text:
    979.
    JOHNSON v. WESTERN & ATLANTIC RAILROAD COMPANY et al.

    1. In the absence of a contract assuming liability therefor, tenants ordinarily are not liable for repairs. And as pleadings are to be construed most strongly against the pleader, there was no error in sustaining the general demurrer and dismissing the plaintiff’s petition as to all of the defendants, except the Western & Atlantic Railroad Company.
    2. One who employs an independent contractor to do work upon his premises, and who places his property in the chai'ge of the independent contractor, for the purposes of the work, is not, generally, liable for injuries resulting to the contractor’s servants engaged in the work, or to others. Especially is this true where the employment of the independent contractor is for the purpose of making repairs, and where, for this reason, the work is necessarily and obviously dangerous.
    3. Even where an independent contractor is employed to make repairs, the employer may become liable for injuries sustained by a servant of the independent contractor, either on account of his own wrongful act or by interfering and assuming control, so that an injury results which is traceable to his interference.
    4. The petition of the plaintiff in the court below, while subject to special demurrer, sufficiently set forth a cause of action against the Western & Atlantic Railroad Company to withstand a general demurrer, and it was error to dismiss the petition as to this defendant.
    Action for damages, from city court of Atlanta — Judge Reid. .January 6, 1908.
    Argued March 11,
    Decided March 30, 1908.

      Ellen C. Johnson sued the Western & Atlantic Railroad Company and other railroad companies jointly for damages on account of the death of her son. The petition in substance alleged: The Western & Atlantic Railroad Company is the lessee of the property of the State generally called the “State Road.” The depot or station hereinafter referred to is a part of the said “State Road.” As lessee as aforesaid, said depot passed to the Western & Atlantic Railroad Company under the terms of the lease act. All of the defendants were jointly in possession of said depot and were occupying and using it. It has been in such possession and so occupied and used for one or more years. Defendants had contracted for the repair of said depot building, and petitioner’s son was upon the building, assisting in the repairs. He had been placed upon the building by the party or parties who had contracted for the repairs. By reason of the facts stated; he was rightfully upon the building. He was engaged in removing and repairing parts of the corrugated-iron roof of the building, and his work did not call him under the roof, and he had been at no place where the condition of the iron could be seen. Defendants instructed him and others engaged, in the work to be careful to save as much of the iron as possible. Defendants specially informed them that that part of the'iron towards Central Avenue was sound and all right. It was on that part of the building that he met his death. He was walking on the top of the said building, along Central Avenue, in the discharge of his duties, when a sheet of iron gave way and precipitated him from the roof of the building, causing his death. He fell upon a pile of sand or the floor of the building and was killed. Under the terms of the lease act, it was the duty of the Western & Atlantic Railroad Company to keep the said road in the condition of first-class' roads in Georgia. By joining in the possession and occupancy of said depot, all the other defendants assumed liability for failure to.keep the said road in the condition of first-class roads in Georgia. This the defendants failed to do. Such failure-was negligence on the part of the defendants. In violation of their duty to the State and in violation of the general rules of ordinary care, defendants had permitted the entire depot, including ■.the roof, to be- in- a dilapidated and unsafe condition. This was negligence on the part of defendants. The sheet on which he was gave way because the rivets fastening it to the adjoining sheet, and the adjoining sheet itself, were rotten. They were rotten underneath and did not show their defects from the top. He was killed by the negligence of the defendants. Defendants negligéntly permitted him to work, with their approval, at an unsafe place. Defendants negligently pointed out to him an unsafe place to work. Defendants knew, or by the exercise of ordinary care 'could have known, of the defective condition of the said iron sheet and rivets. The said sheet and rivets had been in a defective condition for many months. Defendants were in possession and control of said depot and depot premises and operating the same by lease or otherwise. The repairs on the same were being done at their expense and for their benefit. Petitioner’s son was 27 years old and unmarried, was earning $4 a day, and could have continued to earn that sum permanently; he contributed to her support and she was substantially dependent on him, and she sues for the full financial value of his life. Damages are laid at $20,000. In a second count it is alleged, that the petitioner’s son was, at said time and place, at work on said building with the knowledge and approval and by the invitation of defendants, but was not an employee of defendants.
    Each of the defendants demurred generally and specially. The court did not pass on the special grounds of demurrer, but sustained the general demurrers and dismissed the petition, holding, that, according to its allegations, the defendants owed no duty to the plaintiff’s son; that he was the employee of an independent contractor, at whose instance he went on the premises, and' must look to his employer alone for a safe place to work. The plaintiff excepted to this judgment, and to the failure to overrule the special demurrers.

      Burton Smith, for plaintiff.

      Tye, Peeples, Bryan & Jordan, Brown & Randolph, Joseph B. & Bryan Gumming, McDaniel, Alston & Blade, for defendants.
   Russell, J.

The court did not err in dismissing the petition as to defendants alleged to be tenants of the building under repair. Pleadings must always be construed most strongly against the pleader. Applying this rule, we think that the court properly sustained the general demurrers as to the Atlantic Coast Dine Bail-road Company, the Louisville & Nashville Bailroad Company, and' the Seaboard Air-Line Bailway. It could not only be inferred from the petition that these defendants were tenants in the building which was being repaired, but it is in fact expressly stated that the depot was in the possession and control of the Western & Atlantic Bailroad- Company, which, it is alleged, was bound by the terms of its lease to keep it in repair. As tenants ordinarily are not responsible for repairs, and as, under the rule of - construction to which we have above referred, it must be assumed that the plaintiff’s son was employed by an independent contractor, who was to repair the roof of the old depot for the Western & Atlantic Bailroad Company, there could be no liability, in any view of the casé, on the part of any of the defendants, except the Western & Atlantic Bailroad Company.

Assuming that the deceased was the servant of an independ-. ent contractor, — as we must, upon review of the allegations of the petition, — there would be no liability as to this defendant, except for the allegations contained in the 16th and 54th paragraphs of the petition. One who employs an independent contractor to perform a work, is not, generally, liable for injuries resulting to the servants engaged in the work. But these paragraphs (when construed with the petition as a whole, and especially when viewed in connection with the paragraph immediately preceding and the two paragraphs immediately following each of them), in our judgment, cause the petition to set forth a cause- of action sufficient to withstand a general demurrer. The paragraphs to which we refer are as follows: (15) “Defendants instructed petitioner’s son and others engaged in said work to be careful to save as much of the iron as possible. (16) Defendants specially informed them that that part of the iron towards Central Avenue was sound and all right. (17) It was on the part- of the building described in the preceding paragraph that petitioner’s son met his death.” And the 53d, 54th, and 56th paragraphs, which are embraced in a second count, embody practically the same language. The defendant could not admit these allegations and escape liability. If the defendant had turned the building over to an independent contractor to be repaired, why did it interfere with the contractor’s servants? If the defendant, being one who was responsible for the repairs of the depot, and having let a contract for the roofing to an independent contractor, directed one of the contractor’s servants to do certain work for the benefit' of the owner (or, in this case, the lessee for a term of years), and, without being chargeable in any way for the safety of such an employee, instructed him that a certain portion of the roof was safe, and thereby caused him to omit the use of that caution which the employee otherwise might have exercised in the dangerous business in which he was engaged, and directly or indirectly caused such employee’s injury or death, he thereby put himself ad hane vieem in the shoes of the independent contractor, who was the master.

The case, under the allegations 'of the petition, would fall under the second subdivision of the fifth paragraph of §3819 of' the Civil Code. For an owner to interfere and assume control, so that an injury results which is traceable to his interference, renders him liable, in this State, although, but for his interference, he might have been free from liability, under the provisions of §3818 of the Civil Code, — by reason of the fact that the servants of the •independent contractor were not subject to his immediate control and direction. See Atlanta R. Co. v. Kimberly, 87 Ga. 168 (13 S. E. 277, 27 Am. St. R. 231); 1 Lawson’s Rights, Rem. & Prac. §299; Savannah R. Co. v. Phillips, 90 Ga. 834 (3), (17 S. E. 82). The petition alleges that “Defendants instructed petitioner’s son,. and others engaged in said work, to be careful to save as much iron as possible.” And there are other allegations in the petition which (considered in connection with this) naturally and properly raise the inference that, but for the interference of the defendants, the casualty which resulted in the death of the plaintiff’s son would not have occurred. If the plaintiff proves her allegations (amplified to meet the special demurrers) the Western & Atlantic Bail-road Company voluntarily assumed the duty, which was upon the independent contractor, of furnishing the deceased servant a safe place to work, and really undertook to safeguard the servant to a greater degree than the law requires his master to do under the circumstances.

We think, therefore, the court erred in sustaining the general demurrer and dismissing the petition, in so far as it related to the Western & Atlantic Bailroad Company. The court expressly declined to pass upon the special demurrers. The paragraphs to which we have referred are open to special demurrer. As a corporation can act only through its agent, the defendant would have the right to know which of its agents gave the direction and information contained in the 15th and 16th paragraphs and in the 53d and 54th paragraphs. And it would have to appear' that the agent or servant of the corporation was one with sufficient .authority to bind the corporation in its behalf, and that the interference was within the scope of the authority of such agent. But in the absence of-such special demurrer, or where, as in this case, such special demurrer has not been sustained, the statement of these specific points must, for the purposes of our consideration, be deemed to be waived; and the statement made by the plaintiff is sufficient for the purpose of a trial.

Judgment affirmed in part, and reversed in part.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    981.
    DeVANE v. ATLANTA, BIRMINGHAM AND ATLANTIC RAILROAD COMPANY.
    1. The relation of carrier, and passenger arises only from a contract, express or implied. One who gets on the train of one railway company, mistaking it for that of another road, and, discovering his mistake ' after the ears are in motion, attempts to alight, but, finding while he is on the bottom step that the train is running too fast, changes his mind and decides to pay his fare to the next station, is not, while thus on the ear steps, a passenger.
    2. A railway company is liable to a trespasser on its train only for intentional (that is to say, wilful or wanton) injuries inflicted upon-him. Before a failure to exercise ordinary care toward him can become actionable, the circumstances must be such as to characterize that failure with wilfulness or wantonness.
    3. While proof may be received that a person alléged to be a member of a,train crew wore a cap and a uniform of the kind such employees generally wear, as a circumstance to show that he belonged to that class, still the law raises no conclusive presumption that such is the case.
    4. There was no error in refusing a new trial on the ground of newly discovered testimony.

      '£. In an attempt to impeach the fairness or impartiality of a juror, the finding of the judge as trior, on disputed facts, is final.
    Action for damages, from city court of Cordele — Judge Strozier. December 16, 1907.
    Argued March 11,
    Decided March 30, 1908.
    According to the plaintiff’s contentions, he got on the passenger-train of the defendant, at the union station in Cordele,'mistaking it for the train of another company, upon which he desired to become a passenger. Soon after the cars began to move, he discovered that he was on the wrong train, and sought to alight. Getting down on the car-step, he decided that the train was moving too rapidly, and started to go back inside, with the intention of paying his fare to the next station; and as he was thus standing on the lowest step and was about to remount the .coach by ■pulling upon the platform rail, a negro porter wantonly and in gross negligence jerked his hands loose, causing him to fall under the train, whereby both his feet were run over and so mangled as to require amputation. The contention of the defendant was, that the plaintiff, being drunk, merely swung upon the car rail, intending to ride from one street-crossing to another, and, losing his hold, fell under the car; that if any one caught his hand, it was not an employee of the company; that the only colored employee on the train was the porter, and he was in the baggage car at the time, sorting and arranging trunks, under the direction of the baggage-master. This negro porter died prior to the trial, and the plaintiff was not allowed to testify as to the alleged transaction with him. A disinterested witness testified, that a negro, in cap and uniform, caught the plaintiffs hand just before he fell, and while he was swinging with one foot on the step and one off, but he could not say whether this negro was trying to push him off or to help him on. The jury found for the defendant, and the plaintiff moved for a new trial, on many grounds; and his motion having, been overruled, he brings error.

      J. T. Ilill, for plaintiff.

      Rosser & Brandon, Crum & Jones, for defendant.
   Powell, J.

(After stating the foregoing facts.)

The plaintiffs highest claim is that he was a passenger because, although he was originally an innocent trespasser on the cars, he changed his mind when he was in the act- of dismounting, and decided to remain upon the train and pay his way to the next station, and the relation of carrier and passenger thus arose, and the railway company immediately became chargeable with the duty of exercising toward him extraordinary care and diligence. No consent of the carrier to receive the passenger in such a manner can be implied, nor does the law impose any such duty. The relation of carrier and passenger exists only from a contract, express or implied. This position of the plaintiff is therefore wholly untenable. Compare Central Railroad v. Perry, 58 Ga. 461, 469 (5); Georgia Ry. & Elec. Co. v. Cole, 1 Ga. App. 33 (57 S. E. 1026) ; Southern Ry. Co. v. Rosenheim, 1 Ga. App. 766, 769 (58 S. E. 81).

Complaint is made ’of several charges of the court, in each of which the jury was, in substance, instructed, that if the plaintiff was not a passenger, but was a trespasser upon'the train, the defendant would not be liable, unless the casualty was produced by some wilful or wanton act of one of the defendant’s employees; that the only duty owing to him by the railway company, under these circumstances, was not to wilfully or wantonly injure him. It is said that the jury should have been instructed that while primarily the only duty to a trespasser is not wilfully or wantonly to injure him, nevertheless, after his presence is known, a failure on the part of the defendant and its employees to exercise ordinary care and diligence to prevent his being injured is actionable. This case is a very fair illustration of what we said in Charleston Railway Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064), that in cases of injuries to trespassers, the elemental concept is of a liability only for wanton or wilful injury; that, since a failure to exercise ordinary care to prevent injuring a person seen and known to be in a position of peril is so seldom distinguishable from wantonness, in many cases the failure to exercise that degree of care toward the imperiled trespasser is held to create a liability; but that “unless the circumstances are such that the failure to exercise ordinary care and diligence is at least tinged with wantonness or wilfulness, there can be no recovery by the trespasser.” Let us suppose that in the case at bar the negro porter found the defendant hanging perilously from the car rail, trying to mount the step, and that with the common instincts of humanity he rushed to his assistance, but that despite his good intentions he did not use all the skill and judgment which an ordinarily prudent man would have used in extricating the trespasser from his imminent peril, and that the injury thus resulted; will any fair-minded man say that this failure of the porter to exercise ordinary care, under such circumstances, is in any sense the juridic or legal equivalent of that wilfulness or wantonness which is primarily the basis of liability in cases of injuries to trespassers? Can it be said, under the common law — that system of principles perfected by human reasoning and so ancient of recognition that the memory of man runneth not to the contrary (for the doctrine we are now discussing remounts to that source and is not a creature of statute), — that an employer-can be held liable to one who, by his own wrong, has put himself in a position of peril, because an employee, who happens to see the situation and generously tenders his assistance, fails, either from unintentional carelessness or through-personal incapacity (and we must remember that as to adults the law measures ordinary care and diligence by a standard prudent person, and not by the particular capacity of the individual whose conduct is in question), to do each and every" thing which an ordinarily prudent man would have done under the circumstances ? The untenability of the proposition is emphasized if we accept, as the law in such cases, the doctrine given recognition in the case of Allen v. Hixson, 111 Ga. 460 (2), (36 S. E. 810), that the duty of releasing a hapless victim from a painful or dangerous situation, brought about by accident or his own fault, is one of humanity only, and creates no legal liability in its breach; for the proposition thus developed means that the porter in this case might have passed by and left the plaintiff to drag from the car rail without creating a liability on his employer, but, since he offered help, his master is tto be held responsible unless the assistance was of the quality and quantity that the law’s paragon of ordinary prudence would have given. Shall the Levite and the priest, who passed by, go scot free, while the Good Samaritan, who poured oil and wine into the wounds when an ordinarily prudent peison might have used some other remedy, be mulcted in damages?

The pains we have taken to make a reductio ad absurdum of the proposition under discussion have not been provoked so much by the present case as by the confusion that has ariseh, with no little possibility of perpetuation, from the fact that in this and in some of the other States there are a number of reported cases in which liability to a trespasser has been sustained on the declared reason that the defendant, aware of the plaintiff’s being in a position of imminent peril, breached a duty owing him, by not exercising ordinary care and diligence to avoid doing him injury; and these precedents give color to the assertion of a general rule in which ordinary care and diligence, in the usual meaning of that expression, is of controlling importance. Specifically applied to their facts, these cases, or most of them, are sound; for they involve no violation of the true rule that- the fundamental duty of the property owner to the trespasser is not to injure him wilfully or wantonly. If the owner of the property or the proprietor of the dangerous agency by .which the trespasser is imperiled, seeing the danger and realizing the situation and being able, by the exercise- of ordinary care, to avert the casualty, in .disregard of the impulses of humanity perpetuates or increases the danger, as where a locomotive engineer, seeing a trespasser helpless on the track ahead of him, lets the train run on over him when he could stop it, the failure to exercise ordinary care to prevent the injury is the immediate cause of it; and that particular dereliction may justly be the basis of the court’s judgment sustaining a liability in damages; but not for the-reason that the defendant owed the injured trespasser the general duty of maintaining ordinary care and diligence for his safety, but because the failure to exercise ordinary care was, under the circumstances, wilful, or at least wanton. But these precedents can hot be extended, to the full scope of all they seem to say, to other cases, where the facts are different and the failure in care is not wilful or wanton, without doing much injustice. While maturer reasoning has brought the minds of most of us to the rejection of the notion of a deodand being necessary for the expiation of blood haplessly shed, few of us can view or contemplate a human body maimed or fatally injured by some great machine without feeling that somehow or in some way the owner of the instrumentality by which the harm was done should do something to redress the injury, irrespective of where the actual fault may lie; nevertheless, no matter how deeply this feeling may be instilled, we are sure that any intelligent man who will stop for a moment’s thought will concede that ordinarily a trespasser, one whose own fault or wrong has put him where he ought not to be, one whose own volition or carelessness has put him in range of a danger to which he need not have exposed himself, ought not to have the right to demand of the owner of the premises or property, upon which he has come without license or invitation, compensation for any injuries he may receive from instrumentalities operated by the owner or ■ proprietor in the legitimate course of his own business; and that the ancient rule which gives the trespasser cause of action only when the owner has hurt him intentionally — that is to say, through wilfulness, which is actual intent, or through wantonness, which is'a constructive intent implied by the law from recklessness — is inherently just. Even under the old-time superstition alluded to above, the victim of self-imposed perils received no compensation, for the deodand went to the use of God or the king.

The plaintiff claimed that the negro porter in the employment of the defendant pushed him off; the defendant contended that if any negro pushed him off it was not the porter. Exception is taken to the following excerpt from the charge on that subject: “I charge, you that if you believe, from the evidence, that some negro pushed the plaintiff from the train, and that such negro did wear a uniform and cap, there could be no recovery unless such negro was not only in the employ of the defendant, but was in fact engaged in some capacity on the train at the time the accident occurred;” the principal ground of objection being that if the negro was on the train, wearing a cap and uniform, there would be a presumption that he was an employee of the company, engaged in some duty on that train. While the identity of a conductor or other trainman may be shown circumstantially, and the wearing of the usual dress of employees may be considered as one of the circumstances (see Coursey v. So. Ry. Co., 113 Ga. 297, 300 (38 S. E. 866), s. c. 115 Ga. 602, 604 (41 S. E. 1013)), yet the actual fact of whether the particular person is or is not an employee is after all an open one, for the determination of the jury. There is no such rule of law as that a person on a train in cap and uniform, even though it be the regulation cap and uniform worn by employees of the railway company, is conclusively presumed to be such an employee.

A new trial is asked also on the ground of newly discovered testimony. We were struck by the language in which Mr. Eosser, of counsel for the defendant in error, characterized such grounds for new trial. To quote him: “I was about to say that they are usually the last wail of a party in articulo mortis; but not so; it is merely a voice crying from the tomb, praying for resurrection/* We ourselves have been led by our observation to believe that such grounds are too frequently the result of post mortem diligence. In the present instance the new testimony is only cumulative, and not of such a nature as to satisfy the trial judge that a new hearing would likely further the ends of justice. The trial judge has a broad discretion in such matters, and his decision thereon will not be lightly disturbed.

There was also an attempt to impeach the fairness and impartiality of one of the jurors. The testimony was conflicting, and the judge, acting as trior, found against the attack. This is final. Moore v. State, 1 Ga. App. 728 (57 S. E. 956).

After a full review of the whole record, we are of the opinion that a fair and impartial trial, free from substantial error, has been had, and the judgment is therefore Affirmed.


text:
    985.
    Laurens Banking Company v. Bales.
    Trover, from city court of Dublin — Judge Burch. December 20, 1907.
    Argued March 11,
    Decided March 30, 1908.

      Davis & Adams, for plaintiff. Peyton L. Wade, for defendant.
   Powell, J.

“An unconditional assignment of a note given for the purchase of personalty, wherein the seller retains title to the property sold until the pm-chase-money is paid, does not extinguish the security, but carries it along, and the title retained by the seller becomes vested in the assignee until the purchase debt is paid.” Townsend v. Southern Product Co., 127 Ga. 342 (56 S. E. 436). Judgment reversed.


author: Russell, J.

text:
    987.
    CLAY v. THE STATE.
    1. Where, for the purpose of alteration or correction, a trial judge returns a bill of exceptions, or exceptions pendente lite, to the party tendering the same and the exceptions are not again presented to the judge within a reasonable time, they will be presumed to be waived. A period of time embracing more than forty days must be held to be unreasonable delay, except where it appears that within that time it was impossible to present such corrected bill of exceptions to the trial judge for his approval.
    2. A dem.and for trial is exhausted and functus officio where the defendant is tried at the second term and convicted. Even if the ease thereafter be reinstated upon the docket, if it be by the grant of the defendant’s motion for new trial (as it is by his motion that there is another trial, and as upon his motion the case proceeds de novo) another demand is necessary before he can claim the benefits arising from the right to demand a trial.
    3. Neither a demand for trial nor a plea of former jeopardy, as to an indictment for disturbing divine service, is a bar to a prosecution for disturbing a Sunday school. The offenses are not the same. Though they are similar in nature, they are not identical as to the facts which it is necessary to show in order to establish the guilt of the accused.

      4. (a) The evidence authorized the conviction of the defendant.
    f6) The charge of the court upon the subject of the burden of proof is neither inapt nor erroneous, nor is it argumentative, nor does it tend to intimate any opinion on the part of the court that the State has carried the burden of proof.

      (o) While explanatory definitions of “reasonable doubt” are not to be commended, an instruction upon this subject, that “the evidence should be such as would control and decide the conduct of reasonable men in the most important affairs of life, and not a mere conjecture, a trivial supposition, a bare possibility of the innocence of the accused,” is not erroneous or calculated to impress the jury that a defendant should satisfy them beyond a reasonable doubt of his innocence. Nor does it discredit the evidence in behalf of the defendant, or his statement, or intimate judicial disapproval of an acquittal.
    (d) As the controlling question in this case, upon the facts, was as to the identification of the defendant, there was no error in not charging upon the subject of positive and negative testimony. Except in a very clear case for its application, §985 of the Penal Code should not be given in charge.
    5. The evidence offered for the purpose of showing that one of the witnesses for the State was riding with a woman on the public road was properly excluded, it not being made to appear how this testimony could be relevant.
    <3. Though the testimony against the defendant was wholly circumstantial, it was sufficient to authorize the conviction; and, so far as the rulings and instructions of the court are concerned, the defendant had a fair trial. .
    Indictment for disturbing Sunday school, from city court of Monticello — Judge Thurman. January 22, 1908.
    Submitted March 10,
    Decided March 30, 1908.

      A. Y. Clement, for'plaintiff in error.

      Doyle Campbell, solicitor, contra.
   Russell, J.

The plaintiff in error was indicted for disturbing divine service, and the indictment was transferred to the city court of Monticello, where he entered a demand for trial upon the minutes. He was not tried at the term at which the demand was made. At the next term he was put upon trial twice. The first trial re^ suited in a mistrial, the second in a conviction. He thereupon asked that the results of that trial — the verdict and judgment— be set aside, and that he be granted another trial. The motion for new trial was granted in vacation, and, at the March term, 1907, the indictment, over the objection of the defendant, was nol prosed. At the September term, 1907, of Jasper superior court, the present indictment was found, charging him with the offense of disturbing a Sunday school. No demand for trial was filed as to the present indictment, but the defendant was tried at the November term,, 1907, of the city court of Monticello (which was the first term of that court after the transfer of the indictment), and was convicted. His motion for new trial was overruled, and he excepts to the judgment refusing a new trial. It also appears from the record, that a plea of former jeopardy was stricken by the court and that a written motion for a discharge was overruled, and that exceptions pendente lite, which appear of record, were tendered as to both of these rulings.

We will first pass upon the exceptions' pendente, lite and then upon the several grounds of the motion for new trial. It.appears from the bill of exceptions that the exceptions pendente lite,, both as to the striking of the former plea of jeopardy and the motion for discharge, were presented to the trial judge on November-30, 1907, which was in due time. The judge required certain changes made, and it is certified in the bill of exceptions that counsel for the plaintiff in error, after making the changes suggested,, again tendered the exceptions pendente lite, on December 2d, or 3d, 1907, “but his honor, the judge, being in a hurry to get off on the train, stated that he did not have time just then, but would certify the same later.” The exceptions were not again presented to the judge until January 22, 1908. These exceptions must be considered as having been abandoned, and it was not error in the judge to decline to certify them nunc pro tunc, or to certify to the fact that they were tendered in the time allowed by law, in the absence of any reason being shown why a subsequent presentation was not sooner made. The code provides that where a judge requires corrections to be made in the bill of exceptions, he shall return them to counsel for that purpose within ten days. The judge returned these exceptions immediately, so far as appears from the record,, and they were again brought to his attention either the 2d or 3d of December. So far as appears from the record, though the judge was going off on the train, no showing was made that he remained away an unreasonable time or could not be found until January 22d. In such a case it was not unreasonable for the judge to refuse to certify the exceptions, and to decline to state that the delay was due to no fault of the plaintiff in error. This would have preserved all the rights of plaintiff in error. It was not the judge’s duty to hunt for the counsel for the plaintiff in error and endeavor to procure the exceptions for the purpose of examination and certification, but it was the duty of the counsel to see that the exceptions, either by registered mail, personally, or otherwise, were received by the judge. By reason of the return of the exceptions for correction, the plaintiff in error was entitled to a reasonable time to make the corrections and again present his exceptions, but the period, of time between December 3 and January 22 can not be held to be such a reasonable time. It must rather be presumed that the exceptions were waived.

We are less reluctant to rule thus upon the point presented, because in this particular case the exceptions were entirely without merit. A demand for trial, taken in a case for disturbing divine worship, could have no reference whatever to a subsequent indictment found for the offense of disturbing a Sunday school, even if the transactions were identical in every other respect. Certainly the indictment must be pending when the demand for trial is made. No one can foresee whether future indictments, even for the same offense, may or may not be returned. • If the defendant desires a demand for trial, he must enter such demand as to each indictment returned against him. It matters not whether they be for the same transaction or even for the same offense, that question must be raised in another way, to wit, by plea in bar. While it was held in Jackson v. State, 76 Ga. 564, and in Brown v. State, 85 Ga. 717 (11 S. E. 831), in each of which the judgment of the court below was affirmed, that a trial on a new indictment for the same offense will satisfy the demand, it must be remembered that the expressions used were statements of reasons why the defendants had no right to complain. The question whether a defendant can take a demand in one case and apply it to another was not before the court, nor decided. In Brown v. State, however, Chief Justice Bleckley says: “But his discharge and acquittal under the demand could only be operative as to the offense charged in the indictment which was nol prosed, the indictment pending when the demand for trial was made.” We see no difference in applying a demand for trial made in a case of retailing without a license to an indictment for selling liquor to a' minor, and in applying a demand for trial made in a case of disturbing divine service to a subsequent indictment for .disturbing a Sunday school. In the first instance the defendant might be guilty of both offenses by having sold a single drink of intoxicating liquor; it would be the same transaction. In the latter case the same act might have disturbed both a congregation of persons legally assembled in a prayer service and a near-by gathering carrying on a Sunday school.

There was no merit in the exceptions attempted to be taken to the striking of the plea of former jeopardy. Disturbing divine worship is not the same offense as disturbing a Sunday school, and the “same-transaction test” can not be applied. It is true, the same act may be alleged in the two charges, and the same act may operate to disturb divine service and to disturb a Sunday school, and the act may be done at the same place, and both offenses belong to the same genus; but acquittal of disturbing a congregation of persons assembled for divine worship is no more a bar to prosecution for the same act which may have disturbed the Sunday school than an-acquittal for carrying a pistol concealed would be a bar to prosecution for having the identical pistol at a public gathering. See Sutton v. Washington, ante, 30 (60 S. E. 811). The most that can be said as to a prosecution for divine worship and one for disturbing a Sunday school, even if the same act is relied upon in both cases, is that the offenses are similar in nature; they are not identical. Their very name implies a difference. We -have said this much upon the motion to discharge upon demand, and upon the plea of former jeopardy, merely to show that the plaintiff in error was not hurt by the failure of the. judge to certify the exceptions pendente lite. The demand exhausted itself and was fully complied with when the State gave the defendant a trial at the second term thereafter. That there was a new trial was on the defendant’s own motion, and the case proceeded de novo. We think that under such circumstances the defendant would have to proceed to have a new demand granted him; but this opinion is obiter, just as the expression that the demand would probably stand over and be operative to secure a trial at the next term, if a new trial had been granted on the previous motion, used by Judge Bleckley in Brown v. State, supra, was likewise obiter. The exact point, as far as we are aware, has never been decided. The nearest approach to it is .the intimation (which was again obiter) in Silvey v. State, 84 Ga. 44 (10 S. E. 591).

We come then to the grounds of the motion for new trial. After careful consideration of the several assignments of error •contained in the motion, we hold:

(a) The evidence for the State, though largely circumstantial and contradicted by evidence for the defendant, authorized the conviction of the defendant.

(&) The charge of which complaint is made in the 4th ground of the motion (that “the defendant enters this trial with the presumption of innocence in his favor, — this presumption being thrown around the defendant by the law, — and it remains with the defendant throughout the trial, and until the State, by competent evidence, overcomes this presumption and establishes the guilt of the prisoner, beyond a reasonable doubt, the burden of proof being upon the State to establish each of the material allegations of the indictment to a moral and reasonable certainty and beyond a rea^ sonable doubt”) is not inapt, nor is it erroneous as intimating an opinion on the part of the court, or because it is argumentative or tends to support the contention that the State had carried the burden of proof. It is not, for any reason, erroneous.

(c) An instruction similar to that of which complaint is made in the 5th ground of the motion was approved by this court in the recent case of Parker v. State, 3 Ga. App. 340 (59 S. E. 823). While we have frequently held that attempted definitions of reasonable doubt are more apt to confuse a jury than otherwise, still it can not be said that to tell the jury that “the evidence should be such as would control and decide the conduct of reasonable men in the most important affairs of life, and not a mere conjecture, a trivial supposition, a bare possibility of the innocence of the accused,” was erroneous, by reason of shifting the burden of proof from the State to the defendant, or because.it was misleading or calculated to impress the jury that he should satisfy them beyond a reasonable doubt of his innocence. Nor did this charge discredit the evidence and statement of the defendant in the minds of the jury and cause them to look upon the same with suspicion, or intimate judicial disapproval of an acquittal, as insisted by his counsel. See citations in Parker v. State, supra.

(d) The court did not err in not charging the jury upon the subject of positive and negative testimony. The question in this •case was specially one of the identification of the person who fired the pistol, and the law of circumstantial evidence was involved, but, so far as we can see from the record, there was no question of positive and negative testimony. Except in a very clear case, §985 of the Penaí Code should not be given in charge. Wood v. State, 1 Ga. App. 684 (58 S. E. 271).

It does not clearly appear from the 7th ground of the motion for new trial whether the testimony to which reference is made was merely offered, or whether the witness testified to certain facts and the evidence was ruled out. If the defendant offered to prove the fact and the ¡court refused to allow the witness to answer a question propounded for that purpose, the assignment of error is imperfect, because it is not alleged that the court was informed, at the, time,, by counsel, as to the answer anticipated from the witness. But if the court had been informed, or if, by the assignment of error, it is intended to make plain that the court improperly ruled out the statement, “I had a woman, Ella Cochran, in the buggy with me; she was not my wife nor sweetheart,” there is still -no merit in the contention. It does not appear of what possible materiality this, could be to the question whether the defendant had or had not fired a pistol in the public road; and we hardly think it would do to hold, as insisted by counsel for plaintiff in error, that the mere fact that the witness was riding on a public road with a married woman, who was neither his wife nor his sweetheart, would of itself tend to discredit the witness. Nor could the ruling out of this testimony tend (as contended by counsel) to sustain the character and credibility of the witness,' or intimate a judicial opinion to that effect. A defendant is entitled to a thorough and sifting cross-examination of the witnesses against him, and perhaps upon this ground the court might have admitted the testimony; but we do not see that the failure of the court to do so could have been hurtful to the defendant, unless more reason was made to appear as to evidence expected to be developed from the evidence already obtained as a foundation.

The case against the defendant is weak, and the jury would have been authorized to acquit, but they preferred to convict, and were authorized by the evidence to do so. So far as the rulings ancL instructions of the trial judge are concerned, the defendant had a fair trial and has no just cause for complaint.

Judgment affirmed.


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    999.
    SEABOARD AIR-LINE RAILWAY v. WITT.
    1. Although a hazard of the employment, known to the servant, may have in some degree contributed to the injury received by him in performing the master’s work, yet if the chief and controlling proximate, cause of the injury is an independent act of negligence on the master’s part, which the servant could not have avoided by the exercise of ordinary care, the master may be held responsible in damages.
    2. Whenever a material change in the intrinsic condition or relative arrangement of the instrumentality by which the work is to be done is made by the master, and is of such a nature that it is likely to expose the servant, ignorant of the alteration, to the risk of injury, through a probability of his assuming a continuation of the previous condition and of his acting thereon to his hurt, the master should notify the servant of the change.
    3. A partial dependency by a father (the mother being dead) upon the contributions made by an unmarried child to his support is sufficient to entitle the former to maintain an action for the death of the latter by the wrongful act of a third person.
    Action for damages, from city court of Americus — Judge Crisp. December 20, 1907.
    Submitted March 13,
    Decided March 30, 1908.

      E. A. Hawkins, for plaintiff in error. J. A. Hixon, contra.
   Powell, J.

Witt recovered' a verdict against the railway company for the homicide of his son, who, at the time of the casualty which produced his death, was employed by the company as -a section hand. The deceased, according to the theory of the plaintiff, encountered his injuries thus: He was engaged in propelling a lever car, when a tool fell off. The foreman directed him to apply the brake. To apply the brake it was necessary to step upon an upright rod, flat-capped at the top, which, through a system of connected levers, threw the brake-shoes against the wheel. Prior to the accident the washers or padding on these brake-shoes had become much worn, and much force was required to create such friction between the brakes and the wheel as to stop the -car. Shortly prior to the time of the casualty the foreman had caused the brakes to be repaired, and too much padding was put on the shoes; so that when the deceased, in obedience to the foreman’s direction to apply the brakes, stepped on the cap at the top of the rod, the brakes came on with such sudden force and excessive friction that the wheels were locked, and a severe jolt of the car was occasioned. This threw the deceased against the moving lever by which the car was propelled, and this in turn knocked him off, and the car ran over him. The ¡Dlaintiff also alleged negligence in that the track at the place of the injury was rough and otherwise in bad condition. There was conflict in the evidence at almost every material point, but the theory of the plaintiff was fully supported.

The deceased was not in a position to complain of the condition of the track, for he knew it as well as the defendant; indeed, he himself was engaged in the work of repairing it. If this had been the sole and proximate cause of his death, no recovery against the defendant would have been authorized; but it is plain, even from the defendant’s proof, that the track, though somewhat defective, was not so unsafe that cars could not usually and ordinarily pass over it in safety. The additional and supervening hazard of the negligently repaired bralce-shoes could.fairly be accounted the proximate cause of the injury; and therefore knowledge by the deceased of the condition of the track, although that concurred somewhat in producing the fatal mishap, is not of itself sufficient to defeat a recovery. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 260 (3), (58 S. E. 249), and cases cited.

Wherever a material change in the intrinsic condition or relative arrangement of the instrumentalities by which the work is being done is made by the master, and is of such a nature as that it is likely to expose a servant, ignorant of the change, to a risk of injury, from his likelihood of assuming a continuation of the previous condition and acting on it, the master is under the duty of giving him notice of it, unless the servant, by ordinary care, should himself have discovered the alteration. In this case the questions of the master’s negligence in changing the condition of the brake-shoe without notice to the deceased, and of the latter’s opportunity of discovering the change, were fairly submitted to the jury; and there was evidence to authorize the finding that the master was negligent and the servant excusably ignorant. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 262 (58 S. E. 249); Labatt on Master & Servant, §240.

That a father, the mother being dead, may recover for the death of a child by wrongful act, it must appear that the father was dependent upon the child for support, and that the child made material contributions to that end. Georgia R. Co. v. Spinks, 111 Ga. 571 (36 S. E. 855). The dependency need not, however, be total; partial dependency is sufficient. Central Ry. Co. v. Henson, 121 Ga. 462 (49 S. E. 278). In the case at bar the plaintiff testified that his health was bad, and that on account of ill health he had put his son to work on the railroad. To quote directly, “I have not been able to earn a support independent since then. . . I have been trying to farm the best I could. . . I consume'more than my labor.” The son’s material contribution to the support of his father and the other dependent members of his family was proved unequivocally. The evidence, taken as a whole, makes a good case of dependency within the purview of the law. See Central R. Co. v. Henson, supra, and cases cited.

TJpon a full review of the whole record, we find no reversible error. The charge of the court was a full, fair, and comprehensive presentation of the principles of law involved; indeed, it is one of the concisest and clearest charges we have ever had occasion to review in a case of this character. The evidence, though conflicting, apparently preponderated in the plaintiff’s favor; and the recovery, though not small, was not excessive, under the evidence.

Judgment affirmed.


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    1002.
    MOORE & JESTER v. SMITH MACHINE COMPANY.
    1. Where a partnership is sued and judgment is rendered against it and against one or more of the partners individually, and it is sought to review that judgment by writ of error to this court, a pauper affidavit made by one of the partners, alleging only the firm’s inability to pay the costs, is not sufficient. Not only must the partnership’s inability appear, but also the inability of each partner who has been served and who is therefore bound by the judgment.
    2. Where the action is upon an unconditional contract in writing, and all the defenses set up are stricken, judgment is properly rendered by the court without the intervention of a jury.
    3. Although, in defense to an action upon promissory notes, the defendant makes a categorical denial of each paragraph of the plaintiff’s petition, yet if, in amplification, he sets up a state of facts utterly inconsistent with his denial, and disclosing that he has no real defense, the court properly strikes the entire plea on demurrer.
    4. Under the contract in this case and the facts pleaded in connection therewith, the court did not err in striking the defenses sought to be set up.
    5. The liberal right of appeal, given by constitution and statute in this State, should not be abused. In case this court is satisfied that the writ of error lias been sued out for delay only, it will not hesitate to affirm the judgment with damages. Upon a suggestion that the writ of error has been sued out for the purpose of delay only, the court will look to the entire history of the ease as presented in the record, and will determine the question upon the facts of each particular case. The filing of a pauper affidavit to escape the payment -of costs, while not conclusive, nor even prima facie evidence that the writ of error is sued out for delay only, is nevertheless, in an unmeritorious ease, a circumstance of some evidentiary value tending to. establish that fact.
    Complaint, from city court of Bainbridge — Judge Harrell. January 15, 1908.
    Submitted March 13,
    Decided March 30, 1908.

      G. G. Bower, B. G. Hartsfield, for plaintiffs in error.

      John B. Wilson, contra.
   Powell, J.

This suit was against the firm of Moore & Jester, alleged to be composed of T. W. Jester and George B. Moore. Judgment was rendered against the partnership and also against the individual members thereof. To avoid the payment of costs, a pauper affidavit has been filed, executed by Jester, in which he alleges that on account of poverty the partnership is unable to pay the costs. There is no affidavit as to the poverty of the individual members of the partnership or as to their inability to pay the costs. Of course the pauper affidavit must be broad enough to cover all the-plaintiffs in error in all their relations to the ease. See Taylor v. New England Mtge. Co., 95 Ga. 571 (20 S. E. 636). A member of the partnership may in such a ease swear as to the poverty of the partnership, but not as .to the poverty of any of the individual members other than himself. Compare Standard Carbonating Co. v. Capital City Guards, 99 Ga. 265 (25 S. E. 670). The law, for this purpose, recognizes the partnership as a legal entity, somewhat but not wholly distinct from the persons composing it. See Drucker v. Wellhouse, 82 Ga. 129 (8 S. E. 40, 2 L. R. A. 328). It follows, therefore, that to make a. pauper affidavit effectual, one or more of the partners should make -an affidavit for the firm, and in addition thereto each partner who has been served or who is personally -bound by the judgment should make an affidavit for himself. Counsel for. the plaintiff in error having deposited the costs with the clerk, subject to a ruling upon this question, the case will be heard, but the amount deposited will be retained.

Under the constitution of this State, in suits upon unconditional contracts in writing, where no issuable defense is filed under oath, the judge renders judgment without the intervention of a jury. If a plea insufficient in law is filed, the status is the same. Although the defendant may categorically deny each allegation of the plaintiff’s petition, and thereby present a defense prima facie issuable, yet if he goes further and, by amplification, discloses that he has in fact no legal defense, his entire plea is properly stricken. Bedingfield v. Bates Advertising Co., 2 Ga. App. 107 (58 S. E. 320). The plea in this case was palpably insufficient. The defendants, according to their allegations, ordered certain machinery from the plaintiffs on October 25, 1906. It was agreed, that 30 days after the date of shipment there should be a final settlement, either in cash or by the giving of notes, and that the retention of the property more than 30 days after the date of shipment should constitute a trial and acceptance, and should prevent the purchaser from making any complaint. According to the terms of this contract, on December 12 the defendants paid $100 •and executed the notes sued on. They now attempt to plead, that at the time these notes were executed, certain portions of the machinery had not arrived, and that they did not arrive until after an unreasonable delay, whereby they were damaged. It is too well settled to admit of any discussion that the giving of the notes under these circumstances is an absolute waiver and estoppel on the part of the purchasers.

The defendant in error moves for an award of damages, on the ground that the writ of error has been sued out for delay only. The constitution and laws of this State are liberal in guaranteeing to every suitor the right of appealing to the highest courts, in vindication of all his legal rights. By constitutional provision, the maximum of costs taxable by this court or the Supreme Court is the moderate sum of $10, and the payment of that sum may be escaped by the filing of a pauper affidavit. The procedure is simple; the way, for the most part, is broad and easy. However, the law does not intend that its liberality shall be abused, and has, therefore, explicitly provided that if it appears that a case has been brought to this court for delay only, damages in the sum of ten per cent, on the amount of the judgment in the court below may be awarded. Fearful that any stringent enforcement by us of this section of the code might have the effect of deterring honest suitors from contesting to the end unjust demands plausibly asserted against them, we are always hesitant to penalize a plaintiff in error by the award of damages; still we must remember that a frivolous appeal is a grave injustice, not only to. the opposite party to the case but to the State itself; for every case brought to this court entails an expense upon the State greater than the sum it receives from the maximum costs collectible. So, therefore, when a motion for damages is filed, we will carefully examine the record and will pass upon the motion in the light of the entire history of the case as there presented. If after reviewing the whole matter we believe that the plaintiff in error is presenting a bona fide contest over a colorable matter, though his view of the law may not in fact be well founded, or that he is seeking a ruling upon an open or doubtful question, damages will be refused. But when the record discloses that the plaintiff in error has no just case, that no new question of law is involved, and the record is full of those things which every judge and every lawyer recognizes as indicia of an attempt to fight merely for time, justice demands that we overcome any personal hesitancy we may have, and that we add an award of damages to the judgment of affirmance. This case is full of badges of intention to fight for time only. For example, in the first paragraph of the original plea the defendants denied under oath, seriatim, each allegation of the plaintiff’s petition, thus seeking to put the plaintiff to proof of every matter alleged, though it subsequently appears from amendments, and amplifications to the plea that only a portion of one paragraph of the petition was in fact disputed, and that was disputed, not by direct denial, but by confession and avoidance. In addition to this, a plea of recoupment was filed, alleging very little specifically, hut a great deal by the way of unsupported conclusions. By patience and persistency, the plaintiff, through special demurrers, finally, after an intermediate amendment to the plea (in which a disclosure of the real thing on which the defendants purported to stand seems to have been studiously avoided) had been filed, compelled the defendants to “show their hand” and to expose the inherent fallacies of their position. Nor would it be just for us to attribute to the ignorance of counsel the elaborate sophism contained in these defenses; for they display no such ignorance, but on the contrary indicate knowledge of the law and 'of the conflicts between the law and the actual defenses; and a studious effort to avoid that conflict is made apparent ; and besides, our young friend who managed the case in the court below is too good a lawyer for us to raise for a moment any such excuse for his client. Further, the case comes here on pauper affidavit. Now some people are poor; and honest poverty is in no wise the badge of anything unfair or improper. Therefore we shall always give to pauper cases the same patient, careful attention that we give those in which costs have been paid. But when a partnership, operating a manufacturing plant, capable of making profits of the character alleged in the defenses, is unwilling to part with good money to prosecute its appeal, but attempts to swear off the costs by a pauper affidavit, the circumstance is of some evidentiary value in seeking the purpose of the appeal.

Judgment affirmed, with damages.


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    1004.
    LOWE COMPANY v. TEASLEY & COMPANY.
    1. The discretion of a trial judge upon the first grant of a new trial will not he interfered with, where it is manifest that the new trial was granted because the trial judge may not have been satisfied with the verdict rendered upon the evidence submitted.
    2. The discretion of the trial court as to mere matters of fact, where the evidence in the ease would fully authorize a finding for either party, is limited to the first grant of a new trial.
    3. Where a trial judge, in his order, places the grant of the new trial solely upon a specified ground, alleging error of law,‘the merits of that particular ground will be inquired into, regardless of whether the new trial is a first new trial or not.
    4. The first grant of a new trial will never be interfered with, where it plainly appears that the trial court, in granting the new trial, corrected a manifest el’ror of law prejudicial to the rights of one of the parties to a cause.
    Complaint, from city court of Hartwell — Judge Hodges. January 10, 1908.
    Submitted March 13,
    Decided March 30, 1908.

      A. G. & Julian McGurry, for plaintiff.

      A. A. McGurry, for defendants.
   Russell, J.

The E. E. Lowe Company brought a suit against T. W. Teasley & Company, in the city court of Hartwell. Upon the trial the jury rendered a verdict against the defendants, for $262.69 principal, and interest. The defendants moved for a new trial, and the court granted it. The plaintiff excepts to the judgment granting a new trial. As this is the first grant of a new trial, the plaintiff concedes that it would not be warranted in excepting, unless the verdict rendered in its favor was demanded. It insists, however, that as the new trial was granted solely upon one ground, and inasmuch as the court should not, as a matter of law, have granted the new trial upon this ground, there should be a reversal of the judgment.

We do not think that the court erred in granting a new trial. This court is not prepared to affirm the judgment of a trial court in granting a new trial, merely because it is the first grant. In such a case the most that can be said is that the judgment will not be as closely scanned and reviewed to detect errors as it would be if more than one jury had passed upon the issues. We apprehend the. true rule to be that where the question is one purely of evidence, the trial judge is clothed with a discretion which should not in any degree be controlled by this court, if a first new trial is granted because he is not satisfied, upon a review of the evidence, that justice has been reached in the judgment which he annuls. In such a case it is to be presumed that the judge is satisfied that there has been a miscarriage of justice upon the intrinsic merits of the case, and it is, in that event, immaterial whether the end reached has been caused or contributed to by errors in the charge of the court or not. In such an instance, the discretion of the trial judge, unless manifestly abused, should not be controlled. There is another class of cases, in which it is apparent, as in this instance, that the judge has not exercised his discretion peculiarly as to the evidence, but lias adjudged the verdict to be vitiated by an error of law. Tn such a case, in the judgment of this court, it becomes immaterial whether the new trial granted is the first grant, or whether there have been several trials, if it appears that the error was one of law and was prejudicial to the rights of the complaining party.

Where the evidence submitted in a case, so far as appears to the reviewing court, would authorize a finding for either party, and no error of law is complained of, the discretion of the trial judge should perhaps be limited to the first trial. Proper regard for the rights of the jury would seem to require that a second finding upon the same issues and upon substantially the same state of facts, not induced by any contributing error, should be an end of litigation.

Where the trial judge, in his order, places the grant of a new trial solely 'up'on a specific ground alleging error of law, the merits of that particular ground will be inquired into, regardless-of whether the new trial granted is a first new trial or not..

In the present case we think that the judgment of the trial judge was right in any view of the case, because a new trial was necessary, to correct an error in the trial, due to the court’s own ruling, and which it was proper that the court itself should correct.. The case was a suit upon a note, and a copy of the note was attached to the petition. The note was as follows: “$462.69. Atlanta, Ga., April 9th, 1906. On October 15th after date, for value-received, we promise to pay to the order of E. E. Lowe & Company four hundred, sixty-two & 69/100 dollars, at the office of the Lowry National Bank of Atlanta, with interest from maturity at eight per cent, per annum until paid, with all costs of collection. Each of us, whether principal, security, guarantor, indorser, or other party hereto, hereby severally waives and renounces, each, for himself and family, any and all homestead and exemption rights either of us, or the family of either of us, may have under or by virtue of the constitution or laws of Georgia, any other State, or the United States, as against this debt or any renewal thereof; and each further waives demand, protest, and notice of demand, protest, and non-payment. Given under the hand and seal of each partj^ T. W. Teasley & Co.” This was the suit the defendants were called upon to answer;. their rights in court were dependent upon the nature of their answer, and they should have been properly informed of what they should prepare to meet. It was further the right of the defendants to have the evidence'in behalf of the plaintiff limited by and confined to the allegations of the petition. No amendment to the petition was offered, and the court in which the suit was pending was without jurisdiction to reform the note upon which the action was based.

The defendants, in their plea, admitted the execution of the note as sued upon, and that the plaintiff was the legal holder thereof. They relied, for their sole defense, upon the plea of failure of consideration, in that the corn for the payment of which the note was given was damaged and defective, and not suited for the purposes for which it was intended, to wit, for feeding stock and making bread. .To meet this plea of failure of consideration, the plaintiff was allowed to offer testimony to the effect that the note was purchased by it from G. W. Brooke, before maturity, and to thus assume before the jury the role of innocent purchaser of the paper for value before maturity and without notice. The defendants properly objected, at the.time, to the admission of this testimony, and their objection should have been sustained. It was again presented to the court in the motion for new trial, and the judge, as he should have done, corrected the error of the previous ruling, by granting a new trial. While the order granting a new trial places the grant specifically upon the 4th ground, in which complaint was made of the adihission of the evidence before referred to, still it also appears from the record that the 5th and 6th grounds of the amended motion -relate to the same subject. In these grounds exception is taken to the charge of the court, in' which the jury were told that if they believed, from the evidence, that the plaintiff bought the note before maturity, without notice •of any defense, it would be an innocent purchaser, and the jury should find for the plaintiff the full amount of principal and interest. Neither the evidence nor the instructions complained of in the 5th and 6th grounds were authorized by the plaintiff’s pleadings. The grant of the new trial was placed by the judge upon the 4th ground, without reference to the 5th and 6th grounds, not because the 5th and 6th grounds were not well taken, but clearly because the court properly considered the admission of the evidence as the root of the whole evil, to which the erroneous instructions were only the natural sequence. Indeed, this was the proper view to take of the matter; for if the evidence had been repelled upon the defendants’ objection, the erroneous instructions to the jury would never have been delivered. In a suit upon a note payable to the plaintiff, evidence that the plaintiff was a bona fide purchaser was objectionable not only upon the ground that there was nothing in the pleadings to show that Brooke or any one else ever owned the note, but also upon the ground that such parol evidence contradicted the terms of the written contract upon which the plaintiff’s whole case depended. The note being payable to the order of the plaintiff, parol evidence could not be admitted to show that it was made jfayable to some other person, and certainly not in the absence of any allegation of fraud, accident, ox mistake.

Judgment affirmed.


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    1008.
    PLATT v. SOUTHERN PHOTO MATERIAL CO.
    1. A pauper affidavit filed to avoid payment of costs in this court, in a case brought by an infant through his next friend, should verify the next friend’s poverty and inability to pay the costs.
    2. The employment of a child under the age prescribed by the child-labor law, in a factory or manufacturing establishment, is negligence per se; and if the child is injured by reason of being so engaged, he has, as a matter of law, a cause of action against the employer. However, if the child employed is above the designated age, a failure on his employer’s part to take and file the affidavit prescribed by section 5 of that act, though criminal, is not such an act of negligence, relative to the child, as to make the employer liable as a matter of law for his injuries.
    (а) The words “per se,” when used as descriptive of negligence, refer merely to the method by which its existence is to be ascertained from the facts of the case. If the lawmaking power, in dealing with a subject involving duties, goes into concrete specifications as to what shall or shall not be done, the court takes judicial cognizance that the precise duty exists, and that a breach of it is negligence. This is called negligence per se, in contradistinction to the wrongs or derelictions that arise from violations of those duties which have received recognition in the law, but which have not been defined, or have been defined only in such general or abstract language that there must be a finding, as. a question of fact (usually by a jury), that the particular transaction involves a violation of the duties so imposed, before the existence of negligence is to be regarded as established.
    (б) Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken duty was due the plaintiff personally or as a member of a class; also that it has directly and proximately caused legal injury to him. . '
    (e) In determining whether the violation of a statute is such negligence as to support an alleged cause of action, the court is called upon to examine the law in respect to its purposes; for if it appears that, notwithstanding the violation, none of the things contemplated and sought to be guarded against have ensued, or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the enactment was made, the court will not declare that there is a ease of negligence per se as to that cause of action or that plaintiff.
    3. The child-labor law, by specifically providing that the employment of children under a designated age in certain occupations shall be absolutely unlawful, has in nowise limited the general law in regard to putting immature persons of tender years to work at or near dangerous machinery. In a case not covered by the statute, the question of the defendant’s negligence in employing the young person at the particular occupation is usually one for the jury.
    Action for damages, from city court of Atlanta — Judge Beid. January 15, 1908.
    Argued March 13,
    Decided March 30, 1908.
    Platt, a minor, by his next friend sued the Southern Photo Material Company, alleging, that in the year 1907 the defendant owned a manufacturing establishment, in which it operated printing, engraving, and embossing presses, and that he, a mere boy, thirteen years of age, but not larger or more mature than the average boy of eleven, was put to work, feeding small cards into an embossing press, which was a very dangerous machine — a work suitable to be done only by a person of mature age, experience, and discretion, and in his attempt to operate the machine his hand was caught, and certain enumerated injuries resulted. The petition also sets up that at the time of the employment, and the injury, the defendant was guilty of a violation of the act of 1906, known as the “child-labor law,” and particularly section 5 of that act, in that the defendant hired the petitioner, a child, to work in its manufacturing establishment, without having first obtained and placed on file an affidavit as to his age, etc., as required by that act and section. Demurrers, general and special, were filed. The trial judge held that while to employ a child under the age prescribed by the child-labor law would be negligence per se as to him, to employ a child above the age without filing the affidavit would not be; and upon these grounds sustained the general demurrer.
    The child-labor law of 1906 (Acts 1906, p. 98) is, in substance, as follows: By section 1, no child under ten years of age shall be employed or allowed to labor in or about any factory or manufacturing establishment under any circumstances. By section, 2, no child under twelve years of age shall be .employed unless certain particular exigencies, therein enumerated, exist. By sections 3 and 4, no child under fourteen years of age shall be employed, except during certain hours and on certain conditions; but since, by the terms of the law itself, these two sections were not to become effective until January 1, 1908, and the injury occurred in 1907, they may be dismissed from present consideration. By sections 5 and 6, it is unlawful for any person operating any factory or man■ufacturing establishment to hire or employ any child unless he keeps on file in the office, open to the inspection of the grand jury, an affidavit from the parent or guardian of the child, certifying to its age, etc. Section 7 makes a violation of any of the provisions of the act a misdemeanor..

      Andrews A Sheen, W. R. Hammond, for plaintiff.

      Rvins & Spence, for defendant.
   Powell, J.

(After stating the foregoing facts.)

Upon the call of this case for argument the clerk brought to the attention of the court the fact that the costs had not been paid, and that the pauper affidavit which had been filed by the next friend did not verify his own poverty and inability to pay the costs, but only that of the infant plaintiff in error. The court took the matter under advisement and, having reached the conclusion that the affidavit is insufficient for the reason stated, has caused the costs to be paid. The question whether the affidavit made to submit a ease brought to this or the Supreme Court by an infant through his next friend in forma pauperis should verify the poverty and inability of the infant or of the next friend has not been, so far as we can find, decided in any reported case. However, by a practice of long standing, the Supreme Court has required the affidavit to relate to the next friend, and not to the- infant; indeed, in the ease of Shelly v. Haslett, in the Supreme Court, at the October term, 1900, the point was directly made; a pauper affidavit in that case verified the poverty and inability only of the next friend, and a motion to withdraw the case presented the question whether the affidavit was sufficient, so as to relieve counsel for the plaintiff in error from responsibility for the costs; and the court instructed the clerk, in an opinion, written and preserved in the clerk’s office, though never printed, that the affidavit was in proper form. Ordinarily, it is true, the affidavit must relate to the financial ability of the real party plaintiff in error, and, in a case prosecuted by a person in a representative capacity, such as an administrator, executor, trustee, etc., must relate, not to his personal inability, but to that of the estate he represents. Such, however, is not the case as to suits of infants. The reason for the difference seems to be this: The power to contract a liability for costs, by filing or prosecuting a suit, is, according to a long array of authorities, beyond the capacity of an infant. Execution can not issue against him for costs; “for it is said costs came in lieu of the common-law amercement of the plaintiff pro falso clamore, and the infant could not be subject to amercement, and of course could not be liable to its substitute.” Cook v. Adams, 27 Ala. 294. That there may be protection in the matter of costs to parties, officers, and others entitled, as well as for the further purpose that there shall be in charge of the case some discreet person who may receive the necessary notices, accept service of papers, and attend to other matters incident to the prosecution of the cause, the law will not permit an infant, over objection, to prosecute a suit in the courts by himself alone. The appointment of a next friend or guardian ad litem— and between the two there is but little or no difference for all practical intents and purposes' — -is a matter primarily for the court; but usually, in his petition, the infant names the next friend, who consents to act, and the court, by allowing the action to proceed, ratifies that appointment. The court might refuse to recognize the next friend named in the petition, and would have the power to appoint another. The next friend, by assuming to act, assumes primary responsibility for the costs. Nance v. Stockburger, 112 Ga. 90 (37 S. E. 125, 81 Am. St. R. 22).

So far as the payment of costs is concerned, every infant is always, theoretically at least, in a state of inability; for all his moneys, etc., are, or should be, in the hands of his legal guardian. No court can, by execution or otherwise, compel an infant to pay costs; nor should a court allow him voluntarily to pay them, for this would be an expenditure from his estate that should be sanctioned only bv that court or officer which has cognizance of his financial affairs. The court, therefore, looks to the next friend or guardian ad litem for the costs. As to this incident of the case die is the parlv, the person against whom the judgment immediately goes; and the infant is not. The infant’s estate is ultimately responsible for the costs if the expenditure is bona fide and for the infant’s apparent good. The court having his estate under its jurisdiction may, therefore, upon proper application, direct the legal guardian or other trustee having possession of the funds to pay the costs to the next friend or guardian ad litem, or to the officers of the court, if they have not been paid. If the court in which the- suit is filed appoints or accepts a next friend who on account of poverty is unable to pay the costs, this court will not, for his failure to perform that duty, refuse to entertain the writ of error, if the fact of his poverty and inability is formally verified in the manner prescribed by the statute. The infant’s poverty or inability to pay the costs is immaterial, for although he 'should be a pauper, the next friend, who is primarily responsible, should and must pay the costs if he is able to do so.

Counsel, having been informed of the views of the court on the question of the costs, have caused them to be paid, and we come now to a consideration of the ease presented by the record. The broadest contention of the plaintiff in error, and indeed the only one actually considered by the trial judge, is that his employment by the defendant, without taking and filing the affidavit required by the child-labor law of 1906, rendered the employment unlawful, and therefore a continuing act of negligence per se; and that since the plaintiff received his injuries while engaged in that employment, the defendant is necessarily liable to him for the ensuing damages. The expression “negligence per se,” as used by the various courts, has not acquired that precise and definite meaning so essential to the prevention of ambiguity. It is sometimes used to denote those transactions in which an unquestionable wrong is so directed against a partieiilar person that damages are bound to ensue to him, and is therefore practically synonymous with the expression “actionable per se;” but accurately employed, it has a more limited meaning. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case. Every violation of any of those duties of omission or commission which, arising from man’s state as a social being, have received recognition by the law of the land, either generally or specifically, is an act of negligence. So long as these duties remained undefined or defined only in abstract general terms, a breach is not properly denominated negligence per se; but when any specific act or dereliction is so universally wrongful as to attract the attention of the lawmaking power, and this concrete wrong is expressly prohibited by law or ordinance, a violation of this law, a commission of the specific act forbidden, is, for civil purposes, correctly called negligence per se. In those jurisdictions in which the application of the facts to the law rests with the jury, the court can not primarily declare that any particular concrete act or state of circumstances amounts to a breach of duty, unless the law so expressly declares; this finding is left to the jury; bnt if the law itself puts its finger on a particular thing and says “this is wrong,” the court may also (for there is no question as to a fact which the law says exists) put its finger on that same thing and say, “This is negligence — negligence per se.” This artificial distinction, between negligence per se and negligence not per se, respects, therefore, merely the method by which the existence of negligence is to be ascertained in particular instances. When once its existence is determined, whether through the court’s judicial cognizance or the jury’s finding as a matter of fact, there is no further distinction made; and the one form of negligence has, in the further consideration of the case, just the same effect as the other — no more, no less. Salt is just salt, whether dug from the mine in its natural state and called salt at once, or crystallized in some chemist’s laboratory and called NaCl; the savor is the same in both cases. The plaintiff who has established the fact that a defendant has been guilty of doing what he ought not to have done, or of not doing what he ought to have done, has something further to do, in order to show a cause of action in his behalf; he must show not only that he has directly and proximately suffered injury therefrom, but also that he is so related to the duty and the neglect thereof that he has the right to complain. Therefore, although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to Mm; and when the lawmaking power has created a particular obligation or has inhibited certain conduct, before a plaintiff can invoke that law in his behalf it must appear (to borrow an expression from the grammarians) that he, either in.his own right or as a member of a class, is the indirect object of the legislative action. The statute being the direct object, he must occupy the relation expressed by the dative case, while the statute stands in the' accusative. Therefore, in determining whether the violation of a statute is negligence so as to support an alleged cause of action, the court is called upon to examine the law in respect to its objects; for if it appears that, notwithstanding the violation, none of the consequences contemplated and sought to be guarded against have ensued, or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the statute was enacted, the court can not declare that there is a case of negligence per se ás to that cause of action or that plaintiff. The authorities to this end are numerous, but we cite only the following tvpic cases. Augusta R. Co. v. McElmurry, 24 Ga. 75; Gravitt’s case, 93 Ga. 370, 390 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145); Morrissey v. Providence R. Co., 15 R. I. 271 (3 Atl. 10); Hayes v. Michigan Central R. Co., 111 U. S. 228, 240 (4 Sup. Ct. 369, 28 L. ed. 410); Southern Ry. Co. v. Flynt, 2 Ga. App. 162 (58 S. E. 374), and cit.

The great wrong so usually resulting from the -employment of young children in manufacturing enterprises, the frequency with which their natural indiscretions lead them into doing harm to themselves or 'to coemployees in such places, the great danger almost always incident to such surroundings, made the putting of those of tender years at such labor so universally a matter of wrong that even prior to 1906 the juries of this State were often called upon to declare, under the general rules of law, that such employments, in the specific cases before them, were negligent; though the question of negligence was issuable in every case. Compare Beck v. Standard Cotton Mills, 1 Ga. App. 278 (57 S. E. 998). In 1906 the legislature, recognizing the universality of the wrong, precluded all inquiry as to the existence of negligence when children were employed below certain ages, by passing the statute forbidding such employments. One of the objects of the statute was to prevent the exposure of children under the designated age, and of employees whq otherwise would be called upon to work with such children, to the dangers incident to the presence of these immature and indiscreet persons in such places; and therefore, when a child under the age prescribed is hurt by reason of being so unlawfully employed, or a coemployee is hurt because of some negligent or indiscreet act of such a child, as to the child in the one case and as to the coemployee in the other, the consequence contemplated by the statute having ensiied to one of the persons for whose benefit it was enacted, it is justly said that, as to such a cause of action in favor of such a plaintiff, the violation of the law is in its fullest sense negligence per se. Despite a few sporadic opinions to the contrary, this is now the rule almost universally recognized. Beck v. Standard Cotton Mills, supra; American Car Co. v. Armentraut, 214 Ill. 509 (73 N. E. 766); Queen v. Dayton Co., 95 Tenn. 458 (32 S. W. 460, 30 L. R. A. 82); Perry v. Tozer, 90 Minn. 431 (101 Am. St. Rep. 416, 97 N. W. 137); Leathers v. Tobacco Co., 144 N. C. 330 (57 S. E. 11, 9 L. R. A. (N. S.) 349); Rolin v. Tobacco Co., 141 N. C. 300 (58 S. E. 891, 7 L. R. A. (N. S.) 335, and cases cited in the footnote). Besides making concrete the civil duty, previously existing only in the abstract or general law, of not employing certain young persons in dangerous occupations, the legislature also made a breach of that duty a crime; and to prevent violations and to make their discovery easier, further enacted that certain affidavits as to the ages of all children employed should be kept on file, subject to the inspection of the grand jury. The present plaintiff, at the time of his employment and injury, was of lawful age to be employed, and in the passage of the statute the legislature did not intend to prevent his employment; it was not enacted for his benefit; and when the defendant hired him, although he broke the law by not taking and filing the required affidavit, .the consequences contemplated — the exposure of a child under the prescribed age — did not ensue; and therefore as to Mm and as to his alleged cause of action the violation of the law was not negligence per se.

It was not the intention of the lawmaking power, by singling out certain of the most aggravated evils growing out of the employment of young children and explicitly forbidding them, to diminish in any wise the rules of common law and general jurisprudence under which the putting of any child of tender years to work at a dangerous machine under certain circumstances might be found to be wrongful, and therefore negligent. While, as shown above, the plaintiff did not set forth a case of what was as to him per se negligence, we are of the opinion that the trial judge erred, nevertheless, in sustaining the general demurrer. The boy, according to the petition, was only thirteen years old, — an age now within the protection of the child-labor act, — and was smaller and more immature than the average boy of his age; he was put to work at a machine alleged to be very dangerous and suitable to be run'only by a person of mature age, experience, and discretion. It is plain that the pleader relied mainly on the child-labor law, but he also set out a colorable cause of action under the general law. Beck v. Standard Cotton Mills, supra; Canton Mills v. Edwards, 120 Ga. 447 (47 S. E. 937); Bare v. Cane Creek Coal Co., 61 W. Va. 28 (55 S. E. 907, 8 L. R. A. (N. S.) 284, and ease note); Steiler v. Hart, 65 Mich. 644 (32 N. W. 875); Hickey v. Taaffe, 105 N. Y. 26 (12 N. E. 286); Pittsburg R. Co. v. Adams, 105 Ind. 151 (5 N. E. 187); Missouri Co. v. Peregoy, 36 Kan. 424 (14 Pac. 7); Williamson v. Shelton Marble Co., 66 Vt. 427 (29 Atl. 669); Labatt’s Master & Servant, §251. He does not confine his allegations of negligence expressly to the paragraph in which he pleads the violation of the statute, hut says that “by reason of the facts aforesaid,” the defendant, relatively to the petitioner, was guilty of negligence.

Some of the allegations- of the petition are not sufficiently full and definite to withstand the special demurrers which were also filed; and as the trial judge has not yet passed judgment as to them, it will now be in order for him to take them up and to require the petition to be perfected by amendment. We think that this court has already made sufficiently plain the degree of definiteness required in such suits, by the opinions in the cases of Cedartown Cotton Co. v. Miles, 2 Ga. App. 79 (58 S. E. 289); Southern States Cement Co. v. Helms, 2 Ga. App. 308 (58 S. E. 524); Jarrell v. American Pipe Bending Co., 2 Ga. App. 764 (59 S. E. 186).

Judgment reversed.