text:
    19274.
    McCOMBS v. SOUTHERN RAILWAY Co. et al.

    Decided May 18, 1929.

      Porter & Mebane, for plaintiff.

      Maddox, Matthews & Owens, J. L. Wallace, for defendants.
   Bell, J.

Milton McCombs, a minor nine years of age, by another as next friend, brought a suit for damages against Southern Railway Company and one Eugene Grace, alleging that in crossing a bridge erected by the defendant railway company over its railroad in the city of Rome and forming a part of a public street known as Calhoun Avenue, he, the plaintiff, was enveloped in a cloud of smoke, dust, and cinders negligently emitted from a locomotive of the defendant, which was passing under the bridge, and that at the same time the other defendant, who was crossing the bridge in an automobile, negligently ran over and injured the plaintiff, and that the negligence of each of the defendants contributed to and caused his injury.

The court sustained certain special grounds of the railway company’s demurrer, and the plaintiff excepted. The exceptions then brought were considered by this court in the decision reported in 38 Ga. App. 429 (144 S. E. 137), where it was held that the trial court did not err in requiring the plaintiff to supply the information demanded by the demurrer. Direction was given, however, that the plaintiff be permitted to amend his petition accordingly at the time the judgment of this court was made' the judgment of the court below.

The demurrer called for allegations as to whether or not a separate walkway for pedestrians was maintained on the bridge. When the case was again considered in the court below, the plaintiff offered an amendment wherein he averred that at the time of his injury he was crossing upon the upper or northern side of the bridge, and that this portion of the bridge had been used by pedestrians generally, as he was then using it, ever since the bridge had been erected by the railway company; that while there was no walkway on that side of the bridge, it was situated in a thickly and densely populated portion of the City of Rome, and that pedestrians in large numbers when crossing the bridge would walk upon the upper or northern portion thereof, as the plaintiff was doing at the time of his injury. The amendment further alleged that there was a walkway on the southern side of the bridge, but that this was used mainly by pedestrians who used the south side of Calhoun Avenue, and that pedestrians who used the north side of this avenue crossed the bridge by passing along the upper or northern portion thereof; that this had been the custom and practice of the public generally for a period of fifteen years, and that the defendant knew of such use of the bridge and had never made any objection thereto, but had acquiesced therein “for said length of time.” On the allowance of this amendment the demurrer of the railway company as originally filed, including general grounds, was renewed, and, upon consideration thereof, the court sustained the demurrer and dismissed the petition; whereupon, the plaintiff again excepted. Under the instant writ of error we have not only the question of whether the petition set forth a cause of action against the railway company, but also of whether the petition was subject to certain additional special grounds of demurrer, the validity of which was not adjudicated upon the former hearing.

In the original petition it was averred that the bridge was about fifteen feet in width and approximately sixty feet in length, constructed of wood, with banisters on each side four feet high; and that as the plaintiff was immediately above the road-bed and track of the railway company, a locomotive engine approached the bridge, and that “just as the smoke or exhaust stack of said locomotive engine approached the northern part of said bridge, said engine gave a quick, sudden, powerful, and unusual and unnecessary exhaust from said smoke or exhaust stack, and emitted and threw forth, out and over the top of said bridge, a great volume of smoke, dust, and cinders, completely enveloping the top and floor all around your petitioner with a great volume of smoke, dust, and cinders, said exhaust of said smoke, dust, and cinders from said engine temporarily blinding your petitioner and knocking him back to about the center of said bridge, completely covering up and obscuring [him?] from the vision of any one in said street; and while your petitioner was enveloped in said cloud of smoke on said bridge the other defendant herein, Eugene Grace, driving an automobile up and on said bridge from towards the east and going towards the west, ran into your petitioner while he was so enveloped in said cloud of smoke, dust, and cinders, and knocked your petitioner down with the automobile which he was driving, ran over him, and seriously injured him, as hereinafter set forth.”

The allegations of negligence with respect to the railway company were as follows:

(Paragraph 16 of the petition) “Petitioner charges and alleges that the engineer, whose name to petitioner is unknown, who had said engine and locomotive of the defendant railroad company in charge, approached said bridge from the north and going in a southerly direction, and as your petitioner and his companion Were on said bridge, they were in plain view of the engineer of said locomotive and his said fireman, whose name is to your petitioner unknown, and that said engineer and fireman saw, or by the exercise of ordinary care could have seen, your petitioner and his said companion as they walked over, on, and along said bridge in said public street and highway as aforesaid, and that said engineer and fireman knew or should have known that said heavy, unnecessary, and unusual exhaust from said engine, which completely covered your petitioner with smoke, making it impossible for your petitioner to be seen as he walked in, along, and over said bridge, and that automobiles were passing over said bridge constantly, and that under said condition said engineer and fireman knew or should have known that your petitioner was liable and likely to be run into and over by some automobile driver along, over, and across said bridge as aforesaid. Your petitioner therefore shows that it was negligence in the defendant’s agents in so using and manipulating said engine that it would and did envelop your petitioner in said great cloud of smoke as aforesaid, and that it was negligence in the defendant railroad company in its said engineer and fireman in not so running said locomotive engine under said bridge that it would not envelop your petitioner in smoke, dust, and cinders and hide and obscure him from the vision and sight of people driving automobiles in, on and across said bridge.

(17) “Your petitioner shows that as a member of the general public and having the right to the use of said bridge, and said defendant’s agent, as aforesaid, knowing, or by the exercise of ordinary care and diligence could have known that your petitioner was walking along said bridge, that it was the duty of the defendant railroad company to use care and caution and not recklessly, negligently, and carelessly cause said engine to empty its exhaust and pour forth said volume of smoke and cinders in the face of your petitioner, blinding him and enveloping him in said volume of smoke, when as a member of the general public he had the right to the use of said street, and in walking across said bridge; that if-said engineer had not .caused said engine to emit said great volume of smoke, cinders, and dust, and completely envelop him with said cloud of smoke, and hiding him from the presence of others on the street, your petitioner would not have been injured, and said automobile so driven by the said Eugene Grace would not have run into and against your petitioner. That the proximate cause, or one of the proximate causes, of the injury of your petitioner was the negligence of said railroad company as aforesaid.”

As to the other defendant, Eugene Grace, the petition alleged:

(Paragraph 13) “Petitioner charges the defendant Eugene Grace was negligent in driving his said automobile into and through said volume of smoke, when your petitioner was enveloped as aforesaid, without stopping his said automobile until said smoke had cleared away; that the defendant Eugene Grace knew that your petitioner was on said bridge before he drove upon said bridge and before petitioner was enveloped in said cloud o£ smoke, and that it was negligence in the defendant Eugene Grace in running his said automobile into said cloud of smoke and striking and injuring your petitioner as aforesaid.

(14) “That it was negligence per se in the defendant Eugene Grace in driving his said automobile in and over said bridge at said high rate of speed, in that it is a violation of the municipal ordinances of the city of Rome to operate an automobile on and over and across a bridge, and within the corporate limits of the city of Rome, at a greater rate of speed than ten miles per hour.

(15) “That the defendant Eugene Grace is guilty of negligence per se, in that at the time he ran his said automobile along and over said bridge he was running said automobile at a greater rate of speed than ten miles an hour, in violation of the penal automobile statutes of the State of Georgia which prohibit the operation of a motor-vehicle over a bridge on a public road of the State of Georgia, at a greater rate of speed than ten miles per hour.”

That the petition set forth a cause of action would seem to be settled by the decisions of this court in Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573); Southern Cotton Oil Co. v. Wallace, 27 Ga. App. 415 (108 S. E. 624). While the railroad company had the right and duty to carry on its usual and necessary business notwithstanding its tracks were situated under a bridge over which pedestrians and automobiles were constantly traveling, it could not unnecessarily endanger the safety of such travelers without being answerable for negligence or misconduct in so doing; and the petition, having alleged that the engine gave a “quick, sudden, powerful, and unusual and unnecessary exhaust,” as the result of which it emitted and threw forth a great volume of smoke, dust, and cinders, completely enveloping the top and floor of the bridge, blinding the plaintiff and knocking him back to about the center of the bridge, was not fatally defective as failing to show negligence on the nart of the railway company. Morgan v. Central Railroad, 77 Ga. 788 (3); Southern Ry. Co. v. Flynt, 2 Ga. App. 162 (4) (58 S. E. 374); Augusta Ry. & Electric Co. v. Lyle, 4 Ga. App. 113 (60 S. E. 1075); Charleston &c. Ry. Co. v. Boyd, 5 Ga. App. 137 (62 S. E. 714). The plaintiff was neither trespassing nor acting without right even though he was passing along a portion of the bridge not provided with a walkway for pedestrians, but the fact that he was so traveling would go merely to the question of his own negligence or failure to exercise proper care, as an issue for determination by the jury. William Bensel Const. Co. v. Homer, 2 Ga. App. 369 (2) (58 S. E. 489); City of Rome v. Phillips, 37 Ga. App. 299 (3) (139 S. E. 828). Furthermore he was only nine years of age, and was not necessarily to be charged with that degree of care that should be exercised by an adult. Civil Code (1910), § 3474; Savannah, Florida & Western Ry. Co. v. Smith, 93 Ga. 742 (3) (21 S. E. 157). Hence, it can not be said as a matter of law that the plaintiff so negligently placed himself in a position of danger from passing automobiles that he should be barred from a recovery for such injuries as he may have sustained from negligence, if any, of other persons.

But even if the plaintiff should be considered as a trespasser or as being at a place where he had no right to be, it still can not be said that the company violated no duty of diligence toward him. Where the circumstances are such that the employees of a railway company in charge of one of its trains are bound on a given occasion to anticipate that a person may be in a position of danger with respect to the track and the operation of the train, they are under a duty to take such precautions to prevent injuring him as will meet the requirements of ordinary care and diligence, and this rule may be applicable even in the case of a trespasser, where he is using the property of the railway company in accordance with a custom or practice followed by the public generally, with the implied knowledge and consent of the company, and where under the circumstances the presence and peril of such person, or of some one, should have been anticipated by the company. Williams v. Southern Ry. Co., 11 Ga. App. 305 (75 S. E. 572); Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592); Bullard v. Southern Ry. Co., 116 Ga. 644 (43 S. E. 39); M. & R. R. Co. v. Parker, 127 Ga. 471 (56 S. E. 616); L. & N. R. Co. v. Rogers, 136 Ga. 674 (71 S. E. 1102); Southern Ry. Co. v. Chatman, 124 Ga. 1026 (5) (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675).

The allegations of the petition do not show conclusively that the negligence of the defendant Grace was the sole proximate cause of the plaintiff’s injuries, but it sufficiently appears as against demurrer that the negligence of the railway company was a contributing factor. It is averred that the defendant Grace knew that “petitioner was on said bridge before he drove upon said bridge and before petitioner was enveloped in said cloud of smoke;” but it does not appear that the plaintiff at that time was in the path of the automobile, or that he would necessarily have been struck thereby except for the negligence of the railway company, which, according to the other allegations, blinded the plaintiff and knocked him back to the center of the bridge, “completely covering up and obscuring [him] from the vision of any one in said street,” and that he was struck by the automobile while thus enveloped “in said cloud of smoke on said bridge.”

We have carefully examined the several decisions cited by counsel for the railway company, and can not agree that this is one of those “plain and indisputable cases” in which the question of what was the proximate cause of the plaintiff’s injuries should be determined by the court on demurrer, but are of the opinion that upon proof of the averments of the petition the plaintiff would be entitled to have the case submitted to the jury. Compare Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Spires v. Goldberg, 26 Ga. App. 530 (106 S. E. 585); Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155), affirmed, 166 Ga. 121 (142 S. E. 658). Furthermore, did not our former ruling in this case necessarily adjudicate that the petition set forth a cause of action in substance? In Ellison v. Georgia Railroad Co., 87 Ga. 691 (4) (13 S. E. 809), it was held that “in order for a declaration to be amendable in form, a substantial cause of action must appear, otherwise there is not enough to amend by” (italics ours ). Under that principle it would seem that when this court gave .direction that the plaintiff be allowed to amend the petition in order to meet certain special grounds of demurrer going to matter of form, we were obliged to hold that the petition was good in substance. In this view “the law of the case” would have prevented a dismissal of the petition upon general demurrer when the case came on again for disposition in the lower court, unless the facts were so changed by amendment as to negative the right of action as formerly pleaded. The amendment did not, in bur opinion, have such effect.

As shown in the above statement of facts, paragraph 16 of the petition alleged in effect that the engineer and the fireman saw or by the exercise of ordinary care should have seen the plaintiff as he was walking over and along the bridge, and that the engineer and the fireman knew or should have known that the exhaust from the engine would envelop the track with smoke, dust, and cinders, covering the plaintiff with smoke and making it impossible for him to be seen as he walked on the bridge, and that under such conditions the engineer and the fireman knew or should have known that the plaintiff was likely to be run into and over by some automobile. The defendant railway company demurred specially to these averments upon the following grounds:

(a) That said averments are vague, indefinite, and uncertain, in that it is not alleged whether defendant’s agent actually knew that plaintiff was walking on said bridge, or that he could have discovered same by the exercise of ordinary care and diligence.
“(b) That it is not alleged, and said averments are insufficient to show, whether the plaintiff relies upon actual knowledge on the part of defendant’s agent, or merely implied knowledge.”

We are aware of no rule of law which would have required the railroad employees to look upward from the engine to see if there were persons upon the bridge, and, in the absence of some provision of law making it their duty to do so, the allegation that they either saw, or ought to have seen the plaintiff was insufficient to show negligence on their part. Otherwise, however, as to the averment that such employees knew, or should have known, that the plaintiff was crossing the bridge, and knew, or should have known, that to envelop him in a cloud of smoke from the engine would be likely to place him in danger of being run over by some passing automobile. If the allegations are true, the railway company was charged with notice of the fact that the bridge was used by the public, and even had knowledge that pedestrians frequently and constantly used the north side of the bridge as a walkway, as the plaintiff was doing upon the occasion in question. The duty to know of this fact sufficiently appearing, an allegation that the defendant either knew or ought to have known was not inadequate as failing to show negligence. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (2) (116 S. E. 57).

While the allegation that the engineer and fireman saw or should have seen the plaintiff upon the bridge was ineffectual and should be disregarded, the demurrer thereto made the mistake of including in the attack other averments of the petition which were not subject to the criticism made, and so, because of its own imperfection, should have been overruled. Southern Ry. Co. v. Phillips, 136 Ga. 282 (71 S. E. 414); Parrish v. Central of Ga. Ry. Co., 36 Ga. App. 133 (135 S. E. 762).

The proffered amendment sufficiently met the special grounds of the demurrer which were considered by this court upon a former hearing. There was no merit in any of the other special grounds of the demurrer.

Judgment reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    19278.
    MURKINSON v. BALL & FLEMING.

      Decided May 18, 1929.

      J. E. Brake, P. B. Rich, for plaintiff.

      A. B. Conger, for defendants.
   Bell, J.

Mrs. Emily Murkinson brought suit against Ball & Fleming, a partnership, to recover the alleged value of the life of her child Junior, who, according to the petition, was killed by the negligence of a servant of the defendants when the child was at the age of two years, four months and twenty days. The petition alleged: “That said child was as well developed physically and mentally as an average child of from four to five years of age, unusually large and strong to its age, fully as strong physically as the average five-year-old boy, and with a stronger and better developed intellect than the average boy at five years of age, perfectly sound physically and mentally and very precocious; that he helped bring in wood, ran on errands, swept the house, helped to attend the baby, and generally waited on plaintiff, helped in the household work, doing all those innumerable little things to be done in a home which a child can do as effectually or more so than a grown person, and did thereby contribute to plaintiff's support, and that plaintiff was dependent upon him, and that the services of said child were reasonably worth $3 a month." The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

In Southern Ry. Co. v. Covenia, 100 Ga. 46 (supra), the suit was to recover for the death of a child who was killed at the age of one year, eight months and ten days. In that case the Supreme Court said: “The fact that a child of less than two years of age can not perform any services of value to its parent is a matter of common knowledge to all men. It is as well known to the judge as it is to the jury. It being so known to the judge, why should he not act upon it when he is called upon to do so by proper pleading? Why is he less qualified than the jury to declare a well known fact? Why should he submit such a question to a jury when if they found contrary to this well known fact he would be compelled to set aside their verdict? Why should-he go through the farce of a trial, at the expense of the country in time and money, in order to have a jury decide a fact which is already well known to every one? There is no necessity for a jury trial when there is no issue of fact. In our opinion there can be no issue of fact as to the ability of a child two years old to perform valuable services. Even if the parent should testify that a child of that age could render services of the value of two dollars per month, it would be so inconsistent with every person’s knowledge of the incapacity of children of that age to render service, that such testimony would be unworthy of credit. . . A demurrer does not admit facts which are in their nature improbable or impossible.” A similar case was that of Atlanta Street Ry. Co. v. Arnold, 100 Ga. 566 (supra), in which the petition alleged that the child was “between two and a half and three years old.” In that case the court said: “The reasons given by Chief Justice Simmons, in the opinion in the Covenia case, for taking judicial cognizance of the fact that a child less than two years old is incapacble of rendering 'such services as would authorize the parent to recover’ for the loss of them, are equally applicable in a case where the child, for whose death a recovery is sought, is alleged to have been between two and a half and three years of age. It follows that the court erred in not sustaining the demurrer to the declaration.” In James v. Central of Georgia Ry. Co., 138 Ga. 415 (75 S. E. 431, 41 L. R. A. (N. S.) 795, Ann. Cas. 1913D, 468), where the petition alleged that the child for whose death a recovery was sought was two years, ten months and twenty days old, and was strong, robust and precocious, being possessed of unusual physical powers for a child of its age, and was capable of rendering, and did render, services to the plaintiff of a stated value per month, the Supreme Court declined to hold as a matter of law that the child was “so incapable of performing such valuable services that a defendant corporation would not be liable in damages for the homicide of such child,” upon proof that the killing was tortious and not justified. In the James case the court said that under the allegations in the Arnold case the child should have been regarded as “nearer two and a half years of age than otherwise,” and then, after referring to other cases, made the following observation: “So it will be seen that this court has held that courts will take judicial cognizance of the fact that children one and one half, and children about two and one half years old, are incapable of performing valuable services, and that their parents on their being tortiously killed by a railroad company, can not recover for loss of such services.”

None of the above-mentioned decisions was rendered by a full bench, and when this court later on had before it the question of whether there could be a recovery for the loss of services of a child two years and four months old it was thought desirable to certify the case to the Supreme Court, and this was done. See Holmes v. Southern Ry. Co., 145 Ga. 172 (supra). The Supreme Court was equally divided as to whether “as an original proposition” a court should judicially know that the allegations of fact in that case as to the child’s development and capacity were as a matter of law untrue, because so unreasonable as to be legally impossible. The Court of Appeals was instructed, however, that the decisions in the Govenia and the Arnold cases were in no way modified by the ruling in the James case, and also that: “With the members of the [Supreme] Court thus equally divided in opinion as to the question, if considered as an original one, the two decisions in 100 Ga., above cited, must be left to stand as precedents, and should be observed by the Court of Appeals as such, unless they should be hereafter modified or changed.” The two decisions referred to have not been modified or changed since the decision in the Holmes case. In view of the foregoing, it would seem useless for this court to attempt any expression as to the real merits of the legal question at issue; and so, to follow the rulings in the Govenia and Arnold cases, we h6ld that the petition failed to set forth a cause of action, and that the court properly sustained the general demurrer thereto.

Judgment affirmed.

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


text:
    19293.
    HEFNER, administrator, v. FULTON BAG & COTTON MILLS.
    Decided May 18, 1929.

      7. E. Adams, for plaintiff. Slaton & Hoplcins, for defendant.
   Bell, J.

J. O. Hefner, as administrator of the estate of B. F. Hefner, deceased, brought suit against Fulton Bag & Cotton Mills to recover damages for alleged injury to realty. The defendant demurred to the petition, upon the following, among other grounds: "1st. The same sets forth no cause of action. 2d. There is no cause of action in the plaintiff, it not being alleged that said administrator had, at the time of the injuries complained of, either title to or possession of said property.” The court sustained the second ground of the demurrer, with leave to amend within ten days. The plaintiff declined to amend, the petition was dismissed, and the plaintiff excepted.

The petition alleged that the intestate died seized and possessed of the property in question, a lot in the city of Atlanta, and had owned it and lived upon it for about a quarter of a century before he died, and that on or about August 11, 1926, the defendant damaged the property by obstructing the natural drainage therefrom and causing the water to 'back up and form a pond upon the property, with resulting injury thereto as described in the petition. It was further alleged that since August 11, 1926, the defendant built a wall along the north and east lines of the property and built up its own adjacent land to the level of such wall, so as to leave the Hefner lot "in a hole approximately 15 feet deep.” Damages were claimed "in the sum of $5,000 as of August 11, 1926.” The petition contained no allegation to show the date of the intestate’s death, nor the date of the appointment of the plaintiff as administrator; nor was'it averred that the administrator was in possession of the property at the time of the acts complained of or at any other time.

To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass; and when he relies upon possession alone, it must be actual possession of that portion of the tract upon which the trespass was committed. Morris v. Gibson, 35 Ga. App. 689 (2) (134 S. E. 796); Whiddon v. Williams Lumber Co., 98 Ga. 700 (2) (25 S. E. 770); Downing v. Anderson, 126 Ga. 373 (55 S. E. 184); Fender T. Gardner, 153 Ga. 460 (112 S. E. 368), and cit.

There is no failure here to show that the intestate was the owner of the property at the time of his death; and if he were now in life and were the person suing, the action would be maintainable. This would be true for the reason that, where the plaintiff shows ownership, it is unnecessary to show possession. It does not follow, however, that the suit could be brought by the administrator. On the death of an intestate the title to his lands descends to his heirs at law, and not to his legal representative. Stonecypher v. Coleman, 161 Ga. 403 (131 S. E. 75); Gholston v. Northeastern Banking Co., 158 Ga. 291, 293 (123 S. E. 111, 35 A. L. R. 23); Dunson v. Lewis, 156 Ga. 692, 700 (119 S. E. 846); Weems v. Kidd, 37 Ga. App. 8 (138 S. E. 863); Lee v. Moore, 37 Ga. App. 279 (139 S. E. 922); Civil Code (1910), § 3929. So, in this case, if the injury to the property occurred subsequently to the death of- the intestate, prima facie the right to sue therefor would be in the heirs at law, especially in the absence of allegation that the administrator was in possession at the time of the trespass, go much for the case on the assumption that the damage occurred since the death of the intestate.

If the injury occurred prior to the death of the intestate, and if the cause survived him, it would seem that the right to sue was in the administrator; but' since it does not appear whether the injury was done before or after the intestate’s death, no cause of action is stated as for damage done previously thereto, even assuming that in such a case the cause of action did not abate with the death of the intestate. On the latter question see Frazier v. Georgia R. &c. Co., 101 Ga. 77 (28 S. E. 662); King v. Southern Ry. Co., 126 Ga. 794 (3) (55 S. E. 965, 8 L. R. A. (N. S.) 544); Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124); Ellington v. Bennett, 56 Ga. 158; Petts v. Ison, 11 Ga. 151 (56 Am. D. 419) ; Neal v. Haygood, 1 Ga. 514; Henderson v. Alexander, 2 Ga. 81; Woods v. Howell, 17 Ga. 495; Jones v. Lamar, 77 Ga. 149; Spence v. Carter, 33 Ga. App. 279, 282 (125 S. E. 883); Leathers v. Raburn, 17 Ga. App. 437 (87 S. E. 754); 1 C. J. 174; 2 Am. & Eng. Enc. Law (2d ed.) 1017; 21 Enc. Pleading & Practice, 309-325.

The petition failed to set forth a cause of action, and the judgment of dismissal will therefore be affirmed, irrespective of the validity of the particular ground upon which it was based. Crittenden v. Southern Loan Asso., 111 Ga. 266 (5). However, if the damage occurred during the life of the intestate, direction is given that the plaintiff as administrator be permitted to present an amendment alleging that and any other pertinent facts, for the purpose of invoking a ruling as to his right to maintain the action in his representative capacity to recover for such damage.

Judgment affirmed, with direction.

J enlcins, P. J., and Stephens, J., concur.


text:
    19323.
    HUGHES v. ETHERIDGE, executor.
    Decided May 18, 1929.

      A. B. Spence, Parker & Parker, for plaintiff in error.

      E. O. Blalock, contra.
   Bell, J.

(After stating the foregoing facts.) The court did not err in refusing to permit the defendant to testify that he had had no transactions whatever with the testator. That Mrs. Foor, the testator, was a nonresident and that a number of other persons, who had borrowed from the testator through Stinson as her agent, had in each instance dealt solely with the agent, did not establish that the defendant himself had had no transactions with her. The defendant could have testified, and did testify, to transactions between him and such agent, the agent presumably being still in life, but he could not show that the note in suit was wanting in consideration merely by proof that he had had no such transactions with the agent. In order to maintain the plea it was necessary to show the absence of any such transactions with Mrs. Foor directly, or with any other person acting for her. In the instant case there was no evidence to show the absence of any dealings whatever between him and Mrs. Foor except the testimony of the defendant himself, which testimony the court excluded. We think the defendant was incompetent to testify to this fact and, therefore, that the court was right both in excluding the testimony and in thereafter directing the verdict in favor of the plaintiff.

In Webb v. Simmons, 3 Ga. App. 639 (60 S. E. 334), this court held that, where a suit is instituted or defended by the personal representative of a deceased or insane person, the opposite party is not competent to testify in his own favor to the nonexistence of transactions or communications alleged to have taken place between him and the deceased. In the opinion it was said: “The letter of the statute, as well as its spirit, forbids the living party from testifying as to the non-existence of the transactions or communications; and the Supreme Court has taken the same view. Dowdy v. Watson, 115 Ga. 43 (7), 47 (41 S. E. 266); Moultrie Repair Co. v. Hill, 120 Ga. 734 (48 S. E. 143). Despite the strictness of construction imposed by the decisions, we hardly think that the language of the legislature is to be viewed with the speculative rigor of the metaphysicians; and yet the point will stand even that test. Testimony as to a thing includes any and all statements concerning its categories or attributes; and may be positive, negative, or contradictory. If by statute certain witnesses were declared to be incompetent to testify as to the color of a thing, it could hardly be said that such a witness would be permitted to testify that the thing was black; that is to say that the thing had no color at all. Now as color is an attribute, so is existence itself; indeed, according to the metaphysicians and logicians, the ens is the first or highest attribute or category; therefore, to testify as to the existence of a thing, whether positively, negatively, or contradictively, is to testify as to the thing itself. Law and logic both recognize the fact that testimony as to a thing may be positive, negative, or contradictory. Civil Code, § 5165 [Civil Code of 1910, § 5751]. Indeed, the rules of evidence announced in our Civil Code are for the most part, in essence, principles rather of logic than of law.” See also Wilkes v. Groover, 138 Ga. 407 (5) (75 S. E. 353); Hill v. Merritt, 146 Ga. 307 (91 S. E. 204); Farmers & Merchants Bank v. Miller, 37 Ga. App. 668 (2) (141 S. E. 419).

The cases cited by counsel for the plaintiff in error are different in their facts respectively from the case at bar. In each of those cases the testimony related to affirmative transactions which were shown to have taken place solely with one other than the deceased party, and, in our opinion, the decisions therein can have no application to the facts of the present case.

Judgment affirmed.

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


text:
    19327.
    BUCHANAN v. HUSON.
    Decided Mat 18, 1929.

      Hendrix & Buchanan, McDaniel, Neely <£ Marshall, for plaintiff in error.

      Levi O'Steen, contra.
   Bell, J.

Mrs. Josie L. ITuson brought suit against William F. Buchanan, a practicing attorney, alleging: that in a written contract between them the defendant had agreed to file suit for the plaintiff against an insurance company upon a policy of insurance, that the defendant had failed to file the suit in accordance with the agreement, and that in consequence the plaintiff’s claim against the insurance company was lost, to her damage in the sum of $6,300. The defendant demurred to the petition, upon the grounds, (1) that it set forth no cause of action, and (2) that it affirmatively appeared therefrom that the alleged cause of action was barred by the statute of limitations. The court overruled the demurrer, and the defendant excepted.

The only contention made by counsel for the plaintiff in error in this court is that the action was barred, and any question, therefore, as to whether the petition was otherwise subject to demurrer will be treated as abandoned.

The petition, filed on April 21, 1928, alleged that the plaintiff was the beneficiary in a policy of insurance written upon the life of her son, Jesse L. Huson, who died from a cause within a provision of the policy on March 4, 1920. The company refused payment of the plaintiff’s claim on November 1, 1921. The contract of employment between the plaintiff and the defendant for the filing of suit upon the policy was made on November 5, 1921. The agreement was in writing but, not under seal, was signed by both the parties, and provided that the attorney should prepare and file suit against the insurer “immediately.” The policy contained the following stipulation: “No suit or proceeding, either at law or in equity, shall be brought to recover any benefits under this Article after six months from the date the claim for said benefits is disallowed by the Supreme Executive Committee.” The petition alleged a failure to bring the suit at all, and averred that the “defendant breached his contract with petitioner.” The prayer was to recover as damages the full amount of the policy with interest.

The contract between Mrs. Huson and Mr. Buchanan upon which the present suit is founded contained only a description of the claim and a recital of Mr. Buchanan’s employment, together with the following provision: “It is agreed that said second party shall prepare and file suit against said order immediately, and in event said suit shall be settled before the same goes to trial, said second party shall be paid 20% of the amount for which settlement is made; no settlement to be made without the approval of said first party. In event said suit goes to trial, said second party shall prosecute the same through the courts as far as may be necessary and for his services shall receive 25% of the amount that may be collected on said certificate.”

The action is not one in tort, but is clearly a snit for a breach of contract. Perry v. Griffin, 39 Ga. App. 170 (2) (146 S. E. 567). Since the contract was in writing and not under seal, the period of limitation was six years. Civil Code (1910), § 4361; Hill v. Hachett, 80 Ga. 53 (4 S. E. 856). The case of Gould v. Palmer, 96 Ga. 798 (22 S. E. 583), in which the suit was held barred because not brought within four years from the alleged breach of duty, is not in point; nor is Lilly v. Boyd, 72 Ga. 83. In neither of these cases was the suit based upon a written contract.

The principal question for decision involves a construction of the stipulation in the contract that the attorney should file suit “immediately.” As shown above, the contract was dated November 5, 1921. The suit against the attorney was filed on April 21, 1928. For the cause of action to have been barred at that time it must have accrued on or before April 21, 1922, that is to say the breach by the attorney must have happened on or before that date. In that case the present suit was instituted too late and should have been dismissed. If, on the other hand, the attorney was not required to file suit against the insurance company until some date later than April 21, 1922, his breach occurred less than six years before the bringing of the present action against him, and his demurrer invoking the statute of limitations was properly overruled.

The word “immediately” may in some instances mean “instantly,” or “at once,” in others “promptly,” and in others still it may mean “within a reasonable time.” A word may have one meaning in a dictionary and an entirely different meaning in a contract, and its meaning in one contract may differ widely from that which should be ascribed to it in another contract. In the construction of every contract the main object is to arrive at the intention of the parties, and to this end the words must be examined in the light of all the attendant and surrounding circumstances. Columbus Bagging & Tie Co. v. Empire Mills Co., 38 Ga. App. 793 (145 S. E. 886). One of the circumstances in this case was that, because of a stipulation in the policy, the action thereon must have been brought not later than May 1, 1922, the company having denied the claim on November 1, 1921, — six months previously. But so far as appears, the plaintiff would not have been harmed by any sort of delay which did not extend beyond the first of the dates named, and we think it could not have been expected that the attorney should necessarily lay aside all other matters which may have engaged his attention, in order to file suit upon the policy at the earliest possible moment. 35 Cyc. 181. The more reasonable interpretation would be that suit should have been brought within a reasonable time. Civil Code (1910), § 4268 (8); Great American Fire Association v. Jenkins, 11 Ga. App. 784 (3) (76 S. E. 159); Georgia Agricultural Works v. Price, 11 Ga. App. 80 (3) (74 S. E. 718); Columbia Smelting Works v. Dexter, 31 Ga. App. 627 (121 S. E. 844); Central of Georgia Ry. Co. v. Griner, 33 Ga. App. 705 (3) (127 S. E. 878); Southern Fire Ins. Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. R. 216); Woodall v. Fidelity & Casualty Co., 131 Ga. 517, 519 (62 S. E. 808); Roberson v. Weaver, 145 Ga. 626 (5) (89 S. E. 769).

What is a reasonable time is ordinarily a matter to be determined by the jury, under all the facts and circumstances. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (3) (58 S. E. 200). Such question can not properly be determined by the court except where it is manifest from the undisputed facts that a given, time was reasonable or unreasonable as a matter of law. American Ry. Express Co. v. Roberts, 28 Ga. App. 510 (111 S. E. 744). From November 5, 1921, to April 21, 1922, was five months and sixteen days. We are unable to say as a matter of law that the reasonable time within which the attorney should have filed the suit against the insurance company could not have embraced this period, extending through the last-mentioned date (Texas Co. v. Davis, 157 Ga. 538, 122 S. E. 62), and hence can not hold, on demurrer, that the breach of duty on the part of the attorney ocurred more than six years before the filing of the present action. The court did not err in overruling the demurrer.

In what is said above we decide the case upon the points submitted in the briefs, and make no ruling as to the effect of the allegations of paragraph 5 of the plaintiff’s amendment, that the defendant from time to time informed the plaintiff that he had filed the suit, and that she had no knowledge to the contrary until long after the expiration of the time within which the suit could have been filed.

Judgment affirmed.

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


text:
    19344.
    JACKSON v. FORWARD ATLANTA COMMISSION INCORPORATED.
    Decided May 18, 1929.

      G. B. Moore, B. L. Fowler, for plaintiff in error.

      Horace Russell, contra.
   Bell, J.

Forward Atlanta Commission Incorporated brought suit in the municipal court of Atlanta against R. R. Jackson, upon a subscription contract in words and figures as follows:

“Atlanta, Ga., October 6, 1925. We, the undersigned, hereby subscribe $5 monthly to the Forward Atlanta Advertising Fund of the Atlanta Chamber of Commerce, and in consideration of this subscription being accepted, together with subscriptions of others, and for other good and valuable consideration, and in consideration further that the expenditure of this fund shall be in the hands of a special commission to be appointed by the Chamber of Commerce, we agree to pay the amount subscribed monthly for a period of twelve consecutive months, beginning October 1, 1925. [Signed] R. R. Jackson.”

A demurrer to the petition was overruled, after which, on the introduction of the contract in evidence, the court, without requiring other proof and with no evidence from the defendant, directed a verdict in favor of the plaintiff. The defendant moved for a new trial, upon the grounds that the court erred in overruling his demurrer and in directing the verdict. From an order denying this motion he unsuccessfully appealed to the appellate division. The superior court refused to sanction his petition for certiorari, and he then brought the case to this court. The sole question presented is whether the subscription contract appeared upon its face to be supported by a consideration and mutually binding, or whether the plaintiff should have alleged and proved additional facts supplying consideration. Under the authorities cited in the headnotes, the agreement was prima facie valid and enforceable, and there was no error in any of the rulings complained of. If the paper was in fact without consideration, or if there had been a failure of consideration, the burden was on the defendant to make proof accordingly. When a- contract is valid upon its face it is incumbent upon him who attacks it to show its invalidity.'

Judgment affirmed.

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


text:
    19347.
    McFarland v. City of McCaysville.
   Bell, J.

1. The general rule is that a municipal corporation is bound to keep its streets, including sidewalks, in a reasonably safe condition for travel by the ordinary methods, and will be liable for injuries sustained in consequence of its failure to do so, no matter by what cause the street or sidewalk may have become defective or unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence. City of Atlanta v. Robertson, 36 Ga. App. 66 (135 S. E. 445).

2. The principle which exempts a municipality from liability for, acts done in the exercise of the governmental function “must not be allowed to destroy the other equally well-established doctrine, that if a city negligently and tortiously allows obstructions to remain in its streets or sidewalks, or negligently fails to repair defects in a sidewalk or street, and a citizen in the exercise of due care is injured in consequence of such act of negligence upon the part of the city, there can be a recovery therefor against the city. Bach of these two doctrines must be given effect.” City Council of Augusta v. Cleveland, 148 Ca. 734 (5), 737 (98 S. E. 345). Such duty as to streets is ministerial and absolute, and is one that is “always on the municipality.” Mayor &c. of Savannah v. Jones, 149 Ca. 139 (4), 143 (99 S. E. 294); Mayor &c. of Milledgeville v. Holloway, 32 Ga. App. 734 (124 S. E. 802) ; Holliday v. Athens, 10 Ca. App. 709 (74 S. E. 67); Searce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (126 S. E. 883) ; Love v. Allanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. R. 64); Sanders v. City of Atlanta, 147 Ga. 819 (95 S. E. 695) ; 43 C. J. 926, 976, and see especially Mayor &c. of Savannah v. Waters, 33 Ga. App. 234 (125 S. E. 772), where the two doctrines are stated and reconciled.

3. In a suit for damages against a city, in 'which a recovery depended upon the establishment of negligence on the part of the city as respects the safety of one of its sidewalks, proof that on a paved walk about five feet wide and at a point five inches from the street the city maintained a fire-plug four inches in diameter and only six inches in height, and that the same was unprotected by any guard or barrier so as to prevent foot-passengers from coming in contact therewith, authorized the inference that, as to a pedestrian who in walking upon such sidewalk was injured by stumbling over such obstruction and falling, the city was negligent in failing to keep the sidewalk in a reasonably safe condition for travel. City of Brunswick v. Glogauer, 158 Ga. 792 (124 S. E. 787). Even if it could be said that in determining to locate, and in locating, the fire-plug at the particular place the city was in the exercise of a governmental function, the same would not be true of its failure to place some warning or barrier about the same to protect those who passed along the sidewalk. Moreover, the municipality was not in the actual performance of a governmental function at the time the plaintiff’s injury occurred. Mayor &c. of Savannah v. Waters, 33 Ga. App. 234 (125 S. E. 772); City of Rome v. Stewart, 116 Ga. 738 (42 S. E. 1011); City of Thomasville v. Campbell, 38 Ga. App. 249 (143 S. E. 922).

4. In a case where the master and servant rule does not apply, the plaintiff is not required to show, as an ingredient of his case, that he was free from negligence or could not have avoided the injury by ordinary care, but this is a matter for defense. Western & Atlantic R. v. Casteel, 138 Ga. 579 (2) (75 S. E. 609).

5. In such a suit, where the evidence for the plaintiff authorized the inference that the plaintiff was walking along the sidewalk at night, in company with another person, and had no occasion to be strictly mindful of whether the sidewalk contained an obstruction or not, and had no actual knowledge of the existence or location of the fire-plug in question, never having noticed that any such object was located upon the sidewalk in that vicinity, and that while so using the sidewalk the plaintiff’s foot came in contact with such obstruction, with the result that she tripped and fell, it can not be said as a matter of law that the plaintiff’s injury should be attributed to her -own negligence, as the proximate cause, or that the consequences of the defendant’s negligence could have been avoided by the exercise of ordinary care. And this is true notwithstanding the plaintiff may have been a resident of the city for several years, during the course of which she had at times traveled upon the identical sidewalk, and although upon the particular occasion there may have been lights in close proximity which afforded ample illumination for ordinary purposes. Dempsey v. Rome, 94 Ga. 420 (2) (20 S. E. 335) ; Samples v. City of Atlanta, 95 Ga. 110 (22 S. E. 135) ; Harrell v. Macon, 1 Ga. App. 413 (2) (58 S. E. 124) ; Mayor &c. of Americus v. Johnson, 2 Ga. App. 378 (2) (58 S. E. 518) ; Mayor &c. of Americus v. Gartner, 10 Ga. App. 754 (2) (74 S. E. 70) ; MacDougald Construction Co. v. Newborn, 34 Ga. App. 333 (129 S. E. 917) ; City of Macon v. Jones, 36 Ga. App. 799 (138 S. E. 283); City of Rome v. Phillips, 37 Ga. App. 299 (2) (139 S. E. 828).

Decided May 18, 1929.

Thomas H. Crawford, Morris, Hawkins & Wallace, for plaintiff..

Charles Q. Casteel, William Butt, for defendant.

6. Assuming that the petition alleged that the plaintiff came in contact only with the water-plug, there was no fatal variance in the proof, because the plaintiff testified that it was the water-plug and another object “right there together” that tripped her and caused her to fall. Mayor &c. of Milledgeville v. Holloway, supra.

7. The evidence supported the material allegations of the petition, and it was therefore error to grant a nonsuit. Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654).

Judgment reversed.

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


author: Beix, J.

text:
    19397.
    Hattaway Lumber Co. v. Southern Lumber Corp.
    Decided Mat 18, 1929.

      H. A. Wilkinson, for plaintiff in error. B. B. Jones, contra.
   Beix, J.

Although in an attachment case the defendant may appear and make his defense at any time before final judgment is rendered against him, the general rule that the defendant, by appearing and pleading to the merits without pleading to the jurisdiction, admits the jurisdiction of his person, and that all defenses must be submitted and disposed of in their proper order, applies as well to proceedings in attachments as to other suits at law, it being necessary that the several code provisions upon these subjects should be construed in harmony with each other; and where a defendant in an attachment case, after the filing of the declaration therein, appeared at a certain term of court and filed a plea to the merits, at a subsequent term of court it was too late for him to file a plea to the jurisdiction, and the trial judge, after having allowed the filing of such plea, did not err in dismissing the same on written motion of the plaintiff in attachment. Earle v. Sayre, 99 Ga. 617 (25 S. E. 943); Richmond & Danville R. Co. v. Mitchell, 95 Ga. 78 (22 S. E. 124) ; Civil Code (1910), §§ 5104, 5664, 5628, 5630, 5641.

Judgment affirmed.

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


text:
    19413.
    KLIMAX OVERALL CO. v. CONVERSE & CO.
    Decided May 16, 1929.

      Joseph D. Quillian, for plaintiff in error.

      Green & Michael, G. A. Johns, J. G. Pratt, contra.
   Bell, J.

Converse and Company sued Klimax Overall Company for the alleged breach of a contract. The court overruled the defendant’s motion to strike the petition, allowed the petition to be amended over protest, overruled the defendant’s objections to testimony and, after all the evidence was in, directed a verdict in favor of the plaintiff for $1567.15, this being the amount claimed in the suit as amended. The defendant then brought the case to this court, assigning error upon the several rulings mentioned.

The contract was for the sale by the plaintiff to the defendant of ten bales of cloth goods, described as Graniteville 30" improved drills, at 29 cents per yard, five bales to be delivered in October and five bales in November, 1920, and was in words and figures as follows:

“Confirmation of Order. New York 4/26/20.
“Klimax Overall Company, Winder, Georgia. Your order dated.
“Terms 2/10/60X. Please refer to it as our order No. 2560.
“10 bales Graniteville 30" improved drills 29^5 yd. unbranded. (Bales about 1200 yards each). •
“Delivery 5 bales October 1920, 5 bales November 1920. Ship to above.
“In the event of fire, strikes, lockouts, epidemics, or other unavoidable casualties or conditions beyond our control; deliveries under this contract shall be proportioned to production. No claims will be allowed after goods have been cut or converted. Goods held for shipping directions are at buyer’s risk. Any defect in quality or delay in deliveries shall affect delivery in’ question only. We reserve the right at any time to determine or modify credit extended hereunder.
“Converse & Company, Selling Agents, IIughes-McCampbell Department.
“Accepted for Klimax Overall Company. By G. S. Oak®3, Secy. & Treas.”-

The petition alleged that the plaintiff had shipped both lots according to the terms of the contract, the first lot containing 6114 yards and the second containing 6100 yards, making a total of 12,214 yards, but that the defendant refused to accept the same, to the plaintiff’s loss and damage in the sum of $1587.82, based upon the difference between the contract price of twenty-nine cents per yard and the market value of sixteen cents per yard at the time and place of delivery.

The defendant denied every allegation of the petition except that as to residence, and pleaded, that, while the defendant “placed an order for certain goods as set forth in the petition,” the defendant was dealing with the plaintiff as agent, and not as principal, and that plaintiff had no right to bring the suit. The defendant further pleaded rescission and cancellation. The defendant, however, offered no evidence in support of any of the allegations of its plea and did not attempt to make any issue by evidence except as to the fact and the amount of the damage. Other facts will be stated in the opinion.

The motion to dismiss the petition was based upon the following grounds: (1) It affirmatively appears that the plaintiff was not a party to the contract and had no right to bring the suit.

(2) The petition shows upon its face that the plaintiff shipped to the defendant 12,214 yards of cloth, when only about 1200 yards were ordered, it appearing from the copy of the contract attached as an exhibit to the petition that each bale of the cloth was to contain only about 120 yards, so that the petition discloses that the plaintiff shipped materially larger quantity than the amount called for by the contract. (3, 4, 5) Because of the stipulation, “We [the plaintiff] reserve the right at any time to determine or modify credit extended hereunder,” the alleged contract was unilateral, incomplete and too indefinite to constitute a binding agreement between the parties. There was a further ground of the motion, styled in the bill of exceptions as ground 6, but this has not been referred to in the brief of counsel for the 'plaintiff in error, and will be treated as abandoned.

It is true that the copy of the agreement attached to the petition recited that each bale of the cloth was to contain about 122 yards, but the court allowed an amendment changing the figures to 1200 before passing upon the motion to dismiss the petition. As will be shown below, the allowance of the amendment was proper, and the motion to dismiss will be dealt with as if the contract had been correctly set out in the first instance.

The words “Selling Agents Hughes-McCampbell Department” were descriptio personae and disclosed no right in any person other than the plaintiff as seller. The contract does not show on its face either directly or inferentially that it was made by the plaintiff in behalf of another whose identity was disclosed, and, hence, it was presumptively the individual undertaking of the plaintiff. See, in this connection, Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (9) (50 S. E. 1008); Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 35 Ga. App. 94 (132 S. E. 454). In each of the cases relied on by the plaintiff in error, Burg v. Malone, 22 Ga. App. 175 (95 S. E. 739); Richmond & Danville R. Co. v. Bedell, 88 Ga. 591 (4) (15 S. E. 676), the declaration affirmatively disclosed agency 011 the part of the plaintiff.

The exact question here raised is controlled adversely to the plaintiff in error by the decision of this court in Mendel v. Converse, 30 Ga. App. 549 (8) (118 S. E. 586), which was a suit upon the same form of contract as that involved in the present case. In that case we had also for consideration the effect of the stipulation reserving to the seller the right to determine or modify credit extended, and held that the agreement was not unilateral or otherwise invalid because of such stipulation. The court did not err in overruling any of the stated grounds of the motion to strike the petition.

The proposed amendment by which the plaintiff sought to strike from the copy of the contract attached to the petition the figures “122” and to substitute therefor the figures “1200” had the obvious purpose of correcting a typographical error, and under numerous decisions was legitimate and allowable. A case directly in point is Chapman v. Skellie, 65 Ga. 124 (1), wherein it was held that the copy of the note sued on as attached to the declaration could be amended so as to conform to the original. See also Sartorious v. Paper Mills Co., 10 Ga. App. 522 (2) (73 S. E. 854); Ross v. Jordan, 62 Ga. 298 (2); Hardee v. Lovett, 83 Ga. 203 (9 S. E. 680); Quillian v. Johnson, 122 Ga. 49 (4) (49 S. E. 801); Cox v. Georgia Railroad &c. Co., 139 Ga. 532 (77 S. E. 574); Norden v. Collier, 20 Ga. App. 98 (92 S. E. 652). There was here no attempt to amend the petition by abandoning the contract declared on and setting up another and different contract, as was the case in Lamar v. Lamar &c. Drug Co., 118 Ga. 850 (45 S. E. 671). Compare Kraft v. Rowland, 33 Ga. App. 806 (2) (128 S. E. 812).

The court also allowed the petition to be amended by changing the alleged number of yards in one of the lots and the alleged total number in both lots, and by substituting a smaller amount as the damages claimed, so that the suit as thus amended was to recover damages at the rate of thirteen cents per yard on 12,055 yards, making a total of $1567.15. There was no objection to this amendment, and it is here referred to merely to remove a discrepancy which would otherwise exist between the allegations as above stated and certain testimony to be hereinafter noticed.

The court did not err in admitting the alleged contract in evidence over the objection that it contained no sufficient description of the subject-matter. The language, “10 bales Graniteville 30" improved drills . . (bales about 1200 yards each),” was certainly sufficient as a key for the identification of the goods intended to be sold, even if not absolutely sufficient for all purposes. The agreement was not intended to represent an executed sale of specific articles of property, but was an executory agreement for the future sale and delivery of articles of a described class, and plainly the language used was a sufficient designation of the kind or class of goods to be sold. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 698 (58 S. E. 200); Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333); Hicks v. Walker Brothers Co., 31 Ga. App. 395 (120 S. E. 694).

The remaining assignments of error, based upon the admission of evidence and the direction of the verdict, will be considered together. There was no issue as to the breach of the contract, the defendant having several times notified the plaintiff that the goods would not be accepted and that shipment would be useless, all without any sufficient justification or excuse. The plaintiff, however, declined to accept the breach as tendered, but elected to keep the contract in force for the purpose for which it was made. Accordingly, the goods were shipped by the plaintiff within the terms of the contract and were refused by the defendant when tendered by the carrier, and so the plaintiff, as a matter of law, was entitled to recover upon proof of the damage.

Henry B. Stimson, as a witness for the plaintiff, testified as follows: “I am an officer of Converse & Company. I am its secretary. I became familiar with the business of Converse & Company in 1913. I was associated with Converse & Company in the year 1920, and am familiar with the transaction involved in this controversy. . . We received an order from the Klimax Overall Company, the defendant in this action, through our Atlanta office, in April 1920. The order was dated April 17, 1920, and must have been received in our office within mailing time of then. The order called for ten bales of Graniteville 30" improved drills. The price was 29 cents per yard. . . The confirmation specified that five bales were to be shipped in October 1920 and five bales in November 1920, on the usual terms of two per cent. — 10 days — . 60 extra. We instructed the mill to make shipment as called for, after we had received confirmation of order. Five bales were shipped on October 1, 1920, consisting of 6114 yards, amounting to $1773.06, and five bales were shipped on November 2, 1920, consisting of 5941 yards, amounting to $1722.89. The total yardage was 12,055 yards. Converse & Company rendered bills for these shipments on October 1, 1920, November 2, 1920. . . After the order was accepted by Converse & Company, and prior to the shipment of the merchandise, defendant attempted to rescind the contract, and Converse & Company refused to accept the rescission. We so notified the defendant and wrote that since we took the order in good faith we expected them to live up to the order. I can state what was the price of 30-inch improved drills of the kind called for in the order during October and November 1920. While the market was very quiet during this period, some sales were made early in October as high as 20 cents a yard, but later and in November had reached to 16 cents, and even at that price but few sales were made. I know what the selling price of this merchandise was at that time from two sources; from the prices current as reflected in a tabulation made by the trade papers and the sale sheets of Converse & Company for the period in question, of which I have made a thorough search. We made a sale on October 23, 1920, of this same Graniteville 30-inch drills at 15-1/2 cents per yard. It is true that these were seconds and that normally reduced the price one-half cent per yard below firsts. We also made a sale of firsts at 16 cents a yard on October 28. No sales that I can find were made during November 1920, but, as I have stated before, the market was stagnant and it was impossible to make a sale at any price. Starting early in the summer of 1920, prices of cotton textiles fell off rapidly until they had reached an unprecedentedly low point in November and December. The condition continued for January and February, until the spring of 1921. I am speaking of the market in New York. Unquestionably the same conditions existed throughout the United States, including Georgia, because the price of cotton goods is determined by prices in New York City, and those prices prevail throughout the United States except for possible differences due to freight. I can’t give the exact figures for the amount of business Converse & Company did in cotton textiles in 1920 and 1921, but I can say for a certainty that it was upwards of $50,000,000 a year. During 1920 and 1921 Converse & Company sold Graniteville 30-ineh improved drills as well as other kinds of merchandise. In that way I became acquainted with the prices of cotton textiles. Under our contract we sold the goods to the customer at 29 cents a yard. When they rejected it and returned it the market price of the merchandise was 16 cents a yard, so' that the difference between the price at the time the goods were sold and the time it was rejected was 13 cents a yard. Under, the contract we shipped ten bales, totalling 12,055 yards, so that onr damage, figured at 13 cents a yard, would amount to $1567.15.”

Substantially this entire testimony was objected to, the grounds of objection being, (1) that the witness did not testify what was the market price in Winder, Georgia, the point to which the goods were to be shipped; and (2) that he did not testify “as to the value of goods of the quality or weight of the goods involved in the case.”

We are of the opinion that the court did not err in admitting this testimony, and we think that with certain other facts in evidence, to be mentioned presently, it was such as to demand the verdict in favor of the plaintiff. While the evidence shows that the shipments were made on October 1 and November 2 respectively, it does not appear definitely when either shipment arrived at destination. The plaintiff in error says that the October shipment arrived and was refused on October 15, but there is nothing in the record to support this contention except a statement in an exhibit to the brief of evidence, consisting of a communication between the freight agent at Winder and a superior officer or agent of the railway company located elsewhere, in which the local agent made a report of refused and unclaimed freight. This report contained a statement showing the date of the arrival of the goods and of the carrier’s notice to consignee, but the agent, though sworn as a witness, was not interrogated as to these matters and did not directly or indirectly affirm the truth of the statement. It was therefore without probative value, amounting to hearsay only. Eastlick v. Southern Ry. Co., 116 Ga. 48 (42 S. E. 499).

The only legal evidence of the time of the tender and refusal of the October shipment was contained in letters from the defendant, as follows:

“Winder, Ga., October 18, 1920.
“Converse and Company, New York.
“Gentlemen: In reply to yours of the- 4th inst., allow us to say, in normal times what you say is all right, perhaps, but this seems to be a day of cancellation. We get them and take our medicine. All we have is tied up in overalls and accounts. Overalls are not selling much and collections are very bad. We advised you to cancel this order before it was shipped, and you may expect it returned if it arrives here.
“Very truly yours, Klimax Overall Company.”
"Winder, Ga., November 11, 1920.
“ Converse and Company, New York City.
“Gentlemen: We are paying the freight on 5 .bales of cloth you shipped the Klimax Overall Company and returning it to you. Our reason for not accepting these goods is on account of the conditions of the company. The writer has used every reasonable means to try to get a settlement out of some of the stockholders and creditors and put the business back on its feet; but to'this time have not been able to do so. It looks now as if the business will have to be liquidated to settle the accounts, and it will like [lack ?] some five or six hundred dollars in paying out of the hole even if it brings fifty or sixty cents in the dollar, and I do not believe it will bring that unless times change between now. and the time it is to be sold. Under these circumstances I think it is best for you to accept the goods and give the Klimax Overall Company credit. We received an invoice and bill of lading for 5 bales more which will be treated in the same manner as this when they reach here. Assuring you that I am very sorry we are forced to take these steps, but trust that this will be satisfactory to you, for I feel that you should, appreciate this action, taking into consideration the conditions of the company, and this will mean more money to you in the long run.
“Very truly yours, Klimax Overall Company, by J. V. Henson.”
From the evidence it appeared that as a matter of fact the defendant did not itself return any of the goods, but that after their rejection they were reshippecl to the plaintiff’s order in December, on instructions to the carrier from an agent of the plaintiff specially employed for that purpose. Except as above indicated, there was nothing to show the time of arrival and rejection of the November shipment. From the facts thus taken from the' record it could not have been found that delivery of the October shipment was offered and rejected prior to October 18, because in the letter of that date the defendant said, “You may expect it returned if it arrives here.” From the other letter quoted above it appears that the first shipment arrived on, or before November 11, but that the second shipment had not arrived at that time, but would be rejected when tendered.

The only inference deducible from the testimony of Stimson was that he was fully qualified to give evidence as to the market value of the goods in question, and that the market value of the identical class of goods was sixteen cents per yard, or less, during the latter part of October and all of November. In view of the fact that the defendant had notified the plaintiff that the goods would not be accepted, it was not necessary that the plaintiff should have made the shipments at all. The defendant having repudiated the contract and continuously refusing to be bound thereby, it was not incumbent upon the plaintiff to make, allege, or prove a tender of the merchandise (Mendel v. Converse, supra); and hence the ease does not fail because of the uncertainty as to the time when the goods were offered to the defendant at Winder, the place of delivery under the contract. Reed Oil Co. v. Smith, 154 Ga. 183 (3), 187 (114 S. E. 56); Rivers Co. v. Putney, 27 N. M. 177 (199 Pac. 108, 27 A. L. R. 520). The plaintiff would in any event have had until the end of October to make the first delivery, and until the end of November to make the second (Bainbridge Oil Co. v. Crawford Oil Mill, 138 Ga. 741 (76 S. E. 41); 35 Cyc. 177, 182), and so might have had the market value determined as of the last days of these months respectively, unless there was proof that it had made an election to deliver on other dates. As stated above, there is nothing to indicate any delivery or tender of delivery prior to October 18, which was within the period as to which the market value was proved to be not more than sixteen cents per yard.

But it is contended that the witness testified to the market value in the city of New York, and not to the market value in Winder, the place of delivery. This contention would be well founded but for the testimony that “unquestionably the same conditions existed throughout the United States, including Georgia, because the price of cotton goods is determined by prices in New York City, and those prices prevail throughout the United States except for possible difference due to freight.” If the prices of cotton goods throughout the country are determined by the price in New York, then the difference in freight could only have made the market value less in Winder, because it would have required an outlay of freight , to carry the goods from that point to the governing market. The defendant is not hurt by the fact that he was allowed the higher price which obtained in the latter market and was charged no difference for freight.

We will now make brief reference to some of tbe authorities bearing upon thé admissibility and weight of the evidence upon which the conclusion in the present case depends. The rule that questions of value are ordinarily for the jury is applicable when the question is as to the value of a specific article, but has no relevancy where, as in a case like the present, the question is one relating to the state of the market and to the actual selling price of goods of a given class at a particular time and place; for in such a ease the testimony is not opinionative, but is in reference to a positive fact, and where it is undisputed the court may properly direct a verdict thereon. Glynn Canning Co. v. Adams, 26 Ga. App. 365 (2) (106 S. E. 207); Southern Nursery Co. v. Montfort, 29 Ga. App. 328 (4) (115 S. E. 150).

“The market price of a commodity is the actual price at which it is commonly sold. The price may be fixed by sales in the market at or about that time. If no sales can be shown on the day, due recourse may be had to sales before or after that day, and for that inquiry a reasonable range in point of time is allowed. Douglas v. Merceles, 25 N. J. Eq. 144; Beach v. Raritan &c. R. Co. 37 N. Y. 457.” Peninsular Naval Stores Co. v. State, 20 Ga. App. 501 (3) (93 S. E. 159); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (2) (96 S. E. 437). “If there was no market at the town where the delivery was to be made at the time fixed therefor, the price at the nearest market, with the expense of transportation to the place of delivery, could be shown. . . Evidence of the market price in a town near by that where the delivery is to be made is ordinarly inadmissible. But if it appears that the market price in the two towns is the same, evidence of what it is in one is competent as tending to show what it is in the other.” Ford v. Lawson, 133 Ga. 237 (6) (65 S. E. 444). “The general rule is that in a suit for breach of contract for failure to deliver goods of a certain quality sold at a specified price, the measure of damages is the difference between the contract price and the market price at the time and place of delivery. . . This is not an inflexible rule in all cases, so as to exclude a recovery of actual damages sustained in cases to which such rule in its very nature is inapplicable; as, where there is no market at the time and place of delivery by which damages can be measured, and resort must be had to the nearest available market, with the cost of shipment to the place of delivery added.” Hardwood Lumber Co. v. Adam, 134 Ga. 821 (1, 2) (68 S. E. 725, 32 L. R. A. (N. S.) 192). “Where a witness had testified that he had been engaged in marketing peaches and other fruits for eighteen or twenty years in the locality where the contract was made and to be fulfilled, and that he kept ‘posted’ as to the prices of fruit in car-load lots in the different markets during the season covered by the contract, by means of daily communications by telegraph, there was no error in permitting him to testify that, from information received at that time, the markets where the peaches were resold compared favorably with other markets; and that, from a book of the copy telegrams of that year, the market price for Elberta peaches during the season covered by the contract was from a dollar per crate downward, while a few markets between certain dates mentioned quoted the price at a dollar and twenty-five cents per crate. Such evidence was not objectionable as being hearsay.” See also, in this connection, Farm Products Co. v. Eubanks, 29 Ga. App. 604, 607 (116 S. E. 327); Collins & Glennville R. Co. v. Beasley, 36 Ga. App. 241 (2) (136 S. E. 167); Frost v. Powell, 10 Ga. App. 95 (5) (72 S. E. 719).

The instant case is distinguished from the cases of Simpson v. Cincinnati, New Orleans &c. Ry. Co., 81 Ga. 495 (8 S. E. 524), and Strachan Shipping Co. v. Hazlip-Hood Colton Co., 161 Ga. 480 (2) (131 S. E. 283), since in neither of those cases was there any evidence of a governing market whose prices determined the prices throughout the country except for a difference due to transportation. We conclude that the court properly overruled the objection to the testimony of the witness Stimson and also that by the testimony of this witness and the other facts in evidence the verdict in favor of the plaintiff was demanded as a matter of law. We can not perceive how the jury could have found either that there was no proof of market value at the time and place of delivery or that the market value at that time and place was less than the witness testified it was, and we are thus unable to see that there was any issue for consideration by the jury. In our opinion, there was no error in directing the verdict in favor of the plaintiff. The conclusion just stated controls two other assignments of error upon the admission of evidence on the subject of market value, and makes it unnecessary to consider the weight or value of that or any other evidence adduced, there being no evidence contrary to that set out above. So also, if the court erred, as contended, in admitting evidence as to the plaintiff’s methods of business and as to the volume of its sales during a given period, the error could not have been prejudicial, since the other evidence was such as to demand the verdict for the plaintiff.

Judgment affirmed.

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


text:
    19233.
    McCLURE v. FARMERS & MERCHANTS BANK OF JACKSON.
    Decided May 20, 1929.

      O. L. Redman, A. S. Thurman, for plaintiff in error.

      W. E. Watkins, contra.
   Bell, J.

(After stating the foregoing facts.) Under the facts alleged in the answer, the note was not without consideration. It appears that the defendant executed the note and delivered it to J. H. Carmichael in order that he might negotiate it for cash to be obtained and used by the latter personally or in some enterprise with which he was connected. The defendant was an accommodation party and Carmichael was the party accommodated. Carmichael obtained money from the bank on the defendant’s note, as was contemplated by all the parties, and the furnishing of the money to him by the bank supplied the consideration for the instrument. A consideration is valid if any benefit accrues to him who makes the promise or any injury to him who receives the promise. While no benefit accrued directly to the defendant, there was a detriment or injury to the bank as promisee, in that its money was loaned to and used by a third person. Civil Code (1910), § 4242; Farrar v. Bank of New York, 90 Ga. 331 (17 S. E. 787).

The promise of Carmichael that the “defendant would not have to pay said note, nor would there be any liability on said note against defendant, as he, the said J. H. Carmichael, would take care of said note,” and the breach of such promise by Carmichael, constituted no defense as against the bank. Such promise was the personal undertaking of Carmichael, and the bank was' in no wise bound thereby. Peoples Bank of Talbolton v. Exchange Bank, 116 Ga. 820 (3) (43 S. E. 269, 94 Am. St. R. 144); Wallis v. Heard, 16 Ga. App. 802, 813 (86 S. E. 391), and cit. Even if such promise could be regarded as having been made by the bank through Carmichael as its president, the breach thereof would still constitute no available defense. An unconditional promise to pay contained in a promissory note can not be defeated by proof of a contemporaneous verbal agreement that it would never be enforced. Pulliam, v. Merchants & Miners State Bank, 33 Ga. App. 68 (125 S. E. 509).

The averment “that the credit given upon said note” was solely on account of the guaranty of payment executed to the bank by Carmichael adds nothing to the plea. Whatever might be the effect of such an allegation under other circumstances, it is here but a bare conclusion, in conflict with the pleaded facts, and must yield thereto on demurrer. Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (4) (118 S. E. 471). Furthermore, since it fully appears that the bank accepted the note as a contract between it and the defendant (Loewenherz v. Weil, 33 Ga. App. 760, 127 S. E. 883), it would be a contradiction of the writing and a violation of the parol-evidence rule to permit the defendant to plead and prove that the plaintiff did not extend the credit thereon, it being perfectly apparent that such fact was not expressed in any writing to which the bank was a party, and that the defendant anticipates proof of the same only by oral evidence, notwithstanding its inconsistency with his accepted written promise to pay. Civil Code (1910), § 5788; Cole v. Bank of Bowersville, 31 Ga. App. 435 (120 S. E. 790); 3 R. C. L. 442, § 69.

The plea failed to point out specifically what statutes or laws were violated in the making of the loans by the bank to Carmichael; but in the briefs the counsel have contended that the loans were illegal (1) because made to Carmichael, the president, without authority from the board of directors, and (2) because not made upon good collateral or other ample security, and (3) because in excess of the amount which the bank could lawfully lend to any one person, firm, or corporation; contrary to the provisions of the State banking laws upon these subjects. Ga. L. 1919, p. 135, 196; Park’s Code Supp. 1922, § 2280(k) et seq.; Michie’s Code, 1926, § 2366(157) et seq.

It is urged that the note in suit formed an integral part of a transaction wherein Carmichael obtained from the bank loans in violation of law, and that the note, being thus affected with illegality, should 110't be enforced at the instance of the bank, which was a party to the wrongful transaction.

It is the general rule that, where parties engage in an immoral or illegal transaction, a court will not interfere to grant relief, but will leave the parties where it finds them. Bugg v. Towner, 41 Ga. 315 (1); Heineman v. Newman, 55 Ga. 262 (21 Am. E. 279); Parrot v. Baker, 82 Ga. 264 (4) (9 S. E. 1068). Counsel for the defendant seek to bring the instant case within this rule, and have cited a number of authorities dealing with gaming transactions and agreements for the purchase and sale of futures in cotton and other contracts tending to a violation of law or of the public policy of the State. In our opinion the authorities cited are not in point, because it is our judgment that the general rule as to the non- ’ enforceability of illegal executory contracts is inapplicable to the present controversy.

A bank is a quasi-public corporation, and the laws in regard to banking are intended to protect the interests of the stockholders and creditors, and especially of depositors, who usually comprise a large number of the citizens. Such was the purpose of the particular provisions which the defendant claimed were violated in the transaction in question. The rule which'the defendant would invoke was adopted for the benefit of the public, and is never enforced for the advantage of the parties. It follows that even though a contract may be illegal, the public interest may be the better subserved by granting relief upon it than by denying to one 'of the parties the right of suit thereon; and this may be true notwithstanding the parties are in pari delicto.

Also there are instances in which the contracts .may be immoral or illegal but the parties to which are not equally culpable, and where, because.of such inequality of guilt, the agreement may be enforced at the instance of the one less at fault. The distinction to be made in eases where the parties are not in pari delicto is especially applicable where the law which makes the agreement unlawful was intended for the protection of the party asking the relief. Another case is where one of the parties acts under compulsion of the other. Howell v. Fountain, 3 Ga. 176 (46 Am. D. 415); Clarke v. Brown, 77 Ga. 606; Garrison v. Burns, 98 Ga. 762 (26 S. E. 471); Hess v. Culver, 77 Mich. 598 (43 N. W. 994, 18 Am. St. R. 421, 6 L. R. A. 498); Hobbs v. Boatright, 195 Mo. 693 (93 S. W. 934, 5 L. R. A. (N. S.) 906, 113 Am. St. R. 709); Clark on Contracts (3d ed.), 423; 3 Williston on Contracts, 3100; 6 R. C. L. 829, 832; 13 C. J. 497-500.

The courts will not ordinarily undertake to ascertain or measure the relative guilt or moral turpitude of the parties, but may do so in some instances. Certainly it is proper to do so in the present case. The law places no condemnation or penalty upon the bank for making loans contrary to the banking statutes. It does provide, however, that any officer making such loans shall be guilty of crime. Ga. L. 1919, p. 135, 217, sec. 22. The fact that a penalty for such violation of the banking laws is imposed upon the officers and not upon the bank would indicate that, as to the contract between the bank and its president, the bank should not be considered in pari delicto with its president, who was the other party to the contract.

Furthermore, such contract as was made between the bank and Carmichael was made by the bank through Carmichael. Assuredly in such a case the court should not deny the bank the right to enforce the contract, for any such reason as is urged. It has been held, under the Federal banking laws, that loans marie contrary to statute are not for that reason forfeited, but may be collected as any other indebtedness. Weber v. Spokane Nat. Bank, 12 C. C. A. 93 (2) (64 Fed. 208). It is the clear, if not expressed, intent of the Georgia statutes that loans, though legally excessive, shall yet be collectible. Ga. L. 1919, pp. 135, 198, secs. 13 and 14. It is indeed mild to say that the contrary is unthinkable.

That each and all of the other directors and officers had knowledge of the facts will not prevent a recovery where none of them participated in the transaction on behalf of the bank, and this is not to imply that the case would be different had their participation appeared. Singleton v. Banlc of Monticello, 113 Ga. 527 (38 S. E. 947). Taking the facts as they are alleged in the plea, it would appear that Carmichael obtained a loan as president and that the defendant was an accommodation party thereto. Undoubtedly the bank could have enforced payment at the hands of the president as the principal debtor. The obligation of the defendant was to be liable in like manner with him. Since Carmichael was liable, the defendant was also.

Moreover, the bank became insolvent and was taken possession of by the superintendent of banks. The superintendent found the defendant’s note among the papers of the bank as an apparent asset, and lie is suing thereon for the benefit of creditors. In these circumstances, it would seem that the defendant should be estopped to assert the illegality of the transaction, it not appearing that the other assets were sufficient to satisfy the claims of the depositors and other creditors. Pauly v. O’Brien, 69 Fed. 460; Federal Reserve Bank v. Crothers, 289 Fed. 777; Vellely v. Devaney, 49 N. D. 1107 (194 N. W. 903); Galena National Bank v. Ripley, 55 Wash. 615 (104 Pac. 807, 26 L. R. A. (N. S.) 993, and note); Skagit State Bank v. Moody, 86 Wash. 286 (150 Pac. 425, L. R. A. 1916A, 1215, and note).

The plea failed to set forth any valid defense, and the court properly struck the same, on motion. The direction of a verdict in favor of the plaintiff was a correct termination of the case.

Judgment affirmed.

J enlcins, P. J., and Stephens, J., concur.


text:
    19232.
    Downs v. Farmers & Merchants Bank of Jackson.
    Decided May 20, 1929.
   Bell, J.

This case is controlled by the companion case of McClure v. Farmers & Merchants Bank of Jackson, ante, 753.

Judgment affirmed.

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


author: Bril, J.

text:
    19269.
    YOUNG v. WESTERN & ATLANTIC RAILROAD.

      Decided May 18, 1929.

      M. B. Eubanks, Porter & Mebane, for plaintiff.

      Maddox, Maddox & Mitchell, for defendant.
   Bril, J.

(After stating the foregoing facts.) The allegations of the petition were sufficient to show that the alleged agent of the defendant railway company was acting within the scope of his authority and in the prosecution of the defendant’s business, and thus that the defendant would be responsible for any damages sustained by the plaintiff as a result of his acts. Civil Code (1910), § 4413; Purney v. Tower, 34 Ga. App. 739 (131 S. E. 177). This is not a case of a mere negligent tort, and the rule that no recovery can be had for mere shock or fright caused by negligence only (Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183) is inapplicable in determining whether the petition sets forth a cause of action; nor is it necessary to determine whether the petition alleges such physical injury and such facts as to 'the cause thereof as would make it proper to consider the plaintiff’s shock or fright as an element of damage, should the petition be construed as an action for mere negligence, The petition alleged that on the night of the occurrence the plaintiff was at home with her husband and was in bed asleep when the house was suddenly and violently entered by the defendant’s agent for the purpose of searching for certain property alleged to have been taken from the defendant’s possession; that such agent had no warrant to search the premises, nor to arrest any person in the home of the plaintiff at that time, and that his entry was without lawful warrant or authority, and therefore was illegal and constituted a trespass against petitioner. It was further alleged that after entering the plaintiff’s bedroom the defendant’s agent committed certain other wrongful acts, such as turning a flashlight upon the plaintiff and pointing a pistol toward the bed, and dragging her husband from the bed and out of the house, without explanation, and that in consequence the plaintiff was severely frightened and terrified, and that as a result of such nervous shock she suffered physical pain and illness.

The constitution of Georgia provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Civil Code (1910), § 6372. According to the averments, the defendant’s agent committed a trespass upon the home in which the plaintiff resided with her husband, and whether the cause of action for the unlawful search of and trespass upon the home was vested in the husband, the wrongful acts complained of nevertheless included a violation of the plaintiff’s right of privacy and of personal security, and constituted a positive, wilful tort against her. Newcomb Hotel Co. v. Corbett, 27 Ga. App. 365 (108 S. E. 309); Byfield v. Candler, 33 Ga. App. 275 (7) (125 S. E. 905); Potter v. Swindle, 77 Ga. 419 (3 S. E. 94); Pavesich v. New Eng. L. Ins. Co., 122 Ga. 190 (50 S. E. 68). In Mabry v. City Electric Ry. Co., 116 Ga. 624 (42 S. E. 1025), it was held that a railroad company is liable in damages for injuries to the feelings and sensibilities of a passenger caused by his wrongful expulsion from one of its cars, although he may not have received any physical injury thereby. See also Cole v. Atlanta & West Point R. Co., 102 Ga. 474 (31 S. E. 107). In Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (3) (59 S. E. 189), it was said that “While mental suffering, unaccompanied by injury to purse or person, affords no basis for any action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, .voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.” In the instant case, if the allegations be true, they undoubtedly show a wanton, voluntary, and intentional wrong by the defendant's agent. In Goddard v. Watters, 14 Ga. App. 722 (2) (82 S. E. 304), this court recognized the rule that damages may be recovered for mere nervous shock or fright and for physical injuries resulting therefrom where the act causing such shock or fright was committed by the defendant deliberately, maliciously, or wantonly, through an utter disregard of consequences. See, to the same effect, Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59); Pettett v. Thompson, 33 Ga. App. 240 (125 S. E. 779). The Chapman case, supra, clearly differentiates such cases as involve an infringement of personal security or personal liberty, and other like wrongs which are essentially wilful, from thdse cases where the cause of action is grounded upon some act or omission amounting to a mere negligent dereliction. In that case it was said that in an action for false imprisonment or for malicious arrest and prosecution, mental anguish has been held a proper subject for compensatory damages. In our opinion the present case should be given a like classification. Georgia Ry. & Electric Co. v. Baker, 120 Ga. 991 (48 S. E. 355); Copeland v. Dunehoo, 36 Ga. App. 817 (2) (138 S. E. 267).

Furthermore, the petition unquestionably sets forth a cause of action for the recovery of nominal as well as punitive damages, and in either view it was error to sustain the general demurrer. Seaboard Air-Line Ry. v. O’Quin, 124 Ga. 357 (52 S. E. 427, 2 L. R. A. (N. S.) 472); Sappington v. Atlanta & West Point R. Co., 127 Ga. 178 (3) (56 S. E. 311); Williamson v. Central &c. Ry. Co., 127 Ga. 125 (4) (56 S. E. 119); City of Greensboro v. McGibbony, 93 Ga. 672 (2) (20 S. E. 37); Broughton v. Winn, 60 Ga. 486 (3); Georgia Ry. & Power Co. v. Turner, 33 Ga. App. 101 (5) (125 S. E. 598); Jeter v. Davis, 33 Ga. App. 733 (3) (127 S. E. 898).

For the wrongs alleged to have been committed the plaintiff claimed to be entitled to recover generally in a specified amount. In order to recover punitive damages it is not necessary that they should be claimed eo nomine. Macon Ry. & Light Co. v. Mason, 123 Ga. 773 (2) (51 S. E. 569). Whether the present case may be distinguished from Logan v. Gossett, 37 Ga. App. 516 (140 S. E. 794), we think the conclusions reached herein are required by the decisions of the Supreme Court. Our rulings in this case are not inconsistent with the provisions of section 3603 of the Civil Code, to the effect that the principal is not liable for the wilful trespass of his agent unless done by his command or assented to by him, when that section is construed (as it must be) in harmony with section 4413. Western & Atlantic R. v. Turner, 72 Ga. 292 (2) (53 Am. R. 842); Southern Ry. Co. v. James, 118 Ga. 340 (45 S. E. 303, 63 L. R. A. 257); Mason v. Nashville &c. Ry. Co., 135 Ga. 741 (4), 754 (70 S. E. 225, 33 L. R. A. (N. S.) 280); Toole Furniture Co. v. Ellis, 5 Ga. App. 271, 275 (63 S. E. 55). The court erred in sustaining the demurrer and dismissing the petition.

Judgment reversed.

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