text:
    15315.
    Atlantic Coast Line Railroad Co. v. Fulford.
   Bell, J.

1. In this action against a railroad company for the homicide of the plaintiff’s husband, who, when walking on the railroad-track, was struck and killed by the defendant’s locomotive, the petition alleges, not that the defendant’s servants killed him wilfully or wantonly, but that the “agents in charge of the defendant’s locomotive could have discovered the presence and perilous position of petitioner’s husband and avoided killing him,” and that the homicide was negligent. See, in this connection, Thomas v. Georgia Granite Co., 140 Ga. 459 (1) (79 S. E. 130). In such a case, if the decedent himself was guilty of negligence equal to or exceeding- the negligence of the railroad company, or if by the exercise of ordinary care he could have avoided the consequences of the company’s negligence after it was or should have been discovered, the plaintiff can not recover. Civil Code (1910), §§ 2781, 4426.

2. There being- no allegation to the contrary, it must be assumed that the decedent was a person of ordinary intelligence, and that he was laboring under no physical defect or disability that rendered him incapable of knowing or appreciating the danger of his -situation. Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225).

3. Considering the allegations of the petition and the inferences necessarily deducible therefrom, it appears that the decedent, when struck by the train, was walking in front of it and in the same direction, along a path running parallel with the railroad-track and “located so near the iron rails . . over which the defendant company’s locomotive and train moved as to make it impossible for a locomotive and train to pass along said iron rails without striking” him, and “had reached a point within 40 feet of” a public street-crossing; that he was an adult of normal physical and mental faculties, that he did not look to see if a train was approaching (there being no allegation that he did look), and was prevented from hearing the approaching train by noises of other locomotives, machinery, and the like, in the vicinity. No other reason for his conduct is shown. Held: It affirnmtively appears that the decedent was guilty of such negligence as to bar a recovery for his death on account of the negligence of the railway company. This question in the case was certified to the Supreme Court, and in the answer thereto it was held: “The decedent being at the time of the homicide an adult possessed of normal mental and physical faculties, though, he was prevented by noises in the vicinity from hearing the train which approached him from the rear, could and should have exercised the faculty of sight, by which he would have ascertained upon merely turning his head that the train was approaching. He knew that he was in a place of danger when walking longitudinally along the track, and knew that there were noises there which interfered with his hearing, and consequently the slightest degree of care upon his part would have required him to look in the direction from which the danger might- come, and a failure to exercise this care was such gross neglect upon the part of the decedent as to bar a recovery for his death.” See Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (3, 5) (127 S. E. 271). It follows that the petition failed to sot forth a cause of action, and that the general demurrer thereto was improperly overruled. The subsequent proceedings were nugatory.

Decided April 11, 1925.

Damages; from city court of Thomasville—Judge Hammond. December 17, 1923.

Mrs. .George Fulford obtained a verdict against the Atlantic Coast Line Kailroad Company for the death of her husband. The case came to this court on exceptions of the railroad company to the overruling of its general demurrer to the petition, and the refusal to grant a new trial.

The averments of the petition were substantially as follows: The plaintiff’s husband was overtaken and struck by a train of the defendant as he was walking upon a pathway along the defendant’s right of way between Fletcher and West Jackson streets in the City of Thomasville and after he had reached a point within éC feet of a public crossing upon West Jackson street, toward which both he and the train were moving. The path upon which he was walking extended from one of these streets to the other (500 yards), and,' at and long before the time of the injury, was customarily and frequently used by the public as a footway. Just beyond West Jackson street from the place of the injury were the defendant’s passenger and freight depots. The West Jackson street railroad-crossing is the most public and most frequently used crossing in Thomasville. Hundreds of people are congregated in and around the crossing on the arrival of the passenger-trains, and many vehicles are constantly passing over the crossing. These facts were known to the defendant and its agents. The path along which the decedent was walking “was located so near the iron rails on said right of way over which defendant company’s locomotive and trains moved as to make it impossible for a locomotive and train to pass along said iron rails without striking” him. The track was straight, and there were no obstructions to prevent the employees in charge of the train from discovering the decedent 800 yards before they reached him. He was prevented from hearing the train’s approach by the noise of other locomotives in the near-by railroad-yards, of motor-vehicles, and of the machinery in the city’s water and light plant, and of the Thomasville Iron Works, which were near the place of the collision. As the engine approached this populous locality and the point where the injury occurred, it was being run at a high and dangerous rate of speed,— namely 20 miles per hour. An ordinance of the city prohibited the running of a locomotive within the city limits at a speed in excess of 10 miles per hour. The defendant’s agents failed to signal the approach of the train by constantly tolling the bell as required by law, neglected to keep and maintain a constant and vigilant lookout along the track while approaching the crossing and the point where the plaintiff’s husband was killed, and did not exercise due care in so controlling the movements of the locomotive as to avoid doing injury to persons who might be on the crossing on West Jackson street or within 50 feet thereof. These omissions were alleged to be negligent. It was also alleged that the defendant’s agents, in running the train through such a populous locality within the city limits at the high and dangerous speed of 20 miles per hour, manifested a criminal disregard of life and property. The decedent’s age, expectancy of life, and earning capacity were alleged.

Judgment reversed.

Jenkins, P. J., and Stephens, J., eoncivr.

J. H. Merrill, H. II. Merry, Bennel & Branch, for plaintiff in error.

Eldon L. Joiner, contra.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15847.
    PENN MUTUAL LIFE INSURANCE CO. v. MILTON.
    1. Where a policy of life-insurance contained the following provisions: “If after one year’s premium shall have been paid on this policy and before default in the payment of any subsequent premium the insured 'shall furnish to the company due proof that, prior to the maturity of this policy and before attaining the age of sixty, he has become wholly disabled by bodily injury or disease so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, thereupon the company will grant the following benefits: a. Waiver of Premium—The company by endorsement hereon shall waive the payment of the premiums which thereafter may become due under this policy during the continuance of the said total disability of the insured. In making any settlement under this policy the company shall not deduct any part of the premiums so waived, and the non-forfeiture values of this policy shall increase from year to year in the same manner as though any premium waived under this provision had been paid in cash. 6. Annuity Payment—Furthermore, the company will pay to the insured each month fifty dollars, being a sum equal to one per cent, of the face of this policy, the first monthly payment to be made six months after receipt of due proof of said total disability accompanied by this policy for endorsement, and subsequent payments monthly thereafter during the continuance of said total disability of the insured and prior to the maturity of this policy. The amount .payable at the maturity of this policy shall not be reduced by any payments made under this disability provision.”

      Held: A “disability which lasted sixteen months and from which the insured has recovered is a permanent disability within the meaning of the provisions of the policy.” See instructions by the Supreme Court in answer to questions certified. Penn Mutual Life Insurance Oo. v. Milton, 160 a a. 168 (127 S. E. 140).
    2. But under the provisions of the policy the insurer would not be liable for the monthly payments on account of the disability, in the absence of a waiver, unless proof of the disability was submitted during the existence thereof, nor until the expiration of six months thereafter. It was a further condition of the defendant’s liability that the proof should show the then present fact of the disability and its previous existence for a period of sixty daysl The petition being silent as to the date when the proof was furnished, and failing to show the material facts contained therein, and having alleged only in general terms that the plaintiff had become wholly disabled, “so that he was permanently and continuously unable to engage in any occupation whatever for remuneration or profit” for the period for which his claim was asserted, and that he had “filed proof of his total and permanent disability, as required by the terms of said policy, and petitioner’s claim comes within the terms and provisions of said policy, and petitioner is justly entitled to the amount which he claims of defendant,” the petition was subject to the objections, raised by demurrer, that it failed to show by facts alleged how long the plaintiff’s disability continued after he had furnished the required proof of his disability, and, therefore, failed to establish his right to recover any certain sum; that the date of the furnishing of the proof was not alleged; that the averment that ho had furnished proof of disability as required by the policy was a mere conclusion of the pleader; and that the petitioner does not, except by conclusions, know, from what bodily disease the plaintiff was suffering, or wherein or how he had become wholly disabled so as to entitle him to maintain the action.
    3. Mere conduct on the part of the insurer, claimed as a waiver or estoppel, can not have that effect if a forfeiture had already taken place or if liability could never have been fixed under the policy. Accordingly, if the plaintiff did not submit proof of disability according to the requirements of the policy, or, even though he did so, if the disability did not continue thereafter for the period of six months, nothing being shown as a waiver or estoppel occurring in the meantime, his claim for the particular disability expired; and, if so, it was not revived by anything contained in the defendant’s letter written thereafter as set forth in the petition.
    Decided April 11, 1925.
    Complaint; from Cook superior court—Judge Dickerson. July 19, 1924.
    Penn Mutual Life Insurance Company, on August 10, 1920, issued a policy of insurance in tlie sum of $5,000 upon the life of Edgar B. Milton, payable at his death to his wife in case she survived him; otherwise to his estate. The policy, however, contained certain provisions upon which the insured brought the present action for the recovery of $800. These provisions were as follows: “If after one year’s premium shall have been paid on this policy and before default in the payment of any subsequent premium the insured shall furnish to the company due proof that, prior to the maturity of this policy and before attaining the age of sixty, he has become wholly disabled by bodily injury or disease so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, thereupon the company will grant the following benefits:

      “a. Waiver of Premium—The company by endorsement hereon shall waive the payment of the premiums which thereafter may become due under this policy during the continuance of the said total disability of the insured. In making any settlement under this policy the company'shall not deduct any part of the premiums so waived, and the non-forfeiture values of this policy' shall increase from year to year in the same manner as though any premium waived under this provision had been paid in cash.

      “b. Anrmity Payment—Furthermore, the company will pay to the insured each month fifty dollars, being a sum equal to one per cent, of the face of. this policy', the first monthly payment to be made six months after receipt of due proof of the said total disability, accompanied by this policy for endorsement, and subsequent payments monthly thereafter during the continuance of said total disability of the insured and prior to the maturity of this policy. The amount payable at the maturity of this policy' shall not be reduced by any payments made under this disability provision.”
    After alleging the execution of the policy and setting forth the provisions stated above, the petition proceeded as follows:
    “4. (d) Petitioner shows that after one year’s premium had been paid on said policy and while said policy was in full force and effect, on December 24, 1921 (when petitioner was forty-six years of age), he became wholly disabled by bodily disease, so that he was permanently and continuously unable to engage in any occupation whatever for remuneration or profit for the full period of sixteen months, i. e. until April 24, 1923, as herein alleged.
    “5. Petitioner further shows that he has furnished to defendant proof of his said disability', as required by said policy', and that defendant has failed and refused to recognize and pay his claim, although, as petitioner alleges, justly liable therefor.
    “6. Defendant refused to pay petitioner’s claim upon the ground that he had not been totally and permanently disabled, this refusal of defendant being contained in defendant’s letter to petitioner’s attorneys, dated October 20, 1923, and reading as follows: ‘In answer to your letter of October 12th, regarding the case of Edgar B. Milton, Policy No. 943084, we wish to advise that our reason for not approving the applicant’s claim for disability in this case was due to the fact that the clause provides that the. disability provision will be effective if the applicant becomes totally and permanently disabled. The fact that Mr. Milton has since recovered and is able to get around is prima facie evidence that he was not totally and permanently disabled. We should be very glad, however, to have you submit whatever evidence you have from the doctors you name as to the degree of Mr. Milton’s disability and the length of time.’
    “7. Petitioner has filed proof of his total and permanent disability, as required by the terms of said policy, and petitioner’s claim comes within the terms and provisions of said policy, and petitioner is justly entitled to the amount which he claims of defendant, besides interest thereon, and defendant has failed and refused to pay said claim.”
    Paragraphs 8 and 9 related to the claim for attorney’s fees and damages.
    The defendant demurred upon thirteen grounds. The court sustained grounds IS and 13, as to insufficiency of the allegations for the recovery of attorney’s fees and damages, and also ground 6 in which it was contended that if the plaintiff was entitled to recover anything, he could not recover more than $500, since he alleged a disability of only sixteen months, and under the terms of the policy the company would not be liable for the monthly payments until “after the first six months of disability.” All other grounds of demurrer were overruled. The petition was thus allowed to stand as a suit for $500 and interest. The defendant excepted.
    The grounds of demurrer not sustained were all general in nature, merely'urging that for various reasons the petition failed to set forth a cause of action, with the exception of grounds 5, 9, 10, and 11, which were as follows:
    “5. The petition fails to show by the facts alleged how long the disability of the plaintiff continued after he had furnished due proof of such disability, if any existed, and therefore fails to establish his right to recover any certain sum for such disability.”
    “9. Defendant demurs especially to paragraph 4, subsection d, of the petition, upon the ground that the same does not show from what bodily disease the plaintiff was suffering, and does not show wherein and how he had become wholly disabled from bodily disease so as to entitle him to recover under the provisions of said contract of insurance, the allegations in said paragraph being mere conclusions of the pleader and not setting forth the facts upon which the same were based.”
    “10. Defendant demurs especially to paragraph 6 of the petition, because the same fails to allege when the plaintiff furnished to the defendant proof of his disability,” etc.

      “11. The defendant demurs to the allegations of the seventh paragraph upon the ground that the same are mere conclusions of the pleader and that there are no facts to sustain the conclusions of the pleader that the proof as filed by him was proof of any total and permanent disability as required by the contract of insurance.”

      Randolph & Parker, Branch & Snow, for plaintiff in error.

      Bryan & Middlebrooks, II. IT. Nelson, contra.
   Bell, J.

(After stating the foregoing facts.)

Construing the plaintiff’s allegations most strongly against him, as must be done on demurrer, it appears that the alleged disability terminated on April 24, 1923, and thus lasted for a period of only sixteen months. The defendant has urged that the petition, therefore, shows upon its face that the plaintiff was never “permanently” disabled within the meaning of the policy. Upon this point we certified certain questions to the Supreme Court, and in the answers have been instructed as follows: “Where provisions of a policy of life-insurance provide that if the insured, after one year’s premium shall have been paid and before default in the payment of any subsequent premium, shall furnish to the company due proof that, prior to the maturity of the policy and before attaining the age of sixty, he has become wholly disabled by bodily injury or disease, so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, the company will waive the payment of the premiums which may thereafter become due under the policy during the continuance of such total disability, and will pay to the insured each month fifty dollars, the first monthly payment to be made six months after the receipt of due proof of the said total disability, during the continuance of such total disability of the insured and prior to the maturity of the policy, a disability which has lasted for sixteen months and from which the insured has recovered is a permanent disability within the meaning of the provisions of the policy.” 160 Ga. (127 S. E. 140).

We are nevertheless of the opinion that the petition was subject to certain grounds of the demurrer. It is urged in ground 5 that “the petition fails to show by the facts alleged how long the disability of the plaintiff continued after he had furnished due proof of such disability, if any existed, and therefore fails to establish his right to recover any certain sum for such disability.” We agree with this contention. In the absence of a waiver of proof of disability as required by the terms of the agreement, the insurer would not be liable for the monthly payments until the expiration of six months after the submission of such proof, and the petition does not definitely show when the proof was submitted, nor what period, if any, elapsed subsequently to the making thereof. Unless proof of the disability was given to the company more than six months before the disability terminated, or was waived, the insurer’s liability for the monthly payments never attached. Thus,'the petition was defective in the respect indicated in the demurrer, in that it failed to show “by facts” for what certain sum, if for anything, the company had become liable. National Life Insurance Co. v. Jordan, 21 Ga. App. 647 (1) (94 S. E. 862), and citations; Woodall v. Fidelity & Casualty Co., 131 Ga. 517 (62 S. E. 808).

We think, furthermore, that the provisions of the policy in this case required that the proof should be furnished during the existence of the disability, because it is stipulated that the proofs shall show that the plaintiff has become- disabled “so that he is, and thereby will be, permanently and continuously disabled,” etc. The plaintiff alleged in general language that he “filed proof of his total and permanent disability as required by the terms of said policy;” and this would imply that the proof embodied all the facts necessary to be stated therein under the stipulations of the agreement. But the defendant was entitled, upon special demurrer calling for the information, to have the plaintiff allege when the proof was made, and to have a complete statement of the substantial facts upon which the plaintiff declared that the proof was made in compliance with the policy. The substance of the proof of disability ought to have been shown, instead of the mere general statements of the petition that it had been made in term* of the policy, in order that the court might determine whether the plaintiff really had a cause of action. The plaintiff could not recover if he waited until his disability had ceased before furnishing the proof, and, as we have seen above, the insurer would not be liable for anything unless the proof was submitted more than six months before the discontinuance of the disability.

In so far as grounds 10 and 11 of the demurrer, which were special in. nature, called for the date of the furnishing of the proof of disability and the material facts contained therein, they should have been sustained.

The headnote in Woodall v. Fidelity & Casualty Co., supra, is as follows: “Where a health-indemnity policy provided for liability of the insurance company for a specified amount per week during the disability of the assured resulting from certain diseases for a period not exceeding 26 weeks, and that the medical adviser of the company had the right to examine the assured during such disability, and further provided that immediate notice should be given the company of any disease causing such disability, and of the full name and address of the assured, held: Where the disability continues for the full period of 26 weeks, and there is a failure to give such notice during such period, and no excuse for such failure is given, there can be no recovery on account of such disability.” It was stated in the opinion in that case that the “requirement in the policy that immediate written notice must bo given the company at New York City, of any disease or illness for which a claim is to be made, is of the essence of the contract and must be complied with before any recovery can be had.”

A failure to furnish proof of disability during its continuance might render it impossible for the company to make a fair investigation of the circumstances of the claim, and the condition that the proof should show that the insured was disabled at the 'time goes to the essential requisites of the proof as stipulated for, and does not relate merely and solely to the time of its submission. Conditions or provisions of this character are “usually given a more liberal construction in favor of the company than the requirement for notice and proof under an ordinary fire.policy, which can only become effective after the company’s liability has already been fixed.” 4 Cooley’s Ins. Briefs, 3570, quoted approvingly in the Woodall case, supra. See also Graham v. Niagara Fire Ins. Co., 106 Ga. 840 (1) (32 S. E. 579); Finleyson v. Liverpool &c. Ins. Co., 16 Ga. App. 51 (84 S. E. 311); Great Eastern Casualty Co. v. Reed, 17 Ga. App. 613 (2) (87 S. E. 904); Ermentrout v. Girard Fire Ins. Co., 63 Minn. 305 (65 N. W. 635, 30 L. R. A. 346, 56 Am. St. Rep. 481); 29 C. J. 282, § 8.

Nothing said herein is in conflict with anything held in the first division of the decision of the Supreme Court in Southern Fire Insurance Co. v. Knight, 111 Ga. 622 (36 S. E. 831, 52 L. R. A. 70, 78 Am. St. Rep. 216).

The petition was also subject to the objection made in the ninth ground of the demurrer, in that it is not shown from what bodily disease the plaintiff was suffering, nor wherein nor how he had become wholly disabled so as to entitle him to the benefits claimed, the only allegations with respect to the existence of the disability being contained 'in paragraphs 4 (d) and 7 of the petition, and made as mere conclusions of the pleader. Parten v. Jefferson Standard Life Ins. Co., 30 Ga. App. 245 (2) (117 S. E. 772).

Nothing we have said is altered by the fact that the defendant, on October 30, 1933, in a letter to the plaintiff’s attorneys, stated that it had declined to pay the claim because it appeared therefrom, as the defendant believed, that on account of the plaintiff’s having recovered, he had not been totally and permanently disabled within the meaning of the policy. It is well settled that where a proof of loss is submitted under 'an insurance policy, if the insurer does not return it within a reasonable time, pointing out any deficiencies therein, so that the insured may have an opportunity of supplying the necessary corrections, the insurer will be held to have accepted the proof as sufficient within the terms of the policy, and that an objection to the proof upon one or more grounds only may amount to a waiver of other defects therein (see Alston v. Phenix Ins. Co., 100 Ga. 287 (2), 27 S. E. 981; Phenix Ins. Co. v. Hart, 112 Ga. 765 (5), 38 S. E. 67; Great American Fire Asso. v. Jenkins, 11 Ga. App. 784 (1), 76 S. E. 159; Stanley v. Sterling Mutual Life Ins. Co., 12 Ga. App. 475 (2), 77 S. E. 664; Bailey v. First National Fire Ins. Co., 18 Ga. App. 213 (3), 89 S. E. 80; Williams v. Atlas Assurance Co., 22 Ga. App. 661 (1, 2), 97 S. E. 91; Ætna Life Ins. Co. v. Anderson, 75 N. H. 375, 74 Atl. 1051, 28 L. R. A. (N. S.) 730, 735; 26 C. J. 401, § 514); and also that an absolute refusal to pay will ordinarily operate as a waiver of a performance by the insured of the preliminary act of furnishing the proof (Civil Code of 1910, § 2490; Moore v. Dixie Fire Ins. Co., 19 Ga. App. 800, 92 S. E. 302; 3 Cooley’s Ins. Briefs, 2681); yet these principles have no application if a forfeiture has already taken place and the contract has become a “dead letter.” In Harp v. Fireman’s Fund Ins. Co., 130 Ga. 726 (4) (61 S. E. 704, 14 Ann. Cas. 299), the Supreme Court held: “An absolute refusal by the insurer to pay, made before the expiration of the reasonable time within which the insured must furnish such proofs, will be a waiver thereof; but such refusal made after such reasonable time has expired will not be a waiver of such proofs.” See also Insurance Co. of North America v. DeLoach, 3 Ga. App. 807, 812 (61 S. E. 406); Volunteer State Life Ins. Go. v. McGinnis, 29 Ga. App. 370 (115 S. E. 287), and citations; Finleyson v. Liverpool &c. Ins. Co., supra. Although in the instant case there is no question as to reasonable time, as was true in the Harp case, the principle there enunciated is applicable.

According to the allegations of the petition, the plaintiff’s disability had ended several months before the writing of this letter by the insurer. As we have seen above, if he had not submitted proof of disability, according to the requirements of the policy, during the existence of his disability and six months prior to its termination, nothing amounting to a waiver or estoppel having occurred in the meantime, his claim for the particular disability had already been lost, and, having expired, was not revived by anything contained in the defendant’s letter. Under the doctrine of the Harp case, no other conclusion is possible with respect to the effect of this letter, although in some other jurisdictions it might amount to a waiver. See cases cited in 1 Corpus Juris 480, § 203.

Judgment reversed.

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


text:
    15871.
    PENN MUTUAL LIFE INSURANCE CO. v. BLOUNT et al.

    1. “A general agent may bind his principal with respect to all matters within the apparent scope of his employment. But the principal may qualify the authority of a general agent, and will not be bound by the acts of his agent beyond the scope of his authority, where the person dealing with the agent had notice of such limitations.” Hut-son v. Prudential Insurance Oo., 122 Ga. 847 (1) (50 8. E. 1000).

      {a) Where an application for a policy of life insurance stipulated that the application should be regarded as a part of the. contract if and when issued, and that if the premium on the insurance should not be paid at the making of .the application the contract of insurance should not be in force unless or until a policy should be issued and delivered to the assured and the first premium thereon actually paid during his lifetime and good health, and that the assured understood that the company’s agents had no authority to modify, alter or enlarge contracts; and where the policy as issued upon the application contained provisions that no alteration or waiver of any of its conditions should be valid unless endorsed thereon and signed by an officer of the company, and that no agent was authorized to modify, alter or enlarge the contract, the actual payment of the first premium during the lifetime and good health of the assured was a condition precedent to the liability of the insurer, and neither a local agent nor a general agent of the company could waive such condition. If the condition was not complied with, an unauthorized delivery of the policy by one of such agents would not estop the company from urging the noncompliance therewith as a defense, notwithstanding the policy so improperly delivered may have contained a formal acknowledgment of the receipt of the premium.
    (6) But the company by its proper officers could waive such condition, if it did so, it would not be permitted to deny the payment of the premium for the purpose of avoiding the policy, although it might do so for the purpose of enforcing the payment of the premium.
    (c) In a matter of this sort, whatever the company might do itself it would be permitted to do by an agent, and it would be bound even by an unauthorized act of its agent if it subsequently ratified it.
    (d) While it appeared from the petition that the defendant’s agents made an absolute and unconditional delivery of the policy when they were not authorized to do so, the facts set forth therein further showed that the company subsequently ratified the delivery and, thus, should be held to a waiver of the condition above referred to.

      (e) It follows from the above that the petition set forth a cause of action.
    2. Since the petition as amended is construed as sufficiently alleging a ratification of certain acts of the defendant’s agents, which in the absence of ratification would have been unauthorized, there was no merit in the special demurrers attacking such allegations, upon the ground that they were mere conclusions of the pleader and that the authority of the agents to do such acts was not shown.

      (а) There was no merit in the special demurrer attacking the alleged tender of the unpaid first premium, upon the ground that the company was under no obligation to accept it, it appearing from the petition that, although the first premium had not actually been paid, the policy was effective at the death of the assured and that the premium should be paid.
    (б) The petition having set forth a cause of action for the recovery of the principal of the policy, the court did not err in overruling the demurrer to the allegations and prayers for the .recovery of damages and attorney’s fees, where the sole reason urged by the demurrer for striking the same was that the petition showed no right of recovery whatever under the policy.
    3. The court erred in not sustaining special demurrers to averments of the petition wherein it was shown that the beneficiaries under the policy made a futile application to the insurance commissioner of the State for some action on his part by which the insurer would be required to deliver to them the policy, the possession of which the insurer had acquired with the consent of the assured during his lifetime, and which the insurer thereafter refused to deliver to the beneficiaries. Even if the insurance commissioner had any authority in such a matter, the ex parte action of the plaintiffs therein could not be taken advantage .of in their subsequent suit upon the policy. The allegations as to the communications between them and the insurance commissioner were therefore irrelevant.

      (a) The rule that a custom of a business or trade may be binding upon the parties to a contract when it is of such universal practice as to justify the conclusion that it became by implication a part of the contract (Civil Code of 1910, § 1 (4)) can not make the custom a part of the contract where, as in the instant case, the alleged custom is inconsistent with the expressed .provisions of the agreement. The court erred in not sustaining the special demurrer to one of the paragraphs of the amendment to the petition, by which it was sought to bind the defendant by an alleged custom.
    Decided April 11, 1925.
    Complaint; from city court of Waynesboro—Judge W. li. Davis. August 12, 1924.
    Application for certiorari was denied by the Supreme Court. This was an action upon an insurance policy on tine life of Kansom A. Bell in the sum of $5000. The defendant filed general and special demurrers. The petition was amended, after .which the defendant renewed its original demurrers and filed other demurrers to the suit as amended. All tlie demurrers were overruled, and the defendant excepted.
    The application for the policy contained' the following stipulations : “My statements and answers to the questions printed above, and my statements and answers made and given to the company’s medical- examiner, are full, complete and true. Upon them I base my application for insurance, and agree that they shall be regarded as a part of the contract if and when issued. If the premium on the insurance herein applied for is not paid at the time of making this application, the contract of insurance shall not be in force unless or until a policy shall be issued and delivered to me and the first premium thereon actually paid during my lifetime and good health. If settlement is effected in accordance with the attached receipt at the time of making this application, the policy shall be in force as of the date of such settlement, provided the application is approved by the company at the home office. The policy, if and when issued to me, shall be in the form now in use by the company. I understand that neither agents nor examiners have any authority to modify or enlarge contracts. The foregoing agreements and declarations are made on behalf of myself and of any beneficiary under any policy on my life issued by the company upon this application. My acceptance of any policy issued on this application will constitute a ratification by me of any correction or addition -to this application made by the company and noted in the space provided for ‘home office endorsements only.’ ”
    In the policy itself was a provision as follows: “No alteration of this policy or waiver of any of its conditions shall be valid unless endorsed thereon and signed by an officer of the company. No agent is authorized to modify, alter or enlarge this contract or to bind the company by aity promise or undertaking as to distribution or surplus or any future award of interest.”
    The petition alleged: On September 20, 1922, the assured made application for the policy, and on the following day was duly examined by the company’s physician, and the papers were forwarded to the proper officers of the defendant through P. W. Thompson, the local agent of the insurance company at Waynesboro, Georgia. On October 1, Thompson made to the assured “absolute and unconditional delivery of the policy” under an agreement that the premium was to be paid on or about October 14. The credit was expressly agreed to and was in accordance with the usual practice of the company in such matters, the agent, who was financially responsible, stating to the assured that he himself was liable to the company for the premium. The assured, however, was able to pay the premium and would have done, so but for the assurance of the agent that the policy was all right and of force when delivered. 'On October 7, after the policy had been in actual possession of the assured, and in full force, for seven days, the assured desired to change the beneficiary. Upon this fact being made known to Thompson the agent, he had the assured to make out a written application accordingly. The application was to substitute the present plaintiffs in lieu of the beneficiary originally named in the policy. Thompson forwarded the application to the general agent of the company at Augusta, Georgia, Mr. I. T. Heard, who forwarded it to the head office of the company at Philadelphia, where on October 13, 1922, the company did change -the beneficiary as requested and mailed the policy back to its general agent at Augusta for return to the assured. The policy had been entrusted to the local agent at Waynesboro, on October '7, for the sole purpose of having a change made in the beneficiary, and the assured would have paid the premium on or about October 14, as originally agreed, but for the voluntary suggestion of Thompson that he need not pay the premium until the policy had been returned from the home office, with the change in the beneficiary. “On October 18, 1922, at the request of said Bell, E. H. and H. M. Blount personally called upon the said P. W. Thompson, agent of said defendant company as aforesaid, and offered to pay the premium on said policy. The agent said that he was responsible to the company for the premium, but,he preferred not to accept the money until he could confer with higher officers of the company, inasmuch as the said Bell had, on the morning of that same day, sustained an injury by a burn while trying to extinguish a fire at his home, which injury, however, the physician at that time, had stated was not serious, though painful. Said Ransom A. Bell died on October 22, 1922, and at that time, the policy was in the possession of the said I. T. Heard, general agent of the defendant company at Augusta, and had been there since October 18, 1922.” Certain other allegations were made in the petition apparently for the threefold purpose of explaining the failure to attach a copy of the policy, of showing an absolute refusal to pay, and of illustrating the defendant's alleged bad faith, by reason of which the plaintiffs prayed to recover damages and attorney's fees, in addition to principal and interest.
    The amendment to the petition was as follows:
    “18. Since filing said petition, plaintiffs served notice on the defendant company to produce the original policy of insurance described in the petition, the return of which to plaintiff had been refused by the defendant company; and in response to that notice, attorney for plaintiffs has been informed by attorneys for defendant company that the original policy naming the first beneficiary as stated in the petition was destroyed by the company, and a new policy bearing the same date and number as the original, but containing the new beneficiaries, was substituted for the original, and that substituted policy lias been placed in the hands of the plaintiffs' attorney, together with a photographic copy of that policy and of the application of Ransom Bell, the insured, for the original policy; and plaintiffs now voluntarily attach hereto that ¡ihotographic copy of the substituted policy and application, as containing the correct .recital of the substantial statements of the original policy, except as to the original beneficiary.
    “19. Said contract of insurance was binding on said defendant company for the following, among other, reasons: •
    “(1) Said, policy was absolutely and unconditionally delivered to the insured by the authorized agent of the company, and remained in his possession for seven days, and was entrusted back to the company for the sole purpose of changing the beneficiary.
    “ (2) Credit for the payment of the first premium urns extended by the local agent of the company at Waynesboro, P. W. Thompson, and by the agent at Augusta, Georgia, I. T. Heard, and those parties became directly responsible for said premium to the head offices of the company, and the extending of such credit, and becoming responsible therefor, was in accordance with the usual course of business of said defendant company with said agents.
    “ (3) By accepting the application of the insured for a change of the beneficiaries in the policy already issued and delivered to him, and in making the change so requested, and in returning the policy with the new beneficiaries inserted to I. T. Heard, the agent at Augusta, Ga., for delivery to the insured, the defendant company ratified the act of its agents in making the original delivery of the policy, and in extending credit for the first premium, for which said agents were personally liable and financially responsible.
    “ (4) Said company has waived any right it might have had to reject the act of its agent in making delivery of said policy and giving credit for the payment of the first premium, by allowing the insured to remain under the impression that the policy was in effect from the date of delivery, and that lie was protected thereunder.
    “(5) Said company is estopped in this action from pleading the incompleteness and invalidity of the contract of insurance, by reason of the acts of its agents and officers, and the knowledge the company had of said acts. (Italics ours.)
    “(6) It is a common course of business with all the standard insurance companies, among which the defendant company formerly ranked very high, to allow their agents to make delivery of insurance policies, and give credit for premiums, charging the agents with liability for the premiums on policies so delivered, for a period generally of 60 days; and said course of business was permitted and carried on by defendant company notwithstanding any stipulation in the lino printed matter of the application for insurance ; and in accordance with this custom the face of the policy itself contains a direct admission that so far as defendant company itself is concerned, the first premium is admitted to have been paid on the date of the policy, as shown by the following-extract : ‘In consideration of the payment in advance to the company at its home office of the sum of one hundred fifty-five and 90/100 dollars at the dale hereof, and. upon condition that the annual premium of one hundred fifty-five and 90/100 dollars is paid at or before 3 o’clock P. M. on the 25th day of September in every year, for a term of five full years’ etc.”
    The grounds of the special demurrers will appear in the opinion.

      Callaway & Howard, for jfiaintiff in error.

      William, II. Fleming, contra.
   Bell, J.

(After stating the foregoing facts.)

Notwithstanding the acknowledgment in the policy of the receipt of the first premium, under the stipulation in the application, that the contract of insurance should not be in force unless or until a policy should be issued and delivered to the assured and the first premium thereon actually paid during his lifetime and good health, the payment of the premium according to the terms-of the agreement was a condition precedent to the liability of the insurer, unless there was a due or unconditional delivery of the policy by the company. Reliance Life Ins. Co. v. Hightower, 148 Ga. 843 (98 S. E. 469); Volunteer State Life Ins. Co. v. McGinnis, 29 Ga. App. 370 (115 S. E. 287), and'citations.

The agreement signed by the assured in his application, “that neither agents nor examiners have any authority to modify or enlarge contracts,” and the clauses in the policy, that “No alteration of this policy or waiver of any of its conditions shall be valid unless endorsed thereon and signed by an officer of the company, and that “No agent is authorized to modify, alter or enlarge this contract,” placed the assured upon notice that the agents of the company were without any authority to put the policy in force unless the first premium thereon was actually paid during his lifetime and good health. • The limitations as thus expressed applied to all agents, including general agents. A principal may qualify the authority even of a general agent, and will not be bound by acts of such agent beyond the scope of his authority, where the person dealing with him has notice of the limitations thereon. Hutson v. Prudential Ins. Co., 122 Ga. 847 (2) (50 S. E. 1000); Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117 (3) (54 S. E. 66, 5 Ann. Cas. 221); Bank of Commerce v. New York Life Ins. Co., 125 Ga. 552 (3) (54 S. E. 643); Rome Industrial Ins. Co. v. Eidson, 138 Ga. 592 (1, 2) (75 S. E. 657); Reese v. Fidelity Mutual Life Asso., 111 Ga. 482, 490 (36 S. E. 637). The present case differs from Fireman’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (1) (31 S. E. 779), and Mechanics & Traders Ins. Co. v. Mutual Real Estate Asso., 98 Ga. 262 (1, 2) (25 S. E. 457), in which the suits were upon contracts of fire insurance, and in which it appeared that the agents dealt with liad authority to issue and deliver the policies. “Nor was this a case of knowledge of an existing fact by an agent issuing a policy, as in the case of Johnson v. Ætna Insurance Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. Rep. 92).” Brown v. Mutual Benefit Life Ins. Co., 131 Ga. 38 (1), 40 (61 S. E. 1123). It was said even in the Johnson case (123 Ga. 407), supra, that “as to a matter concerning the time when the contract is to become of force, . . the insured, by accepting the policy, would be bound by its terms, and could not set up a waiver which he was bound to know the company’s agent had no power to make.” Furthermore, that case was also a fire insurance case, and “Generally the agent of a fire insurance company has power to fill up and issue the policies, and the acts and knowledge of such agent are the acts and knowledge of the company. There is, therefore, manifest 'propriety in holding that the knowledge of such agent is imputable to the company. This is true even though the policy undertakes to limit expressly the power of the agent. In other words, where the agent is charged by the company with the duty of acquiring knowledge for the company, or is clothed by the company with the actual or apparent authority to act for the company in the issuance of the policy, express limitations upon the power of such agent will not prevent the application of the general rule that knowledge of the agent as to matters within the general scope of his authority is the knowledge of the principal.” New York Life Ins. Co. v. Patten, 151 Ga. 185, 187 (106 S. E. 183).

The express provisions of the contract are not avoided by the allegations of the petition with reference to a custom between the company and its agents whereby the agents were allowed to make delivery of policies and give credit for premiums, and the company would charge the agents with liability therefor for a period of sixty days. Under the language of the particular policy the question is not what was the custom and practice of the company in dealing with its agents with respect to the collection and payment of premiums generally, but what was done in the particular case. Parties in the making of contracts may disregard a prevailing custom or usage, and if their stipulations are contrary thereto they will be presumed to have intended to exclude it from the particular agreement. Haupl v. Phœnix Mutual Life Ins. Co., 110 Ga. 146 (35 S. E. 342).

In the absence of an understanding to the contrary, “a custom of the trade, if of such universal practice as would justify the conclusion that it must by implication have formed a part of the agreement, could be proved in aid of an otherwise incomplete or ambiguous writing. This rule does not authorize proof of a custom where it runs counter to or is inconsistent with an expressed provision of the agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 616 (18 S. E. 1008, 44 Am. St. R. 95); Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117 (2), 120 (54 S. E. 66, 5 Ann. Cas. 221); Lowery Lock Co. v. Wright, 154 Ga. 867 (4).” Mays v. Hankinson, 31 Ga. App. 473 (3) (120 S. E. 793); Vaughn v. American National Ins. Co., 19 Ga. App. 660 (91 S. E. 1057); Bank of Commerce v. New York Life Ins. Co., 125 Ga. 552 (3) (54 S. E. 653). If the company accepted the liability of either of its agents for the premium, any custom that might prevail between it and its agents in other cases would be immaterial. Williams v. Empire Mutual Life Ins. Co., 8 Ga. App. 303 (9) (68 S. E. 1082). Any general course of dealings would likewise be immaterial if the company did not agree to the arrangement in the particular case, and the petition fails to allege that it did so agree.

It follows from what has been said that the petition can not be sustained either upon the hypothesis that the company’s general agent could and did waive the stipulation that the policy should not become effective until and unless the first premium should be paid in cash during the good health of the assured, or upon the theory that the stipulation was ineffective because ¿lie company was accustomed to accept the liability of its agent or agents -in lieu of the payment of the premium .by persons generally upon whose lives it issued contracts of insurance,—both of which propositions the plaintiffs (the defendants in error here) have insisted upon.

But, as we have already intimated, if the company made a due and unconditional delivery of the policy, it would be presumed to have waived the requirement that the premium should be actually paid during the good health of the assured as a condition precedent to its liability and to have extended credit for the premium. In that case the recital of payment as contained in the policy “would become a covenant of the contract, and it would not be open to the insurer to deny the payment of the first premium for the purpose of avoiding the policy, although the insurer might deny and disprove the recital merely for the purpose of enforcing payment of the first premium.” Reliance Life Ins. Co. v. Hightower, supra. If the company could thus bind itself by its own delivery, it could do so by ratifying, an unauthorized delivery by one of its agents. Civil Code (1910), §§ 3571, 3569. It was alleged in the amendment to the petition that the policy was absolutely and unconditionally delivered to the assured and remained in his possession for seven days, and was entrusted back to the company for the sole purpose of changing the beneficiary; that credit for payment of the first premium was extended both by the local agent and the general agent; that the company accepted and complied with the request of the assured for a change of the beneficiary, and thereafter returned the policy to its general agent “for delivery to the insured;” and that in these things the company was acting with knowledge of the acts of its agents. Such allegations supported further averments by way of conclusion that the defendant ratified the conduct of its agents in making the original delivery of the policy and in extending credit for the first premium, and thereby waived any right it might have had to repudiate such acts, and is estopped from pleading the incompleteness and invalidity of the contract by reason thereof. Civil Code (1910), § 3591.

Knowledge of all the facts is, of course, essential to a ratification (Dolvin v. American Harrow Co., 125 Ga. 699 (5), 54 S. E. 706, 28 L. R. A. (N. S.) 785), but such knowledge being alleged, the petition set forth a cause of action upon the theory that the company by ratifying the originally unauthorized unconditional delivery of the policy became bound as if the delivery had been made by its proper officers. The general demurrer was properly overruled.

Certain allegations of the petition with respect to acts of the agents upon which the assured relied to effectuate the contract were demurred to, because, as insisted by the demurrers, they were mere conclusions of the pleader, and because the authority of the agents was not shown. Since the relation of principal and agent arises wherever one person either authorizes another to„ act for him or subsequently ratifies the acts of another in his behalf, and since ratification relates back to the act ratified (Civil Code of 1910, §§ 3569, 3591), and since the petition as amended is construed as sufficiently alleging a ratification, there is no merit in any of the special demurrers just alluded to.

The defendant demurred to the allegations by which the plaintiffs tendered the premium into court, upon the ground that the defendant was under no obligation to accept it. If the policy was not effective at the date of the assured’s death, the case would not be altered by a subsequent tender of the premium, but since it appears by the averments of the petition that the policy did become effective and thus that the premium should be paid, the tender-as set forth in the petition was not irrelevant. The plaintiffs, if they so desired, were entitled to make the tender in order to prevent the accrual of interest thereon.

The defendant demurred to the allegations and prayers for the recovery of attorney’s fees- and damages, upon the sole ground that there could be no recovery for these items because the plaintiffs had no right of recovery whatever under the policy. This demurrer is disposed of by the conclusion reached above that the petition set forth a cause of action for the recovery of principal. The demurrer does not raise any question as to whether, if a cause of action was otherwise set forth, the facts as set out in the complaint were sufficient to Show bad faith.

Paragraphs 13 and 14 of the petition were as follows:

“13. As plaintiffs desired possession of the policy in order to attach it as an exhibit to their petition in this suit, they decided to exhaust all reasonable efforts to obtain possession of the policy, and on Dec. 11 addressed a letter to the insurance commissioner of Georgia, giving him a resume of the facts, and asking whether under the rules of his department he could.afford any relief by. compelling the surrender of the policy.

“14. The insurance commissioner addressed a communication to the company and received from it a letter under date of December 15, giving as the reason for refusal, as previously stated, that it denied liability on the policy, and the insurance commissioner on December 18, 1922, sent a copy of that letter to said Fleming [plaintiff’s attorney], with the statement that the insurance department could afford no relief; leaving a suit at law as the only recourse to plaintiffs.”

A special demurrer interposed to these averments, upon the grounds that they were irrelevant, should have been sustained. Even if the insurance commissioner had any authority in such a matter, the action of the plaintiffs therein, being ex parte, could not be taken advantage of by them in'the subsequent suit upon the policy.

From what we have said in the first division of this opinion it follows that the court below ought also to have sustained the special demurrers to sub-paragraph 6 of paragraph 19 of the amendment wherein it was sought to bind the defendant by an alleged custom. The defendant sought by demurrer also, to bring into question the allegations with respect to the alleged custom as contained in paragraph 4 of the original petition and sub-paragraph 2 of paragraph 19 of the amendment, but since the demurrer in each of these instances included in the attack other matter which was not subject thereto, there was no error in the court’s ruling thereon. Southern Ry. Co. v. Phillips, 136 Ga. 282 (1) (71 S. E. 414).

It may be that the judgment would not be reversed if there were no other error than in the overruling of the demurrer to the allegations with respect to the communications between the beneficiaries and the insurance commissioner. These allegations, though irrelevant, might possibly be treated as harmless surplusage if no other error appeared, but it is unnecessary to determine this question, since the court committed substantial error in overruling the demurrer attacking the averments with respect to the alleged custom.

Judgment reversed.

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


text:
    15894.
    PEACOCK HARDWARE COMPANY v. ALLEN.
    Where a claim to property levied upon has resulted in a verdict finding the property subject to the fi. fa., and the forthcoming bond given by the claimant has been breached, and it does not appear whether the plaintiff in fi. fa. has elected to have a reseizure of the property in lieu of proceeding upon the bond, there is no basis for a second claim, by another claimant, and where such second claim has been received by the levying officer and returned to the court for trial, a motion by the plaintiff in fi. fa. to dismiss it should be sustained.
    Decided April 11, 1925.
    Claim; from Bleckley superior court—Judge Graham. September 1, 1924.
    To a levy upon personalty under a mortgage fi. fa., the defendant’s wife, Mrs. Laura L. Allen, interposed a claim, and the property was delivered to her under her forthcoming bond. Upon the trial of the claim the property was found subject, and thereafter the claimant breached her bond by failing to deliver the property at the time and, place of sale as duly advertised. On the day of the breach, but after its occurrence, the defendant’s mother, Mrs. L. J. Allen, tendered a claim which the levying officer accepted and returned to court. When these facts appeared, without dispute, during the trial of the second claim, the plaintiff in fi. fa. made a motion to dismiss it, on the ground that it was illegally received and returned by the levying officer. The motion was overruled, and the trial resulted in a verdict in favor of the claimant. The plaintiff in fi. fa. excepted to the overruling of its motion for a new trial and to the refusal of its motion to dismiss the claim.

      II. McWhorter, J. M. Blechley, for plaintiff.

      W. A. Woolen, O. A. Wedding ton, contra.
   Bell, J.

(After stating the foregoing facts.)

It is provided in the Civil Code, § 5157, that when any sheriff or other officer shall levy an execution or other process on property claimed by a third person not a party to the execution, such person, his agent, or attorney shall make oath to the property; but certainly the right to file such a claim does not continue indefinitely. No one would suppose that a claim to property could be filed after the property had been levied upon and sold, and it would seem to the writer that a claim would be too late in any case when the property was no longer in the custody and control of the court. Although there are physical precedents to the contrary, it is my individual opinion that after property has been delivered to one claimant under a forthcoming bond, there is no room for a further claim by another unless and until the property shall have been restored to the levying officer. Where a forthcoming bond has been given by a defendant in fi. fa. under the terms of the Civil Code, §§ 6041 and 6042, the defendant in fi. fa. holds the property as the agent of the levying officer (Roebuck v. Thornton, 19 Ga. 149; Smith v. Davis, 3 Ga. App. 419 (2), 60 S. E. 199); and since the property in that case would remain in the constructive possession of the levying officer, the holding of it by the defendant in fi. fa. would be no obstacle to the filing of a claim by a third person. But a bond of the character just mentioned, which is one that the officer is not required to take (Hand v. Brown, 144 Ga. 272 (1), 86 S. E. 1080), differs quite materially in.its consequences from a forthcoming bond given with a claim under the Civil Code, § 5160. Where a proper bond of the latter class is duly tendered, and the property is in the actual possession of the levying officer (Phillips v. Saunders, 15 Ga. 518 (1)), he is ordinarily bound to deliver the property over to the claimant. Wortsman v. Wade, 77 Ga. 651 (4 Am. St. Rep. 102); Boyd v. Crews, 32 Ga. App. 138 (5) (122 S. E. 802). It would seem to follow that where the sheriff or levying officer has delivered property to a claimant under a forthcoming bond given under the terms of the Civil Code, § 5160, the property, while it thereafter remains in the possession of the claimant or until it is again lawfully taken by the levying officer, is not to be considered as continuing in the custody of the court. The claimant is not the agent of the officer in keeping the property. Houser v. Williams, 84 Ga. 601 (11 S. E. 129); Williams v. Houser, 90 Ga. 21 (15 S. E. 821). If upon the trial of the claim case the property should be found not subject, it would never be restored to the officer from whom it was received. On the other hand, if it should be found subject, and the bond breached, it might or might not be so restored, according to the plaintiff’s election and the possibility of a reseizure. The writer is therefore of the opinion that after property has been delivered to one claimant under a forthcoming bond, it is too late for another claim to be filed by some other person, since the property is for the time being not subject to the control of the court, and may never again become subject. If the property should be subsequently acquired by the court, the right of another to file a claim would be revived. What is said above, however, is not essential to a decision of the present ease, and does not constitute any part of the. court’s opinion. The writer takes the pains himself to tag it as obiter and to absolve his associates from any responsibility therefor.

We come no1v to a consideration of the case in hand. It appears in the record before us that the bond of a first claimant had been breached. Where property levied upon has been delivered to a claimant under a forthcoming bond, and the bond has been breached, the plaintiff in execution has the right “either to go upon the obligors on the forthcoming bond on account of the breach thereof by them, or if he can find the property, to have the same sold in satisfaction of his judgment lien.” Greer v. Pate, 85 Ga. 550, 552 (11 S. E. 869); Reese v. Worsham, 110 Ga. 449 (2) (35 S. E. 680, 78 Am. St. Rep. 109); Seymour v. House, 103 Ga. 676 (30 S. E. 655). Where the property has not been re-seized, there is no property in the hands of the sheriff to be claimed. Construing the motion to dismiss as being silent as to whether or not a reseizure had been made, we think that before a further claim could be filed by another,-where a breach of the forthcoming bond given by a first claimant appeared, the burden would be upon the second claimant to show that the property had been retaken by the levying officer, since there would be no presumption as to what would be the election of the plaintiff in fi. fa., whether he would endeavor to proceed further against the property, or content himself with a suit upon the forthcoming bond. It does not appear that the plaintiff in fi. fa. was seeking' to subject the property or that he would ever do so. If he elected to rely upon the bond, hé could not be forced to litigate the question of title with a second claimant whose interest in the property could not be affected by an action upon the bond of the first claimant. In these circumstances the second claim would be moot. Compare Anderson v. Banks, 92 Ga. 121 (18 S. E. 364); O'Neill Mfg. Co. v. Harris, 120 Ga. 467 (4) (47 S. E. 934); McFarland v. Lee, 10 Ga. App. 698 (2) (73 S. E. 1091); Salmon v. Lynn, 16 Ga. App. 298 (2) (85 S. E. 203).

“Where an execution in favor of one person is levied upon the property of another, to which yet another files a claim, and for its production to answer the execution levied, executes a forthcoming bond, if the claim case be dismissed or the property thereafter found subject, and upon a suit upon the forthcoming bond a judgment be rendered in favor of the plaintiff in execution against the claimant and his surety, the moneys realized upon said last mentioned judgment should be credited upon the execution originally levied, whether the judgment upon which such execution issued was really a lien upon the property levied upon or not. The question as to whether or not as to that levy the property levied upon is subject, is concluded by the judgment on the claim case. In such a case, if a person holding the real title permits the claimant of record to appropriate the property levied upon to his own use, his remedy is against the claimant, and he does not by virtue of any supposed right to the property levied upon acquire any interest, either legal or equitable, in the proceeds of the judgment rendered in the suit upon the forthcoming bond.” Heard v. Duke, 98 Ga. 134 (1, 2) (26 S. E. 485). Although the decision of the Supreme Court, from which we have just quoted, was rendered upon a state of facts somewhat different from those presented by the present record, we are of opinion that the principles therein enunciated are applicable and controlling in the case at bar. We conclude that the court was in error in refusing to dismiss the claim. This we think is still more apparent when we contemplate the position occupied by the court after verdict and judgment in favor of the claimant. Iiow could the judgment be enforced ? The court could not deliver the property to the claimant, because it was in the possession of the first claimant under her forthcoming bond, unless disposed of. It was only for the plaintiff in fi. fa. to say whether the property should be reseized. The plaintiff had the right to elect to proceed upon the bond. A second claimant could not compel a different election. The plaintiff in fi. fa. did not have the property and could not be required to account thereafter to the claimant, when the law had required it to be delivered to the first claimant under the forthcoming bond. The court should not have retained the second claim for trial when under all the facts it appeared that it would be impossible to enforce any judgment that might be rendered therein.

.It only remains to notice three decisions of the Supreme Court, which at first glance might appear to militate against the ruling just made. In Lackey v. Mize, 75 Ga. 692, it was held that in a suit upon a forthcoming bond against a first claimant, a verdict and judgment in favor of a second claimant was admissible in evidence. In the opinion it was said that the “claim papers, with the verdict and judgment thereon, should have been admitted in evidence, to show that this plaintiff was not damaged, because the property not delivered belonged, not to the defendant in execution, but to another, who had paramount title to his, so adjudged in a case in which this plaintiff was a party and this execution was levied.” In that case the plaintiff in fi. fa. made no motion to dismiss the second claim, but voluntarily joined issue therewith, and in doing so brought upon himself the consequences of the verdict and judgment against him. Likewise there was no motion to dismiss the claim in Aycock v. Austin, 87 Ga. 566 (13 S. E. 582). Whether such a motion would have been sustainable or not, the forthcoming bond sued on there was given, not in a claim case, but by the defendant in fi. fa., subject to §§ 6041 and 6042 of the Civil Code. We have already referred to the difference in the two classes of bonds. Furthermore, the language of the Supreme Court in that case, to the effect that a recovery might be had on the forthcoming bond pending the claim, and that the sheriff would hold the money collected in the suit for whomsoever it might concern, was obiter and is not binding. The same observations may be made with reference to a like statement in the second division of the opinion in Wall v. Finney, 136 Ga. 110 (70 S. E. 658), in which reference is made to the Ay code case. It would seem quite incorrect to hold that money collected in a suit upon the forthcoming bond should be distributed to one who had filed and successfully prosecuted a claim to the property for which the forthcoming bond had been given, since the claimant was no party to the bond and had no property interest therein. The bond could in no sense have been a substitution for the property in so far as the claimant was concerned. But whatever may bo the rule with respect to the proper disposition of the proceeds of a suit upon a forthcoming bond given by a defendant in fi. fa.', where it appears that the title to the property was in a third person, the law applicable to a forthcoming bond in a claim case is that “if a person holding the real title permits the claimant of record to appropriate the property levied upon to his own use, his remedy is against .the claimant, and lie does not by virtue of any supposed right to the property levied upon acquire any interest, either legal or equitable, in the proceeds of the judgment rendered in the suit upon the forthcoming bond.” Heard case, supra.

The court having erred in refusing to dismiss the claim, the subsequent proceedings were nugatory.

Judgment reversed.

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


text:
    15931.
    Citizens National Bank v. Jennings et al.

    Decided April 11, 1925.
    Complaint; from Wilkes superior court—Judge Shurley. August 6, 7, 1924.

      William Wynne, Colley & Colley, for plaintiff.

      Clement E. Sutton, for defendants.
   Bell, J.

In an action against an indorser of a negotiable. instrument protest and notice thereof may be found to have been waived where it appears that the indorsement was subject to a custom or course of dealing between the parties in which the holder was not expected to take such steps in order to fix the liability of the indorser upon papers passing between them. In the trial of the present action there was evidence tending to show that for a considerable period of time the plaintiff bank had been accustomed to buy notes payable to the defendant indorsers, and that, on failure of the makers to pay the notes, payment would be made by the defendants as indorsers, although there had been no express waiver of protest and notice thereof. The evidence further authorizing the inference that the immediate transaction was included within such general course of dealing, and a prima facie case being otherwise made out, the court erred in awarding a nonsuit as for a failure to show a waiver of protest and notice. Roberts v. Bank of Parrott, 30 Ga. App. 724 (119 S. E. 220); 2 Daniel on Negotiable Instruments, 1244, § 1091; 8 C. J. 699.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., disqualified.


text:
    15932.
    Citizens National Bank v. Jennings.
    Decided April 11, 1925.
    Description of case and names of counsel the same as in the next preceding case.
   Bell, J.

This case is controlled by the decision this day rendered in the companion case between the same parties. See Citizens National Bank v. Jennings, ante, 659.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., disqualified.


text:
    16053.
    CLARK MILLING CO. v. ST. LOUIS SOUTHWESTERN RAILWAY CO. et al.

    1. The court can acquire no jurisdiction over a defendant’s property by attachment without a valid levy or a seizure of his property by garnishment.
    2. There is no appearance and pleading to the merits, such as will constitute a waiver of jurisdiction, where the appearance is solely for the purpose of contesting the jurisdiction, although the defendant styles it an “answer.”
    3. “Where a railroad company of this State receives from a railroad company in another State a car, under a contract by which the domestic company has the right to carry the car loaded to its destina-: tion in this State and unload it, and then. to reload and return it to the owner beyond the limits of this State, paying for the use of the ear, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment.”
    Decided April 11, 1925.
    Garnishment; from city court of Richmond county—Judge Black. November 4, 1924.
    Clark Milling Company of Augusta, Georgia, claiming a liability against the St. Louis Southwestern Railway Company, a nonresident, sued out an attachment against the railway company, and sought service through the process of garnishment. A summons of garnishment was served upon each of five other railway companies, including the Central of Georgia Railway Company. The defendant made the following appearance, which it denominated as a “plea.”
    “And now comes the defendant . . at this the appearance term, and says that this court ought not to have or take further cognizance of the suit above stated, for the following reasons:
    “1. That the St. Louis Southwestern Railway Company has no officer or agent in Georgia and does no business in this State, and for these reasons no jurisdiction has been acquired over the St. Louis Southwestern Railway Company, and no legal judgment can be rendered against said St. Louis Southwestern Railway Company.

      “2. That the attachment and garnishment in this case are but incidents to the-main suit, and that unless the suit may be maintained by proper service on the defendant, his estate may not be impounded.

      “3. That this is a suit brought against the initial carrier of goods, under the Carmack amendment, and the remedy given against the initial carrier can .be maintained only in a jurisdiction in which service can be had upon such carrier in a manner permissible in the courts of the United States.
    . “4. That this attachment is not properly returnable to the August term, 1923, of the city court of Richmond county, Georgia.”
    The defendant had first filed pleading in language identical with the above except that on the outside covering was written the word “answer.” This does not appear to have been stricken, nor was there any order of court allowing a substitution of the second pleading for the first one.
    One of the garnishees, acting under a grant of further time, had not answered at the date of the judgment complained of. Answers were duty made bjr all the others, and that of the Central of Georgia Railway Company, being typical, contained a general denial of indebtedness, and further alleged, among other things, the following: That it had in its possession certain freight-cars belonging to the defendant, but that the same were not subject to the process of garnishment, because of a pre-existing understanding and agreement between the garnishee and the defendant to the effect that the cars “coming from a point without the State into the possession of the garnishee might be reloaded by the garnishee and used for the purpose of shipping, provided they were routed in such a way that the direction would carry them to the point whence they started; that, therefore, said garnishee acquired- a right to use each of said cars of the defendant as it came into its possession.”
    The plaintiff having duty filed its declaration, the case was submitted-to the judge upon the plaintiff’s demurrers to the appearances filed by the defendant, and to the plaintiff’s traverses of, and motions to strike, the answers of the garnishees. The traverses did not contest the existence of the agreements with respect to the use of the cars, and the plaintiff has not insisted that the garnishees had any money or property of the defendant subject to garnishment, except the ears. The demurrers brought into question the sufficiency of the “plea” or “answer” as a special appearance, and sought to hold the defendant as upon a general appearance.
    The court rendered judgment discharging the garnishees and dismissing the attachment, and the plaintiff: excepted.

      'Henry G. Howard, James 8. Bussey Jr., for plaintiff.
    17. K. Miller, 17.1. Curry, Gumming <& Harper, for defendants.
   Bell, J.

(After stating the foregoing facts.)

The court can acquire no jurisdiction over a defendant’s property by attachment without a valid levy or a seizure, of his property by garnishment. Associated Press v. United Press, 104 Ga. 51 (2); Baker v. Aultman, 107 Ga. 339 (1) (29 S. E. 869); Massachusetts Bonding Co. v. U. S. Conservation Co., 31 Ga. App. 716 (122 S. E. 728); United Provisions Corp. v. Board of Missions, 33 Ga. App. 9 (1) (124 S. E. 820).

The defendant was not to be held as having appeared and pleaded to the merits merely because the pleading first filed was marked “answer,” since it appeared therein that the very purpose of the appearance was to contest the court’s jurisdiction. A pleading should be construed not simply by what it is called, but according to- what it is. There being nothing, in either pleading filed by the defendant, that amounted to an appearance and pleading to the merits, the court did not acquire jurisdiction by waiver. Civil Code (1910), 5664; Hall v. Roehr, 10 Ga. App. 379 (2) (73 S. E. 550); Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959).

Upon the question whether there was seizure under the garnishments, the case is controlled by the following ruling of the Supreme Court, in Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (1) (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. Rep. 356, 9 Ann. Cas. 437): “Where a railroad company of this State receives from a railroad company in another State a car, under a contract by. which the domestic company has the right to carry the car loaded to its destination in this State and unload it, and then to reload and return it to the owner beyond the limits of this State, paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment.” The plaintiff contends that this decision is in conflict with later adjudications, and also that, for several reasons, it is not sound, and has requested this court to certify to the Supreme Court the question whether it should be followed. But since the Supreme Court, in Southern Railway Co. v. Brown, 131 Ga. 245 (62 S. E. 177), expressly refused to review and overrule it, we will decline the request to certify.

Neither can we assent to the proposition that the decision in the Southern Flour & Grain Company case is superseded by the subsequent ruling of the Supreme Court of the United States in Davis v. Cleveland &c. Ry. Co., 217 U. S. 157 (54 L. ed. 708 (4)). In the first place, the ruling quoted above does not deal with a federal question, but is confined to an enunciation of the law of this State. While the liability claimed against the defendant is under the amended interstate commerce act, the final interpretation of which is for the Supreme Court of the United States (American Ry. Express Co. v. Roberts, 28 Ga. App. 510 (3), 111 S. E. 744), we have for decision in this connection only the question as to what is subject to garnishment under the local law. In the second place, the federal decision relied upon by the plaintiff in error does not hold anything contrary to the adjudication in the Southern Flour & Grain Company case. The point decided, so far as here apropos (see the decision and judgment then under review, 146 Fed. 403), was that the enforcement of the local garnishment laws of the State of Iowa, where the case originated, was not, under the particular facts shown, an unwarranted interference with interstate commerce. On this question see also Davis v. Farmers Co-operative Equity Co., 262 U. S. 312 (67 L. ed. 996, 43 Sup. Ct. 556); Atchison &c. Ry. Co. v. Wells, 265 U. S. 101 (68 L. ed. 928, 44 Sup. Ct. 469) 1923-1924, p. 532; Southern Flour & Grain Co. v. Northern Pacific Ry. Co., supra.

We hold that the trial court did not err in discharging the garnishees and dismissing the attachment.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    16102.
    Alsabrook v. Continental Trust Company.
    Decided April 11, 1925.
    Action for damages; from Fulton superior court—Judge Humphries. November 19, 1924.
    Application for certiorari was denied by the Supreme Court.

      J. K. J or dan, for plaintiff.

      Bryan & Middlebroolcs, Anderson, Rountree & Crenshaw, for defendant.
   Bell, J.

1. In the present suit, in which the plaintiff alleged that the defendant had acted as his broker and agent in the purchase and sale of stocks, bonds, and other securities, and that as a result of transactions between them the defendant became indebted to' the plaintiff in a certain sum, which was, with the plaintiff’s consent, transferred to another broker when the defendant retired from that line of business, the other, broker succeeding the defendant in relations with the plaintiff, and in which suit the plaintiff sought to hold the defendant liable for damage sustained by him in his dealings with the second broker, because of the failure of the defendant to disclose to the plaintiff certain material facts known to the defendant, affecting the solvency and reliability of the second broker, it not appearing that the defendant’s relation as broker and agent concerned the matter of selecting the defendant’s successor, or extended beyond the purchase and sale of stocks, bonds, and other securities, the petition did not show the violation of any duty owing by the defendant as agent to the plaintiff as principal, in failing to inform the plaintiff of the facts referred to. Nor, under the circumstances stated, did it. appear that the defendant violated any duty to the plaintiff, cognizable in law, where the petition failed to allege further that the plaintiff made inquiry as to the truth, or that the defendant knew that he was ignorant thereof. Civil Code (1910), §§ 4114, 4410, 4624; Robinson v. Stevens, 93 Ga. 535 (2) (21 S. E. 96); Foster v. Jones, 78 Ga. 150 (1) (1 S. E. 275); Atlanta Bridge Co. v. Merchants National Bank, 89 Ga. 225 (15 S. E. 303); Comer v. Granniss, 75 Ga. 277; 26 C. J. 1069.

2. If the petition should be construed as an action for fraud and deceit, it was fatally defective for the additional reason that it failed to allege that the plaintiff relied upon the defendant to inform him, and acted upon the defendant’s silence and conduct, in assuming relations with the new broker. Dickey v. Leonard, 77 Ga. 151; Garbutt Lumber Co. v. Walker, 6 Ga. App. 189 (1) (64 S. E. 698); 26 C. J. 1137.

3. Applying the above rulings, the court did not err in sustaining the general demurrer and dismissing the petition. This conclusion is not altered by the fact that the petition alleged that the second broker paid a debt which the second broker owed to the defendant, out of funds transferred as stated in paragraph 1 above, the plaintiff not asserting title thereto, but, as to that, claiming only to occupy the relation of creditor, and the action, furthermore, being one for damages and not money had and received.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    16103.
    Newton v. Continental Trust Company.
    Decided April 11, 1925.
    Action for damages; from Fulton superior court—Judge Humphries. November 19, 1924.
    Application for certiorari was made to the Supreme Court.

      J. K. Jordan, for plaintiff.

      Anderson, Rountree & Crenshaw, Bryan & Middlebroohs, for defendant.
   Bell, J.

This case is controlled by the decision in Alsabrook v. Continental Trust Co., ante, 664.

Judgment affirmed,.

Jenkins, V. J., and, Stephens, ./., concur.


author: Per Curiam.

text:
    14196.
    Mitchell v. Owen.
    Decided April 14, 1925.
    Complaint; from Pike superior court—Judge Searcy. December 9, 1922.

      J. F. Redding, Little, Powell, Smith & Goldstein, for plaintiff.

      Cleveland & Goodrich, for defendant.
   Per Curiam.

When this case was formerly before this court the judgment of the lower court was affirmed by a majority opinion. 31 Ga. App. 649 (121 S. E. 699). By writ of certiorari the case then went to the Supreme Court. Eor full opinion of the Supreme Court see 159 Ga. 690. The 3d headnote as written by the Supreme Court is as follows: “The ground of the petition designated as ‘{o)’ complains that the Court of Appeals erred, Cn holding and deciding that it was not reversible error for the trial judge to charge the jury that if the plaintiff breached the contract by refusing to make a deed at the time he was obligated by the contract to make it, but later tendered the deed, the measure of damages which the defendant might recoup against the plaintiff’s action was the difference between the value of the land on the date that the deed should have been made and its value at the time when the plaintiff tendered the deed.’ Under the facts of this case this rule, without qualification, was erroneous, and requires a reversal of the judgment refusing a new trial.” As a new trial necessarily results from this ruling, it is unnecessary for this court to pass upon the assignments of error not dealt with in the opinion of the Supreme Court in this case.

Judgment reversed.

Broyles, C. J., and Bloodworth and Luke, JJ., eonour.


author: Luke, J.

text:
    15003.
    Kenney v. Higgins et al.

    Decided April 14, 1925.
    Complaint; from city court of Savannah—Judge Freeman. July 30, 1923.

      Travis & Travis, for plaintiff in error.

      Mclniire, Walsh & Bernstein, contra.
   Luke, J.

1. “Where a vendor contracts to sell land lor which he holds only an executory contract of purchase, and stipulates with his vendee to convey a merchantable title by a warranty deed during a specified day in the future, upon the strength of which he receives a part of the purchase-price as earnest money, which the contract provides shall be retained as a forfeiture by the vendor in case of a breach of the contract by the purchaser, and is to be returned to the . vendee if titles to the premises -are not merchantable, such vendor can not retain the earnest money after the day on which title is to pass, having himself failed to perfect his title so that he might convey to his vendee a merchantable title as provided by the contract. In the circumstances enumerated the vendee may, after the expiration of the time for making the deed, maintain an action for recovery of the earnest money without having paid or tendered payment of the balance of the purchase price.”

2. The foregoing ruling is by the Supreme Court in this case. The trial court had directed a verdict in favor of the plaintiffs, and this court reversed that judgment, holding that, “the evidence being in conflict upon material .issues, and presenting questions for determination by the jury, the court erred in directing a verdict.” The- Supreme Court, on certiorari, reversed the judgment of this' court. Higgins v. Kenney, 159 Ga. 736 (126 S. E. 827). See full opinion of that court, rendered on February 18, 1925. In obedience to the decision of the Supreme Court, the former judgment of this court (31 Ga. App. 514, 121 S. E. 841) is hereby vacated, and the judgment of the trial court is affirmed.

Broyles, O. J., and Bloodworih, J., concur.


author: Bloodworth, J.

text:
    15759.
    TRAVELERS INSURANCE COMPANY v. ALBIN.
    The word “.member,” as used in the workmen’s compensation act, does not embrace' the ear.
    The judgment of the court below in this case is without evidence to support it.
    Decided April 14, 1925.
    Appeal; from Floyd superior court—Judge Wright. June 7, 1924.
    Lamont Albin, while working for the Texamoga Clay Products Company, was injured by an explosion. He applied to the industrial commission of Georgia for compensation for the loss of his left hand, and an award was entered in his favor. Later he applied for further compensation, for the loss of hearing of his left ear. Upon the hearing of this application before Commissioner Slate compensation was granted for the loss of hearing, and upon a review of this award by the full commission it was approved. Thereupon the insurance carrier, Travelers Insurance Company, appealed to the superior court of Floyd county. The judge presiding affirmed the award of the full commission, and the insurance carrier brought the case to this court.

      McDaniel & Neely, Maddox, Maltheivs & Owens, for plaintiff in error.

      Porter & Mebane, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

1. Whether the judgment of the lower court should be reversed or affirmed depends upon the construction of certain sections of the workmen’s compensation act (Ga. L. 1920, p. 167). It was not insisted that total incapacity to work resulted from the injury to the ear. Under the facts shown by the record, should the award for partial incapacity be sustained? Section 31 of said act (pp. 183, 184) is in part as follows: “That except as otherwise provided in the next section hereafter, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity, a weekly compensation equal to one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than twelve dollars a week, and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury.” (Italics ours.) Section 32 of the act (p. 184), referred to. in section 31 as “the next section hereafter,” makes no provision for the payment of compensation when there is a loss of hearing in one' ear only. Section 32 (q) (p. 185) provides: “For the complete loss of hearing in both ears, fifty per centum of average weekly wages during one hundred and fifty weeks.” It will be seen that section 31 provides that “when the incapacity to work resulting from the injury is partial” the injured employee shall be paid “a weekly compensation equal to one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.” Therefore, before an award could be legally made under this provision of the law, there must be evidence to show the amount of the employée’s average weekly wages before and after the injury. There being no such evidence in this case, the judgment of the lower court is without evidence to support it.

2. In the brief of the defendant in error it is insisted that the ear is a member of the human body, and that he, as plaintiif, is entitled to recover under section 32 (r) of the workmen’s compensation act, supra, which section provides for the “loss of a member” and “for partial loss of or for partial loss of use of a member.” We can not agree with this contention. While section 32 (q) of the act just referred to provides that compensation shall be paid “for the complete loss of hearing in both ears,” there is no express provision in the act for the loss of hearing in one ear. Even if the loss of hearing in one ear could be considered the loss of an ear, the word “member” does not, in contemplation of the statute we are now discussing, embrace the ear. The new Standard Dictionary defines “member” as “a limb or other functional organ of an animal body, as an arm or a leg; a private part.” In Webster’s New National Dictionary we find this definition of “member:” “A part or organ of the animal body; especially a limb or other separable part.” In State v. Melrose, 143 Minn. 397, 402 (173 N. W. 857, 18 Negligence & Compensation Cases Ann. 1084), a case which arose under the workmen’s compensation act of Minnesota,'it was said: “In common usage the term ‘member’ as applied to the human body means the extremities of the body, and particularly the arms and legs.” So it is clear in this case that Albin can not recover for the loss of or partial loss of the use of an ear as a “member.”

Judgment reversed.

Broyles, Q. and Luke, J., concur.