all the facts, has refused to interfere. For this court to order a new hearing, under such circumstances, it must be made manifest by the proof that the damages were 'flagrantly ontrageons and extravagant.’ ” This is quoted by Judge Powell in the case of Holland v. Williams, 3 Ga. App. 636 (60 S. E. 331). “A verdict in one of that class of cases in which the amount of damages is left to the enlightened conscience of the jury is not to be declared by a reviewing court to be excessive, unless it is so large in amount as to justify the court in believing that it could not reasonably have resulted from any other cause than bias or gross mistake on the part of the jury.” Seaboard Air-Line Railway v. Miller, 5 Ga. App. 402 (63 S. E. 299). In discussing the method of proving prejudice or bias, Judge Powell, in the case last cited, said (p. 403) : “The question is, how is this bias or this mistake to be shown? Sometimes it may be shown directly, but this is rarely so. Usually it is a matter of inference; and in that event the solution falls within the rule as to circumstantial evidence,— there must be no reasonable hypothesis other than that the bias or the mistake did exist.” Is there “no reasonable hypothesis” other than that this verdict is the result of prejudice or bias ? Assuredly there is. The presumption is that the jurors were impartial and understood their case. It is, therefore, a more “reasonable hypothesis” that their finding was based on the evidence considered impartially in connection with the charge. See Georgia R. Co. v. Keating, 99 Ga. 308 (25 S. E. 669); Atlantic & Birmingham, R. Co. v. Douglas, 119 Ga. 658 (46 S. E. 867). “Upon naked questions of fact, where no error by the court in the progress of the trial is complained of, doubt in the appellate court is to be given in favor of verdicts, and not against them.” Brown v. Meador, 83 Ga. 406 (9 S. E. 681).

3. Is there anything in the alleged newly discovered evidence to take it out of the general rule that “ordinarily circumstantial and impeaching evidence is not ground for a new trial?” No. The sole effect of the alleged newly discovered evidence would be to contradict and impeach one of the witnesses for the plaintiff. Civil Code, § 6085; Roy v. State, 140 Ga. 223-224 (78 S. E. 846). Besides, this evidence was as to the location of the father of the child at the time of the accident, as related to the opening in the banister through which the child fell, and the location “where the child must have been lying unconscious after said fall,” and based upon an inspection of the premises after the trial. Ordinary diligence requires that this inspection should have been made prior to the trial. Civil Code, § 6086; Cadwallader v. Fendig, 137 Ga. 140 (72 S. E. 903).

Judgment affirmed.

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


author: . Broyles, P. J.

text:
    7652.
    WILLIAMS v. BOSTON OIL AND GUANO CO.
    1. Cottonseed meal is a “commercial fertilizer” and “fertilizer material” within the meaning of the act of the General Assembly, approved August 22, 1911 (Acts 1911, pp. 172, 173; Park’s Ann. Code, §§ 1778 (a), 1778 (b), 1778 (c), 1778 (d), and 1778 (e)).
    2. The petition set forth a cause of action, and the court erred in dismissing it on general demurrer.
    Decided January 23, 1917.
    Complaint; from city court of Thomasville—Judge W. H. Hammond. June 21, 1916.

      Merrill & Grantham, Branch & Snow, for plaintiff.

      Titus, Delele & Hopkins, for defendant.
   . Broyles, P. J.

W. W. Williams brought suit against the Boston Oil and Guano Company for damages, under the act of the General Assembly, approved August 22, 1911, regulating the branding and sale of commercial fertilizers and fertilizer material. The petition as amended alleged that the defendant sold to the plaintiff 50 tons of cottonseed meal, that this meal had fallen more than 3 per cent, below its guaranteed and commercial value, 'that it did not contain 6.18 per cent, nitrogen (equivalent to 7.50 per cent, ammonia) as branded on the sacks and as required by law, but that it contained only 5.45 per cent, nitrogen, a deficiency of 10.5 per cent, below its guaranteed analysis as branded and tagged on the packages. The petition alleged further that the cottonseed meal was purchased by the plaintiff as commercial fertilizer, and that “it is commercial fertilizer and fertilizer material, and is so used.” The plaintiff sought to recover the penalty prescribed by the act, to wit, 25 per cent, of the purchase-price, in addition to the shortage in the commercial value of the fertilizer. The court sustained a general demurrer and dismissed the suit, and the plaintiff excepted.

In our judgment the petition set forth a cause of action and was not subject to general demurrer. While the act of the General Assembly, approved July 8, 1910 (Acts 1910, p. 82), deals specifically with the branding and sale of ■ cottonseed meal, we do not think it is the exclusive -and only legislative regulation of the branding and sale of such meal when it is sold as a commercial fertilizer, or as fertilizer material. In that act the branding and sale of cottonseed meal is regulated not only when it is sold as feedstuff, but also when it is sold as a commercial fertilizer, as is specifically declared in section 1. It is clear, therefore, from this language, that the legislature recognized that cottonseed meal was, under certain circumstances, a “commercial fertilizer.” That act makes it a misdemeanor for any .one to violate its provisions, but fails to furnish any adequate remedy for damage inflicted upon the purchaser of cottonseed meal which is falsely branded, and the actual commercial value of which is below its guaranteed commercial value. A subsequent statute (Acts 1911, p'p. 172, 173, sec. 2) provides a remedy in damages to the purchaser for the false branding and the deficiency in value of “any commercial fertilizer, or fertilizer material sold in this State.” In our opinion the latter statute was intended by the legislature to be supplemented and additional to all other acts upon the same subject-matter, including the act of 1910, as is in fact shown by the language in section 5 thereof. The general trend of legislation in Georgia upon the subject of the sale of fertilizers has been to safeguard and protect to the greatest extent possible the buyer and user of fertilizers, and to make it “hard sledding” for the dishonest manufacturer or dealer, both by making the false branding and fraudulent sale of inferior fertilizers a penal offense, and by providing for the recovery of damages in a civil suit by the person so defrauded. And our courts of last resort have uniformly interpreted the various acts upon this subject in the light of that legislative intention.

It is insisted by counsel for the defendant in error that cottonseed meal is not a “commercial fertilizer” within the meaning of the act of 1911, for the reason that it does not contain either phosphoric acid or potash, and that the caption of the act and section 1 thereof show that it was the intention of the legislature to regulate therein the branding and sale of such commercial fertilizers only as contain, or are designed to develop, as plant food, phosphoric acid, potash, and nitrogen. This court, as a matter of law, has no knowledge of the ingredients of cottonseed meal, but the official bulletin issued by the department of agriculture of this State (Serial No. 57, Season 1911-1912, p. 41) contains a report from the State Chemist which shows that, as a matter of fact, cottonseed meal not only contains nitrogen, but also phosphoric acid and potash in an appreciable amount. Irrespective, however, of the question whether it does or not, we do not think that the legislative intent was to confine the operation of the act of 1911 to such commercial fertilizers only as contain, or are designed to develop, as. plant food, phosphoric acid, potash, and nitrogen, but, in our opinion, it was intended, as shown by the broad language in sections 2, 3, 4, and 5 of the act, and especially of section 2, to apply its provisions to “any commercial fertilizer, or fertilizer material sold in this State.” It is a matter of common knowledge, of which this court will take judicial cognizance, that cottonseed meal is used extensively in this State, not only as fertilizer material, in the making and blending of commercial fertilizers, but as a commercial fertilizer in itself; and, the petition in this case alleging that the cottonseed meal was purchased by the plaintiff as a commercial fertilizer, the court erred in dismissing the petition on general demurrer.

Judgment reversed.

Jenkins and Bloodworfh, JJ., concur.


text:
    7708.
    Johnson v. Stevens.
   Bboyles, P. J.

1. The increase of all animals follow the condition of the mother and belong to the owner of the mother at the time of birth. Civil Code, § 3651. Under this section of the code tne plaintiff was entitled to recover not only the bitch .which was wrongfully taken from his possession, but also the puppies afterwards born of her.

¿2.. Jurors are not absolutely bound by opinion testimony as to +hp value of property sued for, although such testimony may not be contradicted by any other evidence in the case. Jennings v. Stripling, 127 Ga. 778 (56 S. E. 1026) ; Bonds v. Brown, 133 Ga. 451 (66 S. E. 156) ; Martin v. Martin, 135 Ga. 162 (68 S. E. 1095; Graham v. Graham, 137 Ga. 668 (74 S. E. 426) ; McCarthy v. Lazarus, 137 Ga. 282 (73 S. E. 493) ; Southern Ry. Co. v. Lowe, 139 Ga. 362 (77 S. E. 44) ; Morris Storage Co. v. Wilkes, 1 Ga. App. 751 (58 S. E. 232) ; Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (62 S. E. 716). In this case the sole evidence as to the value of the property sued for was the following testimony given by the plaintiff: “The said dog and puppies were mine; said property was worth $50; and the reason I say they are worth $50 was that I gave a $25 watch for the hitch.” This testimony amounted to nothing more than that in the opinion of the witness $50 was the value of the dog and her puppies. The question as to their value should have been submitted to the jury, and the trial judge erred in directing a verdict for the plaintiff for $50.

Decided January 23, 1917.

Trover; from city court of Americus—Judge Harper. June 7, 1916.

L. J. Blaloclc, for plaintiff in error. Wallis & Fort, contra.

Judgment reversed.

Jenkins and Bloodworth, JJ., eoneur.


text:
    7725.
    Lytle v. Hancock County.
    Decided January 23, 1917.
    Action for damages; from city court of Sparta—Judge Moore. July 12, 1916.

      L. D. McGregor, R. L. Merritt, for plaintiff.

      Burwell & Fleming, for defendant.
   Broyles, P. J.

1. The negligence of a chauffeur, in failing to avoid danger while driving his master in an automobile, is imputable to the master. Read v. City &c. Railway Co., 115 Ga. 366 (41 S. E. 629).

2. The great preponderance of the evidence was to the effect that the county bridge, on which the plaintiff’s automobile was being driven at the time of the injury sued for, was in a reasonably safe condition, and that her injuries were caused solely by the negligence of her employee and chauffeur, in driving the automobile at a reckless and high rate of speed upon and over the bridge, which, like all other such bridges, slightly sagged in the middle; and that the same chauffeur had often driven over this bridge and was well acquainted with its condition at the time of the injury. The evidence as a whole strongly authorized the verdict returned' for the defendant.

3 There were slight errors in the two excerpts from the charge of the court excepted to, but, under the facts of the case, they were harmless and do not require a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    7728.
    WEATHERLY v. HAYNES, receiver.
    Where land conveyed by a security deed was levied on and sold under a judgment in favor of the holder of the security, and, on a rule to distribute the proceeds of the sale after payment of that judgment, the fund was claimed by the receiver of a bank to which, after the execution of the security deed, the defendant sold and conveyed his interest in the land, and this claim was contested and the fund claimed by the holder of a general judgment against the grantor, rendered after the execution of ■ the latter conveyance, the court did not err in holding that the receiver of the bank was entitled to the fund in preference to the contesting judgment creditor.
    Decided January 23, 1917.
    Money rule; from city court of Hazlehurst—Judge Bryan. June 30, 1916.

      S. D. Dell, for plaintiff in error. Newton Qaslcins, .contra.
   Broyles, P. J.

1. Haynes, as receiver of the Farmers State Bank, filed a petition asking that the sheriff be ordered to pay over to him as such receiver funds held by the sheriff, realized from the sale under fi. fa. of certain land owned by one Frazier. The petition shows that Frazier procured a loan from the Union Savings Bank and executed a deed conveying the land to the bank as security for the payment of the debt; and the bank transferred the debt to Mrs. Annie Busch and conveyed to her its interest in the land conveyed to it by Frazier. She obtained judgment against Frazier and executed and had recorded a deed to him in accordance with the laws of the State, and caused her fi. fa. against him to be levied and the land sold by the sheriff of the county; her deed to Frazier being made (as recited therein) for the sole purpose of having the land levied on and sold to satisfy the fi. fa. in her favor. It was further shown by the petition that after obtaining the loan and executing the security deed, Frazier sold the same land to J. H. Gray, who paid a part of the purchase-price, gave his notes for the balance, and took from Frazier a bond for title to the land. Frazier transferred the unpaid notes of Gray to the Farmers State Bank, and, the notes having matured and Gray being unable to pay them, the Farmers State Bank, with the consent of Gray, paid to Frazier the balance of the purchase price of the property, and took a warranty deed thereto from Frazier, and executed a bond for title to Gray, and took from Gray promissory notes in lieu of the notes given to Frazier. Gray afterward died, but a judgment for the balance due by him to the Farmers State Bank, was taken against him before his death, and that judgment has never been paid. The allegations of the petition show that at the time of the sale of this land by the sheriff no one had any claim to it except Mrs. Busch, the Farmers State Bank, and the estate of Gray. Mrs. Rusch held a deed to it to secure, a debt, and a judgment based on that indebtedness, and therefore her lien dated back to the date of the execution of that deed, just as if the judgment had been rendered and the fi. fa. properly recorded on that date. She thus had a prior lien on the funds arising from the sale, and her rights were not questioned. The Farmers State Bank, having paid Frazier the purchase-money, less the amount Gray had paid and the indebtedness secured by the deed to Mrs. Rusch, and having, with the consent of Gray, taken a warranty deed thereto, became the owner of the land, subject to the rights of Mrs. Rusch and Gray., Under all the facts as shown by the petition, the claim of Mrs. Rusch having been fully paid, the receiver of the bank was entitled to the proceeds of the sale, and to maintain a rule to distribute the funds, and the court did not err in overruling the demurrer to the receiver’s petition, interposed by the intervenor, who was the holder of a general judgment against Frazier, rendered after Frazier had executed his deed to the Farmers State Bank, and who contended that the petitioner had no lien of any kind against Frazier. See Crawford v. Williams, 76 Ga. 792 (2), 794.

2. Under all the facts of the case, as disclosed by the record, including the admission of the administrator of the estate of Gray that he did not claim any part of the funds as administrator or otherwise, the court, sitting by consent without the intervention of a jury, did not err in directing the sheriff to pay the money to Haynes, the receiver of the Farmers State Bank.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Brovx.es, P. J.

text:
    7736.
    White Crown Fruit Jar Company v. Cox Company.
   Brovx.es, P. J.

1. The substantive fact that numerous complaints had been made by wholesale and retail dealers, and by individual users, to the effect that the “White Crown” caps would not properly fit “Mason” fruit jars, was admissible in evidence. Stewart v. Lanier House Co., 75 Ga. 582 (4); White v. East Lake Land Co., 96 Ga. 415 (23 S. E. 393, 51 Am. St. R. 141). Under this ruling there is no substantial merit in the 4th, 5th, 6th, 7th, 8th, and 9th grounds of the amendment to the motion for a new trial.

2. The charge upon the subject of the statute of frauds, as set forth in the 12th ground of the amendment to the motion for a new trial, was erroneous, it not being adjusted to the facts in the case. The defendant company, by the testimony of its president, Cox, admitted that it authorized the plaintiff’s agent to sign its name to the order; and the issue raised by the defendant’s plea of the statute of frauds was therefore eliminated. This plea was also expressty abandoned by the defendant. Further, a part of the instructions therein complained of, to wit, “if the defendant ordered these goods and gave any writing by which he was permitted to countermand the same,” was unauthorized, there being no evidence whatever of any writing by which the defendant was permitted to countermand the order.

Decided January 23, 1917.

Complaint; from city court of Waycross—Judge McDonald. July 3, 1916.

Paries & Reed, for plaintiff.

Parker & Parker, for defendant.

3. The following charge was error: “On the other hand, if the defendant did not give that order, as I have already outlined to you, containing all of the conditions with full knowledge of all of them, and did not authorize an3'body to give it, and countermanded an oral order before the goods were shipped, as contended by it, then, if that is true, the plaintiff would not be entitled to recover.” The record does not disclose any contention or any evidence that the defendant had countermanded an oral order before the goods were shipped.

4. There is no substantial merit in any of the other special grounds of the motion for a new trial which are based upon alleged errors in the charge of the court. ,

5. - It was not error for the court to fail to give in charge to the jury the provisions of section 5741 of the Civil Code, there having been no timely written request for such instructions.

6. As there will be a new trial of the case, the complaint that the jury inadvertently took with them to the jury-room, when they retired to make up their verdict, the interrogatories and answers of certain of the defendant’s witnesses, along with the pleadings and the documentary evidence in the case, will not be passed upon, as it is very unlikely that such an irregularity will recur upon another trial.

7. A new trial being required by the errors already pointed out in the charge of the court, the sufficiency of the evidence to sustain the verdict will not be considered.

Judgment reversed.

Jenkins and Bloodioorth, J.J., concur.


text:
      7755.

    BISHOP v. MAYOR & ALDERMEN OF SAVANNAH.
    The petition as amended set forth a cause of action against the city, and the court erred in dismissing it on general demurrer.
    Decided January 23, 1917.

      Action for damages; from city court of Savannah—Judge Davis Freeman. July 31, 1916.

      Oliver & Oliver, for plaintiff.

      Robert J. Travis, David S. Atkinson, for defendant.
   Broyles, P. J.

This was a suit against the city of Savannah for personal injuries. The petition alleged, that “on September 3, 1915, and prior thereto, the mayor and aldermen of the city cf Savannah, through its agents, servants, and employees, had been engaged in the laying of a pavement on that portion of the Louisville road west of the Ogeechee canal, and in performing other general repairs and overhauling of the said street, and, while so employed, they had and maintained a 'large concrete mixing machine, which concrete mixing machine the said mayor and aldermen of the city of Savannah had, through its servants, agents, and employees, set up in close proximity to the street-car track of the Savannah Electric Company passing westward on the Louisville road. On September 3, 1915, petitioner was employed as a street-car conductor for the Savannah Electric Company, and at about 7:30 o’clock upon that morning was running his car out the Louisville road to Mill Haven, and had on his car thirty-nine or forty passengers. Petitioner was busily engaged and had his attention centered in the collecting of fares from his many passengers, and in attending to the varied duties required in the operation of a street-car, and, as his car was proceeding westward, ho was standing on the running board, on the right-hand side of said car, going west, with his face toward the inside of the car, collecting his fares aforesaid, and, as he was thus standing, with his right side toward the front of the car and his face toward a passenger, of whom he had just collected a fare, and as he was reaching up to ring up the fare which he had just collected, he was struck just back of his right ear by the concrete mixing machine, which was at that time standing . . about eighteen inches from the north rail of the street-car track. This position was so close to the said street-ear track as to be a menace to the employees of the Savannah Electric Company and passengers thereof, which fact was known to the said mayor and aldermen of the city of Savannah, its servants, agents, and employees. In the exercise of ordinary care the mayor and aldermen of the city of Savannah should have known of such danger, . . . the concrete mixing machine being then in the position where it had been placed by the mayor and- aldermen of the city of Savannah.” The petition then minutely describes the .injuries sustained by the plaintiff, and proceeds as follows: “At the time -of receiving the injuries described he was in the exercise of all ordinary care and diligence, did not know of the presence of the concrete mixing machine, could not, in the exercise of ordinary care, have discovered the same, and is free from fault. Petitioner’s injuries are due entirely to the fault and negligence of the mayor and aldermen of the city of Savannah, for the following reasons: (1) Because the said mayor and aldermen of the city of Savannah had stationed said mixing machine in such close proximity to the street-car track as to be a menace to petitioner and other persons properly riding on street-cars. (2) Because the said mayor and aldermen of the city of Savannah had not performed its legal duty in having its streets reasonably clear of obstructions, for the operation of streetcars thereon, as it is legally bound to do. (3) Because the said mayor and aldermen of the city of Savannah, for the reasons aforesaid, had not furnished a safe and suitable highway for the operation of street-cars along the said track.”

Questions of negligence are ordinarily for the jury. In this case, under the facts as shown in the petition, there are several such questions, to wit: (1) Was it negligence for the city to leave the concrete mixing machine within eighteen inches of the street-car track? (2) If so, was such negligence the proximate cause of the plaintiff’s injuries, or was it a contributing cause thereto? (3) Was the plaintiff, or the motorman of the streetcar, negligent, under the facts as alleged, in attempting to move the street-car by the concrete mixing machine? (4) If so, was such negligence the proximate cause of the plaintiff’s injuries, or a contributing cause thereto? (5) Could the plaintiff, or the motorman, by the exercise of ordinary care, have avoided the consequences of the defendant’s previous negligence? All these questions of fact, with appropriate instructions, should have been submitted to the jury. It follows that the court erred in dismissing the petition on general demurrer.

Judgment reversed.

Jenkins, and Bloodworth, JJ., concur.


text:
    7764.
    City of Greensboro v. Robinson.
    Decided January 23, 1917.
    Action for damages; from city court of Greensboro—Judge Sibley. July 17, 1916.
    Paragraph 2 of the decision relates to the following ground of the demurrer to the petition: “The petition shows on its face that when the exhibit attached is construed in connection with the petition, no proper notice such as is required by section 910 was given the governing authority of said city, because (a) the said exhibit shows that plaintiff was endeavoring to effect a compromise, which would not be admissible' in evidence and which would not be sufficient as a notice such as is required by law; (5) the said notice is not addressed to the defendant who is sued, but is addressed to the mayor and councilmen, and such notice rvould not be notice to this defendant such as is required by statute.” The notice referred to is addressed: “To the Mayor and Aider-men of the City of Greensboro, to wit, Honorable F. E. Boswell, mayor, and others. Dear Sir.” It gives the time, place, and extent of the injury complained of, states how it occurred, and that the culvert and sidewalk where the plaintiff fell were “deficiently constructed” in particulars specified, that it was the duty of the city to remedy this condition or provide certain safeguards specified, which were not provided, and that such precautions “would have avoided-this accident;” damages were claimed in a specified sum, afterwards sued for in this action; and the notice concluded as follows: “Please advise us if you are willing to make settlement of this claim or undertake to compromise it without having suit brought.” It is alleged in the petition and admitted in the answer that “the City of Greensboro is a municipal corporation . . duly chartered by an act of the legislature approved July 27, 1904, and made liable to sue or be sued under said corporate name,” that “the governing body of said City of Greensboro is a mayor and aldermen or councilmen, the present mayor being E. E. Boswell, . . and service may be perfected upon-said city through them;” and that the notice referred to was handed to the mayor. On this ground of the demurrer counsel for the plaintiff in error cited: Political Code (Í910), § 910; Acts of 1904, p. 461; • Saunders v. Fitzgerald, 113 Ga. 620; City of Golumlus v. McDaniel, 117 Ga. 823; City of Tallapoosa v. Brock, 138 Ga. 622; Bostwick y. Griffin, 141 Ga. 120; Mayor <&c. of Macon y. String-field, 16 Ga. App. 480; Code, § 5781. Counsel for defendant in error cited: Kennedy v. Savannah, 8 Ga. App. 99; City of Sanders-ville Y. Stanley, 10 Ga. App. 361; Smith y. ETberton, 5 Ga. App. 286; 28 Cyc. 1749B, notes 94, 95, and statutes cited supra.
   Broyles, P. J.

1. In the absence of any statutory requirement, a municipal corporation is under no obligation to light its streets with lamps; and no liability will arise from the exercise of its discretion in regard to whether it will do so or not. But if a municipality allow a street to remain out of repair or in a dangerous condition, the absence of lights or of safeguards of any character at the place may be con- . sidered, along with all the other evidence, in determining whether there was negligence in failing to keep the street in a reasonably safe condition for passage. Williams v. Washington, 142 Ga. 281 (82 S. E. 656, 53 L. R. A. (N. S.) 325, Ann. Cas. 1915B, 196).

2. The notice by the plaintiff to the governing authorities of the city, in regard to his claim for damages for personal injuries, given before the filing of his suit, was a substantial compliance with the provisions of section 910 of the Political Code (1910).

3. The petition as amended was not subject to the demurrers interposed, and the court did not err in overruling them.

4. When considered in connection with the entire charge of the court, the various excerpts complained of contain no material error.

5. Under the pleadings in the case it was not necessary for the plaintiff to show by the introduction of evidence that he had served the governing authorities of the city with the notice required by section 910 of the Political Code.

6. Under all the facts of the case, it was for the jury to say whether the city was negligent in constructing and maintaining the hole, four feet long (between the street and the sidewalk), in which the plaintiff fell; and, if they found that the city was negligent in this respect, to determine further whether such negligence was the proximate cause of the plaintiff’s injuries. The jury heard all the evidence on the subject, and personally inspected the street and the hole, and their finding on the subject, approved by the trial judge, will not be disturbed. It was also for the jury to say whether the plaintiff, by the exercise ' of ordinary care, could have avoided being injured. Likewise, it was a jury question as to whether the plaintiff was guilty of contributory negligence.

7. The verdict was supported by the evidence.

Judgment affirmed.

Jenkins and Bloodmorth, JJ., eoneur.

Noel P. Park, for plaintiff in error.

Lewis, Davison é Sims, contra.


author: George, J.

text:
    7346.
    MITCHELL v. SCHOFIELD’S SONS COMPANY.
    1. Exceptions to tlie rejection of evidence are without merit where it appears from the approved brief of evidence that the rejected evidence was, later during the trial, admitted for consideration by the jury.
    2. Evidence in behalf of the plaintiff, that, after the collapse of a scaffold, resulting in the death of her son, the defendant took additional precautions in the rebuilding of the scaffold, to prevent others from being likewise injured, was properly rejected, although offered in rebuttal of the contention that defendant had provided him with a scaffold “equal to those in general use and reasonably safe.” Such evidence can not logically be considered as in effect an admission that the defendant was negligent in not sooner observing such precautions.
    3. In a suit against a master (other than a railway company) for the negligent homicide of the servant, where the evidence showed that the servant knew of a defect in a scaffold, complained thereof to the master, and was assured by the master that the place was safe, the following charge to the jury was harmful error: “If you believe this scaffold was negligently built, and you also believe Mitchell was ordered to go in and upon this, scaffold to work, with assurance from Stanley that it was safe, and such assurance on the part of Stanley was a negligent assurance or order or invitation to do the work, still if you believe that Mitchell knew of the defects in the scaffold, or if he had equal means with Schofield’s Sons Company of knowing, or if by the exercise of ordinary care he might have known of the defects, if there were any, then I charge you Mrs. Mitchell could not have a verdict at your hands.” This instruction was not expressly withdrawn, modified, or limited; and the court erred in overruling the motion for a new trial, in which error was assigned thereon.
    4. The rule of res ipsa loquitur is not applicable in this case, and the request to give it in charge to the jury was properly refused.
    Decided February 1, 1917.
    Action for damages; from city court of Macon—Judge Hodges. February 21, 1916.

      B. S. Wimberly, for plaintiff. Miller & Jones, for defendant.
   George, J.

This case was before this court at the March term, 1915; and the character of the action is sufficiently shown and the material facts of the case clearly stated in the opinion then delivered by Judge Broyles. 16 Ga. App. 686 (85 S. E. 978). It is proper to add that the plaintiff predicated her action upon the theory that although her son, for the value of whose life she sued, believed that the scaffold in question was not substantial enough to carry the weight of the top of the creosote tank, the deceased and a fellow servant suggested this fact to Stanley, the defendant’s vice-principal, who answered that he had built more towers and tanks than these servants ever saw, and knew more about it than they ever would know, and directed them to go ahead and do what he said do, as long as he was foreman of the job. The second trial of the case resulted in a verdict for the defendant, the plaintiff’s motion for a new trial was overruled, and she brought the case to this court for review.

1. The rejection of certain evidence is complained of in grounds 1, 2, 3, and 4 of the amendment to the motion for a new trial, but these exceptions are not of sufficient merit to require especial notice, and particularly since the rejected evidence.was in substance admitted by the court, as will appear from a close reading of the brief of the evidence.

2. In ground 5 it is complained that the court refused, on cross-examination of the vice-principal of the defendant, to allow the following question: “When you rebuilt this scaffold, didn’t you rebuild it with braces to the outside scaffold, with uprights down the middle, on the side, and with an upright in the middle of the scaffold to support the cone of the roof?” It is insisted that this question, to which an affirmative answer was expected, should have been allowed on cross-examination and in rebuttal of one of the' contentions made by the defendant in error, to wit, that the scaffold was equal to those in general use and was reasonably safe. We think that this evidence was properly rejected, and that the same considerations of public policy stated by the Supreme Court of this State in the ease of Georgia Southern & Florida Ry. Co. v. Cartledge, 116 Ga. 164 (42 S. E. 405, 51 L. R. A. 118), apply with equal force whether such evidence be offered in chief, or in rebuttal of one of the contentions made by the defendant in the trial of the case. Central Ry. Co. v. Price, 121 Ga. 651, 658 (49 S. E. 683).

3. In grounds numbered 6 to 19, inclusive, exceptions are taken to instructions to the jury. Many of these exceptions go merely to the form of expression used by the court, and are of no moment. Certain of the instructions do go to the very substance of the plaintiff’s case. In ground 17 complaint is made of the following charge: “If you believe this scaffold was negligently built, and you also believe Mitchell was ordered to go in and upon this scaffold to work, with assurance from Stanley that it was safe, and such assurance on the part of Stanley was a negligent assurance or order or invitation to do the work, still if you believe that Mitchell knew of the defects in the scaffold, or if he had equal means with Schofield’s Sons Company of knowing, or if by the exercise of ordinary care he might have known of the defects, if there were any, then I charge you Mrs. Mitchell could not have a verdict at your hands.” Mas this charge the law of the case? It will be conceded that it is the master’s primary, non-delegable duty to furnish the servant a safe place in which to work, and the servant' has a right to rely, without inspection, on the assumption that the master has performed this duty. If .at any-time the place seems unsafe, it is his duty to inform the master of that fact, and if the master assures him that he, the master, knows his business, and that it is safe, the' servant has the right to rely on that assurance, unless the danger is so obvious that no man of ordinary prudence would take the risk. On -principle, it would seem that the question for solution would be: Did the servant exercise ordinary care in continuing at the work? If he did, then he should be allowed to recover. To hold otherwise would in effect preclude all claims where’ the servant relied on 'the assurance of the master after he (the servant) had complained that the place or appliance was in a dangerous condition. The very fact of the complaint shows that in the servant’s judgment the place or appliance was dangerous. The substantial fact to be determined in such case—■ and that by the jury—is: Did the servant exercise ordinary care and prudence in continuing in the employment and in the use of the scaffold in question? Me of course exclude that class of cases where the danger of remaining at work is so hazardous that ordinary minds would not differ in saying that the servant should not have so remained, but if it is a question about which reasonable minds might differ, then it should be determined by the jury. This charge of which complaint is made amounts to the direction of a verdict for the defendant; because it must be remembered that the plaintiff’s case is predicated upon the proposition that her son knew of the defect in the scaffold, and complained of it, and was assured by the master that the master knew its business and that the scaffold was safe.

How does the statement embraced in the excerpt quoted from the charge stand upon authority? In Bush v. West Yellow Pine Co., 2 Ga. App. 295 (58 S. E. 529), it was held: “.Mhile ordinarily the law reads into contracts of employment an agreement on the servant’s part to assume the known risks of the. employment, so far as he has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied contract to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands him to proceed with the work and assures him there is no danger, the law implies a quasi new agreement whereby the master relieves the servant of his former assumption of the risk and places responsibility for resulting injuries upon the master.” In Smith v. Southern Railway Co., 8 Ga. App. 822 (70 S. E. 192), it was declared: “The agreement of the servant to assume the risks incident to his employment, which may ordinarily be implied as one of the stipulations of the contract of employment, may be abrogated by an express or implied contract to the contrary. If the servant states to his master that the performance of a duty in a certain way is likely to be dangerous and to render the place where he is working unsafe, and thereupon the master assures him that the act which he requires him to do is - not attended with danger, and the servant, upon this assurance and the implicit command of the master, attempts to do the act which the master suggested could safely be done, and, in doing it, is injured, the master is liable, because the law implies a new agreement, superseding the agreement to assume 'the risk, whereby the master relieves the servant of his former assumption of the risk, and places the responsibility for the results of his eommand upon himself.” In Massee & Felton Lumber Co. v. Ivey, 12 Ga. App. 583 (77 S. E. 1330), it was held: “Under the allegations of the petition, the servant’s implied assumption of risk was abrogated by the assurance of the defendant’s foreman that he was in a safe place to work, and the foreman’s command that he continue to work with the instrumentalities which had been furnished by the master.” The court declared that case to be controlled by the rulings in Bush v. West Yellow Pine Co. and Smith v. Southern Railway Co., supra, and declined to overrule the decisions in those cases. The same principle is ruled in Cherokee Brick Co. v. Hampton, 16 Ga. App. 53 (84 S. E. 328). Thompson, in his Commentaries on the Law of Negligence, vol. 4, § 4664, says: “It may be collected from the almost unanimous current of judicial authority that, if the servant complains of or directs attention to a defect or danger in the place where he is required to work, or in the tools, machinery, or appliances with which he is required to work, and thereupon the master, or his representative, assures him that he can proceed without danger, and requests or commands him to continue his work, the servant will not, as matter of law, be put in the position of háving accepted the risk, or of having been guilty of contributory negligence, because of relying upon the presumedly superior knowledge of his master or of his master’s representative, and continuing the work. The servant will not be imputable with wrong for thus acting upon the advice or assurance of the master or his vice-principal, nor will it lie in the mouth of the master to impute blame to the servant for so doing. So, it has been held that a servant has a right to rely on the superior judgment of the master in directing certain work to be done in a particular way, although the servant knows the dangerous character of the work, unless the danger is so manifest that no reasonably prudent man would undertake it in the same situation. A possible exception to the rule arises where, notwithstanding the advice, assurance, or command, the danger is imminent and glaring, or at least so obvious that an ordinarily prudent man would not, even under the circumstances, encounter it.”

In a case of this character the master may plead, (1) that the servant assumed the risk incident to the work, and (2) that he was guilty of negligence in continuing in the work, and that this negligence either partially or entirely caused his injury. These defenses are distinct, although in actual practice they often merge. While the servant ordinarily assumes the risk incident to his employment, yet, if the servant complains of. a defect in the place or appliance, and is expressly assured by the master that the place or appliance is safe, the servant can not be held as matter of law to have assumed the risk incident to the work, but it then becomes a question whether he has brought about, by his own negligence, the injury of which he complains. It is clear that, where he knows of the defect in the place, and complains of it to the master, and is by the master assured that the place is safe, and relies on such assurance, his contributory negligence in remaining in the work will defeat his action only when ordinary minds would not differ in saying that his act in remaining was so obviously dangerous that no prudent man would continue in the work. In the instant case, if the jury should find that Mitchell complained of a defect in the scaffold, and if they should find that the master negligently assured him that the scaffold was safe for the purposes intended, the plaintiff may recover, unless the defect was so obviously dangerous that no ordinarily prudent person would continue to use the scaffold. While the defenses referred to above, under these facts, practically merge, it can not be stated, as a matter of law, on the facts in this record, that the servant did assume the risk of going upon the scaffold; nor can it be said, as a matter of law, as the court in this case did say, that his act in going upon the scaffold, with knowledge of the defect, was such contributory negligence as would bar a recovery. Of course, the plaintiff can not recover if her son failed to exercise ordinary care in the premises, notwithstanding the express command and assuranec of the master. Every one is bound to exercise ordinary care for his own protection, and what is ordinary care must necessarily depend in every ease upon all the facts and attendant circumstances of the case. If no ordinarily prudent person would go upon the scaffold with knowledge of the defects therein, then, the plaintiff in this case can not recover, even though the jury should find that there was an express command, negligently given, by the master to go upon the scaffold, coupled with an express assurance that the scaffold was a safe place for the purposes intended.

Since the excerpt from the charge of the court, herein considered, was nowhere in the charge expressly withdrawn, limited, or modified, a new trial must be granted the plaintiff. We are loath to disturb this, the second, verdict for the1 defendant, but the plaintiff is entitled to have her case'submitted to the jury with proper and correct instructions on the law; and until this has been done, it is the duty of this court to interfere in her behalf. The learned trial judge, who at the time of his death was a member of this court, with the commendable frankness apparent throughout his judicial career, impressed upon the jury the controlling principles of the law applicable to this case, as he understood them. We simply differ, with all due deference to the views of our departed brother, in the application of the substantive principles of law to the facts in this case.

3. The plaintiff excepts to the refusal of the court to give in charge certain requests applying in effect the rule of res ipsa loquitur. The charge requested is not applicable to the facts in this case, and is not applicable in any case between a master and a servant where the evidence accounts for and explains the cause of the occurrence or accident. 4 Labatt on Master & Servant (2d ed.), § 1361 et seq.

The judgment overruling the motion for a new trial is

Reversed.

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


author: Luke, J.

text:
    7417.
    Cook et al. v. Robinson.
    Decided February 1, 1917.
    Complaint; from city court of Oglethorpe—Judge Greer. March 8, 1916.

      John B. Guerry, for plaintiffs in error. Jule Felton, contra.
   Luke, J.

The purchaser of an automobile sued the vendors for $400, the purchase price. The record discloses that the car was sold on April 4, 1914, and was kept and used by the plaintiff until some time in August of the same year, when it was returned to the defendants. The suit was not filed until 1915, and was tried at the October term of that year. The trial resulted in a verdict against the defendants for $337. In their motion for a new trial, the refusal of which is assigned as error, they complain of the following charge of the court to the jury, as to the measure of damages: “If you believe, from the evidence, that the property—the car—was worthless, was worth nothing at all, then, as damages for the breach of warranty, Robinson (the plaintiff) would be entitled to recover the full amount of the purchase price to be paid for it. If you believe, however, that there has been a breach of warranty on the part of Cook (defendant), and that Robinson is entitled to recover, and if you believe the car is of some value, that it has a value in spite of the defects alleged, then determine what that value is, and the plaintiff will be entitled to recover the difference between that value and the purchase price agreed to be paid.” Eeld: Under the facts of the ease, this charge was error. The court should • have instructed the jury that the measure of damages (if any damage had been sustained by the plaintiff) was the difference between the purchase price of the automobile and its market value on the day it was purchased.

Judgment reversed.

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