text:
    8235.
    SOUTHERN RAILWAY COMPANY v. YOUNG.
    Under the allegations in the petition _ as amended, it is clear that the injury resulted from failure on the part of the plaintiff to exercise ordinary care; and, notwithstanding the antecedent negligence of the railway company, no recovery could be based upon the facts alleged. The court therefore erred in overruling the general demurrer.
    Decided June 27, 1917.
    Action for damages; from Jeff Davis superior court—Judge Highsmith. February 23, 1916.

      Benneb, Twibiy & Reese, Bennett & Swain, for plaintiff in error.

      Robert L. Berner, contra.
   Wade, C. J.

In order that the precise ruling here made may be understood, the original petition filed by the plaintiff, and the amendment afterwards offered and allowed, are given in full, as follows: ■

“The petition of J. M. Young shows:
“1. That the Southern Railway Company, hereinafter termed defendant, is a corporation operating a railroad and having an office and agency in said county.
“2. -That the defendant has injured and damaged your petitioner in the sum of twenty thousand ($20,000.00) dollars by the reason of the facts hereinafter set forth.
. “3. That petitioner during the year 1914 was engaged in the purchase and shipment of cattle.
“4. That on the 14th day of August, 1914, he had purchased and shipped, from Denton, a. station of the Georgia & Florida Railroad Company, a number of cattle from said station of Denton to the city of Macon by way of Hazlehurst, and that upon the arrival of said cattle at Hazlehurst they were to be transferred to the line of the defendant company and thence carried to the city of Macon.
“5. That on the evening of the said 14th day of August, 1914, he left the station of Denton and went to Hazlehurst, arriving there at 10:30 P. M. and upon his arrival he left the depot of the Georgia & Florida Railroad Company and went to the passenger depot of the Southern Railway Company to wait for the arrival of a north-bound train; that the agent of the defendant at said depot informed him that the train that he desired to take had already passed, but that there would be another train some time after midnight.
“6. Petitioner shows that he was interested in seeing his cattle transferred and carried by the next north-bound freight train of the defendant to the city of Macon, which freight train was due to arrive according to the information given him some time before midnight, and that he waited in the depot of the defendant for the arrival of such train for the purpose of attending to the transfer of his cattle for shipment that night to Macon.
“7. Petitioner shows that the Georgia & Florida Railroad track crosses the track of the defendant between a quarter and half a mile south of the passenger depot of the defendant, and at such crossing all trains are required to stop by the law of the State.
“8. That- upon the arrival of his cattle at Hazlehurst that night, they were transferred to a side-track near a stock-pen of the defendant, and the car in which they were located and stock-pen were situated between the passenger depot of the defendant and the said railroad crossing, and they were to be attached or loaded on the freight train of the defendant company upon its arrival at Hazlehurst from this side-track or stock-pen.
“9. Petitioner shows that, after waiting in the passenger depot of the defendant for some time for the arrival of the train; he heard a north-bound train of the defendant blow for said railroad crossing, and this was between 12 and 1 o’clock.
“10. That the right of way of the defendant in front of its passenger depot and extending southward has been elevated by the defendant by enclosing the same within a stone or plank wall, and sand has been placed in said enclosed area for the convenience and advantage of passengers boarding and alighting from its train, and that said elevated walk or area extends between 30 and 50 yards south of said depot.
“11. That there is a public crossing between the said passenger depot and the crossing where the Georgia & Florida crosses the defendant’s track and said crossing is but a very short distance from the southern extremity of said elevated walk.
“12. That upon hearing the whistle of the north-bound train below the railroad crossing, petitioner left the depot and started to go to the place where his cattle were, and see them shipped to Macon, and, in so doing, walked along by the side of the track of the defendant in a well marked path which had been long used by the public, and while so walking the engine of the defendant’s train, which proved to be a passenger, and not a freight, train passed him at a rapid rate of speed, and some portion of said engine or some part of the coaches struck his left side and knocked him down and he was injured as hereinafter set forth, and he was struck before he could get out of the way of said rapidly moving train.
“13. That he had arrived within a few feet of the public crossing when he was struck by defendant’s train.
“14. That as he approached said crossing he was in plain view of the agents and employees of the defendant operating said approaching engine, and was seen, or, in the exercise of ordinary care on their part, could and should have [been] seen by them as he was walking down said track and approaching said crossing.
“15. That he knew that the crossing was a public crossing, and he did [not] anticipate or expect that said train would run over said crossing without checking its speed, but would slow up as required by law.
“16. Petitioner shows that, instead of slowing up or stopping as they approached said crossing, they ran over the same and passed him at a speed of between 15 and 20 miles an-hour.
“17. That the agents and employees operating said train neither rang the bell nor Mowed the whistle as they approached said public crossing.
“18. That there was on said 14th day of August, 1914, in p operation in the town of Hazlehurst an ordinance regulating the speed of locomotives and trains within its corporate limits, which prohibited a train from running within its corporate limits at a greater rate of speed than 10 miles per hour.
“19. Petitioner shows that it was the duty of the defendant, through its agents and employees operating said north-bound train, to have approached said public crossing at such a rate of speed as to have had the train under control in the event any person was approaching said crossing, or was on said crossing, or had just passed over; that it was the duty of said employees to have run the said train at a speed prescribed by the ordinance, to wit, not more than 10 miles an hour at said place; that it was the duty of said employees to have stopped said train when they saw, or in the exercise of ordinary care could and should have seen, petitioner walking by the side of said. track, and approaching said public crossing, or in any event to have warned him of their approach and of his danger.
“30. Petitioner charges that the defendant,- its agents and employees, were guilty of the following acts of negligence, each and all of which contributed to petitioner’s injury:
“ (a) In that said agents and employees operated said train at a greater rate of speed than 10 miles an hour, contrary to the ordinance of the town of Hazlehurst.
“(b) In that said agents and employees failed to observe the statute of the State known as the crossing law, and to so check said train as it approached the public crossing as to have had the same under control so as not to injure persons approaching said crossing, on said crossing, or just passed over said- crossing.
“ (c) In that the agents and employees operating said' train failed to stop the same after discovering, or after they could and should in the exercise of ordinary care have discovered, the presence of petitioner close to said track.
“ (d) In that the agents and employees of the defendant operating said train failed to warn petitioner of his dangerous proximity to said track after they discovered, or in the exercise of ordinary care could and should have discovered, his presence near said track.
“(e) In that the agents and employees operating said train, after they discovered, or in the exercise of ordinary care could or should have discovered, the presence of petitioner near said track, continued to run the said train at a speed of between 15 and 30 miles an hour.
“31. Petitioner was struck by said train on the left side and thrown violently to the ground, his left leg was broken above and below the knee, and his left ankle was bruised and twisted, and that the said ankle had never healed and is still swollen and twisted, and he will never be able to use his left foot again; that two toes of his right foot were so severely mashed that they had to be amputated, and that said wounds have never healed, although more than 4 months have elapsed since the reception of his injury, that he has been confined to his bed since he was injured and has never been able to walk,, and can only move from one place to another in roller chair; that he has suffered during all this time the most horrible pain, and will continue to suffer the same to the day of his death.
“22. That he has been compelled since his return from Hazlehurst to his home to employ a physician to attend upon him and has, outside of his medicines, incurred a physician’s bill of between $100 and $200, and that said bill will necessarily continue to increase on account of his continued suffering and illness resulting from his injury.
“23. That petitioner is 61 years of age and is-a farmer and cattle buyer.
“24. That by his farming operations and the purchase and sale of cattle [he] was earning $400 a month at the time of his injury, but that since said time he has earned nothing, nor will never be able to work again, and that his earning capacity has been totally destroyed;
“25. Petitioner'sues for the loss of earning capacity, for the doctor’s bill, and for his .pain and suffering, past, present and future.
“Wherefore petitioner prays process may issue requiring the said defendant to be and appear at the next term of said court to answer petitioner’s complaint.”
“Now comes the plaintiff in the above stated case, and, by leave of the court first had, amends his petition therein as follows:
“1. By inserting after the words ‘him’ in the. fourth line of the sixth paragraph of said petition the words ‘by the agent of the defendant at its depot,’ and between the words ‘before’ and ‘midnight’ and the fifth line, the words ‘or about,’ so that said petition thus amended will read as follows;
“‘Petitioner shows that he was interested in seeing his cattle transferred and carried forward by the next north-bound freight train of the defendant to the city'of Macon, which freight train was dne to arrive, according to the information given by the agent of the defendant at its depot, at some time before or about midnight, and that he waited in the depot of the defendant for the arrival of said train, for the purpose of attending to the transfer of his cattle for shipment that night to Macon.’
“2. By adding to the end of the ninth paragraph the following allegations i
“‘When said train Mowed for said railroad crossing the agent of the defendant company at its depot informed petitioner that' this was a freight train which was to take oh his cattle and that the same would stop at the crossing of the Georgia & Florida Bailroad, and would afterwards take on the car with his cattle in it, and that if he desired to see it was done he should go down and attend to it, and for this purpose he started down in the direction of the crossing for the purpose of attending to the transfer of his cattle. It was the custom and rule of the defendant [not] to • accept cattle from other roads if - they were lying down, inasmuch, if they were lying down, they might be sick and not in good condition, and petitioner was going down to the place where his cattle [were], to see that they were on their feet and thus secure their being accepted and taken to Macon.’
“3. By inserting between the words ‘by’ and ‘the’ in the sixth line of the 12th-paragraph of said petition the following words:
“ ‘By large numbers of the public both day and night going between the depots of the defendant and the Georgia & Florida Bailroad, with the knowledge and consent of the defendant.’
“And by adding to the end of the 12th paragraph as amended the following:
“‘The path along which plaintiff was walking was in the town, with people living all around it, and who, as hereinbefore set forth, used the same both day and night.’
“4.- By adding to the 13th paragraph of said petition the following allegations:
‘“Petitioner was approaching said crossing for the purpose of passing over the same and getting on the opposite side of the track when he was struck.’
*‘5. By inserting after the word ‘engine’ in the third line of the fourteenth paragraph the words ‘for 150 or more yards’ and by striking from the fourteenth paragraph of said petition the words ‘or in the exercise of ordinary care on their part could and should have been seen by him’ and inserting in lieu thereof the words ‘by the agents and employees operating said trains/ and by adding [to] the said paragraph the following words: ‘and said agent and employees could have easily stopped said train before they struck petitioner if they had exercised ordinary care in its operation.’
“6. By adding to the nineteenth paragraph of said petition the following words: ‘that it was the duty of said employees to have anticipated the presence of persons walking along said path by the side-track where petitioner was walking at the time of his injury and to have had their train under such control as, to have avoided injuring anyone using said path.’ Petitioner shows that he believed said train was a freight train, as he had been informed by the agent, and that it would take on his cattle, and it being dark he couldn’t tell as he walked down the path whether the said engine was coming towards him, or backing from him to couple on the car with his cattle, but thought that it was backing, and suddenly in a second it came on him at a great rate of speed, and before he could get away it sucked him in and injured him as herein set forth.
“7. By adding to paragraph twenty an additional subdivision to be known as subdivision (f):
“‘In that the agents and employees operating said train failed to anticipate the presence of persons along said path and in failing to so operate said train in anticipation of such presence as to have had it under such control as that they could have avoided injuring such persons.’
“8. By adding to paragraph twenty an additional subdivision to be known as subdivision (g):
“‘In that the agents and employees operating said train wilfully or wantonly continued to run said train at a great rate of speed after discovering the presence of petitioner close to the track, and, as a result of such wanton or wilful conduct in so. running said train, petitioner was struck by the same and injured.’
“9. Amend 17th paragraph by striking ‘15 and 20,’ inserting in lieu thereof ‘30 to 35’ an hour.”

Every case of this character must stand largely upon its Qwn facts, and questions of negligence are questions of fact, and therefore come within the peculiar province of the jury; but nevertheless, where facts are considered on demurrer and any rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary care on the part of the plaintiff, the demurrer should be sustained and the case ended without requiring the defendant to resist a possible recovery not authorized under the facts as alleged. The petition in this case does not allege that the path which the public habitually used and along which the plaintiff was walking was not a safe place, if properly used, or that it was not wide enough for the plaintiff to have placed himself in perfect safety by stepping away from the track of the on-, coming train without leaving the path and without coming into contact with any obstruction upon the railroad track on the other side. The plaintiff was walking by the side of or near the track, and not upon it, and was going towards the approaching train with the knowledge that a train was expected, and with the purpose of meeting it. He proceeded along the side of the track until he saw the train approaching upon the particular track by the side of which he was walking. It is not alleged that he was blind or deaf, or that the locomotive with its attendant train of cars was proceeding noiselessly as it rushed rapidly along; and hence he must have seen and heard it approaching, and by the exercise of the smallest degree of care in taking one, or perhaps two, steps away from the track, he could have placed himself in a position of absolute safety, so far as any collision with the locomotive or cars might be concerned. Locomotives are ordinarily equipped with headlights; and, since this accident occurred after midnight, in the absence of any allegation to the contrary it is fair to assume that the headlight was burning and clearly visible by the plaintiff long before the locomotive reached him. In fact he alleges in his amendment that he “couldn’t tell as he walked down the path whether the said engine was coming towards him or backing from him;” which at least implies that he saw the engine on the track by the side of which he was walking and knew it was in motion (and, as the night was dark, he must have seen it, by reason of the fact that it was lighted up in some way), but he made no effort to remove himself from his close and dangerous proximity to the track; and likewise, he alleges in paragraph 3 of the.amendment that the train blew for the railroad-crossing, and he was thus apprised of its approach and of the necessity for'caution.

The case of Central Railroad &c. Co. v. Smith, 78 Ga. 694 (3 S. E. 397), is so nearly in point that we can not refrain from quoting an extract therefrom, which is in the graphic and lucid language of Chief Justice Bleckley: “The train was probably running at a much higher speed than it ought to have run so near to a crossing. There was some evidence tending to show that the speed was low; but grant that it was high, too high, and that there was very great negligence on the part of the railroad company, yet it is manifest that Smith was out of his place at the time he was injured. Grant that the track was often used by persons to walk along it; that there was no objection to such use; that Smith was there hy implied or tacit license; he was there under circumstances that required him to have all his senses on the alert for trains, and to get out of the way when any of them approached. It would be flagrantly unreasonable and improbable to presume that he or any one else had the shadow of a right to use the track, especially at such an hour, on any other condition. The train was on its regular schedule time. He quietly walked along upon the track as if it belonged to him; the train struck him, knocked him down and broke his leg, those on the engine not seeing him or being aware of his presence. It was at least as much his business to look for the engine as it was the engineer’s business to look for him. The engine was a much larger object than he was; it carried a headlight and could have been seen as far as he could. It was not possible for the engineer to have discovered him on the track sooner than he could have seen the headlight. The presence of the engine was more to be expected by him than his presence was to be expected by the engineer. He had much less reason to be surprised than the engineer had. As a matter of fact, to walk along the middle of a railroad track between crossings when it is dark, and without knowing and remembering whether a train is due or not, and without looking out in both directions for trains that may be due, and without listening attentively and anxiously for the roar and rattle of machinery as well as for the sound of bell or whistle, is gross negligence.” The language of Judge Russell in the case of Georgia Railroad Co. v. Williams, 3 Ga. App. 272, 274 (59 S. E. 846), is aptly descriptive of this case: “The allegations of the petition, so far from negativing the idea that the deceased, by the exercise of ordinary care, could have avoided the injury, make it apparent that if he had used his senses of sight and hearing in his own behalf in an ordinarily diligent way, the casualty could have been prevented.” This court, again said, in Central of Georgia Railway Co. v. Mullins, 7 Ga. App. 381, 386 (66 S. E. 1028) : “If this be true, the deceased could have seen. the approaching train some distance before it reached him, and ■ he was charged with the duty of exercising ordinary care and diligence to see it and to avoid any injury by reason of the rapid speed with which it was approaching.” See also Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 308, 54 L. R. A. 802), where the Supreme Court said: “If the.negligence of the defendant was existing at the time the plaintiff was hurt, and he, in the exercise of that degree of care and caution which an ordinarily prudent person would exercise under similar circumstances, could have discovered the defendant’s negligence, and, when discovered, could, by the - exercise of a like degree of care, have avoided the same, then he 'can not recover.” See also Comer v. Shaw, 98 Ga. 545 (25 S. E. 733); Lloyd v. R. Co., 110 Ga. 167 (35 S. E. 170).

The plaintiff in this case (under the allegations in the original petition) was going along the side of the railroad-track to meet a train approaching thereon, which he had been informed by an agent of the defendant was coming, and which he had heard blow at the crossing, and which he in fact actually saw approaching, and yet he remained in a position so close to the track that he was struck and injured by the passing of the locomotive and cars, without being prevented by any intervening cause from placing himself at a greater distance from the track and in a place of safety. In the amendment, however, the plaintiff alleges further that while he was walking down the path by the side of the track, unable to determine whether the train was approaching or backing away from him, “suddenly, in a second, it came on him at a great rate of speed, and before he could get away it sucked him in and injured him,” as alleged in the original petition. The allegation in the original petition (paragraph 12), that the plaintiff “was struck before he could get out of the way of said rapidly moving train,” was not stricken by the amendment which added the allegation that the train of tbe defendant company “came on, him at a great rate of speed, and before he could get away it sucked him in and injured him.” In other words, it appears that by one allegation in the petition the plaintiff stated that he was struck at the point where he was walking or stationed when the train passed, and by the other that where he was then stationed was actually outside of the danger zone and where he could not have been struck or injured hut for the fact that the train passed at such a great rate of speed that he was pulled by suction under or against the engine or cars. As suggested in the brief of able counsel for the plaintiff in error, the theory that the injury resulted from the fact that the plaintiff was sucked under or against the engine or cars must be regarded from one of two standpoints, to wit: either this happening was likely to occur under the circumstances alleged to have existed at the time and place of the injury, in which event a man of ordinary prudence would be bound to guard against; or it was an unusual and extraordinary occurrence, not likely to happen, and which a man of ordinary prudence would not be bound to guard against. If it was something likely to happen, the plaintiff himself should have been on guard against the occurrence, as it was the result of a natural law which would be consequently a matter of common knowledge. If the occurrence was not likely to happen and was unusual and extraordinary, the defendant company could not be charged with negligence in not making an effort to stop the train after those in charge of it saw or could have seen the plaintiff walking by the side of the track, but not near enough to it to be struck by the passing engine or cars. If, under the operation of natural laws, those in charge of the train should have anticipated that the plaintiff would probably be sucked under, in, or close up to, or against the train, then the plaintiff would likewise have been bound to anticipate the same result. And if the accident was unusual and extraordinary, and the plaintiff in the exercise of ordinary care and diligence for his own safety could not have anticipated such result, neither could those in charge of the train be expected to anticipate this result.

In this connection see the decision in Davis v. Southern Railway Co., 170 N. C. 582 (87 S. E. 745), where it was said: "The improbability that plaintiff was sucked under the cars is by itself very great, when viewed in the light of his own testimony, and is really contrary to the physical law, but when we examine the other evidence, it becomes conclusive that no such thing ever happened, and that he was injured by his own act. In L. & N. Railroad Co. v. Lawson, 161 Ky. 39, 170 S. W. 198 [L. R. A. 1917B, 1161], the court held a railroad company owed to a licensee walking near its tracks, and who knew of the approach of a train, no duty to slacken its speed of 25 or 30 miles an hour in order to prevent him from being sucked under the train, since, conceding the possibility of its occurrence, it is so remote that ordinary care does not require a railroad company to anticipate or guard against it. It was said in the opinion: ‘The danger of striking a trespasser is infinitely greater than the danger of injuring a licensee by suction. Trespassers are frequently killed. The number of persons actually sucked under trains, even if such cases ever occur, is so infinitesimally small it would certainly be unreasonable to require railroad companies to reduce the speed of their trains for the purpose of avoiding such accidents. If there be any danger from suction, certainly a licensee who knows of the approach of a train, and has a reasonable opportunity to do so, must get away from the track a sufficient distance to avoid being injured in that way. In our opinion, the trial court erred in not directing a verdict in favor of defendant/ The same principle was declared in Graney v. St. L., I. M. & S. Railway Co., 157 Mo. 666 (57 S. W. 376, 50 L. R. A. 153). . . The utter improbability that he was sucked under the cars is shown by this story when compared with the other evidence, and our common knowledge that such is not the ease at that part of a train, there being nothing to create a vacuum and cause an inrush of air, so as to create suction towards the car. The force of the air would be outward, centrifugal, rather than centripetal, and this is what knocked him down, if it be true that he fell and lost his leg in that way. It is more reasonable to conclude, as did the learned judge, even against the verdict of the jury, that the plaintiff’s theory was incredible.”

To sum up the whole matter, in the opinion of this court the petition did not, either as originally drawn or as amended, set forth a cause of action, and the trial court erred in refusing to sustain the general demurrer.

Judgment reversed.

George and Luke, JJ., concur.


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    8281.
    LYLE v. PRADE.
    1. It not appearing that the plaintiff in error voluntarily paid off the judgment after the bill of exceptions was filed, the motion to dismiss the writ of error is denied.
    2-7. The verdict was supported by the evidence, and none of the special assignments of error require a new trial.
    Decided June 27, 1917.
    Action for deceit; from DeKalb superior court—Judge Smith. August 29, 1916.
    The defendant in error moved to dismiss the writ of error, on the ground that the judgment against the plaintiff in error (the defendant in the court below) had been fully discharged while the writ of error was pending. From affidavits presented by the movant it appears, that after the bill of exceptions was filed, there being no supersedeas, certain shares of stock belonging to the plaintiff in error were levied on under an execution issued on the judgment against him in this case, and at the sheriff’s sale one of the shares was bid off for him by his agent, for the full amount of the execution, which he then paid to the sheriff, and the execution was marked satisfied. In an affidavit of the deputy sheriff, who stated that he knocked off the property on the bid made for the defendant, it was stated that “the defendant being the purchaser of his own stock, no certificate as provided by statute was made by the sheriff.” A copy of a paper signed by the sheriff, • showing the sale of the stock to the defendant, appears in another affidavit, which states that this paper was taken from the sheriff. It was contended by counsel for the defendant in error that there was no actual sale of the stock, that it was not conveyed out of or into the plaintiff in error, and that the payment of the execution was voluntary, and left only a moot question before the court. In support of the motion the following cases were cited: Ivey v. Payne, 136 Ga. 519; Burlceit v. Dunlap, 9 Ga. App. 671; Bond v. Dong, 133 Ga. 639. Opposing counsel cited: Civil Code (1910), § 6165; Richmond & Danville R. Co. v.'Buice, 88 Ga. 180; Hudson v. Alford, 118 Ga. 669.

      Lawton Halley, Leslie J. Steele, for plaintiff in error.

      Westmoreland & Westmoreland, Marie Bolding, Alonzo Field, ■ contra.
   George, J.

Prade filed suit against Lyle, alleging, in substance, that on July 13, 1912, the plaintiff bought from the defendant ten shares, of the par value of $100 each, of the capital stock of the Milledgeville Hardware Company, a corporation with its principal place of business in Milledgeville, for which he paid the defendant the sum of $1,250; that at the time of the trade Lyle was a stockholder and director and the president of the company; that the purchase of the stock was made in the city of Atlanta, more than 100 miles distant from Milledgeville; that the plaintiff had no opportunity to investigate the truth of the statements made him by the defendant, which, he alleged, induced him to purchase the stock; that he relied upon the defendant’s statements, having known him intimately for a number of years and being acquainted with his general business qualifications; that the defendant’s representations to him were as follows: The Milledgeville Hardware Company Commenced business about the year 1909, with a capital stock of $6,000 fully paid in; it had bought out an established hardware business in Milledgeville, and had earned large dividends from the time it commenced business; in the year 1910 it earned and paid a dividend of 20%, in the year 1911 a like dividend of 20%, and in June, 1912, it declared a dividend of 10% to be paid on November 1 of that year; a statement of the assets and liabilities of the said' business, made on June 1, 1912, and showing a surplus of assets over and above all liabilities, including capital stock, of more than $5,000, was true; the business was in a flourishing condition; the stock was worth more than $125 per share; Lyle was the president of the company, and had been since its organization; he visited the place of business of the company every two weeks, examined the books, and kept up with the business, and the statement of assets and liabilities was true, and it was impossible for anything to go wrong in the said business without his (defendant’s) knowing it. It was alleged, that at the time-the plaintiff purchased the ten shares from the defendant the stock was absolutely worthless, and it was never worth anything after the purchase; that the defendant, at the time he sold the stock to the plaintiff, knew that it was worthless; that in the exercise of ordinary care he should have known that it was worthless, yet he stated positively to the plaintiff that it was worth $125 per share; that this statement was false, to the knowledge of the defendant, and was fraudulently and recklessly made, without.regard to the truth, and for the purpose of inducing the plaintiff to purchase the stock; and that the stock bought by the plaintiff was never issued by authority of the corporation. It was alleged that in July, 1913, the defendant informed the plaintiff that the secretary and general-manager of the company’s business had misappropriated the funds of the corporation, that the period of his misappropriation covered two or three years, and that the misappropriation amounted to something more than $6,000; that the corporation was greatly in debt, and was unable to pay its liabilities for goods bought; and that on December 4, 1913, the defendant, as president of the company, filed a voluntary petition in bankruptcy for the corporation, with a schedule of assets and liabilities, from which it appeared that the liabilities of the company amounted to more than $18,000, and the assets to a little more than $11,000.

The defendant filed an answer, in which he admitted that he was a stockholder and director and the president of the Milledgeville Hardware Company, and that the company declared a 30% dividend in the year 1910, and a like dividend in 1911, and a 10% dividend in 1913; but he denied that he had stated to the plaintiff as a fact that the dividends declared had been earned. He admitted that he exhibited to the plaintiff a statement made by the secretary and treasurer of the company at the June meeting, 1913, but averred that he believed this report to be true in every respect. He denied that the sale of the stock was unauthorized by the company, and alleged that the sale was made by him for the company, and not in his individual capacity. He denied that he knew that the stock was worthless; on the contrary he asserted that he believed it to be of the value shown by the statement of June, 1913. -The answer contained a copy of the statement made by the secretary and treasurer of the company in June, 1913, and a copy of the annual report showing the condition of the business at the end of the fiscal year 1913, during which the plaintiff was a stockholder in the company. The defendant in his answer further alleged that the stock was worth par, or above par, in July, 1913; that the business was then in a good condition, and that the losses which finally resulted in the bankruptcy of the business occurred after Prade purchased the ten shares of stock.

The evidence was in conflict on the material issues in the case. The plaintiff testified substantially to all the facts alleged in his petition. Wallace, the secretary and treasurer of the company and general manager of its business, testified that on June 13, 1913, the ’stock purchased by the plaintiff was absolutely worthless. The facts upon which the witness based his opinion appear in the evidence. He further testified, in substance, that the business was in good condition up to the year 1913, but business mistakes had been made in 1911, and were repeated in 1913 and prior to July of that year; that the defendant knew of the exact condition of the business, because the witness had frequently gone over the affairs of the company with him; that he knew that in July, 1913, the company owed a large sum of money; that of this indebtedness several thousand dollars were due to Beck & Gregg Hardware Company, a concern for which the defendant traveled, and this indebtedness was past due; and that the general affairs of the Milledgeville Hardware Company were in bad condition, to the knowledge of the defendant. The plaintiff offered in evidence the bankruptcy proceedings instituted by the defendant in* behalf of the Milledgeville Hardware Company. There was other evidence from which the jury was authorized to conclude that the company had been in ill condition since the time of its organization. Further recital of evidence offered in behalf of the plaintiff is unnecessary. The defendant testified substantially to all the facts set up in his answer, and offered other testimony tending to establish his contentions. The verdict was for the plaintiff. The trial court overruled a motion for new trial, and the defendant excepted.

It not appearing that the plaintiff in error voluntarily paid off the judgment after the bill of exceptions was filed, the motion to dismiss the writ of error is denied.

Hpon the general grounds of the motion for new trial it is sufficient to say that the verdict in favor of the plaintiff is supported by legal evidence. The evidence would have warranted a verdict for the defendant; but, the jury having returned a verdict against him, and there being sufficient legal evidence to authorize it, this court has no right to set the verdict aside. Citation of authority upon this point is unnecessary.

The first special assignment of error is upon the following charge of the court: “Under the law you are the exclusive judges of -the credibility of the witnesses, and in passing upon the credibility of witnesses you will take into consideration who they are, their manner of testifying on the stand in your presence, etc.” It is insisted that this charge was error, because, in passing upon the credibility of a witness, the jury have no right to consider who the witness is. This exception is perhaps well taken; but we have quoted the entire instruction excepted to, and we are unable to say that it was harmful to the defendant. As an abstract statement it may be incorrect; but it requires no argument to show that this court would wholly transcend its proper function should it declare this statement of the law to be not only erroneous but harmful, and not only harmful but harmful to the losing party, and of such consequence as to require a new trial.

The 2d, 3d, 4th, 5th, 6th, 8th, and 9th special assignments of error are'based upon certain instructions of the court to the jury.- The several excerpts set out in these grounds are nothing more than code sections dealing with the question of fraud, actual and constructive. The precise language of these instructions may be found in sections 4622, 4623, 4625, and 4626 of the Civil Code of 1910. The ground of exception is that they were inapplicable to the issues involved in the case, under the pleadings and the facts appearing in the record. It is contended that the action was for deceit, and that the basis of the action was false and. fraudulent statements-within the knowledge of the defendant. In this respect it will be noted that the plaintiff in error has not fully stated the case made by the plaintiff in his petition. The petition alleged, that certain statements were made by the defendant; that they were false within the knowledge of the defendant; that they were fraudulently and recklessly made, without regard to the truth; and that the exercise- of ordinary diligence on the part of the defendant would have disclosed their falsity. A careful examination of these instructions shows that the judge did not instruct the jury that the plaintiff would be authorized to recover upon proof of fraud, actual or constructive. The entire charge of the court is not in the record. It was not specified as material to an understanding of the errors complained of. The instructions excepted to, as abstract propositions of law, are correct. They were not wholly inapplicable to the theory upon which the plaintiff based his action. The evidence authorized the instructions given. "On-der the facts of this case, so far as they appear from the record, we are unable to say that these instructions, or any of them, require the grant of a new trial. In order to authorize a recovery in an action for deceit, it must appear that there was a wilful misrepresentation of a material fact, made for the purpose of inducing the plaintiff to act, and upon which he did act to his injury. A representation of a fact as true, recklessly made, which the defendant may not know to be false, if intended to deceive, is treated as equivalent to a knowledge of the falsehood, and will support an action for deceit. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support the action. Knowledge of the falsehood constitutes an essential element. Civil Code (1910), § 4410. Many of the code provisions found under the head of fraud and dealing generally with the question of fraud are applicable in an action for deceit. The instructions excepted to may have been given for the purpose of emphasizing the necessary and essential elements in an action for ■ deceit proper.

The 7th special assignment of error is upon instructions quoted as follows: “If you believe by a preponderance of the -evidence, or greater weight of the evidence, that the defendant in this case, on or about the 13th day of July, 1912, sold to the plaintiff ten shares of stock of the Milledgeville Hardware Company for $1250, etc.” The exceptions to this are as follows: (1) “The evidence of both the plaintiff and the defendant, and for each, as movant contends, shows that the stock was sold by the defendant) not in an individual capacity, but for and in behalf of the Milledgeville Hardware Company, a corporation, to the plaintiff, and this was acceded at the trial.” (2) “It expressed an opinion of the court that the fact as stated in the petition, which had been abandoned, was proved as alleged, when in fact the allegation had been abandoned and admitted to be incorrect and not founded in truth.” It is apparent that this court can not determine, from the above-quoted portion of a sentence of the charge what the' charge really was. It is of no consequence whether the stock sold belonged to the defendant or to the company. One who has been defrauded by false and fraudulent representations as to the value of stock in a corporation has his remedy, in an action for tort, against all who participated in the fraud. He may sue the agent, or the company itself. Fouché v. Brower, 74 Ga. 251; Scoville v. Thayer, 105 U. S. 151 (26 L. ed. 968); National Exchange Bank v. Sibley, 71 Ga. 726. In this connection it will be convenient to dispose of the special assignments of error made in grounds 13, 16, and 17 of the motion for a new trial. These grounds complain of error because of the refusal of the court to admit testimony to the effect that the sale of the ten shares of stock by the defendant to the plaintiff , was authorized by the company, and that the stock was issued for the purpose of sale to the plaintiff. The trial judge certifies that when this evidence was offered it was rejected upon the theory that the corporation could speak only through its official minutes, but that later the objéction urged was withdrawn, and counsel for the defendant was given the privilege of introducing the evidence. The certificate further recites that it was then conceded by counsel for both parties that there was no longer any question as to the authority to issue the additional stock; and that the court did not charge the jury on this allegation of the original petition. The assignments of error as to the charge quoted in ground 7 of the motion for a new trial demonstrate the harmlessness of the court’s ruling in rejecting this evidence.

The 10th special assignment of error is upon the following part of the charge of the court: “But if the defendant recklessly, and without inquiring into the facts or exercising ordinary diligence to know the facts, and without knowledge of the facts, recklessly made representations to the plaintiff to induce him to buy this stock, and these representations were false, and the plaintiff acted upon them, you will be authorized to find in favor of' the plaintiff.” This principle of law was directly applicable to the issues involved in the case, even conceding that the action was for deceit. The petition directly alleged that the defendant, in the exercise of ordinary diligence, should have discovered the falsity of the statements alleged to have been made by him with reference to the value of the stock. He can not justly complain of this instruction of the court, since he failed to file a demurrer, either general- or special, to the petition. In this connection it is convenient to dispose of the assignments of error contained in ground 12 of the motion for a new trial. Exception is here taken to -the, admission in'evidence of the bankruptcy proceeding filed by the defendant on behalf of the Milledgeville Hardware Company. It was filed' on December 4, 1913, and the condition of the company as disclosed by the bankruptcy proceeding was of some relevancy upon the condition of the company on July 13, 1912. If wholly irrelevant, the 7th paragraph of the plaintiff’s petition expressly alleged the bankruptcy of the Milledgeville Hardware Company, and the filing of its petition in bankruptcy by the plaintiff in error on the 4th day of December, 1913. No demurrer whatever was filed, and it was the right of the plaintiff to prove the allegations made in his petition.

In grounds 14,14 (a),.and 15 of the motion for a new trial error was assigned upon the rejection by the court of certain testimony offered by the defendant during the trial of the case. This testimony was properly rejected. So far as appears from the grounds of the motion, for a new trial, no material error of law occurred upon the trial of the case. The judgment will be

Affirmed.

Wade, G. J., and Lulce, J., concur.


text:
    8308.
    LESTER, administrator, v. TOOLE.
    1. An administrator is entitled to retain the share of an heir, in money derived from the sale of the realty belonging to the decedent’s estate, in payment of a debt which the heir owes to the estate, as against, and in preference to, the claim of an assignee or purchaser from the heir-.
    -2. Under the statutes of this State, as at common law, the title to realty, upon the death of the owner, descends directly and vests immediately in his heirs at law. It does not, as at common law, vest in the heir at law absolutely, but the descent may be intercepted, and the possession claimed and held by the administrator for the purposes of administration.
    3. The realty of the intestate may be sold by the administrator for the payment of the debts of the intestate and for distribution to his heirs.
    4. Commissions earned by the administrator or personal representative of the estate are a part of “the necessary expenses of administration,” and, in a settlement with the heirs, the administrator is not chargeable with failure to apply his commissions to a debt due by him to the estate, regardless of the insolvency of the administrator.
    5. Commissions are regarded, under ■ the statute, as costs, and not as apart of the distributive share of an heir who is also the administrator of the estate. Hence, the application of the commissions to the personal use of the' administrator does not work inequality in the distribution of the estate.

      0. The jurisdiction and power of the court of ordinary is^ as broad as that of a court of equity in the settlement of an estate.
    7. The court erred in holding that the debtor administrator was required to apply his commissions to the payment of his indebtedness to the estate, and direction is given that the verdict he molded accordingly. Otherwise the verdict directed was demanded.
    Decided June 27, 1917.
    Appeal; from Burke superior court—Judge Henry C. Hammond. October 3, 1916.
    Mrs. M. E. Lester died intestate in the early part of 1914. Her entire estate consisted of a tract of land in Burke county, Georgia. S. H. Lester was appointed administrator of the estate, and, as such, collected and held "rents of the estate for the years 1914 and 1915. In the latter year he obtained an order from the ordinary authorizing him to sell the lands of the estate for the purpose of paying the debts and making legal distribution among the heirs. The lands were accordingly sold. At the May term, 1916, he filed what purported to be his final returns, and asked that the heirs at law be cited to a settlement. Mrs. Pearl Toole, a daughter of the intestate and sister of the administrator, caveated the returns, upon the following grounds: that she received $183.87 less than her distributive share, as shown by the account submitted by the administrator; that the administrator had improperly recognized an assignment made by Howard Lester, an insolvent heir of the estate, who, at the time of the death of the intestate and of the assignment of his interest in the estate, owed the estate more than his distributive share; and that the administrator owed the estate more than his distributive share and commissions as administrator, and had no right to retain his commissions. She prayed that her distributive share should be increased by her interest as an heir in the amount paid the assignee of Howard Lester, and in the amount retained by the administrator as commissions. From the decision of the ordinary the administrator entered an appeal to the superior court.
    Before the court and jury on appeal Mrs. Pearl Toole introduced the final return of the administrator. This return showed, that the administrator was individually indebted to the estate in the sum of $2,148.48, and surrendered his sixth interest in the estate of the value of $808.87, as a payment thereon, but retained as commissions, earned as administrator, the sum of $410.32. Ti-g return further showed that the administrator had recognized an assignment or transfer by deed, made by Howard Lester, a son and heir of the intestate, to' one Eoberts, and had paid to Eoberts the sum of $808.87 for his interest in the estate. The return did not show any indebtedness due by Howard Lester to the estate. A certified copy of the petition in bankruptcy filed by Howard Lester on November 30, 1913, was introduced in evidence. This petition showed an indebtedness of $1,0.00 by the applicant to the intestate. It appeared that the bankrupt had no assets, that no trustee was appointed, and that he had not filed an application for discharge and the time within which he could have done so had expired when the administrator paid over to Eoberts, the assignee, the interest of Howard Lester in the estate. The administrator introduced in evidence a bond for title, signed by Howard Lester, with Eoberts as grantee, dated May 15, 1914, and duly recorded, consideration $1,350, upon payment of which a sixth undivided interest in the lands of the estate of Mrs. M. E. Lester was to be conveyed ; also a deed to Eoberts signed by Howard Lester, dated April 13, 1915, and duly recorded, conveying in fee simple the property described in the bond; also a certificate, signed by the clerk of the superior court of Emanuel county, to the effect that he had examined the records in his office, and found no property in S. H. Lester, and that certain unsatisfied executions against him stood open upon the dockets in his office; and that the tax digest of Emanuel county disclosed that S. H. Lester returned no property for taxation. It was admitted that $183.87 of the distributive share of Mrs. Toole, according to the account of the administrator, had not been paid. At the conclusion of the evidence the court held that the administrator was liable to Mrs. Toole .for her interest, as one of the heirs, in commissions retained by him, and that the commission's should be applied to the administrator’s individual debt to the estate; that the assignment made by Howard Lester to Eoberts was null and void, and that the administrator was liable to Mrs. Toole for her share of the amount paid to Eoberts. A verdict for these amounts, including the $183.87 admitted to be due her, was directed for Mrs. Toole. The administrator excepted.

      E. V. Heath, for plaintiff in error. B. J, Fowler, contra.
   George, J.

(After stating the foregoing facts.) The first question presented may be stated as follows: Is the assignment of an undivided interest in the realty of an estate by an insolvent debtor heir good against other distributee heirs, the lands having been reduced to money for the payment of the debts of the intestate and for distribution among the heirs? An administrator is required, by section 4002 of the Civil Code (1910), “to place in suit every debt due the estate which he may reasonably expect to recover; and if by his neglect or indulgence the debt is barred' by the lapse of time, or is otherwise lost to the estate, he is responsible therefor.” An administrator is bound to exercise due diligenec in the administration of the estate. If a debt due to the estate from an insolvent debtor heir may be deducted from his distributive share of the proceeds of realty which has been sold in process of administration, or if, in the exercise of due diligence, the administrator can collect the debt out .of the proceeds of real estate in his hands for the purpose of administration, it must be conceded that liability will attach to the administrator for his failure to retain the debt in the first instance, or to collect it in the second instance. It is generally recognized doctrine that the distributive share derived from the personal property of an heir indebted to an estate may be retained, without more, by the administrator in payment of the debt. The same doctrine has also been applied, virtually without exception, as against a debtor legatee. It is said that this doctrine is founded upon the duty of the administrator to collect the debts due the éstate. Personal property descends directly to the administrator, ahd it is his duty to reduce such property to cash, for the purposes of administration. The heir has no title to personal estate, except his right to a distributive share in the surplus after the payment of all debts and the expenses of administration. Citation of authority in support of the foregoing is unnecessary. The right and the duty of the administrator to apply the distributive share or interest of an heir in the personal estate of an intestate to the debts of the heir is based upon the doctrine of retainer, and not so much upon the' right of set-off proper. It would therefore follow that the administrator has the right, and it is his duty, to reserve and take so much of the share of the heir, derived from the personal estate of the intestate, as may be sufficient to satisfy the debt of the heir to the estate.

Many courts have applied this general doctrine of retainer to the share of a debtor heir derived from the sale of real estate. Oxsheer v. Nave, 90 Tex. Civ. App. 568 (40 S. W. 7, 37 L. R. A. 98); Fiscus v. Moore, 121 Ind. 547 (23 N. E. 362, 7 L. R. A. 235); Powers v. Morrison, 88 Tex. 133 (30 S. W. 851, 28 L. R. A. 521, 53 Am. St. R. 738); Hopkins v. Thompson, 73 Mo. App. 401; Brown v. Mattingly, 91 Ky. 275 (15 S. W. 353); Keever v. Hunter, 62 Ohio St. 616 (57 N. E. 454). The theory of advancement seems to be adopted by the Ohio court. The Supreme Court of Alabama has declared: “Where an heir is indebted to his ancestor while living, and continues indebted to his estate after his death, the other heirs of the ancestor have an equitable lien upon the lands of decedent for the debt which said heir owes the estate, which lien is superior in equity to any right the debtor heir, or persons claiming under or through him by operation of law or otherwise, would, but for his indebtedness, have had in the de-' scended lands.” This lien of the administrator is held to be superior to that of a judgment creditor of the heir. Streety v. McCurdy, 104 Ala. 493 (16 So. 686). According to the doctrine enunciated by other courts, this right of retainer applies only to specific legacies and interests in the personal estate of the decedent. It is declared that the heir’s distributive share in the realty can not be retained against his indebtedness due the estate, even where the land has been reduced to money. According to this doctrine, the debt of the heir must be collected by proceedings brought in the manner usual for collecting any other indebtedness due the estate, and it is a race of diligence between the administrator and other creditors of the heir. The reason usually given for this limitation of the general doctrine of retainer is that the real estate descends directly to the heirs upon the death of the intestate, and vests in them, subject to be divested only for the payment of the debts of the estate. In case of the death of one testate, it is held that this rule applies because the testator, by his failure to provide for the payment of the debt out of the lands devised to the heir, evinces an intention to make the devise unconditional. LaFoy v. LaFoy, 43 N. J. Eq. 206 (10 Atl. 266, 3 Am. St. R. 302); Smith v. Kearney, 2 Barb. Ch. (N. Y.) 523; Hancock v. Hubbard, 19 Pick. (Mass.) 167; Dearborn v. Preston, 7 Allen (Mass.) 192. “In the majority of jurisdictions, however, this exception in regard to real estate as to the general rule that an executor or ad-ministrator may retain a debt due from an heir or legatee is not recognized; and hence it is that a debt due the estate from an heir may be deducted from his distributive share of the proceeds of real estate which has. been sold in process of administration.” 11 R. C. L. § 279, p. 247.

So far as we have been able to ascertain, the question seems to be an open one in this State. There are decisions of the Supreme Court that bear more or less remotely upon the question; but the courts of this State, so far as we know, have not been called upon to announce the rule upon this precise question. On general principles- it would seem that the right of an heir to a distributive share in the estate, real or personal, or both, is subordinate from the beginning to the distributee’s indebtedness to the estate. The debt due by an heir to the estate is a part of the estate, and is subject to the law of distribution and descent. The debtor heir must either pay.his debt to the estate or take his share in the debt as’ a part of his share in the estate. Equality in the distribution of an estate demands the collection of all claims due by the distributees to the estate. Section 3929 of the Civil Code provides: “Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law. The title to all other property owned by him vests in the administrator of his estate for the benefit of the heirs and creditors.” The heir does not take an absolute title in the realty, as at common law. The descent is subject to be intercepted, and the title divested, when it becomes necessary for the administrator to sell the land for the purpose of paying the debts of the ancestor. In addition, the laws of this State expressly authorize the interception of the heir’s title to the realty for the purpose of distribution among the heirs. At common law the title to the realty descended to and vested absolutely in the heir. It could not be intercepted for the purpose of paying the debts of the ancestor, or for the purpose of making distribution among the heirs. Under the laws of this State the realty is as much subject to the payment of the debts of the ancestor as his personal estate. It is true that the debts must be paid out of the personal property, if that be sufficient, yet if the administrator should waste the whole of the personal property, no reason appears why the creditors can not have recourse against the realty. When the real estate, in process of administration, is lawfully reduced to money, the money is in the hands of the administrator for precisely the same purposes as money arising from the sale of personalty. For certain purposes of administration and succession the money derived from the sale of the realty retains the qualities of the land, still it is money, and only money, in the hands 'of the administrator. Civil Code (1910), § 4040. The courts all agree that, since the title to the personal estate vests in the personal representative of the ancestor, the right of retainer as against the debtor heir exists. It would seem logically to follow that if the title to the realty, which otherwise would descend directly to and vest in-the heir, is intercepted, and the lands sold by the personal representative for the payments of debts and distribution among the heirs, the money derived from the sale of the realty may likewise be retained by the administrator against any indebtedness due the estate by an heir. In the case of the personal property the title is cast, by operation of law, upon the- administrator. In the ease of realty the title is likewise east, by operation of law, upon the administrator, whenever it becomes necessary for him to sell the realty for the purpose of paying the debts or making distribution. When the title to the realty is cast upon the administrator, and when he has reduced the realty to cash, no logical reason occurs to us why the same rule as to personalty does not apply.

If this conclusion be correct (and we think the rule a just and necessary one, in order to preserve the equality of'distribution), the sale or assignment by the debtor heir of his interest in the realty of the estate can not alter the rule. A stranger has not the power to embarrass the administrator in the settlement of an estate by dealing directly with the heir. Until an estate is finally settled, every third person is bound to know that the sale of the realty may becomé necessary for the purpose of paying the debts of the decedent or for the purpose of making equal distribution among the heirs. He is therefore bound to know that the land may be sold and may be converted into money, and, when converted into money, that the personal representative has the right to retain so much from any distributive share as may be necessary to extinguish the debt due by such distributee to the estate. We repeat, the money derived from the sale -of the realty does not lose the character and quality of realty, so far as the laws of distribution. and descent are concerned, but both the realty and the personalty descend to the heirs at law in like proportions, in the case of intestacy. The assignee of an heir does not, as against the administrator, hold title to any interest in the land. The heir has no superior title to the administrator, whenever it becomes. necessary for the administrator to sell the lands in the process of administration. What the assignee has is a claim to the interest of his assignor in the assets of the estate, and he takes that interest precisely as his assignor held it. The facts in the case at bar clearly illustrate these principles. The assignment by Howard Lester was made before the sale of the land. -The deed conveying his interest to Kobe'rts was duly recorded. His title was completely divested when the administrator, under proper authority, took possession of and sold the land. The assignee, therefore, can claim only the interest of the assignor heir in the estate. The interest of the heir is an equal distributive share in the entire assets of the estate. If he has already received, during the lifetime of the intestate, all of his distributive share, he can claim no more. Hpon a demand by a debtor heir for his distributive share in the estate, it is a just and equitable answer that he already has received and still retains some portion or all of his share in the estate. See, in this connection, Fiscus v. Moore, supra; Streety v. McCurdy, supra. The foregoing leads to this conclusion: The administrator has the right, and it is his duty, to subject the money in his hands, derived from the sale of his intestate’s lands, to the payment of a debt due the estate from an heir, in preference to the claims of an assignee or purchaser from the heir.

The question next for consideration may be stated as follows: Will an administrator, who is also a distributee, and who is indebted to the estate in excess of the value of his distributive share and his commissions as administrator, be allowed to retain his commissions to his own use, or should such commissions be applied upon his indebtedness to the estate? Hnder the common law, when a person indebted to the deceased qualified as his administrator, the debt was ipso facto extinguished. In equity the debt was eonsidéred as paid, and became at once assets in the hands of the executor or administrator for the payment of debts and legacies, and for the benefit of heirs or legatees, and both the personal representative and his sureties were chargeable with the amount thereof in his accounts. The rule announced and followed in many jurisdictions was that the administrator and his bondsmen were chargeable with the amount' of such debt of the administrator to the estate, regardless of the financial condition of the administrator. This was a harsh rule. Many, perhaps most, of the States have departed therefrom. In equity and upon just principle it would seem that both the administrator and his sureties should be allowed to show that at the time of the appointment and qualification of the.administrator the debt due by him to the estate was desperate. In other words, proof of the actual insolvency of the administrator, and his inability to pay at the time of his appointment as such and to the date of his final discharge, would appear to be sufficient to relieve both the administrator and his bondsmen from liability. Upon the appointment of one as administrator of an estate, prima facie, at least, a debt due by him to the estate should be considered as paid. It is, therefore, urged that, inasmuch as the administrator, regardless of his insolvency at the time of his appointment and his consequent inability to pay his debt to the estate, has earned commissions in the administration of the estate, such commissions should be applied to his debt to the estate. Under the law of this State, commissions due the administrator, or personal representative of an estate, are considered as part of the costs, and fall under the head of “necessary expenses of administration.” The “necessary expenses of administration,” including the commissions of the administrator or personal representative, are given priority over taxes or other debts due the State or the United States by the decedent; over debts due by the deceased as executor, administrator or guardian, for the estate committed to him as such, or any debt due by the deceased as trustee; over judgment creditors and over lien creditors. Civil Code (1910), § 4000. We think it necessarily follows that the commissions earned by the administrator have priority over the claim of the heir to his distributive ’ share, and every part thereof, in the estate. It is true that the administrator owing the estate should, in good morals, pay it. It is also true that good morals would require him to pay his debt to the estate out of any funds, from whatever source derived, to which he was lawfully entitled. However, since his commissions are regarded as a part of the necessary expenses of administration, and since, in legal contemplation, such commissions are considered appropriated as earned, he can not be required to apply such commissions to his debt due the estate, in his settlement with the heirs. The contrary rule would militate against the speedy and diligent administration of the estate.

It is urged that if the debtor administrator was liable for commissions earned and retained by him to his own use, and for the amount paid the assignee of the insolvent debtor heir, a verdict directed for such by the judge of the superior court, on appeal from the court of ordinary, is void and of no eifect. It is said that a bill in equity is essential. It is contended that the superior court, on the trial of the appeal, had no broader powers than the court of ordinary. We concede that this is true. In our view, however, the court of ordinary had ample power to deal with the situation. The jurisdiction and power of that court is as broad as that of a court of equity, in the settlement of an estate. Indeed, the jurisdiction of the ordinary is original, and that of a court of equity concurrent. See Hood v. Perry, 73 Ga. 319, 322. Resort to equity is, in the instant case, unnecessary. The administrator is bound to exercise due diligence in the administration of the estate. He is liable for a failure to exercise such diligence. The ordinary may charge him with any loss occasioned by reason of his failure in this regard. If it were his right and duty to retain the sum paid the assignee of Howard Lester, he is thereby accountable to the heir for her respective interest in the amount thus improperly and negligently paid. She may have her complete relief in the court of ordinary.

From the foregoing it follows that the judge of the superior court erred in directing a verdict for the interest of Mrs. Toole in the sum of money retained as commissions and applied by the administrator to his personal use. In this respect only was there error. This error will not require a reversal, but the judgment will be

Affirmed with direction.

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


text:
    8382.
    Sykes v. Ocean Steamship Company of Savannah.
    Decided June 27, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. December 12, 1916.

      Shelby Myrick, for plaintiff. H. W. Johnson, for defendant.
   George, J.

This aetion rests upon the general law of master and servant, and, in order for the plaintiff to recover, it must appear that the master knew or ought to have known of the danger,, that the plaintiff did not know, and by the exercise of ordinary care could not have known, and that he did not have equal means with the master of knowing the danger. The petition was properly dismissed on demurrer.

Judgment affirmed.

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


author: Wade, 0. J.

text:
    8384.
    Rice v. Ray & McArthur.
    Decided June 27, 1917.
    Certiorari; from Gilmer superior court—Judge Patterson. December 5, 1916.

      A. N. Edwards, William Butt, for plaintiff in error.
   Wade, 0. J.

It does not appear that the court committed any error in overruling the certiorari in this case. The magistrate’s original and amended answer apparently included everything relating to the ease which was embraced by his knowledge thereof; and we can not say that the court erred in failing to allow the petitioner to except further to the answers, and in finally overruling the certiorari, since the allegations made in the petition and not verified by the answer of the magistrate could not be considered. Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416), and cases cited.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    8394.
    Smith v. Carter et al.

   Wade, 0. J.

1. Aside from other questions, construing the suit brought in the justice’s court as contended for by the plaintiff and most favorably to him, it was an action by a member of an unincorporated fraternal association, to recover dues paid by him to his partners in the association in accordance with the rules of the partnership, because his membership therein had been terminated at their option and against his will. Generally, such a suit can not be maintained, except for an accounting in a court of equity. Bennett v. Woolfolk, 15 Ga. 213; Prentice v. Elliott, 72 Ga. 154; King v. Courson, 57 Ga. 11; Gilbert v. Crystal Fountain Lodge, 80 Ga. 284 (4 S. E. 905, 12 Am. St. R. 255); Paulk v. Creech, 8 Ga. App. 738 (70 S. E. 145). In this suit nothing is alleged to take it out of the usual rule. See Miller v. Freeman, 111 Ga. 654 (36 S. E. 961, 51 L. R. A. 504).

Decided June 27, 1917.

Certiorari; from Muscogee superior court—Judge Munro. December 30, 1916.

Ed. Wohlwender, Paul Blanchard, for plaintiff.

2. The judge of the superior court did not err in overruling the petition . for certiorari.

Judgment affirmed.

George andLulce, JJ., concur.


text:
    8401.
    Brown v. Mayor and Aldermen of Milledgeville.
   George, J.

1. The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fail to do so, it is liable for damages for injuries' sustained in consequence of such failure. Mayor etc. of Atlanta v. Perdue, 53 Ga. 607, 608; Parker v. Macon, 39 Ga. 725 (99 Am. D. 486) ; Chapman v. Macon, 55 Ga. 566, 568.

2. A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes; and.it is also liable for such injuries caused by its neglect or omission to remedy defects in its public streets or sidewalks, occasioned by the wrongful acts of others. In the latter class of cases the foundation of the action is negligence in'failing to remedy the defect, and in the absence of actual knowledge the municipality is not. liable unless the defect occasioned by the wrongful act of another has existed for such a length of time as to charge the municipality with notice of its existence. See Mayor etc. of Atlanta v. Perdue, supra.

3. If the municipality, in the exercise of reasonable diligence in the performance of its duties, has the means of knowledge of defects in its sidewalk, occasioned by others, and negligently remains ignorant thereof, the municipality is constructively charged with knowledge thereof, and can not escape liability upon the ground that it did not have actual notice of such defect. Idlett v. Atlanta, 123 Ga. 821 (51 S. E. 709).

4. The petition in the instant case did not allege the particular length of time the open cellar in the city sidewalk had existed, but did aver that the grating or door to the cellar had been removed for a long period of time, and that the city, in the exercise of ordinary diligence, was constructively charged with notice of the open cellar in its sidewalk. The petition as amended set forth a cause of action against the defendant; and the judgment sustaining both general and special demurrers to the petition will be reversed, leaving the matters in respect to the special demurrers open for further action in the trial court. Chapman v. W. & A. R. Co., 8 Ga. App. 787, 789 (70 S. E. 208); Norwich Union Fire Ins. Soc. v. Bainbridge Grocery Co., 16 Ga. App. 432, 436 (85 S. E. 622).

Decided June 27, 1917.

Action for damages; from Baldwin superior court—Judge Henry C. Hammond presiding. January 10, 1917.

Sibley & Sibley, for plaintiff.

Livingston Kenan, for defendant.

Judgment reversed.

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


author: Wade, C. J.

text:
    8407.
    Central of Georgia Railway Company v. Cheney.
   Wade, C. J.

1. At common law husband and wife are one person in law, and the wife’s legal existence is suspended during the marriage and consolidated into that of the husband; and the common-law rule as to the rights and liabilities of husband and wife is in force in this State except where changed by the statute law. Heyman v. Heyman, 19 Ga. App. 630 (92 S. E. 25). The Supreme Court in construing the act of 1866 (Civil Code of 1910, § 2993) has held that it is “the settled law of this State, that, even since the act of 1866, where a husband and wife are living together, the husband is entitled to her earnings, unless he consents that she may receive them as her own.” Georgia Railroad Co. v. Tice, 124 Ga. 459, 468 (52 S. E. 916, 4 Ann. Cas. 200). See also Lee v. Savannah Guano Co., 99 Ga. 572 (27 S. E. 159, 59 Am. St. R. 243). The wife, however, is entitled to her earnings when her husband consents that she shall receive them. See Sams v. Thompson Hiles Co., 110 Ga. 648 (36 S. E. 104) ; Roberts v. Haines, 112 Ga. 842 (38 S. E. 109). In this case the wife, who brought the suit to recover back money which she alleged to be hers and to have been paid to the defendant by her in satisfaction of a claim held by it against her husband, not only showed by her undisputed testimony that the money was her individual and separate earnings, but slje further testified that her husband had consented for her- to have and retain whatever she could make by her individual efforts.

2. Though the plaintiff testified that the money paid out by her, which she sought to recover back, was deposited in both her name and the name of her 16-year-old boy, who was her husband’s son by her, and that some part thereof, which she did not specify, was earned by her said son by selling papers, she further said that the entire sum (including the amount earned by her son, whatever it may have been) was her property. This evidence was not objected to, nor was the statement contradicted or questioned in any manner; and hence it must be considered as a statement of fact, and not merely as a conclusion of the witness. While earnings of a minor son would belong to the father in the absence of any surrender. of his parental rights, we may conjecture either that the father had surrendered his claim against these particular earnings of his minor son, or that he had himself received such earnings from his son and made a gift thereof to his wife, when he himself was perfectly solvent and otherwise authorized • by law to make such a gift at his option.

Decided June 27, 1917.

Appeal; from Carroll superior court—Judge R. W. Freeman. December 28, 1916.

B. D. Jackson, for 'plaintiff in error.

Boykin & Boykin, contra.

3. The judge of the superior court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8408.
    Nicholson v. Jackson County.
    Decided June 27, 1917.
    Action for damages; from city court of Jefferson—Judge Mahaffey. December 12, 1916.
    J.. 8. Ayers, for plaintiff. 8. J. Nix, for defendant.
   George, J.

1. A county is liable for injuries caused by a defect in a county bridge (as distinguished from a county-line bridge) constructed either by contractors or by the county authorities since the passage of the act of 1888 (Ga. L. 1888, p. 39), although the injuries occurred more than seven years after the bridge was constructed. Hackney v. Coweta County, 117 Ga. 327 (43 S. E. 725).

2. Where a part of a public road constitutes the abutment to a public bridge and is essential to the existence and use of the bridge, it is a part of the bridge itself; and the obligation of a county to keep it in repair, and the liability resulting from the failure to discharge the duty of repairing, apply to the same extent as to the part of the structure ordinarily called the bridge. Mitchell County v. Dixon, 20 Ga. App. 21 (92 S. E. 405), and eases there cited.

3. In this case the petition alleged that the bridge over which the plaintiff was traveling at the time of his injury was constructed since the act of 1888. By amendment it was alleged that the bridge, while originally constructed before the act of 1888, was rebuilt since the passage of that act. The evidence was sufficient to authorize the jury to find that the bridge in question was rebuilt, and not merely repaired, by the defendant county since the passage of the act of 1888; and therefore it was error to award a nonsuit. Helvingston v. Macon County, 103 Ga. 106 (29 S. E. 596) ; Warren County v. Evans, 118 Ga. 200 (44 S. E. 996); Laurens County v. McLendon, 19 Ga. App. 246 (91 S. E. 283).

Judgment reversed.

Wade, G. J., and Lulce, J., concur.


text:
    8415.
    Mayor and Aldermen of Savannah v. Harmon.
    Decided June 27, 1917.
    Action for damages; from city court of Savannah—Judge Davis' Freeman. December 18, 1916.

      B. J. Travis, D. S. Atlcinson, for plaintiff in error.

      Twiggs & Gazan, contra.
   George, J.

1. The defendant in error alleged in his suit that the Mayor and Aldermen of the City of Savannah maintained a public wharf as a part of Lincoln and River streets in that city, from which a set of wooden steps led down into the Savannah river, and that the steps suddenly gave way while he and others were using them, thereby precipitating him into the river. In the fall he “struck his right shoulder, thereby severely spraining the same.” The defendant admitted its corporate entity, but denied (1) that the city maintained a public wharf and steps as a part of its public streets, as alleged in the petition; and (2) that the plaintiff was injured as alleged. On the trial the evidence disclosed injury to the plaintiff’s leg, and showed that his right shoulder was bruised a little. The evidence in the record is, silent as to the location of the steps and the streets referred to in the petition; and it does not appear that the city owned, operated, constructed, repaired, or used the steps in question. Held, that the proof of injury alleged was sufficient to authorize the verdict for $36 in favor of the plaintiff; but that the evidence in the record is insufficient to establish the essential fact, alleged in the petition, that the City of Savannah maintained a public wharf and a set of wooden steps as a part of Lincoln and River streets in the City of Savannah.

2. It was contended in this court by counsel for the defendant in error that the case was submitted to the jury for the purpose of establishing liability against the city, and that the city did not specifically contend, either at the trial or upon the hearing of its motion for a new trial, that the wharf and steps were not in the City of Savannah, and that Lincoln and River streets were not public streets in the City of Savannah. The record indicates as much, but the city contends, under the general grounds of the motion for a new trial, that the verdict is contrary to evidence and without evidence to support it; and the court erred in overruling the motion.

Judgment reversed.

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


text:
    8428, 8429.
    Hawk v. Western & Atlantic Railroad Co.; and. vice versa.

   George, J.

1. The rule that the first grant of a new trial will not be disturbed except where the verdict is demanded by the evidence is applicable to the first grant of a new trial to the defendant in the action, although a new trial had been previously granted the plaintiff in the same case. Jordan v. Dooly, 129 Ga. 392 (58 S. E. 879) ; Butler v. Sansone, 138 Ga. 767 (76 S. E. 54).

Decided June 27, 1917.

Action for damages; from Whitfield superior court—Judge Fite. December 16, 1915.

W. G. Martin, M. G. Tarver, for plaintiff. Tye, Peeples & Tye, Maddox, McGamy & Shumate, for defendant.

2. The order granting the new trial is general on all the grounds of the motion. One ground is based upon the result of an experiment made by certain persons, at the request of the court, after the trial of the case. The bill of exceptions, duly certified by the presiding judge, recites that the result of this test or experiment was considered by him in passing upon the motion. This ground should have been stricken from the motion. Its consideration was improper. But the fact that the presiding judge considered irrelevant, immaterial, and improper matter, in passing upon the motion, does not alter the well-established rule announced above.

3. Since the case is to be retried, this court will not pass on the sufficiency of the evidenee further than to say that it did not demand a verdict for the plaintiff.

4. The demurrers, general and special, to the plaintiff’s petition, were properly overruled.

Judgment affirmed on both main and cross-bill of exceptions.

Wade, O. J., cmd Luke, J., concur.


text:
    8487.
    Moon v. Brandt.
   Wade, C. J.

1. “While the municipal court of Atlanta has jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not differ from that of the justice’s courts. A plaintiff in that court may institute his action by causing the issuance of the summons prescribed - by law, with a copy of the note, account, or cause of action sued on; and a mere misjoinder of causes of action is immaterial.” Shippey v. Owens, 17 Ga. App. 127 (86 S. E. 407). The demurrer raising the point that the suit on a note for $450 exceeded the jurisdiction of the justice’s courts in lieu of which the municipal court of Atlanta was established, and therefore that the law as to suits in the superior courts applied, and the suit should have been brought by petition duly paragraphed, was properly overruled.

2. “The holder of a note is presumed to he such bona fide, and for value; if either fact is negatived by proof, the. defendants are let into all their defenses.” Civil Code (1910), § 4288. There was no evidence which negatived the presumption of title in the holder in whose behalf this suit was instituted.

Decided June 27, 1917.

Certiorari; from Fulton superior court—Judge . Pendleton. December 18, 1916.

Daley, Chambers & Daley, for plaintiff in error.

Reynolds & Whitman, contra.

3. The 2d, 3d, and 4th assignments of error in the petition for certiorari are not completely verified by the answer of the judge of the municipal court, and, as qualified by the answer, are without substantial merit.

4. There was some evidence to sustain the verdict, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Luke, JJ., concur.


author: Geoege, J.

text:
    8495.
    Brinson Railway Company v. Green.
    Decided June 27, 1917.
   Geoege, J.

1. The amendment to the petition did not introduce a new cause of action, but simply amplified and explained more in detail the circumstances under which the plaintiff was injured. It was properly allowed.

2. The petition as originally drawn charged the railway company with negligence in retaining in its employ an incompetent and unskilful servant as fireman; and this court ruled that the original petition set forth a cause of action. Green v. Brinson Railway Co., 16 Ga. App. 639 (85 S. E. 931). .By amendment the allegation to the effect that the company was negligent in retaining in' its employ an incompetent and unskilful fireman 'was expressly withdrawn. Upon the trial the court charged the jury as follows: “It was the duty of the Brinson Eailway (the defendant) to furnish Mr. Green (the plaintiff) with coemployees, eolaborers, coworkmen that were reasonably skilled in the work they were expected to do, and that were reliable and dependable in the places in which they were put.” Held, that this charge was error requiring a reversal. Tift v. Jones, 77 Ga. 181 (7) (3 S. E. 399); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (7) (54 S. E. 110).

3. In a suit by an employee against a railway company for a personal injury. caused by the running of a locomotive and the concurrent negligence of a eoemployee, it is error for the court to give in charge to the jury the provisions of section 2780 of Civil Code (1910), to the effect that when the injury is shown, a presumption of negligence arises against the company; and such an error is not cured by subsequently giving, in effect, the correct rule, where the erroneous instruction is not again referred to and withdrawn, or specifically modified. Wrightsville & Tennille Railroad Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 955); Atkinson v. Swords, 11 Ga. App. 167 (3) (74 S. E. 1093), and cáses cited.

4. The further assignments of error are without substantial merit.

Judgment reversed.

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

Action for damages; from city court of Waynesboro—Judge W. H. Davis. January 6, 1917.

Hitch & Denmark, H. J. Fullbright, for plaintiff in error.

I. S. Peebles Jr., Brinson & Hatcher, contra.


text:
    8502.
    Davis v. Hall.
    Decided June 27, 1917.
    Action for damages; from Lanrens superior court—Judge Kent. January 33, 1917.

      O. H. Williams, W. T. Townsend, for plaintiff.

      J. 8. Adams, for defendant.
   George, J.

1. An action for malicious abuse of legal process may be maintained before the action in which such process was issued has terminated. An action for malicious use of legal process, where no object is contemplated to be gained by such use other than the proper effeet and execution of the process, can not be commenced until the cause of action in which the process issued fias been finally determined in favor of the defendant therein. Mullins v. Matthews, 122 Ga. 286 (50 S. E. 101) ; King v. Yarbray, 136 Ga. 212 (71 S. E. 131).

2. This action is for malicious use of legal process, and the demurrer to the petition, upon the ground, among others, that it was not alleged that the action upon which the process issued had been finally .determined in favor of the defendant therein (the plaintiff in the present suit), was properly sustained. The decision in Grant v. Moss, 146 Ga. 87 (90 S. E. 109), controls this case.

3. The opinion in McSwain v. Edge, 6 Ga. App. 9, 10 (64 S. E. 116), characterizes that case as an action for malicious use of civil process. It is there held: “In such cases it must appear that the former action was prosecuted maliciously and without probable cause, and that it is no longer pending.” The decision seems to overlook the necessary condition that the proceeding must not only have terminated, but terminated favorably to the defendant, before the action for the malicious use of civil process can be maintained. If that case conflicts with the decisions of the Supreme Court, supra, on the question here presented, this court is bound by the decisions of that court.

Judgment affirmed.

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


text:
    8505.
    Southern Railway Company v. Weatherby.
   Wade, C. J.

1. The ground of the motion for a new trial which complains that the verdict was excessive is expressly abandoned in the brief of the plaintiff in error.

2. There being no plea setting up contributory negligence on the part of • the deceased, the court did not err in failing to give in charge section 2781 of the Civil Code of 1910, applicable to diminution of damages on account of contributory negligence, in the absence of a timely written request so to charge. Alabama Great Southern R. Co. v. Brown, 138 Ga. 328 (7) (75 S. E. 330); L. & N. Railroad Co. v. Smith, 136 Ga. 455 (71 S. E. 774) ; Southern Railway Co. v. Hooper, 110 Ga. 779 36 S. E. 232); Savannah Electric Co. v. Bennett, 130 Ca. 599 (61 S. E. 529); Savannah Electric Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056); Wrightsvitte & Tennille R. Co. v. Gornto, 129 Ga. 204, 210 (58 S. E. 769); Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (7) (80 S. E. 916); Cavanaugh v. Riggin, 9 Ga. App. 466 (71 S. E. 779).

3. Error was assigned on the following instruction to the jury: “If you find that Mr. Weatherby, the plaintiff, was a passenger on this train, and that when the train reached the station, Huffaker, he attempted to alight therefrom, but that the train did not remain standing a sufficient length of time for him to alight in safety, and he was thrown to the ground and injured on account of the sudden starting of the train, the defendant would be liable for whatever damage it caused him, unless he, Mr. Weatherby, by the use of ordinary care could have prevented it.” The only criticism on this charge, properly insisted upon in the brief of counsel for the plaintiff in error, is “that the duty was on the railway company to stop its train for a sufficient length of time for an ordinarily prudent man to alight therefrom, using reasonable celerity for this purpose, and that the court erred in substituting the concrete conduct of plaintiff for the abstract conduct of an ordinarily prudent man as the measure of time for which the train should have been stopped.” This excerpt from the charge of the court, standing alone, might be subject to the criticism made; but when it is considered in connection with the language which immediately followed: “Even though the defendant may have been negligent, as alleged, still if Mr. Weatherby, by the use of ordinary care, the definition of which I have given you, could have prevented being injured, if he was injured, he could not recover. . . Look to the evidence and see whether a prudent person would have acted like the plaintiff did, and whether he used this ordinary care,” the error, if any, was not only cured, but the instruction as a whole was favorable to the defendant, and it will not be heard to complain.

4. The last ground of the motion for a new trial is based on the failure of the court to give certain instructions to the jury, although not requested. The charge when considered as a whole was a full, fair, and impartial presentation of the law applicable to the facts; and if the railway company desired any further instruction on any particular question, it should have made a timely written request therefor.

Decided June 27, 1917.

Action for damages; from city court of Floyd county—Judge Nunnally. January 30, 1917.

Maddox, McOamy & Shumate, Hamilton & Hamilton, C. J. Carey, for plaintiff in error. Harris & Harris, contra.

5. There being some evidence to support the verdict, which has been approved by the trial judge, this court has not power to interfere with it.

Judgment affirmed.

George and Lufoe, JJ., eoneur.


text:
    8540.
    OCILLA SOUTHERN RAILROAD CO. v. McAllister.
    1. A petition not addressed to a court, but headed with the name of the State and of a county therein, and otherwise in the form of a suit, and filed in the office of the clerk of the superior court of that county, and to which was annexed process signed by the clerk and bearing teste in the name of the judge of that court, requiring the appearance of the defendant at the return term of the court, could be amended by addressing it to that court.
    2. Under the code-section requiring that suits against railroad companies for damages on account of injury to the person or property of the plaintiff shall be brought in the county in which the cause of action originated, and declaring that “any judgment rendered in any other county than the one in which the cause so originated shall be utterly void” (Civil Code of 1910, § 2798), it must appear from the petition in such a suit that the cause of action originated in the county of the suit. As this essential jurisdictional fact did not appear from the petition in this case, the court erred in overruling the general demurrer to the petition.
    3. Necessary jurisdictional allegations omitted from a petition may be supplied by amendment; and in this case the judgment overruling the demurrer to the petition is reversed with leave to make such amendment by the time the remittitur from this court is made the judgment of the court below.
    Decided June 27, 1917.
    Action for damages; from Wilcox superior court—Judge Crum. February 23, 1917.
    The demurrer was on the grounds: (1) The petition sets forth no cause of action. (2) Taking the allegations of fact contained in said petition as true, no valid judgment could be rendered in this court against this defendant. (3-4)- The petition is not addressed to any court, and no process returnable to this court is . prayed for.

      Wall & Grantham, Quincey & Rice, for plaintiff in error.

      Warren Grice, Sal Lawson, contra.
   Wade, C. J.

The plaintiff’s petition was headed, “State of Georgia, County of Wilcox,” and was filed in the office of the clerk of the superior court of that county, but was not addressed to the superior court or any court. It prayed for process requiring the defendant to appear at the next term of “this court.” Attached to it was a process with the caption, “State of Georgia, Wilcox County,” bearing teste in the name of the judge of the superior court of Wilcox county and signed by the clerk of that court, requiring the defendant to be and appear “at the next superior court to be held in and for said county on the third Monday in June next.” The petition was amendable by addressing it. to the superior court of Wilcox county, and the trial court properly allowed such amendment. Parish v. Davis, 126 Ga. 840 (55 S. E. 1032); Georgia Southern & Florida Railway Co. v. Pritchard, 123 Ga. 320 (51 S. E. 424); Atlantic Coast Line R. Co. v. Cook, 6 Ga. App. 128 (64 S. E. 665); Nance v. Patterson, 10 Ga. App. 843 (74 S. E. 438); Kelly v. Fudge, 2 Ga. App. 759 (59 S. E. 19.); Civil Code, §§ 5682, 5691.

Special defects or omissions in the plaintiff’s petition may always be taken advantage of by demurrer; and unless cured by amendment, the petition should be dismissed. Park’s Ann. Code, § 5631. All necessary jurisdictional facts must be clearly and distinctly set out in the petition, and their absence may be taken advantage of by demurrer. White v. Atlanta, Birmingham & Atlantic R. Co., 5 Ga. App. 308 (63 S. E. 234); Flint River & Northeastern R. Co. v. Sanders, 18 Ga. App. 766 (90 S. E. 655). In the present case it does not appear from the petition that the alleged injuries were inflicted in the county in which the suit was brought. A suit against a railroad company for personal injuries, which does not allege that they were inflicted in the county of the suit, fails to show that the court to which the petition is addressed has jurisdiction to try the case. Section 2798 of the Civil Code of 1910 provides that the company “shall be sued in the county in which the cause of action originated; . . and any judgment rendered in any other county than the one in which the cause so originated shall be utterly void.” “A suit brought elsewhere than is there provided is void.” Central of Georgia Ry. Co. v. Dowe, 6 Ga. App. 858 (65 S. E. 1100). See also Southern Ry. Co. v. Summers, 118 Ga. 175 (45 S. E. 27). The general demurrer in this ease, therefore, should have been sustained. Flint River & Northeastern R. Co. v. Sanders, supra, and cases there cited.

The omission to state in the petition all facts necessary to give the court jurisdiction of the case is amendable. Park’s Ann. Code, § 5691. In view of the ruling stated above, the judgment of the trial court, overruling the demurrer to the petition, is reversed, but with leave for the plaintiff so to amend the petition, by the time the remittitur from this court is made the judgment of the court below, that it shall appear therefrom that the injuries sued for were inflicted in Wilcox county.

Judgment reversed, with direction.

George and Luke, JJ., concur.