text:
    15817.
    HARRIS, for use, etc., v. ÆTNA INSURANCE COMPANY OF HARTFORD.
    Having held in JEina Insurance Co. v. Griffin, 28 Ga. App. 774 (113 S. E. 224), that tlie contract here sued upon was “extinguished by a new agreement between Forman and the insurance company, which amounted to an accord and satisfaction binding upon both parties,” this court in the present case is bound by that decision, and holds that the trial court did not err in striking the defendant’s plea and directing a verdict for the defendant.
    Decided November 13, 1924.
    Complaint; from city court of Americus—Judge Harper. June 18, 1924.

      B. L. Maynard, for plaintiff.

      Spalding, MacDougald & Sibley, James W. Smith, for defendant.
   Luke, J.

As a statement of facts in this case was made in a former decision (Ætna Insurance Co. v. Griffin, 28 Ga. App. 774, 113 S. E. 224), we shall make only such reference to the facts and pleadings as will illustrate this decision. Mrs. Ella Harris, for the use of C. C. Griffin, transferee of George M. Forman, sued the ¿Etna Insurance Company on a certain fire-insurance policy covering, among other property, a dwelling-house belonging to and insured in the name of the said Mrs. Harris for $2500, Forman having previously loaned Mrs. Harris $4000 and taken, as security for the debt, a deed to the land on which the said dwelling was situated, and being, under a “New York standard mortgagee clause” attached to the policy, the beneficiary as his interest might appear. In February, 1919, the dwelling was completely destroyed by fire. Proper proofs of loss were duly filed with the company by Mrs. Harris, and payment was refused. On May 5, 1919, Forman obtained a judgment against Mrs. Harris upon his $4000 loan, and in December, 1919, the land conveyed as security for the loan was sold at sheriff’s sale to C. C. Griffin for $2500. On -November 29, 1919, Forman made the following entry on the policy: “The title to property described herein, and- the debt which said property was made to secure, having been this day transferred and assigned to C. C. Griffin, of Sumter County, Georgia, all rights hereunder are hereby transferred and assigned to said C. C. Griffin.” On September 29, 1919, the defendant amended its answer by pleading that the contract sued on became void as to the plaintiff, because “no notice of the foreclosure proceeding” was given by Forman to the company, as required by the terms of the. “mortgagee clause” of the policy. On the same day, by another amendment, -the defendant pleaded that Forman and the company entered into an agreement which amounted to an accord and satisfaction of Forman’s claim under the policy. The judgment of the trial court directing a verdict for the plaintiff was reversed, this court holding as follows: “The court erred in directing a verdict in favor of Mrs. Harris for the use of C. C. Griffin, for $2500, the amount of insurance on the dwelling. The evidence shows that the contract sued upon had been extinguished by a new agreement between For-man and the insurance company, which amounted to an accord and satisfaction binding upon both parties.” This suit was upon the new agreement, and this court held (Harris v. Ætna Ins. Co., 32 Ga. App. 48, 123 S. E. 27) that the assignment from Forman to Griffin, written on the policy of insurance and hereinbefore quoted, referred to “all rights under the policy of insurance, and not to any rights which Forman may have had under the new agreement,” and that “the plaintiff, therefore, had no right to sue upon that agreement, and the court properly dismissed the petition upon general demurrer.”

Counsel for the plaintiff in error frankly states in his brief, that “during the trial of the case [now under review] substantially the same testimony was introduced as was used in the former trial of the case;” that he is aware of the effect of the prior decision of this case by this court, and that he recognizes the rule that upon the same state of facts the decision of this court is the law of the case. He says,, however, that the plaintiff has undertaken to eliminate from this case the amended plea of the defendant, setting up an accord and satisfaction, by his motion to strike said plea; and .that he seeks to find relief from the prior decision of this court by showing that after a transfer of all the papers by Forman to Griffin, the company, by express declaration, repudiated the subsequent agreement, and that this restored the rights of the parties under the original contract; and also that the subsequent agreement was illegal and void because the same was not indorsed in writing upon the policy, or attached thereto.

Bound by the prior decision of this court in 28 Ga. App. 774 (supra), we hold that the trial court correctly refused to strike the defendant’s plea setting up that the' contract declared upon had been extinguished by the new agreement, and that the direction of a verdict for defendant was proper. No reversible error occurred in the trial of the case, and the judgment of the trial court is affirmed. This case needs no further elaboration. However, it may not be amiss to quote here from Kerr Glass Mfg. Co. v. Americus Grocery Co., 13 Ga. App. 512 (79 S. E. 381), as follows: “A plaintiff is not permitted in the same action to treat a contract as subsisting and also to repudiate it. Harden v. Lang, 110 Ga. 392, 395 (36 S. E. 100); Timmerman v. Stanley, 123 Ga. 850, 853 (51 S. E. 760, 1 L. R. A. (N. S.) 379). A defendant is, however, permitted to assume inconsistent positions and file inconsistent pleas. If suit is brought on a contract, the defendant may plead that no contract was ever entered into, that if entered into it was procured by fraud and was therefore void, or that it was valid when made, and the consideration has partially or totally failed. If such inconsistent pleas are filed, the defendant is entitled to prevail if he sustains any one or more of them. Civil Code (1910), § 5649; Mendel v. Miller, 134 Ga. 610 (68 S. E. 430). The rule just stated is applicable whether the inconsistent pleas be filed in the first instance or be introduced by way of amendment to the original answer.”

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    15820.
    Hightower v. The State.
   Bloodworth, J.

1. The ground of the motion for a new trial which complains that the court refused to give to the jury certain instructions requested in writing is not in proper form for consideration, it not being alleged that the requested instructions were pertinent and applicable to the facts of the ease. Killabrew v. State, 26 Ga. App. 231, 232 (2) (105 S. E. 711); Savannah & Southern Ry. v. Davis, 28 Ga. App. 654 (2 b) (112 S. E. 907).

2. The court gave correct general instructions to the jury as to the necessity for corroboration of the evidence of the accomplice before they could convict; and if fuller instructions were wanted, a pertinent and proper written request therefor should have been submitted to the judge before the jury retired to consider their verdict. Penal Code (1910), § 1087; Civil Code (1910), § 6084.

Decided November 13, 1924.

Indictment for burglary;, from Walton superior court—Judge ' Fortson. June 14, 1924.

A. Morris Kelly, for plaintiff in error.

W. 0. Dean, solicitor-general, contra.

3. The excerpt from the charge of which complaint is made in the 3d ground of the amendment to the motion for a new trial, when read in connection with the remainder of the charge, is not erroneous for any reason assigned. Almand v. State, 140 Ga. 182 (1) (99 S. E. 795).

4. There is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoncu/r.


author: Duke, J.

text:
    15827.
    Daniels v. The State.
    Decided November 13, 1924.
    Conviction of receiving stolen goods; from Houston superior court—Judge Mathews. June 4, 1924.

      Robert W. Barnes, E. C. Gollins, for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Duke, J.

The sole insistence in the brief of the plaintiff in error being that the evidence does not authorize the verdict, and the trial judge having approved the verdict, and there being some evidence to support it, the judgment overruling the motion for a new trial is

Affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


text:
    15828.
    Jones v. The State.
    Decided November 13, 1924.
    Conviction as accessory after the fact of murder; from Houston superior court—Judge Mathews. June 20, 1924.

      Marion Turner, for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Bloodworth, J.

There is no merit in either of the special grounds of the motion for a.new trial; the evidence supports the verdict, which has the approval of the trial judge, and, as no error of law was committed, the motion for a new trial was properly overruled.

Judgment affii'med.

Broyles, O. J., and Luke, J., eoneu/r.


author: Bboyles, C. J.

text:
    15829.
    Cohen v. City of Brunswick.
    Decided November 13, 1924.
    Petition for certiorari; from Glynn superior court—Judge High-smith. June 26, 1924.

      J. T. Colson, for plaintiff in error.

      B. D. Header, contra.
   Bboyles, C. J.

Tlie filing of a bond conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence upon him in the ease, unless a proper affidavit in forma pauperis is filed, is a condition precedent to obtaining a writ of certiorari to review the judgment of a municipal police court, and the petitioner must affirmatively show to the court that ho has filed such a bond. This is not affirmatively shown by merely alleging in the petition that he has “given bond as provided by law.” Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720); Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970). Under this ruling and the facts of this case, the court properly declined to sanction the certiorari.

Judgment affirmed.

Luke and Bloodivorih, JJ., concur.


author: Bloodwobti-i, J.

text:
    15845.
    Grace v. The State.
    Decided November 13, 1924.
   Bloodwobti-i, J.

1. There was no error harmful to the defendant in the following instructions to the jury: “If the defendant in this case was merely, at the time charged in the accusation, taking a drink offered him by a friend or some other party, and merely had the bottle of liquor in his possession at the time for the purpose of taking a drink, -without any intention on his part to possess the liquor, or without control of the liquor, then, in that event, he would not be guilty of possessing liquor; but, on the other hand, 1 charge you if the defendant was in the possession and custody of this liquor, and he had authority over this liquor at the time these officers saw him, he would be guilty and you would be authorized to so find.” See Bell v. State, 21 Ga. App. 788 (95 S. E. 270).

2. “Under the facts disclosed by the record, this court can not say that the verdict of the jury is without support from the testimony or so far contrary to it as to authorize this court to determine that the trial judge abused his discretion in refusing to grant a new trial. The law allows him to refuse or grant new trials in the exercise of a legal discretion, but it does not give this court any discretion in the matter. It can only grant new trials when errors of law have been committed, or when the trial judge has abused his discretion in refusing a new trial.” Smith v. State, 91 Ga. 188 (17 S. E. 68). See also Presley v. State, 24 Ga. App. 143 (99 S. E. 891), and eit.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

Accusation of possession of liquor; from city court of Floyd county—Judge Bale. July 14, 1924.

F. W. Copeland, for plaintiff in error.

James Maddox, solicitor, contra.


author: Broyles, O. J.

text:
    15846.
    Moore v. The State.
    Decided November 13, 1924.
    Indictment for possession of liquor; from Terrell superior court —Judge Yeomans. July 26, 1924.

      W. II. Gurr, for plaintiff in error.

      B. T. Castellón>, solicitor-general, R. R. Arnold, E. C. Hill, contra.
   Broyles, O. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloockuorlh, JJ., conow.


author: Blood worth, J.

text:
    15867.
    Cunningham v. The State.
    Decided November 13, 1924.
    Conviction of shooting at another; from Fulton superior court— Judge Howard. August 2, 1924.

      R. B. Blackburn, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Ralph II. Pharr, contra.
   Blood worth, J.

The evidence in this case is conflicting; the jury, who are the final arbiters on questions of fact, showed by their verdict that they found enough evidence to authorize a verdict of shooting at another, and this court will not say as a matter of law that the verdict is without evidence to support it.

Judgment affirmed.

Broyles, 0. J., and Luke, J,, concur.


author: Luke, J.

text:
    15884.
    Sistrunk v. The State.
    Decided November 13, 1924.
   Luke, J.

The evidence fully authorized the conviction. The grounds of the motion for a new trial which are approved by the court are without merit. Dor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Blood/worth, J., concur.

ConvictioiL of cheating and swindling; from city court of Fair-burn—Judge Parker. July 81, 1984.

J. E. Sistrunk, pro se.


text:
    15885.
    RAMSEY v. THE STATE.
    1. The indictment was not subject to demurrer on the ground that it charged in a single count an assault with intent to murder four named persons, or for any other reason assigned.
    2. Under the particular facts of this case, no error requiring a reversal of the judgment is shown by any of the special grounds of the motion for a new trial that are properly before the court for consideration.
    3. This court can not say, as a matter of law, that there is no evidence to support the verdict.
    Decided November 13, 1924.
    Rehearing denied December 11, 1924.
    Indictment for assault with intent to murder; from Barrow superior court—Judge W. L. Hodges presiding. July 84, 1984.

      J. Q. Pratt, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Bloodworth, J.

The first headnote alone needs elaboration. The indictment charges that the accused, “unlawfully and with force and arms, and with a certain pistol, the same being a weapon likely to produce death, did unlawfully and with malice aforethought, upon one Lucius Smith, Jewell Moon, Bose Young, and Loney Lyle, and then and there with said Henry Bamsey, not in self-defense nor under circumstances of justification, did, unlawfully and with malice aforethought, shoot at said Lucius Smith, Jewell Moon, Bose Young, and Loney Lyle, with the intent, then and there, unlawfully and with malice aforethought, to kill and murder said Lucius Smith, Jewell Moon, Bose Young, and Loney Lyle, contrary to the laws of said State, and the good order, peace and dignity thereof.” A demurrer to the indictment was as follows: “1. Said indictment does not charge this defendant with any crime under the laws of Georgia. 8. Said indictment is fatally defective in that it is duplications [ ?], for that it is an attempt to charge this defendant with assaulting with intent to murder four named persons, in the same indictment and in the same count, the same being four separate and distinct offenses. 3. Said indictment is fatally defective in that it fails to show the manner of the commission of the offense attempted to be charged, for that it is alleged that lie did do the acts charged with said Henry Eamsey, shown on the face of said indictment to be the defendant, and the indictment thus fails to show in any manner with what or how the offense was committed.”

There is no merit in the general demurrer. The indictment states the offense so plainly that the nature thereof may be easily understood by the jury. Penal Code (1910), § 954. The first headnote in Williams v. State, 2 Ga. App. 629 (53 S. E. 1071), is as follows: “Where every essential ingredient of the offense charged, is set forth with sufficient clearness to enable the defendant to prepare 'his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable.” The indictment in this case measures up to this standard, and meets all the objects specified for requiring particularity in setting out an offense, which are announced in Wingard v. State, 13 Ga. 396 (2), 400 (2).

The indictment is not duplicitous, in that in the same count it charges the defendant “with assaulting with intent to murder four named persons.” We have not been able to find where this question has ever- been determined 'on demurrer by either of the appellate courts of this State. In the case of Jones v. State, 37 Ga. 51, there was a motion in arrest of judgment, one of the grounds of which was that “the assault and shooting are charged to have been committed on two persons.” In that case it was held that “if said grounds had any substantial weight at all, they should have been taken before the cause was submitted to a jury; certainly, under our code and practice, they can not be considered on a motion in arrest of judgment.” In the case of Bone v. State, 11 Ga. App. 128 (74 S. E. 852), a plea of former jeopardy was filed. In the opinion in that case Judge. Eussell, now Chief Justice of the Supreme Court of this State, said (p. 130) : “The accusation in the present instance was not demurrable, because one may point a pistol at two persons, and this accusation charged that such was the case.” Even should we treat this statement as obiter, it.at least shows the thought of the members of the court. See Gay v. State, 28 Ga. App. 67, 68 (1) (110 S. E. 323). Counsel for-plaintiff in error cites and relies upon the case of The People v. Alibez, 49 Cal. 452. In that case it is held that “an indictment which charges the defendant with the murder of three persons charges three offenses.” That decision is based upon a penal statute of the State of California. Even if this were not true, we are not bound by it, as it is not in accord with the well settled principle in this State that “while a defendant can not be charged with separate and distinct offenses in the same indictment, . . offenses of the same nature and differing only in degree may be joined in one count in the same indictment; and it is as clearly settled that offenses not of the same nature, if they constitute but one transaction, blended together by concurrent acts, may also be joined in one count.” Mitchell v. State, 6 Ga. App. 554 (1) (65 S. E. 326). In Lawrence v. State, 10 Ga. App. 778 (74 S. E. 300), this court, citing several cases to support the statement, said: “The test is whether or not the acts described in the indictment relate to but one transaction. If they do it is well settled that offenses, though not of the same nature' but blended together by concurrent acts, may be joined together in one count.” See Warren v. State, 32 Ga. App. 359 (123 S. E. 182 (1)). Moreover, the weight of authority seems to be against the view of the California court, as shown by the following decisions: Ben v. State, 22 Ala. 9 (58 Am. Dec. 234); Clem v. State, 42 Ind. 420 (13 Am. Rep. 369); State v. Batson, 108 La. 479 (32 So. 478); State v. Warren, 77 Md. 121 (26 Atl. 500, 39 Am. St. Rep. 401); Wilkinson v. State, 77 Miss. 705 (27 So. 369); Forrest v. State, 13 Lea (Tenn.), 103; Chivarrio v. State, 15 Tex. App. 330; Cornell v. State, 104 Wis. 527 (80 N. W. 745).

In Mixon v. State, 7 Ga. App. 805 (1) (68 S. E. 315), it was held: “Though, by reason of verbal inaccuracies, an indictment may be in part unintelligible, yet where, either by disregarding the unintelligible portion as surplusage, or by considering it along with the rest of what is said, the language of the indictment plainly, clearly, definitely, and accurately charges a particular offense, it is not subject to be quashed on demurrer.” "Under this ruling there is no merit in the 3d ground of the demurrer. See Franklin v. State, 85 Ga. 570, 572 (11 S. E. 876).

The assignment of error as to the striking of the plea in abatement is expressly abandoned in the brief of counsel for the plaintiff in error.

Judgment affirmed.

Broyles, G. J., and I/uke, J., concur.


author: Broyles, C. J.

text:
    15895.
    Ralston v. The State.
    Decided November 13, 1924.
    Conviction of possession of liquor; from city court of Hall county —Judge Sloan. August 30, 1924.
    Application for certiorari was made to tlie Supreme Court.

      Boyd Sloan, B. P. Gaillard Jr., for plaintiff in error.

      B. D. Kenyon, solicitor, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bell, J.

text:
    15086.
    Ost v. Merchants & Farmers Bank et al.

    Decided November 13, 1924.
    Complaint; from city court of Jesup—Judge M. Price presiding. September 8, 1923.

      Gibbs & Turner, J. H. Quarterman, Parker & Parker, for plaintiff.

      Thomas & Walker, for defendants.
   Bell, J.

In this action upon a promissory note a verdict was found for the plaintiff, the defendant filed a motion for a new tidal, which the court granted, and the plaintiff excepted. Held: 'Under the ruling of the Supremo Court in answer to a question certified, the evidence demanded a finding in favor of the plaintiff, and the trial court erred in granting a new trial. The material facts as disclosed by the evidence are embraced in the certified question. See Ost v. Merchants & Farmers Bank, 159 Ga. 200 (124 S. E. 883).

Judgment reversed.

Jenldns, P. J., and Stephens, J., concur.


text:
    15368.
    Fullrbight, commissioner, et al. v. Boardman. administrator, et al.

   Bell, J.

This case is controlled by the following ruling of the Supreme Court, made in response to a question certified. “The act of 1919 (Acts 1919, p. 58), amending the act of 1913 (Acts 1913, p. 91), imposing an inheritance tax upon all property within the jurisdiction of this State, real and personal, which shall pass on the death of the decedent by will or by the laws of descent and distribution, or by deed, grant, or gift, does not extend to the property set apart to the widow as a statutory year’s support.” See Fullbright v. Boardman, 159 Ga. 162 (125 S. E. 44).

Decided November 13, 1924.

Appeal; from Richmond superior court—Judge Franklin. December 19, 1923.

U. J. Fullbright, Isaac S. Peebles Jr., for plaintiff in error.

Alexander & Lee, contra.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concv/r.


text:
    15463.
    CLARK, executor, v. MONROE COUNTY BANK et al.

    Where property is subject to a lien and a part of it is sold by the debtor, thejpart remaining in him should be first applied to the payment of the lien. If the property subject to the lien is sold in several par- • cels at different times, the parcels should be charged in tbs inverse order of their alienation. Civil Code (1910), § 6029. Where a taxpayer, in different parcels at different times, sells all of his property ■which is subject to a previous lien for State and county taxes, the property last sold (its value being sufficient for that purpose) should bear the burden of the tax lien. This case is controlled by the decisions of the Supreme Court in Merchants National Bank v. McWilliams, 107 Ga. 532 (33 S. E. 860), and Askew v. Scottish American Mortgage Oo., 114 Ga. 300 (40 S. E. 256). The case of Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119), distinguished.
    Decided November 13, 1924.
    Money rule; from Monroe superior court—Judge Persons. February 25, 1924.
    Prior to 1920 E. EL Walker sold certain lands to J. M. Allen, executing to him a bond for title and taking his notes for the purchase-money. Judgment upon these notes was obtained by Clark, as Walker’s executor, in May, 1923, and under an execution issued thereon the lands were sold in the following November. “A year or more before” this sale Allen transferred his bond for title to the Monroe County Bank. He had also, upon a date not shown in the record,' but prior to January 17, 1921/ executed to the bank a security deed to “462 acres of land, including the Walker tract, his home and a city lot in Forsyth, Georgia, containing 5 acres and improvements thereon, a cotton ginnery, and his live stock.” On January 17, 1921, he sold his “city'property” for $5000, and the bank, for value, released its lien upon the same. Some time before November, 1922 (the date not shown), “the bank released for value, in favor of the Phoe. Mut. Life Ins. Co., 347.05 acres, more or less, of the Allen land [of a value exceeding the taxes], to which it, the bank, held title under its deed to secure debt.” In November, Í922, the bank, under a power of sale contained, in its security deed, “sold all the personal property of the said Allen, and all his real estate except the Walker tract,” and excepting also, of course, the “city property” previously disposed of as stated above. -This sale was at public outcry, and the property brought $481. Before this sale the bank paid the State and county taxes due by Allen for the years 1920 and 1921, and had the tax fi. fas. transferred to it and duly entered upon the proper execution docket. . The amount of these fi. fas. was less than the proceeds of the last-mentioned sale. Allen is insolvent and still owes the bank something over $1900. The proceeds of the sale under the execution in favor of Walker’s estate were insufficient to satisfy that debt. The bank placed the tax fi. fas. in the hands of the sheriff, however, and claimed that a proportion of the taxes should be paid out of such proceeds ratably and according to the value of the property from which the proceeds arose, in comparison with the value of the remainder of Allen’s property, which the bank had held as insufficient security for its debt. Thus a contest arose upon a money rule. The case was submitted to the judge upon an agreed statement of facts, as set out above, and he entered a judgment in favor of the bank, to which Clark, as Walker’s executor, excepted. Stipulations were made as to the values of the respective properties to which the bank claimed the taxes should be apportioned.

      W. M. Clark, for plaintiff.

      Willingham & Willingham, for defendants.
   Bell, J.

(After stating the foregoing facts.)

The sole question for decision is whether the taxes should be apportioned ratably against the proceeds of the sale under the common-law fi. fa., according to the values respectively of the property sold thereunder and of the other properties of the tax debtor upon which the bank had held liens.

The defendant in error insists that under the decision of the Supreme Court in Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119), the question should be answered in the affirmative. We can not agree that the principle which controlled in that case is here applicable. In Askew v. Scottish American Mortgage Co., 114 Ga. 300 (40 S. E. 256), the Supreme Court said: “What was really ruled in Brooks v. Matledge, construed in the light of the facts of that case, was that mere lien-holders, who acquired their liens before the lien for taxes had attached, would be required to contribute, and the distinction between that case and cases like the present is clearly pointed out by Mr. Justice Little in Merchants National Bank v. McWilliams, 107 Ga. 532, 535. The rule laid down in this latter case is the one applicable to the present controversy, and that was, that, ‘When property is sold and conveyed by a common grantor at different times and to different purchasers, and taxes having a lien on all the property sold are due, the last property sold is primarily bound for the payment of all such taxes/ ” See Civil Code (1910), § 6029; Reynolds v. Wood, 111 Ga. 854 (36 S. E. 593); Blalock v. Buchanan, 114 Ga. 564 (40 S. E. 717).

Certain property, though subject to liens or deeds to secure debt in favor of the bank, was in the possession of the taxpayer, and still to be considered his property, after the accrual of the liens for taxes. By the provisions of the Civil Code (1910), § 3333, liens for State and county taxes are declared superior to all other liens; taxes due the State being the first in rank and taxes due the county being the second. Such taxes are to be charged against the owner of the property. Civil Code (1910), § 1018. The last of the properties sold by the taxpayer, where all is sold, should bear the burden of the taxes previously due, the proceeds being sufficient. That in this case was the property sold in November, 1922, for $481, a sum in excess of the taxes. While this sale was made by the bank under power, it is yet to be regarded as a sale by Allen, the taxpayer, himself. Merchants National Bank v. McWilliams, supra; Askew v. Scottish American Mortgage Co., supra; Noles v. Few, 155 Ga. 471 (117 S. E. 374). The later sale of the lands under the common-law fi. fa. can not be so accounted, for the reason that Allen had long prior thereto sold his bond for title to the bank, and had no further interest or equity in this property. Though nominally against Allen, this was in reality a sale of the property of the bank, which it had acquired subject to the lien of this fi. fa.

The case is controlled, as were the Askew and McWilliams cases, by the principles set forth in the Civil Code, § 6029: “Where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment of the lien. If the property subject to such lien is solcHn several parcels at different times, the parcels should be charged in the inverse order of their alienation.” Compare Noles v. Few, supra.

It may be that the bank is also barred from its claim of apportionment under the terms of section 6048 of the Civil Code, wherein it is provided: “If the plaintiff in execution, for a valuable consideration, releases property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as purchasers and creditors are concerned.” But the bank had not acquired the tax fi. fas. at the time of one of these releases, and it does not clearly appear that it had done so prior to the other release, and we rest our decision upon the principles of section 6039.

The court erred in adjudging that any part of the taxes should be paid out of the proceeds of the sale under the fi. fa. in favor of Walker’s executor, that not being the last sale by the tax debtor.

Judgment reversed.

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


text:
    15473.
    Bank of Oglethorpe v. Brooks et al.

   Bell, J.

1. Peaches when sold on cash sale by the producer are within the contemplation of section 4126 of the Civil Code, providing that certain specified products, “or other product sold by planters . . on cash sale, shall not be considered as the property of the buyer until fully paid for, although it may have been delivered to the buyer.”

2. Where three planters sold to another on cash sale, in separate transactions, peaches which each had severally produced, and for which each was given a cheek for the amount due him, and all of the checks were subsequently dishonored, and where none of the vendors sought to reclaim any of the peaches thus sold, but they entered into an agreement with the purchaser that on his receipt of the proceeds of a resale of the peaches made by him he would “prorate” the same to these several producers and a fourth producer in like situation, such new agreement as to the producers who were parties thereto amounted to an authorization or approval of the resale, thus divesting their title respectively to the peaches sold (Mason v. Farmers Cotton Oil Co., 29 Ga. App. 418 (2), 110 S. E. 123), and, as between them and their vendee, to a transfer of their claim of title from the peaches to the proceeds of the resale. Compare Barfield v. McCombs, 89 Ga. 799 (3) (15 S. E. 666).

3. Where the vendee of such producers was a firm, and, on receipt of the proceeds of the resale, deposited the proceeds in a .bank to the individual credit of one of its members for the purpose of having the same distributed to the several claimants by. checks, and where the bank, after receiving the depo'sit with full knowledge of all the facts (American Trust Co. v. Boone, 102 Ga. 202 (1), 29 S. E. 182; American National Bank v. Fidelity & Deposit Co., 129 Ga. 126 (1), 58 S. E. 867, 12 Ann. Cas. 666; Civil Code (1910), § 3605), applied it to a past-due indebtedness of such member, and refused payment of the checks drawn upon it in the name of the vendee firm, the three first-mentioned producers could maintain a joint action (Knight v. Roberts, 17 Ga. App. 527, 87 S. E. 809) against the bank for the aggregate of their undivided interests in the fund, .as for money had and received. Phillips v. Crews, 65 Ga. 275, 277; Finch v. Cox Co., 19 Ga. App. 256 (91 S. E. 281); Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475 (58 S. E. 897); Knight v. Forbes, 25 Ga. App. 490 (103 S. E. 725); Civil Code (1910), § 5513.

(a) This is not to decide whether or not such action would be maintainable if the bank had so received and applied the money without notice. See First National Bank of Macon v. Nelson, 38 Ga. 391 (1), 400.

4. The plaintiffs, jointly having title to an undivided interest in the fund while it remained in the hands of their vendee, were not divested thereof by the deposit of the money in a bank having notice of the ownership of the fund. See eases first cited in the preceding paragraph. Bank of Newborn v. Blue Diamond Coal Sales Co., 32 Ga. App. 458 (123 S. E. 725).

5. Where the other elements of a cause of action as for money had and received are present, it is immaterial whether the defendant received the money from the plaintiff or from a third person. Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2) (33 S. E. 175); 2 R. C. L. 780, § 35.

6. Where the bank refused payment to the plaintiffs upon the asserted claim that it had the right to apply, and had applied, the fund to a past-due indebtedness in its favor against the person in whose name the fund was deposited, the subsequent suit of the plaintiffs therefor did not fail to set forth a cause of action merely because it appeared from the petition that the checks in their favor respectively were signed by the vendee firm and not by the individual member thereof in whose name the deposit had been made. Tuggle v. Green, 150 Ga. 361 (2) (104 S. E. 85); Cohen v. Aronson, 29 Ga. App. 723 (16 S. E. 658); Chatham Ice Cream Co. v. Sakakeeny, 29 Ga. App. 768 (2) (116 S. E. 558); Union Brokerage Co. v. Beall, 30 Ga. App. 748 (1) (119 S. E. 533). Moreover, their right to recovery would not depend upon the presentation of checks, whether drawn by the firm, or by the member as an individual. It is not necessaiy in this sort of action to allege a demand for and refusal of payment. Civil Code (1910), § 5512); Farmers & Merchants Bank v. Bennett, 120 Ga. 1012 (1 b) (48 S. E. 398).

7. The action was not subject to general or special demurrer because the interests respectively of the plaintiffs were not equal (Chamberlin v. Beck, 68 Ga. 346 (3); City Bank of Macon v. Bartlett, 71 Ga. 797 (1 c); Stephens v. Whitehead, 75 Ga. 294 (3)), nor was it subject to general demurrer because the fourth producer mentioned in paragraph 2 above might have elected to claim an undivided interest in the fund, it not appearing that he was a party to the agreement entered into by the plaintiffs and their vendee with respect to the disposition of the proceeds of the resale, or that he ever, with knowledge, did any act amounting to a ratification. Anthanissen v. Dart, 94 Ga. 543 (3) (20 S. E. 124).

Decided November 13, 1924.

Complaint; from city court of Oglethorpe—Judge Greer. March 13, 1924.

John M. Greer, Gilbert 0. Robinson, for plaintiff in error.

Jule Felton, John B. Guerry, contra.

(a) Whether, if the fourth producer had been a party to such agreement or had ratified it, the suit would have been fatally defective without him as one of the plaintiffs (Davis v. Sturgis, 30 Ga. App. 655, 118 S. E. 700; Jennings v. Wright, 54 Ga. 537 (2), 540; Fuller v. Wood, 137 Ga. 66 (1), 72 S. E. 504; Bishop v. Woodward, 103 Ga. 281 (2), 29 S. E. 968), or even subject to special demurrer for nonjoinder, if such had been interposed (Starnes v. Quin, 6 Ga. 84 (1) (2); Howard v. Snelling, 28 Ga. 469 (1); Smith v. Wiley, 22 Ala. 396 (3), 58 Am. D. 262; Tankersley v. Childers, 23 Ala. 781 (1)), is not a question raised by the record for decision. But in Knight v. Roberts, 17 Ga. App. 527 (87 S. E. 809), the suit was for a three-fourths interest in an undivided eighth interest in funds which were the proceeds of a wrongful sale of realty, in which the plaintiffs were tenants in common with others, and, although in that case there was no express decision of the point here mentioned, the sustaining of a general demurrer was reversed.

8. The plaintiffs’ vendee, from whom the bank received the money, was not a necessary party defendant (Cowart v. Fender, 137 Ga. 586 (1) 73 S. E. 822, Ann. Cas. 1913a, 932; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2), 33 S. E. 175); nor was it essential that the petition allege that such vendee was insolvent.

9. Allegations of facts in such a case, made for the purpose of showing that the defendant was guilty of actual fraud in obtaining the deposit, were not irrelevant or redundant. Compare King v. Dobbs, 30 Ga. App. 441 (1) (2) (118 S. E. 428).

10. A city court has jurisdiction of any action for money had and received. Perdue v. Harwell, 80 Ga. 105 (1) (4 S. E. 877); Adams v. Skipper, 9 Ga. App. 123 (2) (70 S. E. 692); King v. Dobbs, 30 Ga. App. 441 (6) (118 S. E. 428); Civil Code (1910), § 5513. The present suit, properly construed, is one of that character.

11. Applying the foregoing rulings, the petition set forth a cause of action, and was not subject to any of -the demurrers.

Judgment affirmed.

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


text:
    15551.
    Wynn v. Maddox, sheriff, for use, etc.
   Bell, J.

1. An action on a forthcoming bond in a claim case may be brought in the name of the levying officer or of the plaintiff in fi. fa. When the suit is brought in the name of the levying officer for the use of the plaintiff in fi. fa., the officer is only a formal party, without interest in the subject-matter, the plaintiff in fi. fa. being the real party. Gordon v. McCauley, 73 Ga. 667; Martin v. Lamb, 77 Ga. 252 (2); Wortsman v. Wade, 77 Ga. 651 (4 Am. St. Rep. 102). The plaintiff in fi. fa. presumably institutes the action, and may bring it in either of the forms indicated above, without the consent of the levying officer. Civil Code (1910), § 13.

2. Although it is provided in the Civil Code, § 5571, that “if the sheriff is a party to the cause, the process shall be directed to the coroner of the county, and to the sheriffs of the adjoining counties, and may be served by either, as convenience may suggest,” and although the provisions of this section, where applicable, are mandatory (Hillyer v. Pearson, 118 Ga. 815 (1), 45 S. E. 701; Southern Railway Co. v. Griffler, 28 Ga. App. 646, 112 S. E. 735; Davis v. Bank of Lexington, 29 Ga. App. 454 (1), 116 S. E. 56; Williams v. Batten, 156 Ga. 620, 626, 119 S. E. 709), yet, in a suit of the character referred to in the preceding paragraph, the levying officer has no such interest in the subject-matter of the litigation as to disqualify him from serving the process, nor, therefore, as to render a compliance with this code section necessary. In such a case, where the suit is in his name, he is the agent appointed by the law both in string and in serving the process, and his office may be consistently employed for both purposes. Harrison v. McHenry, 9 Ga. 164; Flury v. Grimes, 52 Ga. 342. “The' general scheme of the law is not to trust the sheriff to perform the functions of an officer where he has the interest of a party. (Italics ours.) State v. Jeter, 60 Ga. 489, 492. “All bonds taken by public officers, under the laws of this State, shall be returned to the offices specified by law; and any person interested therein may bring suit thereon, in his own name, in any court having jurisdiction thereof.” Civil Code (1910), § 13. See also Hardwick v. Fidelity & Deposit Co., 29 Ga. App. 567 (1) (116 S. E. 220).

3. While it is said in 24 R. C. L. 992, § 9, that “a sheriff is incompetent to act when he is a party to the record or interested in the suit,” the authorities there cited were cases in which the officer was not only a party to the record, but also a party at interest; so that they do not support the proposition that a sheriff or levying officer may not perform his usual functions in reference to a suit to which he is a party, if he is but a formal party without interest. Compare Civil Code (1910), § 6176; Moore v. Brown, 81 Ga. 10 (2) (6 S. E. 833); Mattox v. Barry, 136 Ga. 183 (1) (71 S. E. 155); Webster v. Smith, 78 Mo. 163; Avery v. Warren, 12 Heiskell (Tenn.), 559.

4. In the instant action by the sheriff of a city court for the use of the plaintiff in fi. fa., upon a forthcoming bond in a claim case, the process having been directed to the sheriff óf that court and his deputies, and the service having been made upon one of the defendants by the sheriff and upon the others by a deputy, the special demurrer to the “petition and process” and the motion to dismiss the suit, because of alleged •defects in the process, filed by one of the defendants, were both properly overruled.

Decided November 13, 1924.

Action on bond; from city court of Dublin—Judge Sturgis. March 14, 1924.

W. A. Bampler, for plaintiff in error.

5. Whether the rule would be otherwise as to a forthcoming bond which the levying officer was not required by the law to accept, or if it appeared that the value of the property for which the bond was given exceeded the amount of the judgment in favor of the plaintiff in execution, it is unnecessary in this case to determine. But see Boyd v. Crews, 32 Ga. App. 138 (5) (122 S. E. 802); Civil Code (1910), § 6042; Bowman v. Kidd, 13 Ga. App. 351 (79 S. E. 167); Hagedorn v. Powers, 22 Ga. App. 189 (1) (95 S. E. 749); Hart v. Thomas, 75 Ga. 529 (1).

Judgment affirmed.

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


author: Bell, J. Jenkins, P. J.,

text:
    15560.
    Vandalsem v. Caldwell.
   Bell, J.

1. In order for a depositary for hire (Civil Code of 1910, §§ 3494, 3501) to foreclose his lien under the Civil Code, § 3366, it is incumbent upon him to allege in the affidavit made for that purpose, among other things, that he made demand upon the depositor for payment after the amount claimed became due. Where an attempted foreclosure was made in which the affidavit omitted such averment, a sheriff’s sale made thereunder was without authority of law and void. Erskine v. Wiggins, 58 Ga. 187 (2); Anderson v. Beard, 54 Ga. 138; Favors v. Johnson, 79 Ga. 553 (2) (4 S. E. 925); Scott v. Marshall, 56 Ga. 148; Milam v. Soloman, 66 Ga. 55; Wall v. Rutherford, 60 Ga. 440; Central R. Co. v. Sawyer, 78 Ga. 784 (1) (3 S. E. 629); Moore v. Martin, 58 Ga. 411 (2), 413; Faircloth v. Webb, 125 Ga. 230 (5) (53 S. E. 592); Bertha Mineral Co. v. Buie, 27 Ga. App. 660 (1) (109 S. E. 539).

2. Where in such a case the only allegation in respect to demand as contained in tlie affidavit to foreclose was: “Demand for payment of the above amount alleged and being due having been repeatedly made on the said [depositor] and the same having been consistently refused and denied,” there was a failure to comply with the rule laid down in the preceding paragraph. It was only alleged therein that the claim was due at the making of the affidavit. Stembridge v. Milton, 32 Ga. App. 735 (3) (124 S. E. 540); Standard Gas Products Co. v. Vismor, 31 Ga. App. 418 (121 S. E. 854). The lien laws are in derogation of the common law and are to be strictly construed. One who claims a lien must bring himself clearly within the law. Hawkins v. Chambless, 116 Ga. 813, 814 (43 S. E. 55); Mabry v. Judkins, 66 Ga. 732. As was said by the Supreme Court in Wall v. Rutherford, 60 Ga. 440, 441, in which there was an omission from the affidavit of one of the facts necessary to the foreclosure of a lien under the Civil Code, § 3366: “The court did not err in holding the affidavit defective; and the entire superstructure built on such a foundation had to tumble.”

(a) Even assuming that the affidavit might at the proper time have been amended (see Civil Code of 1910, § 5706; Haralson v. Speer, 1 Ga. App. 573 (1), 58 S. E. 142; Redwine v. Jarrell, 14 Ga. App. 294 (3), 80 S. E. 728), the right of amendment was never exercised so as to give it efficacy. Hardwick v. Shahan, 30 Ga. App. 526 (2) (118 S. E. 575).

3. Where a depositary for hire causes the property of another, which has been stored with him, to be sold and made way with under such defective proceeding, the depositor may recover of him actual damages without alleging malice or want of probable cause. Chambers v. McDowell, 4 Ga. 185; Gunn v. Pattishal, 48 Ga. 405; Patterson v. Phinizy, 51 Ga. 34 (2); Boyd v. Merriam, 53 Ga. 562; Juchter v. Boehm, 67 Ga. 534 (1); Stewart v. Atlanta Beef Co., 93 Ga. 12 (3) (18 S. E. 981, 44 Am. St. Rep. 119); Hamer v. White, 110 Ga. 300 (2) (34 S. E. 1001); Civil Code (1910), §§ 4481, 4485.

4. The plaintiff in this case sued the defendant not for his having sued her, but because of the wrongful disposition he is alleged to have procured of the property she had entrusted to his keeping. The process being invalid, the plaintiff could have sued either in tort for the trespass or for a breach of the terms implied by law in the contract of bailment, that the defendant would safely keep the property or dispose of it only according to law.

5. Moreover, the petition averred, not only that the foreclosure proceedings were invalid for the defects referred to above, but also that the de-y fendant depositary had never in fact demanded payment, the averment of such demand being charged as false and fraudulent; and that without notice the defendant obtained a “short order” for the sale of the property under the Civil Code, § 6068, when he knew, or by the slightest inquiry could have known, that notice to the plaintiff was not impracticable, as the application for the short order alleged. See Civil Code (1910), § 6069. Under these averments the defendant might be held liable for actual damage as for a breach of the contract of bailment, irrespective of the validity or invalidity of the proceedings upon their face. In view of the contractual relation between the parties and the nature of the wrong complained of, allegations of malice and want of probable cause were unnecessary for the recovery of actual damages, whether the action be construed as ex delicto or ex contractu, under the respective theories here indicated. (See authorities cited in the preceding paragraph, and also the following: Hendricks v. Middlebrooks Co., 118 Ga. 131 (3), 139, 44 S. E. 835; Bennett v. Tucker, 32 Ga. App. 288, 123 S. E. 165; Lea v. Harris, 88 Ga. 236, 14 S. E. 566; Payne v. Watters, 9 Ga. App. 265, 70 S. E. 1114; Milledgeville Water Co. v. Fowler, 129 Ga. 111, 58 S. E. 643; Southern Bell Telephone Co. v. Beach, 8 Ga. App. 720 (1), 70 S. E. 137; Fain v. Wilkerson, 22 Ga. App. 193, 95 S. E. 752). Aliter if the foreclosure proceedings had involved the violation of no duty arising in contract and if the proceedings had been valid on their face, the present plaintiff having been a party thereto. Porter v. Johnson, 96 Ga. 145 (1). (23 S. E. 123); McCormick v. Tribune-Herald Co., 13 Ga. App. 61 (78 S. E. 779).

Decided November 13, 1924.

Action for damages; from Colquitt superior court—Judge W. E. Thomas. April 11, 1924.

6. “If it is doubtful whether an action is based on tort or on contract, such doubt furnishes a ground for special demurrer, and, if such demurrer is sustained, the plaintiff may amend so as to clearly show why he is suing for a tort or for breach of contract. Where no special demurrer is filed to such action on the ground of duplicity in the petition, the plaintiff can elect upon which cause of action he will rely, if his petition sets out a cause of action which is good either as one for a tort or one for a breach of contract.” Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 436 (122 S. E. 327).

7. The test of the sufficiency of a petition as against a general demurrer is whether the defendant can admit all the allegations therein contained and at the same time escape all liability. “If a petition sets forth a cause of action, either ex contractu or ex delicto, it will withstand a general demurrer; and it is not the duty of the appellate court, in passing upon an exception to a judgment sustaining a general demurrer, to decide whether the action is one ex contractu or ex delicto.” Citizens & Southern Bank v. Union Warehouse & Compress Co., supra. The same rule applies where the exception is to a judgment overruling a general demurrer. The overruling of a general demurrer does not adjudicate that the petition is good in every part or that the plaintiff is entitled to recover the entire sum claimed, but that the petition is not wholly bad. Georgia Ry. & Elec. Co. v. Decatur, 29 Ga. App. 653 (7) (116 S. E. 645); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (5) (116 S. E. 922); Shahan v. Myers, 130 Ga. 724 (3) (61 S. E. 702).

,8. Assuming that facts are alleged in the declaration from which malice and want of probable cause might both be inferred (Thornton v. Story, 24 Ga. App. 503 (4), 101 S. E. 309), the suit could nob yet be construed as one for the malicious use of legal process, for the reason that it fails to show that the foreclosure proceedings had terminated in favor of the defendant therein before her present action for damages was filed. Clement v. Orr, 4 Ga. App. 117 (60 S. E. 1017); Stoufer v. Missenheimer, 29 Ga. App. 191 (2) (114 S. E. 587). It could not be construed as an' action for abuse of legal process, for the foreclosure was not perverted to a foreign object, but was employed for the very purpose which it was intended by law to effect. McKellar v. Moynihan, 28 Ga. App. 431 (111 S. E. 580). This is true although in a suit for damages growing out of a perversion or abuse of the court’s process it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages. Roberts v. Willys-Overland, 27 Ga. App. 304 (108 S. E. 138).

9. Applying the foregoing rulings, the court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens, J., concurs. Jenkins, P. J., concurs specially.

J. H. Cheney, J. L. Dowling, for plaintiff in error.

Askeiv & Mather, contra.

Jenkins, P. J.,

Differing with my colleagues in their interpretation of the language of the affidavit as set forth in paragraph 2 of the syllabus, I concur in the judgment for the reasons set forth in paragraph 5.


text:
    15563.
    ROBERTS, administratrix, v. KITE et al.

    1. “When one owning real estate dies, the title to the real estate passes to the heirs; and it is not the duty of the administrator, as such, to collect rents accruing after the death of the intestate; and if he does so, it is not in his capacity as administrator.” Hoyt v. Ware, 156 Qa. 98 (6) (118 S. E. 734). Compare Johnson v. Johnson, 80 Qa. 260 (1) (5 S. E. 629); Autrey v. Autrey, 94 Qa. 579 (20 S. E. 431); Strickland v. Thornton, 2 Qa. App. 377 (4) (58 8. E. 540) ; Hansen v. Death, 25 Qa. App. 522 (103 S. E. 727).
    2. A tenant can not dispute his landlord’s title, or attorn to another claimant while in possession. He can not, without the consent of his landlord, change the character of his holding, even after the expiration of the original rent period, until he surrenders the premises. This is true notwithstanding the person putting the tenant in possession may not have owned the land. New v. Quinn, 31 Qa. App. 102 (1) (119 S. E. 457). But in the affidavit for the distress warrant in this case the plaintiff sought to proceed as administratrix, alleging that the rents were due to an estate (Mathis v. Fordham, 114 Qa. 364 (1), 39 S. E. 324; Peary v. Langster, 13 Qa. App. 418 (2), 79 S. E. 215; Anderson V. Daniel, 19 Qa. App. 526, 91 8. E. 940), and the tenants would not be estopped, under the rule just stated, to dispute the right of the plaintiff to proceed in that capacity, since it appears that the contract of rental was made with the plaintiff as an individual.
    3. Assruning that on demurrer (none was filed) the defendant’s answer would not have been a sufficient denial of the plaintiff’s representative capacity (Kenan v. Du Bignon, 46 Qa. 258 (2) ; Hutcheson Mfg. Go. v. Chandler, 29 Qa. App. 726, 733, 116 S. E. 849), the court having allowed certain evidence offered by the defendant, without objection on the part of the plaintiff, showing that the plaintiff was not administrator at the time of making the affidavit, it was not improper that the evidence be considered, inasmuch as the counter-affidavit might have been amended to include such a plea. Napier v. Strong, 19 Qa. App. 401 (2) (91 S. E. 579); Parker v. Salmons, 113 Qa. 1167 (4) (39 S. E. 475).
    4. Even conceding that it was error to adjudge that the affidavit was absolutely void and nonamendable (Civil Code of 1910, § 5690), the court was right, in any view, in refusing to allow the only amendment offered, by which it was sought to substitute the trust company as administrator in lieu of the original plaintiff, it conclusively appearing that the plaintiff had assumed to proceed in such representative capacity after her resignation had been accepted and another appointed in her stead. “No amendment adding . . new and distinct parties shall be allowed unless expressly provided for by law.” Civil Code (1910), § 5683; Gill v. Tison, 61 Ga. 161 (1) ; Arnett v. Commissioners, 75 Ga. 782 (1) ; McWilliams v. Anderson, 68 Ga. 772 (2).

      (а) The plaintiff having no authority as administratrix at the time she made the affidavit in that purported capacity, the court did not err in not allowing her “to proceed in the name of the estate.” Newton v. Dmiel Co., 14 Ga. App. 152 (1) (80 S. E. 509).
    (б) Whether, irrespective of the plaintiff’s actual right, the affidavit would have been amendable (Hines v. Rutherford, 67 Ga. 606; Mitchell v. Masury, 132 Ga. 360 (4), 64 S. E. 275), so as to allow her to proceed individually as the person who had rented the premises and to whom the defendants were obliged to attorn (see Neto v. Quinn, supra), she could not have proceeded upon such theory under the affidavit as framed, and, as indicated above, there, was no offer to amend it so as to test her right to proceed as an individual. It does not appear that the plaintiff’s attorney was denied opportunity to prepare and offer any amendment which he deemed proper. Thomas v. Chattanooga Ry. <6 Light Co., 21 Ga. App. 172 (2) (94 S. E. 50); Willingham v. Glover, 28 Ga. App. 394 (1) (111 S. E. 206), and cases cited.
    5. Under the above rulings disposing of all of the assignments of error as made, the court did not err in dismissing the proceeding. None of the' assignments of error present for decision the question as to whether, under the facts of this case, payment of the rents alleged to be due could be enforced by one as administrator. See cases cited in paragraph 1 above.
    Decided November 13, 1924.
    Distraint; from Campbell superior court—Judge Hutcheson. February 14, 1924.

      J. F. Golightly, for plaintiff in error.

      L. 8. Gamp, contra.
   Bell, J.

A distress warrant was issued upon an affidavit of which the following is a copy:

“Georgia, Campbell County: Personally appeared before me Mrs. Annie J. Roberts, administratrix for W. T. Roberts, who being duly sworn, says that J. 0. Kite and C. C. Perkerson, doing business as Perkerson Bus Line, of said county and State, is indebted to the said W. T. Roberts’ estate $120 for rent now due and unpaid.

“Sworn to and subscribed before me this 8th day of May, 1923.

“Annie J. Roberts.

“H. S. McDaniel, N. P. & Ex. Off. J. P.”

A counter-affidavit was filed, in which the defendant partnership admitted an indebtedness of a certain amount which they alleged they “would gladly pay to any person who can give them the proper receipt for the same, but in no event will they pay the same to Mrs. Annie J. Eoberts until they are shown that she is the administratrix of W. T. Eoberts and has the right to collect the sum of rent.”

One of the defendants, J. C. Kite, was sworn as a witness for the plaintiff, and testified: “I rented two store-rooms from Mrs. Annie J. Eoberts on the first of October, 1922, at $25 per month and kept them until the first day of May, 1923, and paid her $50, and she was to do some repairing on one of the rooms and I did not pay her any more. The rent of the house would have been $150 if she had done the repairing, but the repairing she failed to do.” Thereupon the attorney for the defendants introduced a record from the court of ordinary, showing that upon April 2, 1923, “on the petition of Mrs. Annie J. Eoberts, the ordinary duly discharged her as administratrix of the estate of W. T. Eoberts, and appointed in her stead the Lowry Bank & Trust Company of Georgia as administrator;” and moved to dismiss the distress warrant, upon the ground that Mrs. Eoberts “had no right to make the affidavit and that the proceedings were void.” In her petition for a discharge Mrs. Eoberts alleged that she and her son and daughter were the only heirs of W. T. Eoberts. The plaintiff’s attorney “proposed to go on with the case,” on the ground that Mrs. Eoberts was the administratrix at the time the house was rented. He also moved to amend the affidavit so as to “let the distress warrant proceed in the name of the Lowry Bank & Trust Company of Georgia as administrator on the estate of W. T. Eoberts.” The court disallowed the amendment and dismissed the proceeding, and the plaintiff excepted. It is assigned that the court erred, (1) in not allowing the case to proceed in the name of the estate of W. T. Eoberts; (2) in not allowing the plaintiff to amend the suit as proposed; and (3) in dismissing the proceeding solely on the ground that the proceeding was void and not amendable.

If the affidavit had alleged that the rents were due to the affiant, the words “administratrix,” etc., should have been treated as descriptio personas, and the proceeding, without more, should then have been construed as one by the affiant in her own behalf as an individual. But, considering the affidavit as a whole, and especially in view of the averment that the rents were due to the “estate,” it is clear that the affiant intended to distrain in the representative character of administratrix. The court properly held that she could not proceed in that capacity when it appeared that she had resigned her commission and another had been appointed in her stead before the affidavit was executed. It may be true that the affidavit could have been amended, under the Civil Code, § 5690, by striking the allegation that the rents were due the estate and averring them due the affiant; but no amendment of that sort was offered, and no opportunity to offer it was denied. Thus, it is unnecessary to decide whether such an amendment would have been allowable.

If Mrs. Eoberts had been administratrix when she made the affidavit, and had subsequently resigned, her successor might have been substituted as a party in her stead, no other obstacle existing. But conceding (without deciding) that payment of the rents might be enforced by the administratrix, the allowance of the only amendment offered, by which it was sought to make the trust company as administrator a party, although the proceeding had been instituted by another as administrator who was not such at the time, would have added a new and distinct party; which is not permissible at law, in the absence of express provision therefor.

There was no error in dismissing the proceeding.

Judgment affirmed.

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


text:
    15633.
    Finance Company of the South v. Jones.
   Bell, J.

1. Partial payment of the purchase price of goods with knowledge of defects therein will not estop the buyer from pleading partial failure of consideration. Civil Code (1910), § 4137; Atkins v. Cobb, 56 Ga. 86 (6). While it has been held that this section of the code is applicable only in cases of express warranty, such was the warranty relied on by the defendant in the present action. See Mansor v. Zemurray, 22 Ga. App. 441 (1), 444 (96 S. E. 233). It is especially applicable where, as in this case, there was evidence to show, in accordance with the plea, that all payments which the defendant had made after the acceptance of the article sold were made under an agreement by the vendor that it would repair the article so as to put it in a condition - conforming to the warranty. McDaniel v. Mallary, 6 Ga. App. 848 (2) (66 S. E. 146); Alpine Safe & Lock Co. v. Parsons, 13 Ga. App. 154 (2) (78 S. E. 1023).

2. Where property is sold for cash in part, and the vendor retains the title thereto until payment of the balance of the purchase-money, and thereafter transfers the rotention-of-title contract and notes for the balance of the purchase-money to another, to whom further payments are made by the vendee, and where such transferee, upon default by the vendee in the payment of the remainder, sues the vendee in trover for the recovery of the property, the defendant in such action, upon pleading and proving a failure of consideration, may recoup against the assignee his resulting damage, to the extent, at least, of the amount paid to the assignee. This is true even where the failure of consideration was only partial, provided the vendee had paid to his vendor, prior to the assignment of the contract, as much as the property was actually worth. Civil Code (1910), § 4484; Rogers v. Otto Gas Engine Works, 7 Ga. App. 587 (1) (67 S. E. 700).

Decided November 13, 1924.

Trover; from city court of Atlanta—Judge Eeid. April 5, 19.34.

V. H. Gaddis, H. O. Holbrook, for plaintiff.

Hewitt W. Chambers, for defendant.

3. Although the plaintiff assignee acquired the notes for the balance of the purcliase-money bona fide and for value before maturity, and, if 'suing upon the notes, would have been protected from the defense of failure of consideration (Civil Code of 1910, §§ 4286, 4291), yet where, instead of suing upon the notes, he elects to bring an action of trover for the recovery of the property, he thus in effect rescinds the contract, and can not rely upon the rights which otherwise would have enured to him as a holder of the notes bona fide and for value, but his action will be subject to the provisions of section 4484 of the Civil Code. See City of Jeffersonville v. Cotton States Belting Co., 30 Ga. App. 470 (9) (118 S. E. 442).

4. The defendant in this action pleaded that the property was worthless, and sought to recover of the plaintiff assignee, for the failure of consideration, a sum equal to the amount which he had paid both to his original vendor and to the assignee. A verdict was returned in his favor accordingly. While a motion for a new trial by the plaintiff was pending the defendant wrote off a part of the verdict, so as to bring the recovery within the amount which he had paid to the assignee. The motion was thereupon overruled. Reid: Under the rulings of the preceding paragraphs the evidence authorized the verdict as finally approved by the trial court, any errors in instructions were cured, and there was no error in overruling the motion.

5. The above rulings are not to be construed as deciding whether the defendant’s recoupment in such a case should be limited to a sum not exceeding the payments to the assignee. The defendant haying voluntarily written off from his recovery all in excess of that amount, whether it be true that the verdict in its original form would not have been sustainable is a question not presented for adjudication by the present record. See Gafford v. Twitty, 154 Ga. 682 (1) (115 S. E. 105).

Judgment affirmed.

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


text:
    15638.
    CENTRAL OF GEORGIA RAILWAY CO. v. WRIGHT, comptroller-general.
    1. Where a comity which had adopted none of the alternative road laws levied a tax of 50 per cent, of the amount of the State tax, for “current expenses,” and also 140 per cent, of the amount of the State tax, “to pay for improvements of the public roads and for maintenance of the chain-gang for said county,” the levy was excessive to the extent of 90 per cent, of the State tax, whether the item of 140 per cent, should be classified as a tax falling within the provisions of § 507 or of § 508 '.of the Civil Code.
    2. The authorities of a county in which none of the alternative road laws of this State are of force have no power to levy a tax solely for improving or working the public roads. . In such county, however, the authorities may levy a tax for the expense of maintaining, keeping, and equipping the misdemeanor convicts of the county, or the county’s quota of felony convicts requisitioned under the act of 1908, or both, employed in work upon the public roads.
    3. A tax levy of 140 per cent, of the State tax, “to pay for improvements of the public roads and for maintenance of the chain-gang for said county,” is a levy for two purposes. Where the county in which such levy is made has not adopted, any of the alternative road laws, the part of the levy “for improvements of the public roads” is unauthorized, and, the amount of the tax for this purpose not being given, the remainder of the levy which might otherwise be legal is rendered illegal for uncertainty.
    Decided November 13, 1924.
    Affidavit oí illegality; from Marion superior court—Judge Munro. April 30, 1924.

      Arnold & Battle, for plaintiff in error.

      W. D. Crawford, contra.
   Bell, J.

For the year 1922, Marion County, which had adopted none of the “alternative road laws,” levied taxes for the following purposes: (A) 25 per cent, upon the amount of the State tax for support of the poor of the county; (B) 25 per cent, for repairing court-houses, jails, bridges, etc.; (C) 50 per cent, for current expenses, the items thereof being specifically enumerated; and (D) 140 per cent, “to pay for improvements of the public roads and for maintenance of the chain-gang for said county.” After paying the first three items stated above, the Central of Georgia Bailway Company, a taxpayer, upon a fi. fa. being issued and levied on its property to satisfy the balance due under the item designated as D, interposed its affidavit of illegality, contesting the validity of this item, on various grounds, raising the questions hereinafter decided. The court rendered judgment against thé illegality, and the defendant excepted. The State tax rate was 5 mills.

Where the General Assembly within its constitutional bounds (Civil Code of 1910, § 6562) requires or authorizes the counties to do things necessarily entailing expense, but makes no provision for the levy of a tax, the proper county authority has the implied power to levy a tax to meet the expense legally incurred in complying with the law. Pennington v. Gammon, 67 Ga. 456; Garrison v. Perkins, 137 Ga. 744 (1) (74 S. E. 541). The discretion of the counties as to the amount of such taxes is limited, however, by §§ 507-and 508 of the Civil Code; and, considering the other levies made at the same time, the tax for such a purpose should not exceed the amount leviable under § 507 or § 508, according as the one or the other applies to the particular purpose.

Any county may make requisition for its quota of male felony convicts to be employed upon the public roads of the county (Ga. L. 1908, p. 1119, Penal Code of 1910, § 1207); and if the county be one which has not adopted any of the alternative road laws, it is competent for the authorities having charge of its roads and revenues to levy a tax to defray the expense incurred in the maintenance, keeping, and equipment of the force of hands obtained-from the State, and also of the misdemeanor convicts. It is otherwise where a county levies a road tax under one of the alternative road laws. In such case there can not be an additional tax for the expense of maintaining and equipping the convicts. Garrison v. Perkins, supra; Central of Ga. Ry. Co. v. Meriwether County, 148 Ga. 423 (96 S. E. 884); Wright v. Alabama Great Southern R. Co., 150 Ga. 140 (2) (102 S. E. 821); Carter v. Shingler Realty Co., 157 Ga. 118 (102 S. E. 821).

Where in such a county a chain-gang is regularly maintained, to be employed on the public roads of the county, a tax for maintaining, keeping, and equipping the convicts would be classified under § 507 as a tax for current expenses (Seaboard Air-Line Ry. Co. v. Wright, 157 Ga. 722, 122 S. E. 35; s. c. 32 Ga. App. 256, 122 S. E. 900), and it, together with all other levies for current expenses, and accumulated indebtedness, should not exceed 100 per cent, on the State tax. McMillan v. Tucker, 154 Ga. 154 (9) (113 S. E. 391). An item of a tax levy should not be classified as one falling under § 508 of the Code, where the liability represented thereby is a part of the usual, ordinary, annual expense of the county. Seaboard Air-Line Ry. Co. v. Wright, supra.

“County authorities may legally, levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without any reference to a recommendation of the grand jury. Civil Code (1910), § 507. . . If 100 per cent, of the State tax be not sufficient to pay the accumulated debts and current expenses of the county, the authorities have power to raise a tax for county purposes, over and above the tax of 100 per cent, of the State tax, and not to exceed 50 per cent, of the State tax for the year it is levied, ‘provided two thirds of the grand jury, at the first or spring term of their respective counties, recommend such tax/Civil Code (1910), § 508; Sheffield v. Chancey, 138 Ga. 686 (75 S. E. 1112).” Wright v. Southern Ry. Co., 146 Ga. 581 (5) (6) (91 S. E. 681); Southern Ry. Co. v. Wright, 154 Ga. 334 (1) (114 S. E. 359); Blalock v. Adams, 154 Ga. 326 (2) (114 S. E. 345); Southwestern R. Co. v. Wright, 156 Ga. 1 (2) (3) (118 S. E. 552); Central of Ga. Ry. Co. v. Wright, 156 Ga. 13 (1) (2) (118 S. E. 709); Atlantic Coast Line R. Co. v. Grady County, 32 Ga. App. 261 (122 S. E. 816); Reynolds v. Lofton, 18 Ga. 47; Arnett v. Griffin, 60 Ga. 349; Barlow v. Ordinary, 47 Ga. 639 (5).

Since the entire tax levy under consideration had included therein an item of 50 per cent, of the State tax for current expenses (no tax being levied for accumulated indebtedness), a further item of 140 per cent, for improvement of the public roads and for maintenance of chain-gang for the county, considered as a levy for current expenses, under § 507, was illegal at least to the extent that it, together with the other items for current expenses, exceeded 100 per cent, of the State tax; that is to say, items C and D, aggregating 190 per cent, of the State tax, would together he in excess of the amount allowable under this section, to the extent of 90 per cent. If the item under discussion be treated as one for a county purpose, under § 508, it should not exceed 50 per cent, of the State tax (no other tax for county purposes appearing to have been levied under this section), and, under the limit fixed in that code section, would still be illegal to the same extent as if an item of current expense. It certainly could not at one and the same lime have been levied under both these sections; but even if the levy could be thus dual in character, 50 per cent, or 2 % mills, together with item C, would have been all that § 507 could bear, and we would have 90 per cent., or 4 % mills, left for § 508. As this section could stand only 50 per cent., or 2 % mills, there would still remain of item D an excess of 40 per cent, of the State tax, or 2 mills, with nowhere to go. Even in this view, the levy would be to that extent excessive.

■The authorities of a county in which none of the alternative road laws of this State are of force have no power to levy a tax solely for improving or working the public roads. Haisten v. Glower, 114 Ga. 992 (2) (41 S. E. 48). Under the authority of Garrison v. Perkins, supra, a tax may be levied in such a county for the expense of maintaining, keeping, and equipping the force of hands obtained from the State and county; and, of course, this would include expense incurred in equipping the convicts for ordinary work on the public roads, since under the terms of the act (Ga. L. 1908, p. 1119) they are received for the purpose of being employed upon the public roads of the county. Notwithstanding this, such a county is not authorized by the act of 1908 to levy a separate and distinct tax for “improvements of the public roads.” The contested item, “to pay for improvements of the public roads and for maintenance of the chain-gang for said county,” does not appear to have been a general levy for maintaining, keeping, and equipping the convicts, but on its face purports to be a levy for that purpose and for the distinct purpose of improving the public roads. The latter was not a legal expense; and, an uncertain and indefinite part of the item being illegal, the whole item was rendered invalid. Haisten v. Glower, supra; Civil Code (1910), § 514. The item D would appear to be illegal on the further ground that it is a combined levy for two distinct purposes; and, assuming that both are legal when standing alone, the per cent, of each is not specified as required by the Civil Code, § 514; McMillan v. Tucker, 154 Ga. 154 (2) (113 S. E. 391). However, this exact point is not raised by the affidavit of illegality.

We have not overlooked the provisions of sections 654 and 655. See comments with reference to these sections in Garrison v. Perkins, supra, in which there was no decision as to whether they conferred any power of taxation. These sections were codified from the act of 1881 (Ga. L. 1880-1 p. 189), and were therefore of force when the Supreme Court rendered its decision in Haisten v. Glower, supra, holding that there is no power of taxation for improvement of the roads in a county which has not adopted one of the alternative road laws. Indeed, the language of section 655, that the officials “shall be authorized to pay for said work out of any funds of their counties not otherwise appropriated,” would seem rather to negative the right to tax specially for this purpose than authorize it, implying that such improvement should be paid out of funds remaining from other sources. Butts County v. Jackson Banking Co., 136 Ga. 719 (4) (71 S. E. 1065).

This is not to rule whether the proper authorities may not amend the tax levy by striking therefrom the objectionable language, “to pay for improvements of the public roads,” and also so as to bring the then remaining purpose of the levy, “for maintenance of the chain-gang for said county,” within the limits pointed out above. This question is not now for decision. See Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173); Wright v. Southern Ry. Co., 137 Ga. 801 (74 S. E. 529); McMillan v. Tucker, supra; Clements v. Powell, 155 Ga. 278 (10) (116 S. E. 624); Southwestern R. Co. v. Wright, 156 Ga. 1 (4) (118 S. E. 552).

The act of 1920 (Ga. L. 1920, p. 58), amending § 389 of the Civil Code, properly construed, gave the counties no additional power of taxation. Its purpose was to permit counties having a chain-gang, in their discretion, to purchase material for and use the convicts in building or repairing any public building, bridge, causeway, or other public works, whatever the cost might be, where theretofore, except as to work costing less than $300, it had been mandatory, under the law, that such work be let out by contract. The act merely allowed a different method of having an improvement made for which the counties were already empowered to levy a tax. See Blalock v. Adams, 154 Ga. 326 (4) (114 S. E. 345). Apparently the act has no reference whatever to the improvement of public roads as distinguished from bridges and other public works.

Items A and B are irrelevant to' the present consideration. Sullivan v. Yow, supra; Gaines v. Dyer, 128 Ga. 585 (6 c) (58 S. E. 175).

In any correct view the tax levy was excessive to the extent of 90 per cent, of the State tax, Qr 4 % mills, and the whole of item D was illegal because it combined two subjects in a single item, one of which is bad, and it is impossible to determine the extent of the tax which would otherwise be legal.

The trial judge erred in not sustaining the illegality.

Judgment reversed.

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


author: BelTj, J.

text:
    15693.
    GEORGIA RAILWAY & POWER CO. v. TURNER, by next friend.
    1. A carrier of passengers is bound to extraordinary diligence on the part of himself and his agents, to protect the lives and persons of his passengers. Civil Code (1910), § 2714. Such duty includes an obligation of diligence to protect the passengers against insult or injury by the carrier’s employees. Louisville & Nashville B. Co. v. Chivers, 11 Ga. App. 236 (75 S. E. 13) ; Binder v. Georgia By. & Electric Go., 13 Ga. App. 381 (1), 383 (79 S. E. 216); Oole v. Atlanta & West Point B. Go., 102 Ga. 474, 479 (31 S. E. 107); Mason v. Nashville &c. By., 135 Ga. 741 (4) (70 S. E. 225, 33 L. R. A. (N. S.) 280); Louisville <& Nashville B. Go. v. Forrest, 6 Ga. App. 766 (2) (65 S. E. 808); Georgia B. Go. v. Newsome, 60 Ga. 492.
    2. The breach of a duty of diligence toward one entitled thereto is ordinarily termed' negligence (Earvey v. Bartow Oounty, 31 Ga. App. 84 (2), 119 S. E. 538), but where an action against a carrier is founded upon the alleged wrongful ejection of the plaintiff as a passenger, and no negligence of the carrier or his employees is alleged, the wrong complained of is to be regarded not as negligence, but as “improper conduct” (Civil Code of 1910, § 2779), and the law relating to diligence and negligence on the part of carriers with reference to their passengers is not involved. Savannah Electric Go. v. Pritchard, 133 Ga. 747 (1) (66 S. E. 952) ; Atlanta Gonsol. St. By. Go. v. Keeny, 99 Ga. 266 (4) (25 S. E. 629, 33 L. R. A. 824) ; Seaboard Air-Line By. v. O’Quiwn, 12.4 Ga. 357, 359 (2) (52 S. E. 427, 2 L. R. A. (N. S.) 472). Such being the character of the present action, the court erred in charging the law upon these subjects. But an error of this sort, standing alone, does not always require a reversal. See cases cited above, and Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814).
    3. Where in such a case the evidence authorized the inference that the plaintiff was a passenger and had not forfeited any of his rights as such, but was nevertheless ejected by the defendant carrier’s conductor, the trial court committed no error in giving in charge the principle contained in the Civil Code (1910), § 2780, with respect to the presumption which arises against a railroad company under certain circumstances. This section, where the facts otherwise so justify, may be given in charge not only where the action is founded upon negligence, but also where it is founded upon “misconduct” on the part of the carrier’s servants. Compare § 2779. See, also, Savannah &c. By. Go. v. GodMn, 104 Ga, 655 (2) (30 S. E. 378, 69 Am. St. Rep. 187); Geor

      gia Railroad v. Homer, 73 Ga. 251 (6) ; Atlantic Goast Line R. Co. v. Thomas, 14 Ga. App. 619 (3) (82 S. E. 299) ; Central do. Ry. Go. v. Common, 106 Ga. 828 (1) (32 8. E. 874).
    4. In the absence of an appropriate request it is not error for the court to omit to instruct the jury as to the definitions of the words “tort,” “carelessness,” “negligence,” and “improper conduct,” as employed in the charge. Compare Harvey v. Bartow Gouniy, supra; Hall v. State, 133 Ga. 177 (8) (65 S. E. 400).;. Jordamy. Slate, 16 Ga. App. 393 (85 S. E. 455), and citations on page 400; Foote V. Kelley, 126 Ga. 799 (3) (55 S. B. 1045).
    5. “Punitive damages are recoverable in an action against a railway company by a passenger, where the evidence shows that he was, without justification or excuse, forcibly expelled from its train by the conductor or other employees in charge thereof.” Seaboard Air-Line Ry. v. O’Quin, 124 Ga. 357 (1) (52 8. E. 427, 2 L. R. A. (N. S.) 472). Under the pleadings and the evidence the court did not err in giving in charge section 4503 of the Civil Code. See also Head v. Georgia Pacific Ry. Go., 79 Ga. 358 (1) (7 S. E. 217, 11 Am. St. Rep. 499); Georgia R. Go. v. Dougherty, 86 Ga. 744 (4) (12 S. E. 747, 22 Am. St. Rep. 499).
    6. Where, in the' trial of an action for the wrongful ejection of the plaintiff as a passenger, all the material allegations in which are denied, the evidence did not demand the conclusion, though authorizing it, that the plaintiff had not lost or forfeited his rights as a passenger at or before the occurrence complained of, but where on the other hand the inference could have been drawn that the plaintiff was ejected because he failed and refused to pay or tender fare when rightfully demanded by the conductor, and where certain evidence, if believed by the jury, would have shown that his ejection was accompanied with no violence or undue force, the defendant was entitled to have the jury instructed to the effect that the ejection of a passenger by a carrier upon his refusal to pay fare rightfully demanded affords no ground of complaint against the carrier, provided no violence or undue force is used (Allison v. Ga. R. dc. Go., 132 Ga. 834 (1), 65 S. E. 85), although there was no other plea than a general denial of the plaintiff’s averments. Binder v. Ga. Ry. d Flee. Go., 13 Ga. App. 381 (5) (79 8. E. 216); Atlanta, Knoxville dc. Ry. Go. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818). The failure of the court to give such principle in charge in this ease was reversible error even though the instruction was not requested (Central Railroad v. Harris, 76 Ga. 501 (16)), the same being applicable to a defense directly involved under the pleadings and the evidence. King v. Luck Go., 21 Ga. App. 698 (94 S. E. 890); Freeman v. Nashville dc. Ry., 120 Ga. 469 (1) (47 S. E. 931).
    7. Under the ruling in the preceding paragraph the assignments contained in special grounds 9 and 11 of the defendant’s motion for a new trial should have been sustained and a new trial ordered. No other reversible error appears.
    Decided November 13, 1924.

      Action for damages; from city court of Decatur—Judge Daley. May 5, 1924.

      Colquitt & Conyers, Hugh Burgess, Jerome Jones Jr., for plaintiff in error.

      Branch & Howard, contra.
   BelTj, J.

The character of this action is shown in the headnotes. A verdict was found for the plaintiff, and the defendant has excepted to the overruling of its motion for a new trial. As to one phase of the case the evidence was substantially as follows: The plaintiff, who was a boy nine 3rears of age, boarded one of the defendant’s street-cars, in company with his mother and an aunt. His aunt paid the fares for them all, and procured transfers to another line in the defendant’s system of railways, over .which they were being transported at the time of the occurrence complained of. The plaintiff took a position on the platform at the front end of the car to which they had transferred, while the mother and the aunt seated themselves in another part of the car, but not far away. After they had ridden some distance the conductor approached the plaintiff and demanded his fare. The boy replied that his fare had been paid, when in fact it had not, although he appears to have been entirely honest in responding as he did. It seems that he thought the car was a “pay as you enter” car, like others upon which he had ridden, and believed that his mother or aunt had surrendered the transfers accordingly. In this he was mistaken, and yet he made no other response except that his fare had been paid. He said nothing to indicate that he was traveling in the custody of adult relatives, or that he was laboring under any misapprehension. When the conductor was about to eject him, the aunt said to the conductor, “Here are the transfers; don’t handle that boy so rough.” The plaintiff claims to have heard her, and it might have been inferred that he thus believed that the conductor heard her also, and that for this reason he did not offer an explanation or retraction of his own statement. The conductor proceeded to put the plaintiff off, and some of the evidence would have authorized the inference that even if the ejection was warranted, it was nevertheless accompanied with violence and undue force.

The circumstances in evidence would authorize the conclusion that the conductor either heard or should have heard the aunt’s tender of fares, and thus that the plaintiff did not lose the rights to which he was entitled as a passenger, which relation he had thitherto undoubtedly occupied. On the other hand the jury could have found that the conductor did not hear the tender, and was not derelict in failing to hear. The evidence was not such as to demand the conclusion that the conductor was put upon notice that the child was not traveling upon his own responsibility or was not the proper person to pay his fare. See, in this connection, Beckwith v. Cheshire R. Co., 143 Mass. 68 (8 N. E. 875); Pittsburg &c. Ry. Co. v. Dewin, 86 Ill. 296; Lake Shore &c. Ry. Co. v. Orndorff, 55 Ohio St. 589 (45 N. E. 447, 60 Am. St. Rep. 716, 38 L. R. A. 140, and note). In the absence of such notice, the conductor would have had the right to eject the plaintiff when he failed on demand to pay fare, and made no reply except an untrue one that his fare had been paid. While it is true that neither the plaintiff nor any one in whose custody he was traveling appears to have intended that he should ride without the payment of fare, and that the boy was acting under a clear misapprehension, the mistake of the plaintiff himself was not chargeable to the carrier, unless the conductor knew of it or ought to have known of it under the circumstances. See Harp v. Southern Ry. Co., 119 Ga. 927 (47 S. E. 206, 100 Am. St. Rep. 212); Foskey v. Wrightsville & Tennille R. Co., 19 Ga. App. 670 (92 S. E. 34); Civil Code (1910), § 2750. As already stated, it does not conclusively appear that the conductor knew or should have known that the plaintiff was traveling in the custody of another or others, who should have been looked to for the payment of his fare.

Thus we think the evidence would have authorized a finding that the plaintiff by his own error lost the rights of a passenger; and there being some evidence to the effect that no violence or undue force was used in his ejection, the court committed error in failing to charge the principle embodied in the ruling of the Supreme Court in Allison v. Georgia R. &c. Co., supra: “The ejection-of a passenger from a train, upon his refusal to pay fare which is rightfully demanded of him, affords no cause of complaint against the company from whose train he is ejected by the employees of the company, provided that in ejecting him no violence nor undue force is used.” The defense therein alluded to was nowhere submitted, although it was directly involved under the pleadings and the evidence.

The above is not an exhaustive statement of the evidence, but is enough to illustrate the ruling contained in the sixth headnote, which alone seems to require amplification. The court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Per Curiam.

text:
    15386.
    WILLIAMS v. McINTOSH.
    The answer setting up that the alleged libelous publication as to the conduct of the plaintiff as a public official was a privileged communication is not subject to a general demurrer or to certain special grounds of the demurrer interposed. The court erred, however, in not sustaining the special demurrer as to subsections d and e of paragraph 13 of the answer; and this error rendered the subsequent proceedings nugatory.
    Decided November 14, 1924.
    Rehearing denied December 9, 1924.
    Action for libel; from city court of Thomasville—Judge Hammond. January 17, 1924.
    Application for certiorari was made to the Supreme Court. Titus & Delete, for plaintiff.
    P. 0. Andrews, W. W. Alexander, B. K. Wilcox, II. J. MacIntyre, J. B. Burch, for defendant.
   Per Curiam.

Williams brought suit against McIntosh, alleging damages on account of the composition, publication, and circulation of the following alleged libelous matter: “To the Public: The county records show that Mr. Tillman has been paid by the county $9489.54, that Mr. Dyson has been paid by the county $16,432.95, making a total of $25,922.57. At a commissioners meeting some time ago, before any mules had been hired from any one. Commissioner Chastain called to the attention of the board that he had an offer from 'Faucett and Dopson for forty mules or less, for the usé of the county for their feed only. No notice was given at that time to this offer of mules without hire. At a meeting of the board of commissioners, October 10, 1922,' Commissioner Chastain reminded the board of the offer of the mules without hire, ■and the board admitted that this offer had been made. Chairman Williams, when pressed by Commissioner Chastain, admitted that this oiler of mules without hire had been made to him individually as a commissioner and as chairman also. All the above information was given to me by Commissioner Chastain with the authority to say it. When I made the statement that Chairman Williams did not accept mules without hire, but hired instead his own mules, I had no idea that he had dumped his entire mill, outfit on the county pay-roll. It is quite probable that with the large amount received by these financial proteges of Chairman Williams from the county funds, that all the money advanced by Chairman Williams to them, for purchase of houses or other things, may have been paid. Mules hired at first at $5.50 per day with driver per pair and now at $4.50 per day a pair, with the sale of lumber to the county without competitive bids, and high prices for their personal services, will pay debts pretty fast and make one rich pretty easy. The best tjqoe of public officials respect their fiduciary responsibility, and regard'public office as a public trust. But this principle does not seem to be the guide of Chairman Williams, who acts as if a public office was a private possession. No matter what ethics may actuate the chairman in his expenditure of public money, or whether he has any ethics in the matter at all, the facts stand out clearly that he has expended a large amount of the county funds for mule hire when the mules were offered him without hire. The public will understand that all these matters are relative to public affairs and the methods of a public official, and, therefore, proper matter for public information and public statement. November 3, 1922. Respectfully, T. M. McIntosh.”

The defendant pleaded that such matter was composed, published, and circulated in good faith, upon reasonable grounds and without malice, and to protect his own interest in a matter where it was concerned; and that such matter constituted comment upon the acts of a public official; and he claimed a qualified privilege under subsections 3 and 6 of section 4436 of the Civil Code of 1910. Parts of his plea were as follows: “(d) That on or about the 13th day of March, 1922, the said plaintiff, as chairman of the board of county commissioners of Thomas county, drew out, or caused to be drawn out, of the Trust Company of Georgia, the sum of $41,000, or thereabout, belonging to the County of Thomas, and where the same was deposited and earning four and one half ner cent, interest per annum, and placed or caused to be placed in the Citizens Bank and Trust Company of. Thomasville, Georgia, a banking institution in which plaintiff was at said time a stockholder, and of which he was a director, at four per cent, interest per annum.” “(e) That the said plaintiff, on or about the 13th day of March, 1922, drew from or caused to be drawn from the Bank of Thomasville, the legal depository for the County of Thomas, the sum of $11,000, belonging to the County of Thomas, and in which bank it was deposited to its credit, and where it was earning an interest of 3 % per cent, per annum, and deposited or caused the same to be deposited in the Citizens Banking and Trust Company of Thomasville, Georgia, a banking institution of said City of Thomasville in which the said plaintiff was at said time a stockholder and of which lie was a director, at 4 per cent, interest per annum.”

The plaintiff demurred both generally and specially to the answer, the special grounds of the demurrer to subsections d and e of paragraph 13 above quoted being as follows:

“4. Because the facts alleged in subparagraphs d and e of paragraph 13 of the answer are not pertinent or in any manner whatsoever related to or connected with the acts charged by the defendant against the plaintiff in the alleged libelous writing, and because the said facts therein contained are entirely irrelevant to, and do not constitute any basis for, the alleged pleaded privilege in the publication of the alleged libel.

“5. Because the said facts alleged in said subparagraphs d and e of paragraph 13 are not the same as charged by the. defendant to have been committed by the plaintiff in the alleged libelous writing, and are in law insufficient to authorize or sustain the averment that the defendant acted by reason thereof in the publication of said libelous writing, in good faith and without malice; nor did the said facts so alleged therein either justify or authorize the composition or publication-of-said libelous writing upon the ground that the said libelous writing was a fair and legitimate criticism of the acts referred to in said subparagraphs, but, on the contrary, the said averments show that the said defendant was using the said alleged facts for the purpose of wilfully, falsely, and maliciously defaming the good name of the plaintiff, and exposing him to public hatred, ridicule and contempt.

“6. Because the facts alleged in said paragraph 13 and the subdivisions thereof, averred by the defendant to have been discovered by him prior to the publication of said alleged libel, were insufficient, even if true, to excuse or mitigate, or to render privileged, either absolute or qualifiedly, the composition and publication of the distinct and separate acts alleged to have been committed by the plaintiff in the alleged libelous writing.

“7. Because the said facts contained in said paragraph and the subdivisions thereof are insufficient in law to render the alleged libelous writing a privileged communication, either absolute or qualified.”

The court overruled the demurrers to the answer, and the plaintiff excepted pendente lite and now assigns error thereon.

(a) The general demurrer and all the special grounds of the demurrer to the answer, except those set out above as to subparagraphs d and e of paragraph 13, were properly overruled. See Civil Code (1910), § 4436; Etchison v. Pergerson, 88 Ga. 624 (15 S. E. 680); Pearce v. Brower, 72 Ga. 243 (b); Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589 (51 S. E. 646); Atlanta News Co. v. Medlock, 123 Ga. 719, 720 (51 S. E. 756, 3 L. R. A. (N S.) 1139).

(b) The matters referred to in subparagraphs d and e of paragraph 13 of the answer were not contained in the alleged libelous publication which was the basis of the suit, and the special grounds of the demurrer as to these two subparagraphs were good for the reasons stated in these special grounds; and the court erred in overruling them.

(c) The court having erred as stated above, everything thereafter was nugatory, and the judgment must be

,Reversed.

Broyles, C. Jand Luke and Bloodwortli, JJ., concur.