text:
    16873.
    AMERICAN MUTUAL LIABILITY INSURANCE CO. et al. v. BROCK.
    1. Under the terms of the workmen’s compensation act, where an employee, who in childhood had lost a foot and a part of one leg to within three inches of the knee, suffered a compensable injury to the remaining portion of his leg, as a result of which he sustained a 50 per cent, loss of the use of that portion, he was entitled to compensation for such partial loss of use at the rate of 50 per cent, of the amount which he should have received for the loss of a leg or for the loss of use of a leg, irrespective of the previous disability or injury.
    2. The facts found by the industrial commission demanded an award in accordance with the foregoing ruling. On the appeal of the claimant from an award made on a different and erroneous basis the superior court was authorized to enter the proper final judgment upon the findings as made. The court, however, should have proportioned the period of the weekly payments rather than the amount of such payments; and direction is given that the court amend the judgment in accordance with this ruling, at the time the remittitur is made the judgment of the court below.
    Decided September 25, 1926.
    Appeal; from Hall superior court—Judge J. B. Jones. September 19, 1925.
    Application for certiorari was made to the Supreme Court.

      Harry L. Greene, for plaintiffs in error.

      J. G. Qollins, contra.
   Bell, J.

This is a case under the workmen’s compensation act. The claimant, at the age of eight years, lost his right foot and his right leg up to within three inches of the knee-joint. On June 25, 1924, while employed by Gainesville Cotton Mills, he was injured “by having a bale of cotton roll on his knee, spraining his hip and knee” of the same leg. His wage at the time of the accident was $9.07 per week. This injury arose out of and in the course of his employment, and an agreement to receive and pay compensation was entered into by the parties at interest, and compensation was paid accordingly, as for ten weeks’ temporary total incapacity. See Ga. L. 1923, p. 95, § 32. The claimant returned to work on September 6, 1924, and continued to work until April 20, 1925, when he was discharged by his employer because of a report of certain misconduct. Shortly afterwards he applied for additional compensation, on the ground of a change in condition. On hearing this application the commission, from medical testimony, found that there was “50 per cent, loss of use to that portion of his leg which had not been destroyed previous 'to [claimant’s] injury on June 25, 1924.” The award stated, however, that the employee “had sustained an injury elsewhere that amounted to between 85 and 86 per cent, loss of use of a leg,” and that “the injury already sustained amounts to approximately 150 weeks.” Deducting 150 weeks from 175 weeks, the period for which compensation is allowable for total loss of use of a leg (see 6a. L., 1920, p. 167, § 32), the commission adjudged that “the remaining usefulness of the leg is therefore valued at 25’weeks.” Since this “remaining usefulness” had been impaired 50 per cent., the claimant was awarded compensation for 12-1/2 weeks at the prescribed rate for loss of use of a good leg. The claimant was dissatisfied, and, on his appeal to the superior court, a judgment was entered in his favor, awarding compensation as for a 50 per cent, loss of a whole leg, without deducting the 150 weeks for which the commission had held that no compensation should be allowed. This was to sustain the appeal, and to render final judgment upon the facts found by the commission. The insurance carrier and the employer excepted, and the case is here for review.

Section 32 of the compensation act provides that for the loss of a leg the employee shall be entitled to compensation at the rate of 50 per cent, of his average weekly wages for 175 weeks. Subsection (r) provides that total loss of use of a member shall be considered as equivalent to the loss of such member, and that compensation for partial loss, or for partial loss of use, of a member “shall be such proportion of the payments provided for total loss as such partial loss bears to the total loss.” Section 34 is to the effect that if an employee already has a permanent disability or has elsewhere sustained a permanent injury, such as specified in section 32, he shall be entitled to compensation for an injury in his employment only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed. The employee in this case was wearing an artificial limb and was making out with the piece of leg that he had. Presumably he was charged with the disability, in the price of his labor. Section 34, recognizing the probability of such charge, presumes it as a matter of law. Since he was not a whole man and was receiving less for his work because of that fact, he ought not to be charged with the disability again in adjusting the matter of compensation for injury. Compensatiqn being based upon wages, the reduction made in wages, on account of the crippled service, automatically guaranteed a corresponding reduction 'in compensation, and to charge the claimant with his prior disability at both ends of the transaction would be manifestly unfair; what is more, under section 34, it can not be done. This section is construed to mean that where an employee is laboring under a physical disability, resulting from injury or otherwise, and suffers an injury for which compensation is due, he is ordinarily entitled to compensation in accordance with the degree of remaining capacity lost, whether it be total or partial, as though the former disability had not existed, and there shall be no deduction for the former disability. If the incapacity resulting from the later injury is partial, the criterion of compensation is determined by the provisions of section 32, without regard to actual diminution of earnings, where the case is one falling under the terms of that section. In other cases of partial incapacity the provisions of section 31 will govern, the compensation to be equal to one half the difference between the average weekly wages before and after the injury. If the incapacity be total, section 30 will control. In other words, section 34 has nothing to do with the particular provision by which compensation will be determined, but simply means that whatever capacity a man has after some other accident, misfortune, or injury, shall ordinarily be considered as the unit from which to determine the percentage of his subsequent impairment. The claimant had not lost his leg. He had lost a little more than his foot. The employer accepted him as, he was and paid him as he was, and for the purposes of this case he will be regarded as a two-legged man. If he had lost all the remaining portion of the abbreviated member, or all of the use of it, he would have received compensation at the rate of 50 per cent, of his average weekly wages for 175 weeks. Having lost 50 per cent, of the use of such remaining portion, he is entitled, under subsection (r), to be paid 50 per cent, of the amount which he would have received for a total loss of use. The attorneys on both sides say that the case falls within the provisions of section 32; and with this we agree. The claimant is not seeking compensation for anything except for a partial loss of use of a member, or at least the commission did not find anything else in his favor, and we are not concerned with any superadded incapacity, dne to some cause produced by the injury or by such loss of use. See Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 731). The compensation is, therefore, fixed by the schedule contained in section 33, and the subsequent loss of earnings is immaterial. Compare American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (137 S. E. 155). Even if it be true, as contended by the plaintiff in error, that the opinion filed by the learned trial judge shows that he arrived' at his judgment by a process of reasoning which would have required a finding by the industrial commission upon a point as to which no finding was made, that fact would not vitiate the judgment if it was the proper judgment to be rendered under the findings which the commission did make. The matter reviewed in this court is the judgment, and not the reasons given for it.

A decision of this case turns largely upon the proper construction of § 34. After the most painstaking deliberation we have interpreted the provision as indicated above.

We can not agree with the contention that the compensation should be such proportion of the payments, as in ease- of total loss or total loss of use, as the partial loss of use as here shown would have borne to the total loss or total loss of use, had there been no prior injury. A comparison of a partial loss of a member, previously injured, with the loss which would have been sustained in the later accident if the member had been totally lost therein and had theretofore been sound and whole, is one of the things that § 34 was enacted to prevent. It may be that this section (see the word “only,” in view of which we have.in this case limited our construction by the word “ordinarily”) was also intended to avoid conclusions like that reached in Branconnier’s case, infra, in which it was held that where an employee who had already lost one eye lost his remaining eye, the latter loss should be regarded as a total disability; but as to this we express no opinion in the present case. The questions presented are by no means free from difficulty, but we think our conclusions are in line with the authorities. See, in this connection: Knoxville Knitting Mills Co. v. Galyon, 148 Tenn. 228 (255 S. W. 41, 30 A. L. K. 976); Industrial Commission v. State Ins. Compensation Fund, 71 Colo. 109 (203 Pac. 216); Schwab v. Emporium Forestry Co., 216 N. Y. 712 (111 N. E. 1099) ; Branconnier’s case, 223 Mass. 273 (111 N. E. 792); Corpus Juris, Workmen’s Compensation Acts, § 84. •

Let it be understood that we do not mean to hold that my por-' tion of a leg is to be considered as a whole leg. In the case before us the part that remained after the prior injury included, and extended three and a half inches below, the knee-joint. In view of § 32 (r) and § 34, we think the injury to such remaining portion should be considered as an injury to a leg. Whether this could be true if all that remained was above the knee-joint is a question not involved in the present case. See Allen v. American Ry. Express Co., 119 Me. 322 (111 Atl. 383, 18 A. L. R. 1348, and cit.).

Under the findings as made by the commission, its award was erroneous. The claimant was entitled thereunder, as a matter of law, to 50 per cent, of the compensation which would have been payable for a total loss or total loss of use of a leg, less the amounts previously received by him, as noted in the superior court’s judgment. Section 59 provides that the superior court, on appeal, may enter the proper judgment upon the commission’s findings, as the nature of the case may demand. The findings made in the instant case demanded the judgment which the superior court rendered, and it was not necessary to recommit the case on sustaining the appeal. The above is subject to this qualification: The court in awarding 50 per cent, of the compensation to which the employee would have been entitled as for the total loss, or total loss of use, of a leg, should have proportioned the period of the weekly payments rather than the amount of such payments, ordering that the payments be made at one half the average weekly wages, for 87-1/2 weeks, less credit for payments already made, instead of requiring them to be made at the rate of one fourth of such wages, for 175- weeks, less such credit. Section 30 of the compensation act provides that the weekly compensation shall not be “less than four dollars per week, except when the weekly wage is below four dollars, then the regular wages on the date of the accident shall be the weekly amount paid;” and, under section 32, “The weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in section SO.” Under the judge’s order, the weekly payments would have been less than $4, whereas they can not be less than this amount except when the weekly wage is less. The judgment will be affirmed with direction that it be amended to accord with the statute.

Judgment affirmed, with direction.

Jenkins, P. J. and Stephens, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16757, 16797.
    Darden v. Mayor and Council of Washington; and vice versa.

   Stephens, J.

1. While, as against one who maintains a system of electrically charged wires, the inference of negligence in the maintenance of the wires is authorized by the fact that one of the wires, charged with electricity, is found hanging loose in a dangerous situation, this inference is not demanded as a matter of law, but it is an inference of fact only which the jury is authorized, but is not legally obligated, to draw. Chenall v. Palmer Brick Co., 117 Ga. 106, 108 (43 S. E. 443); Palmer Brick Co. v. Chenall, 119 Ga. 837 (47 S. E. 329) ; Augusta Railway & Electric Co. v. Weekly, 124 Ga. 384 (52 S. E. 444) ; City of Thomaston v. Atkinson, 25 Ga. App. 615 (103 S. E. 876). It follows therefore, that upon the trial of an action in tort for personal injuries received in coming in contact with a wire charged with a high voltage of electricity, which it was alleged hung down from a pole in a dangerous situation as a result of the defendant’s negligence, the court did not err in submitting to the jury, as an issue of fact, whether or not the defendant was guilty of negligence as alleged.

2. In such a suit a charge that “if the plaintiff has shown . . by a preponderance of the evidence that he was injured and damaged as alleged in his petition, then the presumption would be that the defendant was negligent,” does not amount to an instruction that the plaintiff must prove the alleged negligence by a preponderance of the evidence. Especially is the charge not error for this reason when elsewhere in the charge of the court the jury were plainly instructed to the effect that an inference arose against the defendant upon proof that its wire was found hanging loose in a dangerous situation, charged with electricity.

3. Since the legal standard of care in all cases, including the care and maintenance of electrically charged wires, is that which a reasonably prudent man would exercise under similar circumstances, and is therefore ordinary care, the court did not err in failing to hold the defendant to the standard of extraordinary care and diligence as respects the . maintenance of its wires, but properly held the de^pndant to the standard of ordinary care in this respect. Denson v. Georgia Railway & Electric Co., 135 Ga. 132 (68 S. E. 1113).

4. Where, in the trial of such a case, it appears from the evidence, including the evidence as to admissions by the plaintiff, that the wire which was charged with electricity and which caused the plaintiff’s injury was broken and hanging down from a pole, and the end of the wire was resting in some shrubbery in the plaintiff’s yard, and where it further appears, from evidence as to admissions made by the plaintiff, that he, while pruning the shrubbery, saw the wire and caught hold of it with his hand for the purpose of moving it out of his way, and where it further appears from the evidence that the plaintiff heard a noise outside of his house the night before, which indicated to him that a wire was “burning or bursted,” and that the next morning he “looked out to see if there was anything wrong with the wire” and found nothing wrong, the inference is authorized that the condition of the wire in hanging broken from the pole was exposed to view, and that this condition of the wire was either seen by the plaintiff or could have been seen by him in the exercise of due care and diligence, and the court did not err in charging the jury in the language of section 4530 of the Civil Code (1910), as follows: “Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge in fixing the rights of parties.”

Decided September 27, 1926.

Action for damages; from Wilkes superior court—Judge Perry-man. July 27, 1925.

Qlement E. Sutton, for plaintiff.

WilUam Wynne, B. W. Fortson, for defendant.

5. Depositions may, in the discretion of the court, be read in evidence by the other party to the case notwithstanding the presence of the witness in court. Bond v. Carter, 14 Ga. 697; McArdle v. Bullock & Radcliff, 45 Ga. 89; Western & Atlantia R. Co. v. Bussey, 95 Ga. 584 (23 S. E. 207) ; Southern Ry. Co. v. Dickson, 138 Ga. 371 (2) (75 S. E. 462).

6. A charge to the jury as follows: “You must discover [the] truth from the evidence which you have received from the stand, that is, which has been introduced on the trial of this case; you are bound by the evidence ■ received from the stand, and from it alone you must discover the truth,” is not error where it appears that all the documentary evidence introduced (except possibly the depositions which the plaintiff objected to) was identified by witnesses upon the stand. Henrich v. McCauley, 154 Ga. 855 (115 S. E. 655) ; Hamilton v. State, 18 Ga. App. 295 (10) (89 S. E. 449); Byrd v. Byrd, 22 Ga. App. 354 (3) (96 S. E. 10). Moreover, if this charge was in any wise harmful to the plaintiff, its harmful effect was cured by the court in subsequently instructing the jury that they must “look to all the evidence and circumstances of the case and seek the truth.”

7. The charge of the court, fairly to the plaintiff, submitted all issues to the jury. It was not subject to the objection that it submitted as issues in controversy any matters not disputed.

8. The verdict found for the defendant was authorized, and no error appears.

Judgment affirmed on the mam hill of exceptions; cross-hill dismissed.

Jenkins, P. J., a/nd Bell, J., concur.


text:
    16686.
    City of Griffin v. Griffin Chero Cola Bottling Co.
    Decided September 29, 1926.
    Damages; from Spalding superior court—Judge Searcy. June 12, 1925.

      Cleveland & Goodrich, for plaintiff in error.

      Beck & Beck, contra.
   Stephens, J.

1. A municipal corporation does not, when supplying water to its inhabitants for compensation, act in its governmental capacity, but in so doing acts in a private capacity and is liable to a consumer for damages growing out of its negligent performance of its contract. Keever v. Mankato, 113 Minn. 55 (129 N. W. 158, Ann. Cas. 1012A, 216, 33 L. R. A. (N. S.) 339) ; Oakes Mfg. Co. v. New York, 206 N. Y. 221 (99 N. E. 540, 42 L. R. A. (N. S.) 286), and cit.; 19 R. C. L. 1130.

2. Where a municipal' corporation supplies water under contract to a private customer for a consideration, with knowledge that the customer is engaged in the business of selling for a profit bottled drinks which the customer manufactures by mixing various syrups with the water furnished it by the municipal corporation, and where the municipal corporation has previously put chloride of lime in the water for hygienic purposes, with knowledge that the presence of the chloride of lime would render unpalatable the drinks manufactured out of the water by the customer, an inference is authorized that the municipal corporation is negligent in not informing the customer of the existence of the chloride of lime in the water; and where the customer, without knowledge on its part of the unpalatable condition of the water furnished it by the municipal corporation, and without being able to discover this condition by due diligence, uses this water in combination with its syrups in the manufacture of drinks, which drinks by reason of the presence of the chloride of lime in the water are unpalatable and unsalable, the municipal corporation is liable to the customer for the •damage thus sustained.

3. This being a suit by such a customer against the municipal corporation to recover for such damage, the petition set out a cause of action and the court did not err in overruling the demurrer thereto.

4. The evidence authorized the verdict finding the defendant liable to the plaintiff, and there being no exception by the defendant to the amount of the verdict, the verdict will not be set aside upon the ground that it is not supported by the evidence.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    16693, 16793.
    FORMAN, for use, etc., v. ÆTNA INSURANCE COMPANY; and vice versa.

    The plaintiff having by his evidence proved a compliance with the contract sued on, the court erred in granting a nonsuit.
    Decided September 29, 1926.

      Complaint; from city court of Americus—Judge Harper. June 26, 1925.
    This controversy has already been before this court three times. In Mina Ins. Go. v. Gi"iffin, 28 Ga. App. 774 (113 S. E. 224), Mrs. Ella Harris sued, for the use of Griffin, upon an insurance policy. It was there held that the contract sued upon had been extinguished by a new agreement between Forman and the insurance company, which amounted to an accord and satisfaction (this new agreement being the contract declared upon in the case at bar), and that the direction of a verdict for the plaintiff was error. Next, Mrs. Harris, for the use of Griffin, sued upon the new agreement, and this court held that the trial court properly dismissed the action,'because th^ rights of Forman under this contract had never been transferred. See Harris v. Mina Ins. Go., 32 Ga. App. 48 (123 S. E. 27). In Harris v. Mina Ins. Go., 33 Ga. App. 71 (125 S. E. 597), this court adhered to the decision in 28 Ga. App. supra.
    In the present case a suit upon the “new agreement” was brought by George M. Forman, for the use of C. C. Griffin, against iEtna Insurance Company, the petition being substantially as follows: (1) Defendant is a foreign corporation with an agent and place of business in Sumter county, Georgia. (2) Defendant was and is engaged in insuring houses and personal property against loss by fire. (3) On May 16, 1914, the defendant issued to Mrs. Ella Harris its policy of insurance No. 3404 for $3500, thereby insuring a dwelling house for $2500, the furniture therein for $500, a smoke-house for $125, a barn for $300, and a buggy-house for $75; said insurance being payable to George M. Forman as his interest might appear. (4) At the time said policy of insurance was issued, the said Mrs. Harris had procured from the said For-man a loan of $4000, and had pledged as security therefor lot No. 88 in the 15th district of Worth county, together with the buildings thereon; this being the same lot on which the said insured buildings were located. (5) On or about February 27, 1919, the said residence was destroyed by fire, and the said Mrs. Harris filed a proper proof of loss for $2500, the amount for which it was insured. This loss the company refused to pay, either to said Mrs. Harris or to said Forman. (6) On May 5, 1919, said Forman procured a judgment against said Mrs. Harris for the debt secured by ber security deed. On May 19, 1919, he conveyed said land'to Mrs. Harris for the purpose of levy and sale, and on October 31, 1919, filed the deed for record. The execution issued on said judgment was levied upon the land pledged as security for her said debt to Forman, and, after proper advertisement said land was, on the first Tuesday in December, 1919, before the court-house door in Sylvester, Georgia, between the legal hours of sale, exposed to sale, when the same was knocked off to petitioner for $2500. (7) On November 29, 1919, C. C. Griffin purchased from said Forman his interest in and to said land, said judgment and execution issued against said Mrs. Harris, and his interest in and to said policy of insurance, with all rights thereunder, as well as a transfer of the rights in and to the said Mrs. Harris’ notes secured by said deed and insurance policy. (8) The sheriff made to C. C. Griffin a deed to said lands purchased by said Griffin at said sale, the net proceeds of said sale, amounting to $2,425, being credited on said execution. (9) There is still due on said execution the sum of $3,882.64. (10) Before the sale of the said property, and pending negotiations regarding an adjustment of the loss occasioned by the destruction of said dwelling-house by fire, the following correspondence occurred between Whipple & McKenzie, as attorneys for George M. Forman, and Glarence Buse, representing iBtna Insurance Company: (a) Letter dated October 13, 1919, from Clarence Buse to Whipple & McKenzie, as follows: “I have discussed this matter with Mr. Leone, and while we do not ordinarily feel that it is the part of an insurance company to come into a claim of this kind until actually called upon to so do, we do feel that in justice to your good selves that we can take the position in this loss that we will make up any deficit up to the face of our policy, as between the price brought by the land and the claim of Mr. Forman. We feel that you, representing Mr. Forman, will exercise due diligence in making the land bring as much as possible, and we would like to have you notify us of the date of this sale, so that if necessary we can have a man on the ground, and, if we find it expedient, can protect ourselves by bidding on the property. Of course, when I refer to the face of the policy I mean the amount covering dwelling itself, and not the amount on household furniture, which is not included in the standard mortgage clause.” (6) Letter dated October 27,1919, from Whipple & McKenzie to Clarence Ruse, as follows: “We beg to acknowledge receipt of yours of the 13th instant touching the loss in the above case, and note contents of letter. Under this agreement set forth in letter, we will have the property advertised during the month of November, to be sold on the first Tuesday in December, and shall be glad for you to have some one present to look after your interest at the sale, which will'have to take place at Sylvester, Georgia.” Said two letters form a contract, as decided by the Court of Appeals, between George M. For-man and ¿Etna Insurance Company, by which Forman’s claim under said insurance policy with standard mortgage clause attached thereto was adjusted. (11) On November 29, 1919, said Forman transferred and assigned to C. C. Griffin all rights under said policy, including the adjustment set out in paragraph 10 hereof. (12) On November 29, 1919, said Whipple & McKenzie notified the agent of the defendant of the sale and of the transfer and assignment of all said papers and rights to 0. 0. Griffin. (13) In compliance with the request of the defendant and its agent, Clarence Ruse, said Forman, through his attorneys, Whipple & McKenzie, did on October 27, 1919, advise the defendant that said property deeded to said Forman by said Mrs. Harris to secure her said debt to him would be advertised during the month of November, 1919, and would be sold on the first Tuesday in December, 1919, at Sylvester, Georgia, and invited the defendant to have some one present at the sale to look after its interest. (14) In the transfer of his rights under said policy George M. Forman intended to pass to said Griffin all bis rights in the premises, but inasmuch as the courts have held that said policy of insurance, in so far as it affected the rights of said Forman, had been satisfied under the contract evidenced by the writings set forth in paragraph 10 hereof, and inasmuch as the legal title of said contract is still in said Forman, though the equitable interest therein is in said Griffin, George M. Forman, for the use of said Griffin, brought this action for $2500 under said agreement set forth in paragraph 10 hereof. (15) There is due said Griffin on the execution transferred to him by said Forman $3882.64, besides interest. Said sum exceeds the amount of said insurance on said dwelling destroyed by fire, and under the terms of said agreement between said Forman and said defendant, as set forth in paragraph 10 hereof, defendant is liable in the sum of $2500, with interest since the sale of said land.
    The plaintiff proved his case as laid except as to the allegation in paragraph 10 of the petition that the plaintiff had transferred the “adjustment” as -therein alleged. At the conclusion of the taking of the plaintiff’s testimony, the trial judge granted a non-suit, upon the theory that the expression “We feel that you, representing Mr. Forman, will exercise due diligence in making the land bring as much as possible” was a material part of the contract, and that the plaintiff had failed to show a compliance with this provision of the contract.

      B. L. Maynard, for plaintiff.

      James W. Smith, King, Spalding, MaeDougald <& Sibley, for defendant.
   Stephens, J.

(After stating the foregoing facts.)

We are of the opinion that the above-quoted expression in the letter from the defendant to the plaintiff’s attorneys, which contains the terms of the contract sued upon and which is set out in paragraph 10 of the petition, creates no obligation upon the plaintiff. This clause in the defendant’s letter amounted to a mere expression by the defendant of confidence in the plaintiff’s attorneys. It could not amount to more than an invitation from the writer of the letter to the plaintiff’s attorneys to obligate themselves or the plaintiff to exercise the diligence referred to. If it was such an invitation it received no response from the plaintiff’s attorneys, as in their answer to this letter no reference whatever was made to this suggestion. If this suggestion was a part of the defendant’s offer, it was not accepted by the plaintiff through his attorneys, and no contract arose between the parties. Therefore, if this interchange of letters amounted to a contract, as is conceded by both parties to the litigation, this expression in the defendant’s letter can not be considered as a part of the contract and must be disregarded. It appears, therefore, that the court erred in awarding a nonsuit.

It does not appear from the petition that there has been any former adjudication of the matter sued on. The petition set out a cause of action and was good against all of the demurrers interposed. No question as to the sufficiency of a plea of res judicata is made by the record.

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

Jenkins, P. J., and Bell, J., concur.


text:
    16799.
    Webb v. Orme.
   Stephens, J.

1. Where a note is given for the purchase-price of an automobile, and contemporaneously there is executed by the maker of the note a written contract of purchase, referred to in the note, the note and the contract together constitute one contract.

2. Where the written contract of sale provides that the purchaser shall “keep said automobile and its equipment insured for its full insurable value against loss by fire, theft, and collision, in some insurance company acceptable to vendor, and loss payable to vendor and myself as our interest may appear at time of loss; provided further, that if by special agreements the American Discount Company of Georgia places the insurance on this car, the said insurance can not be cancelled by myself before expiration of policy covering said insurance,” the contract is not complete as respects the matter of placing insurance upon the automobile, which is the subject-matter of the contract, and such contract may be added to by a contemporaneous parol agreement between the parties by the terms of which it is agreed between the seller and the purchaser, for a consideration promised to be paid by the purchaser, which is added to the note as a part of the purchase-money, that the seller is to place collision insurance upon the automobile. In a suit on the note, against the maker, a plea as amended, alleging as a defense that the defendant and the payee of the note had entered into such a parol agreement as indicated above, was not subject to demurrer upon the ground that it sought to add to or vary the contents of a written contract.

3. Where the plea and the amendments thereto alleged that the contract as to the placing of the insurance was made by the defendant with the payee of the note through one who was agent of the payee, the plea as amended was- not subject to demurrer upon the ground that it alleged a contract between the defendant and one who was not the payee mentioned in the note or the seller mentioned in the contract of sale.

4. Where, upon the trial of the issue formed upon the plea and its amendments, it appeared from the evidence that the defendant negotiated for the sale of the automobile with an automobile dealer who had it for sale, but that the note and the accompanying contract of sale were made not in the name of this dealer, but in the name of another as payee of the note and as seller in the contract, styled “American Discount Company,” that the American Discount Company was not a dealer in automobiles, but was engaged in purchasing automobile purchase-money notes from automobile dealers, that blank printed forms for purchase-money notes and automobile sales contracts, with the name of the American Discount Company printed therein as the payee of the notes and as the seller in the contracts, were kept on hand by the automobile dealer, and that it was the habit of the dealer, when a sale of an automobile was pending, to call up the American Discount Company, or some other buyer of automobile purchase-money notes, to ascertain if the company or person called would buy the notes for a certain automobile without the dealer’s indorsement thereon, and, if the sale was approved by the person called, the contract would then be filled out in the name of the buyer of the notes on the note buyer’s forms in the hands of the dealer, and that the American Discount Company received from the dealer the note and the contract executed in the name of the American Discount Company as payee in the note and as seller in the contract, and remitted to the dealer an amount less the discount upon the note, it was inferable that the dealer, in taking the note and executing the contract of sale in the name of the American Discount Company as payee in the note and as seller in the contract, was the agent for that company; and a charge by the court submitting such issue of agency to the jury xvas not error.

Decided September 29, 1926.

Complaint; from city court of Decatur—Judge Daley. August 22, 1925.

Hewlett & Dennis, for plaintiff. Scott Candler, for defendant.

5. The provision in the contract, that the purchaser is to keep the automobile insured as against collision, in an insurance company acceptable to the sellei-, and that should there be any special agreements by xvhich the American Discount Company itself places the insurance upon the automobile, certain rights would accrue, was sufficient to put the American Discount Company upon inqxxii'y as to xvhat arrangements, if any, had been made by the dealer negotiating the trade with the purchaser respecting the insurance, including insurance against collision, required by the contract; and the charge' of the court, relative to a ratification by the American Discount Company of the act of the dealer, as agent, was not error, xvhere the chai-ge omitted to state that it was essential to the ratification that the American Discount Company should have knowledge of the alleged contract as to the insxxranee between the dealer and the defendant. Civil Code (1910), § 4530.

6. The court did not err in chai-ging that the bxxrden of proof was upon the plaintiff.

7. The evidence authorized the inference that there was a valid contract between the defendant and the payee of the note sued on, namely, the American Discount Company, through its axxthorized agent, by the terms of which contract the payee was to take out collision insurance upon the automobile, and that the failxxre by the payee to take out such insurance constituted a breach of this contract; and the evidence also authorized the inference that as a result of a collision the automobile sold was damaged to the extent of the amount of the note sued on.

8. It being undisputed that the plaintiff, as transferee of the note sued on, acquired title thereto after maturity, the defenses pleaded were good as against him.

9. The charge of the court fairly submitted all the issues. The evidence authorized the verdict for the defendant, and no error appears.

Judgment affirmed.

Bell, J., concurs. Jenkins, P. J., disqualified.


text:
    16857.
    Exchange Bank of Savannah v. Harper.
    Decided September 29, 1926.
    Complaint; from city court of Savannah—Judge Freeman. July 28, 1925.

      Lawrence & Abrahams, for plaintiff.

      Mclntire, Walsh & Bernstein, for defendant.
   Stephens, J.

1. A promissory noto, signed by two parties as makers, which, in the body thereof, provides, “We promise to pay to the order of ourselves” a stipulated sum of money-upon a certain date, etc., is a joint, and not a severable, obligation of the makers. This is true notwithstanding that elsewhere in the -note certain waivers as to homestead, exemption, and bankruptcy, and as to notice of protest, are made by “each” party to the note, “whether maker, indorser, surety, guarantor or other party,” and notwithstanding that the note provides that the bankruptcy or insolvency of “either of the parties” to the note will at the option of the holder operate to mature the note.

2. Although an instrument purporting to be a promissory note payable to “ourselves” does not become a note until indorsed and delivered by the makers, their indorsement does not operate to convert them into sureties or indorsers, and does not render the obligation severable.

3. The note sued on being a joint note, and the suit being against one of the makers only, a demurrer upon the ground of nonjoinder was properly sustained. Graham v. Marks, 95 Ga. 38 (21 S. E. 986).

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


text:
    16871, 16872.
    Davis v. McDuffie; and vice versa.

   Stephens, J.

1. In a suit to recover a specified sum as damages for an alleged breach of a contract by the terms of which, the plaintiff alleged, he was entitled to a commission for services rendered by him in effecting a sale, in behalf of the defendant, of corporate stock belonging to the defendant, where the court, in the charge to the jury, outlined the plaintiff’s contentions, and in so doing instructed them that the plaintiff in bringing the suit was seeking to recover the amount specified in the petition, and that he contended that lie went to work under his contract of employment with the defendant and succeeded in effecting a sale, “not that he legally or formally closed up the sale, but that his work and his efforts effected the sale, that his work and his efforts were the primary, proximate, and procuring cause of the sale, and without which it would not have been made,” an instruction immediately afterwards, that “in passing on this question it must appear to your satisfaction by the preponderance of the evidence that the work of the plaintiff, if he did any, or his efforts, if there were any, were the proximate, primary, procuring cause of the sale, without which the sale would not have been made, and in consequence of which the sale was actually closed up and made legal and binding,” clearly instructed the jury, and must necessarily have left them under the impression, that if the plaintiff proved the things narrated by the court, the ■ plaintiff would be entitled to recover against the defendant.

2. The court, therefore, having, as above indicated, clearly instructed the jury that before the plaintiff could recover, his efforts must have been the proximate, primary, procuring cause of the sale, and without which the sale would not have been made, the charge was not subject to the exception that the court elsewhere, when instructing the jury that if the defendant made with the plaintiff the alleged contract to effect a sale of the defendant’s stock, the defendant would still have the right to make the sale himself, left the jury with the impression that if the defendant in fact made the sale of the stock to the person with whom the plaintiff had had negotiations for the sale, the plaintiff would thereby be defeated in his right to recover commissions on the sale, although the plaintiff’s efforts may have been the proximate, primary, procuring cause of the sale.

3. It appearing from the entire charge that, notwithstanding the defendant may himself have made the sale of the stock to the person alleged to have been procured by the plaintiff as a customer, the plaintiff could recover, if his efforts were the proximate, primary, procuring cause of the sale, a reiteration by the court, several times in the charge, that the contract made between the plaintiff and the defendant respecting the plaintiff’s employment to negotiate a sale would not affect the defendant’s right to make the sale himself, was not calculated to impress the jury with the idea that the plaintiff could not recover if the defendant himself effected the sale, although the plaintiff’s efforts may have been the proximate, primary, procuring cause of the sale.

á. It was not error for the court to give in charge to the jury a contention of a party as made by the evidence, although such contention was not made in the pleadings.

5. Although the plaintiff alleged in his petition that the contract sued upon was that he was to “work with or assist” the defendant in the sale of the defendant’s stock, yet where the plaintiff unequivocally testified upon the stand that the contract provided that he was to sell the stock, and where his evidence was silent as to there being any agreement between him and the defendant that the plaintiff was to assist the defendant in the sale of the stock, and where the evidence did not authorize any such inference, the court did not err in refusing to state to the jury the plaintiff’s contention made in the petition, that he was to assist the defendant in the sale, and further did not err in stating to the jury the plaintiff’s contention that he was employed to sell the stock of the defendant.

6. Applying the foregoing rulings, the court nowhere erred, either in the charge to the jury or in failing to charge, as contended by the plaintiff in the motion for a new trial.

7. The evidence being conflicting as to whether any contract as contended for by the plaintiff had been made, and as to whether the efforts of the' plaintiff were the proximate, primary, procuring cause of the sale which the defendant himself made of the stock, the verdict found for the defendant was authorized.

Decided September 29, 1926.

Complaint; from city court of Atlanta—Judge Reid. ■ September 19, 1925.

Hewlett & Dennis, Colquitt & Conyers, for plaintiff.

Reuben R. & Lowry Arnold, for defendant.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

Bell, J., eoncurs. Jenkins, P. J., disqualified.


author: Per Curiam.

text:
    16934.
    Myers-Fryer Company v. Bradley Company.
    Decided September 29, 1926.
    Rehearing denied October 2, 1926.
    Complaint; from Dougherty superior court—Judge Custer. September 28, 1925.
   Per Curiam.

1. Where the relation of customer and factor exists between the owner of cotton and a commission merchant with whom it has been stored for the purpose of sale, the reduction to writing of a lien to secure advances made on the cotton thus stored, which by its terms is in no wise inconsistent with the relationship theretofore existing, does not destroy the relationship of factor and customer. In the instant ease the contract setting forth the lien for the advances made does not expressly or by implication abrogate the relationship of factor and customer. The fact that the customer’s note' as thus secured is made negotiable merely enables the factor to assign the indebtedness and the security therefor, and does not purport to authorize him to substitute another to perform the duties and obligations of the factor. Accordingly, in a suit by the factor for the balance due on such an obligation after the proceeds arising from a sale of the property stored had been applied thereon, it was a good ground of defense that there was a breach by the plaintiff of the obligation resting upon him as factor, in that he had failed and refused to comply with the defendant’s demand to sell the cotton on a certain date, when if the demand had been complied with the proceeds of the cotton would have fully satisfied the plaintiff’s claim for advances.

2. Allegations in such a plea, that the plaintiff depressed the price and the grade of the cotton in order that certain officers and stockholders of the plaintiff’s firm and their relatives might gain an advantage and purchase the cotton at a low valuation, to the defendant’s damage, where it does not allege how or in what manner and by what acts the plaintiff depressed the price and the grade of the cotton, are mere conclusions of the pleader. A false quotation of the price of cotton made by the plaintiff to the defendant is not an act on the part of the plaintiff depressing the price of the cotton. Such allegations were properly stricken on demurrer.

3. Except as indicated in paragraph 1, the plea set out no legal defense.

4. Under the rulings in paragraph 1 the court erred in striking the entire plea and directing a verdict for the plaintiff.

Judgment reversed.

Jenkñns, P. J., Stephens and Bell, JJ., concur.

Application for certiorari was made to tbe Supreme Court.

J. L. Dowling, 0. E. Hay, for plaintiff in error.

Slade & Swift, Pope & Bennet, contra.


text:
    17045.
    Georgia Military Academy v. Rogers.
   Stephens, J.

1. Where a written application was made to the president of an educational institution for a “reservation” for the applicant’s son as a pupil in the institution for the next school year, a written reply nine days later, from the president of the institution to the applicant, in the language next hereafter quoted, was sufficient to authorize an inference that the applicant’s offer was accepted by the president of the institution and constituted a binding contract between the parties in accordance with the terms of the offer. The reply of the president of the‘institution was as follows: “We appreciate very keenly the opportunity which you are giving us to have charge of your son next year. Please say to your- son that he is entering a school of high standards and strict discipline, with a body of teachers ever ready to promote his interests. You have made a wise decision, and I hope you will come to realize this more and more as he advances in his work here.”

2. 'Where the application states that the applicant has examined the catalogue of the institution and makes application for “reservation” for his son for the next school year, and is enclosing a check for $10 “to complete this reservation if accepted by you,” which check is to be applied on the charges as stated in the catalogue, which the applicant agrees to pay when due, and where the catalogue provides that all contracts made with parents or guardians are for the scholastic year unless otherwise expressly stipulated when pupils enter, and that the specified amount for tuition, board, etc., is to be paid in a certain amount on entrance and the balance at a stipulated period later during the term, which offer is accepted by the institution, the accepted offer constitutes a contract between the parties, by the terms of which the son is accepted by the institution as a pupil in the school for the entire scholastic year. This is true although the son may never have matriculated or entered the school.

3. Where, three days before the beginning of the school term, the parent notified the school authorities that he would not send his son to the - school, and where the son did not enter the school or matriculate therein, and never did attend the school, this amounted to a tender by the parent of a breach of the contract; and whether or not such tender of breach was accepted, the school authorities, in a suit against the parent to recover on the contract, instituted after the expiration of the scholastic year and after the period within which the. contract was to have been performed, were entitled to recover of the defendant in the amount of the plaintiff’s proved damage for the breach of the contract. The petition set out a cause of action, and was good as against the demurrers interposed.

4. There being no question raised by demurrer as to whether or not the petition, in which a recovery is sought for the full amount contracted to be paid by the defendant, sets out the legal measure of damages, this question is not here decided.

Decided September 29, 1926.

Complaint; from Randolph superior court—Judge Yeomans. November 3, 1925.

Linton B. West, Herman Heyman, Dorsey, Howell & Heyman, for plaintiff.

James W. Harris, for defendant.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur.


text:
    16734.
    Kirkpatrick Hardware Company v. Rogers.
    Decided October 2, 1926.
    Garnishment and claim; from Marion superior court—Judge McLaughlin. July 1, 1925.

      Noah B. Butt, John O. Butt, for plaintiff in error.

      W. D. Or aw ford, contra.
   Stephens, J.

1. While a lien existing upon a bankrupt’s property more than four months prior to the filing of the petition in bankruptcy is not affected by the bankrupt’s discharge, a homestead exemption authorized under the State law will defeat -an enforcement of the lien. Evans v. Rounsaville, 115 Ga. 684 (42 S. E. 100) ; Barrett v. Durham, 80 Ga. 336 (5 S. E. 102).

2. A homestead exemption set aside by the bankrupt court is as effective as if set aside in the State court. Ross v. Worsham, 65 Ga. 624.

3. Property not exempt from the enforcement of an existing lien may become exempt upon grounds of exemption afterwards arising, as when a judgment creditor has an existing lien upon the property of his debtor which is not subject to homestead and the debtor afterwards marries and thereby becomes entitled to a homestead exemption upon the property.

4. In a suit by the judgment creditor against the debtor, to subject to the plaintiff’s debt, funds arising from the sale of the property so exempted, a verdict for the defendant was authorized.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    16772, 16782.
    Ehrlich v. Exchange Bank of Savannah; and vice versa.

   Stephens, J.

1. An agreement by which a creditor extends to his debtor additional time in which to meet the obligation does not contain a contractual obligation by the creditor to refrain from bringing suit on the original obligation before the expiration of the extended time agreed upon in the extension agreement. There being no duty resting upon the creditor under such circumstances to refrain from bringing suit, a suit brought by the creditor before the expiration of the extended time, which does not contain therein any element of malicious use or abuse of process, violates no duty owed by him to the debtor, and affords no ground for a suit by the debtor against the creditor, for damages, either in tort or contract, based upon such premature institution of suit.

2. Where the times of payment of certain promissory notes have been extended by a separate agreement between the debtor and the creditor, a suit brought upon the notes after the expiration of the time of extension under the collateral agreement is nevertheless a suit upon the same cause of action as the suit brought upon the same notes prior to the expiration of this time but after the maturity of the notes as appears in the body of the notes. See, in this connection, Gribben v. Clement, 141 Iowa, 144 (119 N. W. 596, 133 Am. St. R. 157, 161); Lynch v. Schemmel, 176 Iowa, 499 (155 N. W. 1019). Tt follows, therefore, that where suit is brought upon the notes after their maturity but before the expiration of the extended time for payment agreed upon in the collateral agreement, and after a plea in abatement setting up that the suit is prematurely brought, the creditor voluntarily dismisses the suit, and upon the following day, which is after the expiration of the time of the extension agreed upon, the creditor notifies the debtor by giving him the statutory notice of his intention to bring suit upon the notes at a subsequent term- of court, and ask for attorney’s fees, and where before the institution of the second suit the debtor pays the indebtedness, it appears that the creditor in dismissing the first suit had not abandoned the prosecution of the suit upon the notes, and, since the debtor paid the indebtedness, it appears that the prosecution had not ended favorably to the debtor. Hartshorn v. Smith, 104 Ga. 235 (30 S. E. 666); Waters v. Winn, 142 Ga. 138 (82 S. E. 537, L. R. A. 1915A, 601 Ann. Cas. 1915D, 1248) ; 19 Am. & Eng. Ene. Law, 684. Therefore, no right of action for malicious use of the process of the court by the institution of the first suit accrues to the debtor against the creditor.

3. Although the creditor may have been actuated by malice against the debtor in the institution of the first suit on the notes, and may have instituted it for the purpose of injuring the debtor’s credit and embarrassing him in his business, and may have succeeded therein, yet where it appears that the process of the court, although sued out before the debt was due under the terms of the alleged extension agreement, was used for the legitimate purpose of collecting an undisputed indebtedness, it can not be inferred that the creditor in instituting the suit was guilty of an abuse of the process of the court. McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190).

4. Applying the foregoing rulings, in a suit by the debtor against the creditor, for damages alleged to have been sustained by reason of the institution of the original suit alleged to have been prematurely brought upon the notes, construing the case either as an action in tort for a breach of duty alleged to have been owing by the creditor to the debtor under the contract of extension, or as a case of malicious use of process, or as a case of an abuse of process, the evidence failed to authorize a verdict for the plaintiff, and the trial judge properly directed a verdict in favor of the defendant.

Decided October 2, 1926.

Action for damages; from city court of Savannah—Judge Freeman. June 25, 1925.

Oliver & Oliver, T. N. Brown, for plaintiff.

Lcuwrence & Abrahams, for defendant.

Judgment affirmed on live main bill of exceptions; cross-bill dismissed.

Jenldns, P. J., dissents. Bell, J., concurs.


author: Per Curiam. Jenkins, P. J.,

text:
    16845.
    Fleming v. Phinizy.
   Per Curiam.

1. Ordinarily, when one renders services of value to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.

2. Where an attorney, by the authority of his client, a married woman, brings a suit in her behalf against her husband for divorce, and pending this suit negotiates a settlement with the defendant and the defendant’s attorneys, as a result of which the defendant settles upon the plaintiff a substantial sum as alimony, which the plaintiff accepts, the attorney, in the absence of any agreement as to fees, is entitled to be paid by his client such a sum as will represent the reasonable value of the services rendered. McDonald v. Napier, 14 Ga. 89, 104; Wells v. Haynes, 101 Ga. 841 (28 S. E. 968).

3. Where an attorney renders in behalf of his client services of the nature indicated above, without any agreement whatever as to the amount or terms of his compensation, he is not acting under a contract for a contingent fee in a divorce case or in an alimony case, and no question arises as to whether employment upon such a contingent basis would be illegal or contrary to public policy, or whether an attorney who has rendered services under a contract illegal or contrary to public policy could nevertheless recover on quantum meruit.

{a) There is no law or public policy in this State which renders it illegal or improper for an attorney to represent a married woman in a suit for divorce and in negotiations to obtain money as alimony or in lieu of alimony, where the employment is without any agreement as to terms or amount of compensation, or as to what person shall be liable therefor.

(5) In such a case the attorney is not without remedy against the person in whose behalf his services are rendered, merely because the suit is one for divorce and the ancillary matter in controversy concerns the payment of money as alimony, nor because the defendant in the suit might have been required by the court to pay to the plaintiff a sum for the fees of her attorney. The attorney is not obliged to depend for his fees upon a judgment against the opposite party therefor, but can look to his client to pay him the value of his services.

(c) Under the facts alleged in this case, which is a suit by an attorney against his former client for the reasonable value of services rendered by him of the nature and character above specified, it does not appear that the services were gratuitous and voluntary, for which his client should not pay.

Decided October 2, 1926.

Complaint; from Richmond superior court—Judge Franklin. September 15, 1925.

STATEMENT OE FACTS BY THE COURT.

William H. Fleming sued Mrs. Mary V. Pbinizy for an attorney’s fee. After the petition had been several times amended the court sustained the general demurrer and overruled the special demurrers. The case is here on exceptions to the order sustaining the general demurrers. The petition as amended was substantially as follows: (1) The defendant is a resident of Richmond county. (2) The plaintiff, as attorney at law had represented defendant in a suit brought by her husband, Jacob Phinizy, for divorce, filed November 20, 1920. On September 19, 1922, the Supreme Court reversed a judgment of the trial court, and laid down in the decision such principles of law applicable to the facts as in the opin-. ion of the plaintiff practically ended all prospect of the obtaining of a divorce by Mr. Phinizy on any of the grounds named; but Mr. Phinizy and his attorneys seemed to hold a different view, and continued to press for another trial of the case in the lower court, and matters so continued until March, 1923, up to which time the plaintiff, as admitted by him, was paid for legal services rendered, partly through order of the court requiring Mr. Phinizy to make payment for such services, and partly through a voluntary contribution from his own client, Mrs. Phinizy, though the entire sum so received was no adequate compensation for the services actually rendered. (3) On or about the-day of March, 1923, it was apparent that there was no hope for reconciliation between the parties, and that each party was weary of the legal contentions, and knowing that Mrs. Phinizy had just cause to obtain a divorce from her husband on the ground of desertion, though he had no ground upon which to procure a divorce from her, this plaintiff, when approached by Judge Henry C. Hammond, one of Mr. Phinizy’s attorneys, to ascertain if there was any way by which Mr. Phinizy could be allowed to get his divorce, replied that there was absolutely no way by which such a result could be reached in the form in which the suit was then pending, because it implied that the defendant, Mrs. Phinizy, had done some legal wrong, whereas she had not, and under no such circumstances would this plaintiff as Mrs. Phinizy’s attorney consent for Mr. Phinizy to get a divorce. Upon being asked by Mr. Phinizy’s attorney if there was any suggestion this plaintiff could make in the matter, he replied that in his opinion Mr. Phinizy could never get a divorce in the suit pending, but that if that suit was dismissed, and if Mrs. Phinizy should be willing to file a suit against Mr. Phinizy on the ground of desertion, a jury might remove Mr. Phinizy’s disabilities. (4) That suggestion, was submitted to Mr. Phinizy, and his attorney reported to this plaintiff that they would be glad to make arrangements along that line, and stated that Mr. Phinizy would be willing to compensate this plaintiff as attorney for Mrs. Phinizy for his work in securing a divorce. This latter suggestion was promptly declined by this plaintiff on the ground that there was one particular question to be settled by further negotiations, and that was the amount of money to be paid by Mr. Phinizy to Mrs. Phinizy as alimony, or settlement of all claims against his estate; and the plaintiff stated he would not accept employment from Mr. Phinizy, because the interests were conflicting; and he was subsequently informed that the amount Mr. Phinizy was willing to pay was not less than $2500. (This last clause in reference-to said $2500 was stricken by amendment.) (5) The above developments were promptly reported by this plaintiff to Mrs. Phinizy, and especially his refusal to accept employment from Mr. Phinizy on account of conflicting interests. Thereupon some discussion was had as to amount of settlement, Mrs. Phinizy stating that she might be willing to give matters that direction, but she intended to hold whatever sum was paid her for the benefit of her daughter by a former marriage, whose name had been changed to Phinizy at Mr. Phinizy’s request. (6) Mr. Phinizy’s attorney, Judge Henry C. Hammond, stated that he would positively not pay more than $10,000. This plaintiff replied that such sum would not be accepted. Negotiations were then continued between Mr. Phinizy’s said attorney and this plaintiff as attorney for Mrs. Phinizy; but negotiations were also being conducted to an extent with one or more friends or connections of the parties, to wit, Mrs. A. J. Salinas, Mrs. Robert S. Innes, and Mr. W. B. White, and finally Mr. Phinizy, especially through the stand taken by this plaintiff, was forced up to $30,000. In response to special demurrer the plaintiff amended this paragraph as follows: “When plaintiff and said attorney of Mr. Jacob Phinizy were discussing the amount to be paid, and when plaintiff stated he would not consider the suggestion that Mr. Phinizy should pay $10,000, Mr. Phinizy’s attorney asked plaintiff what his idea was as to a proper amount, and plaintiff replied that his own idea was that Mr. Phinizy, with his reputed wealth, ought to pay nearer $75,000 than $10,000, but that the amount was of course a subject of negotiation, and especially would it have to be agreed to by Mrs. Phinizy. Plaintiff communicated those remarks to Mrs. Phinizy, but she was later persuaded to close up the disagreeable business by agreeing to accept $30,000, and plaintiff did not consider that he ought to insist on a larger sum, since the defendant was willing to take the $30,000, in order to get rid of the embarrassment and nervous strain which she was under. Said $30,000 was paid to Mrs. Mary Yason Phinizy individually, in exact accordance with the advice of plaintiff, which Mrs. Phinizy accepted.” (7) While the above-stated negotiations were in progress the question of what charge this plaintiff should make for his services was brought up at a conference at which he, Mrs. Phinizy, and Mrs. A. J. Salinas, sister of the defendant, were present, and he stated that he would charge only some reasonable or nominal sum for the actual formal work in the court-house of securing a divorce for Mrs. Phinizy; but that if a settlement was reached, he should have some additional compensation by way of percentage on the amount obtained; whereupon Mrs. Salinas said, “Well, I think that would be fair;” and Mrs. Phinizy acquiesced, at least by her silence; and with that understanding he proceeded to render services in obtaining a settlement, examining the papers proposed, drawing a new paper, and making additional suggestions for the complete protection of Mrs. Phinizy, which were incorporated in the final settlement, Mrs. Phinizy having refused to sign any paper presented by Mr. Phinizy until after its terms had been submitted to this plaintiff as her attorney. (8) One or two days after that conversation Mrs. Phinizy made inquiry of the plaintiff what his fee would be, and he replied in a letter, under date of March 25, 1923, stating that for $250 he would do the formal court-house work in obtaining a divorce, but that for the other work he would expect compensation not less than 5 per cent, nor more than 10 per cent, on the amount of the settlement, which he felt satisfied was due to his own efforts. A copy of the letter is attached to the petition, as follows:

4. Where services undertaken as stated above progressed at length, and then some question arose between the attorney and his client as to what charge the attorney would make for his services, the statement by the attorney in a letter to his client that in his opinion' $250 would be reasonable for the services in procuring the divorce, and “that a rate not less than five per cent, nor more than ten per cent.” of the amount obtained as alimony “would be reasonable and customary,” could not operate to convert the original agreement into a contract to recover alimony on the basis of a contingent fee.

5. Statements by the client, in a letter replying to such letter from her attorney, to the effect that to reduce the amount expected as alimony “by the percentage” named by the attorney would leave “such a pitiful sum as to make it absurd,” and that she could pay the $250 named by the attorney as sufficient for his services in obtaining the divorce “if that is to cover all expenses attending the case,” and that she “could have no peace of mind if [she] was in debt for other expenses than this amount,” did not as a matter of law constitute a repudiation of liability for the reasonable value of services rendered, nor of the relation between herself and her attorney as previously existing'. The attorney could thereafter continue to perform services for his client in pursuance of the matters theretofore undertaken and recover the reasonable value thereof. Such communications between the attorney and his client with respect to the amount of compensation showed a mere discussion without affecting the rights of either, past, present, or future.

6. But even assuming that the letter of the client to the attorney amounted to a positive refusal to be liable for services upon any other terms except those stated by her, so .that the attorney could not expect to be paid upon any other basis for future services, the client could not by such arbitrary action terminate such liability as may already have accrued against her, but the attorney could recover upon quantum meruit for such services as he had rendered to that time. The rendition of further services, even though they may be assumed thereafter to have been gratuitous, would not constitute a waiver on the part of the attorney of any right to recover for services theretofore rendered. His subsequent conduct did not cause his client to alter her position nor afford any other ground of estoppel.

7. Applying the foregoing rulings, the petition set forth a cause of action for a recovery on quantum meruit for the value of the services rendered. The court erred in sustaining the general demurrer thereto.

Judgment reversed.

Jenkñ/ns, P. J., and Stephens and Bell, JJ., concur.

“Augusta, Ga., March 25, 1923.

“Mrs. Mary Y. Phinizy, Bon Air-Yanderbilt Hotel, Augusta, Ga. “Dear Mrs. Phinizy:

“I found your note of yesterday awaiting me when I reached home last night, and was much pleased at the way matters are progressing. I think you had best not sign any papers until I see them. However, that need not cause any delay, as I will be at your service, I think, at any time between 7 and 9 this evening. Also, while I will be at Appling court Monday and Tuesday, I hope to be at my office or at home late in the afternoon or early evening of each of these days, and can be reached by phone.

“In regard to the check being left with an officer of the Citizens & Southern Bank, it may be best to name Mr. Ferguson, the chief officer here, as he could keep the matter to himself; whereas if you select a subordinate officer, he might feel obliged to ask the consent of his superior. I know Mr. Ferguson well, and will explain the situation to him at any time, if you so desire.

“Now that the amount has been agreed upon, I consider it to your interest for the contract to be signed as soon as practicable, in order to guard against possible contingencies.

“In regard to fees, I am sure we are not going to have, any difficulty. Indeed, I am willing to leave that matter almost entirely in your hands. But as you have mentioned the subject, it is of course proper for me to give you a prompt and candid statement from my viewpoint. You ask me at this stage to let you know what my charge will be for conducting your suit against Mr. Phinizy, who will make no contest. His seeming desire not to have a lawyer only increases my own responsibility. I hope he will engage one. I think a charge of $250 for that work would be reasonable. This need not be paid until the end of the case, unless you prefer to pay part or all in advance. But of course it seems to me that when the $30,000 check is cashed, some more liberal compensation on a percentage basis ought to be made. I mentioned that expectation in one of our recent interviews at Mrs. Salinas5 home, and she replied: ‘Well, I think that would be fair,5 and I understood you'to acquiesce. I did not then name any rate of percentage, but now suggest that a rate not less than 5 per cent, nor more than 10 per cent, would be reasonable and customary under such circumstances.

“In this connection, let me say that the satisfactory outcome we are about to reach could never have been obtained, except on the line I suggested, which originated with me, and with no one else. We were at a deadlock for the future after the Supreme Court gave us the victory it did. Mr. Phinizy refused to abide by that decision, and was pressing the litigation which was of course very disagreeable. I gave his attorney to understand that I would fight it out to a finish, and that in my judgment he would never get a divorce. One of the attorneys came to see me with the inquiry if some arrangement could not be made for us t'o allow him to get a divorce judgment in the suit then pending. I replied that such a thing would never be ggreed to by me or you. The attorney then asked if there was nothing that could be done. I replied that there was only one possible opening, and that was for Mr. Phinizy to dismiss his suit, thus acknowledging that he had no ground for divorce against you, and thus clinching the legal victory we had won; and if that was done, you might be persuaded to file a suit against Mr. Phinizy on the ground of desertion, and the jury would of course relieve his disabilities, so that he could marry again at his pleasure. That attorney was greatly pleased at this suggestion from' me, and reported it to Mr. Phinizy, who seemed to take to it very kindty, but of course he Tricked/ when terms of compensation were mentioned, naming $10,000 as his utmost limit.

“At a subsequent interview with the same attorney I discussed (as I did with you and your sister) all the legal phases of the situation, your possible claim for dower, and year’s support, especially as the contract you signed, relinquishing all such rights, was not approved by the judge of the superior court, as the law usually requires in such matters of contracts of sale from wife to husband. I also mentioned the possibility of a contest of his will, on the ground of undue influence of the other lady in the case, and urged that it was manifestly best to settle these questions in the lifetime of both of you, and thus avoid costly and -tedious litigation over his estate. I also outlined in detail the best plan of procedure, including the entry on the court record of a dismissal of his case, the immediate filing of your case against him; and the deposit by him of cash or securities in the hands of a third party, etq. All these matters were reported to Mr. Phinizy, and each point has been substantially incorporated in the contract which you are asked by him to sign.

“I have especially protected your interests against loss by his death or yours, requiring the delivery of the check or securities (1) when the decree is signed, or (2) upon his death; or (3) upon your death, to be delivered, to your executor or administrator. The result is, you are to get your complete vindication in court; you are to be rid of a vexatious lawsuit; and you are to get the $30,000 in cash, in addition to having the right to your annuity of $7500 confirmed. Also the $30,000 comes to you absolutely and not hampered, as at first suggested, by a trust for any one else; though you are free to use it for your daughter, as you intended from the first. My work in the suit of Mr. Phinizy against you was entirely defensive. My work in bringing about the successful outcome was aggressive, original, and constructive.

“I apologize for going into so much detail, but I thought you might prefer to have in writing the views already expressed to you in conversation.

“Now, in conclusion; my good friend, let me say, I am your lawyer, and I am going to see you through in this matter, regardless of fees. My professional pride will require that much. So please do not allow yourself to worry on that score. Dismiss it from your mind, until we come to the end and the check is cashed. The amount to be paid me will, within any reasonable limits, be left to your discretion.

“With highest regards and best wishes,

“Wm. H. Fleming.”

(9) To this letter Mrs. Phinizy replied that after deducting such a percentage from the $30,000, the reduced amount would be such a pitiful sum as to make it absurd to offer her (that is, her daughter), and in the same letter stated that she would pay the $250 for obtaining the divorce for her “If that is to cover all expenses attending the case” (and there was no other' expense attending that case); and she also stated in that letter that she could have no peace of mind if she felt that she was in debt for other expenses than this amount of $250 was covering. In response to. a demurrer a copy of the letter referred to in this paragraph was added by amendment, as follows:

“The Bon Air-Vanderbilt. Augusta, Georgia, Sunday night, March 25th.

“Dear Mr. Fleming:

“Your long letter has been very carefully read. Mrs. Innes is ill, and has not been able to further confer about the matter, and I am far from equal to another fruitless talk, and so far have nothing to tell you. I will be less apt than ever to sign any paper until I realize where it will lead me. I now think it must have been subconsciousness on my part that in the very beginning of the suggestion for a payment insist that if ever the money be paid it should be definitely placed in my care, or as a 'trust fund/ I believe it is termed, for my daughter.

“I have never wanted Jacob Phinizy’s money, other than for that purpose, and to lessen the sum of thirty thousand dollars by the percentage you write of expecting would be to reduce the amount of such a pitiful sum as to make it absurd to offer her.

“No, thank you, please do not mention the matter to Mr. Ferguson. He was indifferent to my interest in- a little matter of business last summer when I was going to Europe, and while I bear him no resentment, it’s as well not to try to cross an unsatisfactory bridge the second time.

“I think I should ask Mrs. Innes to request Jacob Phinizy (how awkward it all seems that he should not have a lawyer to talk with) to relieve her of the charge of the check. She is plainly anxious to be relieved of the responsibility, and is not a strong constitution, and perhaps it would be as well not to tax her, and to send the check to a cousin of Mr. Leggett’s, an eminent lawyer in New York, and who is also the manager, or custodian I mean, of the securities she and her husband have.

“Thank you for writing me of the fee for obtaining a divorce for me. I can pay the amount of $250, if that is to cover all expenses attending the ease. Perhaps Jacob Phinizy’s intention not-to contest the case keeps him from having a lawyer, but of that I know nothing. T really have no money, except what is anticipated for contracted obligations, and could have no peace of mind if I felt I was in debt for other expenses than this amount, i. e. $250, will cover.

“Mrs. Innes expected to talk with Jacob Phinizy to-morrow, Monday morning. If I can reach her by ’phone or note, I will ask her about this rearrangement, and let you know in every way the results she will have to tell me.

“Very truly yours,

“Mary Vason Phinizy.”

(10) But under the implied agreement she was not to be in debt to this plaintiff at all until $30,000 was paid into her hands, and not until then was the percentage to be paid, as this part of the fee was entirely contingent. This plaintiff at no time received any intimation from Mrs. Phinizy that he could construe into an intention on her part not to pay him a reasonable compensation on the amount obtained in the settlement, outside of the $250 for actual forinal work in obtaining the divorce; and this plaintiff, acting under the impression that he would be reasonably paid, but with no positive agreement as to the percentage, went on with his work, carried out his contract in full, obtained a final decree, and the $30,000 was finally paid over to Mrs. Phinizy. (11) When plaintiff sought to have a settlement in the matter of fees, his client, Mrs. Phinizy, declined to make any further payment, except the $250 for the formal work in the court-house, which sum never was intended to include the still more important services rendered in connection with the litigation. (12) Plaintiff claims that the value of legal services rendered to the defendant and unpaid for, as above stated, is not less than 5 per cent, nor more than 10 per cent, on the $30,000 obtained in the settlement. Wherefore the plaintiff prays: 1. That he be given judgment against defendant for the sum of $2500. 2. That process issue, etc.

By amendment a paragraph numbered 13 was added, the substance of which is as follows: (13) At the time stated in paragraph 2 of the petition, when Judge Hammond, as attorney for Mr. Phinizy, called to see this plaintiff, the situation between Mr. and Mrs. Phinizy, both from a personal and a legal standpoint, had reached what might be called a deadlock. Mr. Phinizy had lost his case on the law, but showed by his actions that he was determined not to cease litigation, as his case was still pending in court, subject to another trial. Mrs. Phinizy adhered to the positive statement she had made from the beginning^ that she would not allow Mr. Phinizy to get a divorce if she could prevent it, on the suit he had pending against her, in which he charged her falsely, as she claimed, first with desertion, and then with cruel treatment. Mr. Phinizy was in bad health and greatly worried, and Mrs. Phinizy was suffering under the nervous strain to which she had been put. It was in that situation of affairs that this plaintiff originated and communicated to Mr. Phinizy’s attorneys another course, by which both parties could be divorced, and by which his client could-be paid some fixed amount of money in release of all possible interest in her husband’s estate, which should follow from a decree of divorce. Mrs. Phinizy accepted those services, and is now under obligation to pay for'them, even if no further contract has been made. That plan was accepted by both Mr. and Mrs. Phinizy, and under it she received $30,000, as above set out. The plan was for Mr. Phinizy to dismiss the suit he had filed against his wife, charging her with desertion and cruel treatment, and for Mrs. Phinizy to file suit against him on the perfectly legal ground of desertion on his , part, and neither side doubted that a jury, in giving Mrs. Phinizy her divorce, would also relieve the husband’s disabilities, so that he could marry again. But the plaintiff shows further that another contract was made to pay him a percentage on the amount recovered from Mr. Phinizy of not less than 5 per cent, nor more than 10 per cent.— the only question left open being the amount between those limits. Those terms were communicated in writing to the defendant, but she never rejected them until after the $30,000 had been paid over to her. If she intended to make a legal rejection of the terms stated, it was incumbent on her to have notified plaintiff positively and definitely, so that he could have withdrawn from further connection with that part of the case 3 but, on the contrary, she continued to accept and profit by his services.

Substantially the following amendment, was offered and allowed: Under a written contract between Jacob Phinizy and Mrs. Mary Yason Phinizy under date of July 22, 1915, Mr. Phinizy agreed to pay his wife the sum of $7500 as an annuity during her life, in consideration of which she obligated herself in said contract to accept said sum (payable $625 per month), together with other considerations, as a full acquittance and release of her said husband from all claims of alimony against him, and all interest of every kind in his property or estate. If that contract was binding, she had no further legal claim against Mr. Phinizy, or his property or estate. This plaintiff investigated the legal status of that contract, and reached the conclusion that it was not binding on the wife, because it had not been approved nor allowed by an order of the superior court, as required by section 3009 of the Code of Georgia. This opinion was communicated to Mr. Phinizy’s attorney aforesaid, and was given as one ground why Mr. Phinizy should make additional payment before getting a decree of divorce, which would cut off all claim by the wife; so that the $30,000 obtained by the plaintiff as aforesaid for his client was in addition to the $7500 annuity provided for in said agreement of June 22, 1915. The plaintiff further shows that a day or two after he received Mrs. Phinizy’s letter of March 25, 1923, and while the negotiations with Mrs. Phinizy were still pending, he had a further conference with the defendant, at which plaintiff made reference to his expected compensation in connection with the payment to be made by Mr. Phinizy, and suggested that the matter of fixing the amount of that compensation be laid aside for the present, stating that he had no doubt tliat they could get together on that question. Mrs. Phinizy accepted that suggestion and gave no intimation at that time that she intended or expected to refuse to make any compensation whatever in connection with the amount obtained from Mr. Phinizy; nor did she intimate that she intended that the $250 agreed upon should cover any services except those connected with the formal work in the court-house in trying the case and obtaining a final decree, but continued to rely upon the advice and accept the services of the plaintiff in all matters connected with the proposed payment by Mr. Phinizy, and which were not embraced within the services .to be covered by the fee of $250.

William H. Fleming, pro se. Gohen & Gray, for defendant.

Jenkins, P. J.,

dissenting in part. I agree with all that is said in the decision except the statement in the fifth division to the effect that the communication to which it refers would not prevent the attorney from thereafter continuing to perform services for his client in pursuance of the matters theretofore undertaken, and recovering the reasonable value of such subsequent services. In my opinion, the communication referred to left the attorney in a position to recover only for the value of the services rendered prior to the receipt of the communication, under the theory set forth in the sixth division of the syllabus.


text:
    16859.
    Southern Railway Company et al. v. Bottoms.
   Stephens, J.

1. The correct rule for computing damages for negligence, in a suit against a railway company, is that where both the defendant and the plaintiff are negligent, a recovery by the plaintiff must be diminished in proportion to the default attributable to him. Civil Code (1910), § 2781. In a suit against two defendants a charge that the damage which the plaintiff would be entitled to recover should “be reduced as you may find their negligence to be” is not a full and clear statement of the rule. In a suit for personal injuries against a railway company and another defendant jointly, where the evidence authorized the inference that the plaintiff was negligent, it was error prejudicial to the defendants not to comply with a written request, timely made, to charge the jury to the effect that if the jury should find that the plaintiff was negligent in a degree less than the negligence of the defendants, the damages which the plaintiff might be entitled to recover should be diminished in proportion to the amount of default attributable to her, where the only reference of the court in his charge to the reduction of damages by reason of the plaintiff’s negligence was to the effect that the damages recoverable should be reduced as the jury might find the negligence of the parties to be. Where a verdict was rendered for the plaintiff, such error demands a new trial for the defendants.

2. Pain and suffering not having any marketable value, and money compensation therefor not being susceptible to mathematical determination, but the amount of recovery therefor being left to the enlightened consciences of impartial jurors (Civil Code (1910), § 4504; Linder v. Brown, 137 Ga. 352 (6) (73 S. E. 734) ; Betts Co. v. Hancock, 139 Ga. 198 (6) (77 S. E. 77)), a jury in a personal injury suit, where damages for future pain and suffering are sued for, should not be instructed that the amount representing the monetary compensation for future pain and suffering should be reduced to its present worth. Bostwick v. Pittsburgh Rys. Co., 255 Pa. 387 (100 Atl. 123) ; Ford v. Philadelphia &c. Co., 262 Pa. 514 (105 Atl. 885) ; Sebastian v. Philadelphia &c. Co., 262 Pa. 510 (105 Atl. 887) ; see also Gallagher v. Monroe, 222 Mich. 202 (192 N. W. 609); Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). It would be proper, however, in such a case to instrupt the jury that in awarding damages for future pain and suffering they should give consideration to the fact that the plaintiff is receiving a present cash consideration for damage not yet sustained.

3. In a suit for damages against a railway company and one of its servants jointly, in which it was alleged that the plaintiff, who was on the premises of the defendant railway company as a matter of right, for the lawful purpose of accompanying her sisters who were about to board a train of the defendant railway company, was injured by reason of stepping into an unguarded ditch, which it was claimed the defendants had left on or dangerously near the station premises of the defendant railway company, a charge by the court in the language of section 4420 of the Civil Code (1910), that a duty rests upon an owner of premises who by express or implied invitation induces another to come upon the premises to use ordinary care to keep the premises and approaches “safe,” was a correct statement of the law, since it was taken from the code section; and it was not error as against the defendants where the judge elsewhere in his charge, in applying the code section to the evidence, specifically stated to the jury that the duty rested upon the defendant railway company to keep its premises “reasonably safe.”

4. Since the law as laid down in section 4420 of the Civil Code (1910) requires that the owner of land who invites others to come thereon shall exercise due care to see that the premises and its approaches aré safe, a charge to the jury to the effect that such a landowner is under the . duty to see that the premises are “in such condition that the person invited may approach and remain thereon in safety,” was error, in that the court, instead of charging, according to the true rule, that the duty of the landowner is to keep his premises safe, placed upon the landowner the heavier burden of seeing that the person on the premises remained there in safety.

5. In such a suit, where the evidence authorized the inference that the place where the plaintiff was injured by stepping into a ditch was not a part of the station premises of the defendant railway company or was not dangerously near such premises, a charge of the court that if the place where the plaintiff was injured, if she was injured, was “a part of the space at or near the station and stopping place for trains of defendant company,” etc., it was the duty of the defendant company “to use ordinary care to see that such place was kept reasonably safe for such use,” and that if the defendant railway company rendered such place unsafe by digging a ditch and leaving it unprotected, etc., there would be a recovery, etc., was error, in that the charge amounted to an expression of opinion by the court that the place where the plaintiff was injured was dangerously near the station premises of the defendant company, when such question was an issue of fact for the jury.

6. Upon the trial of an action for personal injuries, where there is no allegation of negligence arising out of a violation of a duty imposed by statute or ordinance, a charge that when the law requires an act of a person, a failure on the part of that person to perform the required act creates a presumption of negligence, is not subject to exception that it is error upon the alleged ground that only acts made negligent by statute or ordinance are negligent as a matter of law. It is immaterial how a legal duty arises. A breach of that duty is negligence in law. Where a jury concludes that a person is under a legal duty to perform certain acts, as where a railroad is under a legal duty to exercise due care to keep a ditch reasonably safe against pedestrians falling into it, a failure of the person to perform such act is negligence as a matter of law.

7. A charge that a person is not bound to assume that another is negligent, and is not bound to exercise due care to avoid the negligence of the other person until the negligence of the latter is apparent or in the exercise of ordinary care such negligence could be discovered, is not subject to the exception that it is equivalent to an instruction that the plaintiff, in assuming diligence on the part of the defendant, is chargeable with a less degree of care than the law requires to^diseover the defendant’s negligence.

Decided October 2, 1926.

Damages; from Clayton superior court—Judge Hutcheson. August 1, 1925.

McDaniel & Neely, Oscar J. Googler, for plaintiffs in error.

W. H. Reynolds, Jesse L. Moore, Harwell, Fairman & Barrett, contra.

8. A failure of an agent who has dug a ditch to cover it up so as to render it safe for people lawfully coming in the neighborhood of the ditch at night is a part of the act of constructing the ditch, and is an act of misfeasance and not nonfeasance. Southern Railway Co. v. Sewell, 18 Ga. App. 544 (90 S. E. 94) ; Osborne v. Morgan, 130 Mass. 102 (39 Am. R. 437). Where the only acts of negligence charged against the defendant are such as arise out of the conduct of an alleged agent of the defendant, and where the acts charged are those of misfeasance only and not nonfeasance, it is not error for the court to fail to define nonfeasance or misfeasance, and it is not error to fail to instruct the jury as to the law, applicable to nonfeasance on the part of the alleged agent of the defendant.

9. In a suit against two defendants to recover damages alleged to have been caused by their joint acts of negligence, where the only alleged acts' of negligence appearing from the evidence and relied upon by the plaintiff consist in acts done by one of the defendants as agent for the other defendant and also for himself individually, the evidence does not authorize-an inference of separate liability by either defendant, and a failure to charge as to such separate liability is not error.

10. Where, in a suit for personal injuries, the petition alleged that as a result of the defendant’s negligence the plaintiff sustained serious and permanent bodily injuries, among which were “a severe concussion of the spine,” a severely wrenched and strained back, that the plaintiff had received injuries in her leg and ankle, “that her left heel and the ligaments connecting therewith were stretched and torn, and the nerves, muscles, and tendons and ligaments of all of said portions of her body were strained, stretched, ruptured, and torn,” and that “she sustained a severe nervous shock and is now extremely nervous,” etc., evidence of a physician that the plaintiff was “suffering from a severe sprain of the sacro-iliac joint,” that there was “a displacement of the sacro-iliac synehrondosis,” that “there was tenderness in the lumbar sacral region, extending down the sciatic nerve,” and that “there was atrophic condition of the muscles of the left thigh and leg,” where the evidence showed that the sacro-iliac joint was a part of the spine and that the sciatic nerve extended into the leg, was admissible, under the allegations of the petition.

11. Except as indicated above, the charge of the court fairly to the defendants presented all the issues made, and the court did not err otherwise as set out in the motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Bell, J., ooneur.


text:
    16960.
    Hardin Lumber Company v. Allen.
    Decided October 2, 1926.
    Certiorari; from Monroe superior court—Judge Persons. October 26, 1925.

      A. M. Zellner, for plaintiff in error. J. M. Fletcher, contra.
   Stephens, J.

It appearing conclusively and without issue that the lumber levied on under the foreclosure of a laborer’s lien, arising out of the employment of the plaintiff to fire the boiler of a sawmill, was not the property of the employer, but was the property of a third person, who is the claimant of title to the lumber, and it appearing conclusively and without dispute that the claimant had not employed the plaintiff and had had no dealings whatever with him respecting the work, although the claimant knew of the plaintiff’s employment and had received the benefit of his services and had been told by him that he had not been paid for such services, there appears no equitable ground, upon which the claimant’s property should be subjected to the lien. Hobbs v. Broad River Lumber Co., 32 Ga. App. 447 (123 S. E. 756). This case1 is distinguishable from that of Sattes & Wimer Co. v. Hales, 11 Ga. App. 569 (2) (75 S. E. 898). See, in this connection, Williams v. Herrington, 12 Ga. App. 76, 77 (76 S. E. 757). This ease is also distinguishable from the case of McCook v. Brown, 28 Ga. App. 525 (112 S. E. 151), it appearing from the record in that ease that there was evidence to the effect that the claimant, during the work, promised the plaintiff to see ' that he received his money.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


text:
    17096.
    RICHARDS v. COWETA FERTILIZER COMPANY.
    On the issue made by the claim interposed in this case, the schedule in bankruptcy of the defendant in execution, introduced for the purpose of showing declarations by him as to his ownership of the property levied on, was not without probative value.
    If there was error in admitting the schedule in bankruptcy, it was harmless, in view of other evidence, offered for the same purpose and admitted without objection.
    Appeal and Error, 4 C. J. p. 976, n. 92.
    Executions, 23 O. J. p 601, n. 6.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Levy and claim; from city court of Carrollton — Judge Hood. December 29, 1925.

      Boykin & Boykin, for plaintiff in error.

      Hall & Jones, Smith & Millican, contra.
   Per Curiam.

1. The verdict was authorized by the evidence.

2. None of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

(а) Some of the grounds are too defective to be considered by this court.

(б) Ground 5 of the motion for a new trial shows that the plaintiff introduced in evidence the schedule in bankruptcy of R. E. L. Jones, the claim of homestead exemption- as made by Jones in his schedule, and the trustee’s report setting aside the homestead as claimed. This ground of the motion shows that the defendant’s objections to all three of the documents referred exclusively to objections to the schedule in bankruptcy, and that no objection to the other two documents was presented to the judge. The only question raised by the ground, therefore, is as to the admissibility in evidence of the schedule in bankruptcy. Conceding, but not deciding, that the admission of this evidence was error, the error- was harmless, since substantially the same evidence was introduced when the other two documents were admitted in evidence without any objections being made as to them. Under the particular facts of the case this evidence was not without probative value, and the ruling in McSwain v. Estroff, 34 Ga. App. 183 (1) (129 S. E. 16), that certain evidence admitted in that case was of no probative value, even though it was admitted without objection, is not applicable in this case. The two cases are easily distinguishable by their particular facts.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., not participating, on account of illness.