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    15459.
    HAAS & HOWELL v. GODBY.
    1. “Whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor in case of an agent, that he delivers the property to his principal before receiving notice of the claim of the owner. If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the recovery of the property or for damages, as the plaintiff may elect.”

      (а) “An agent, who for and in behalf of his principal takes the property of another without the latter’s consent, is as to him guilty of a conversion, although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith; and such agent may be sued in trover for the property, even after his delivery of it to his principal.”
    (б) Assuming that the plaintiff was the owner of the property in dispute, the evidence was sufficient to authorize the inference of a conversion by the defendants as alleged.
    (c) It is true tliat admissions may be the subject of explanation, but where the party to whom they are ascribed denies that he made them, and it is thus issuable before the jury as to whether they were made or not, and there is no evidence that, if they wore made, their author was laboring under a misapprehension of the facts, their effect is not avoided as a matter of law merely by other testimony pointing to a different conclusion, even though such other testimony is not directly contradi eted.
    2. Assuming that where a verdict is rendered in favor of the plaintiff in a trover case for a certain sum as the value of the property converted, and for another sum as hire, the defendant may, under a general assignment attacking the verdict as a whole, bring into question the sufficiency of the proof to sustain the verdict as to the amount awarded for hire, the verdict for hire was fully warranted by the evidence in this ease.
    3. Title to property in a certain person, once proved or admitted, is presumed to continue until the contrary appears, but the law presumes that title follows the possession of property, and this presumption applies to personalty as well as realty. Where A is shown to have been at one time the owner and possessor of property, and it is proved that subsequently the property is in the possession of B, and where nothing else appears, the presumption of the continuance of the title in A is rebutted, the presumption then' being that the title went with the property to B. Applying these principles to the facts dealt with in the third division of the opinion, the inference was warranted that the title to the property in dispute was in the plaintiff at the time he brought the action for its recovery.
    4. Nor was such inference negatived by additional facts stated and discussed in the 4th division of the opinion. The plaintiff claimed to have purchased the property in question on November 6, 1920. It was conclusively established that some time prior thereto the title to the property was in a person other than the plaintiff’s vendor, and that such other person, who held a policy of insurance thereon against theft, had, subsequently to the plaintiff’s purchase, collected the insurance upon a claim that the property had been stolen from him, and had thereupon undertaken to invest the insurer with title. The jury were authorized to find, under the evidence, that the automobile had not been stolen, but that the title prior to the origination of the claim of the insurance company had passed from the assured into the plaintiff’s vendor, and from the latter to the plaintiff, notwithstanding that such vendor delivered to the plaintiff a fictitious or forged bill of sale along with the delivery of the property, the circumstances warranting the conclusion that the assured and the plaintiff’s vendor had entered into a conspiracy with reference to the use of this instrument, and that there was a combination between them whereby the assured might fraudulently collect the insurance although he had conveyed the title to the plaintiff’s vendor.
    5. The decisive issue between the parties being whether or not the property in dispute—an automobile—had been stolen as the assured had represented to the insurance company, which on the collection of the insurance he purported to invest with the title, there was no error harmful to the defendants in the following instruction: “If you believe, under the evidence, that the car was not stolen, but was sold to the plaintiff with the knowledge and consent of [the assured] in November, 1921, then [the assured] would have no title or interest in the ear, and could not have conveyed any right to the insurance company or any other person; ” the assignment thereon being that there was no evidence to show that the property was sold to the plaintiff with the knowledge and consent of the assured. If the automobile was not stolen, no other inference was authorized than that the plaintiff in his purchase procured the title, and the defendants were not prejudiced by the instruction that, as a condition to this result, the sale must have been with the knowledge of the assured, whether there was evidence authorizing an inference of actual knowledge on his part of the iihmediate transaction or not. If the plaintiff’s vendor was the assured’s vendee, as the jury were authorized to find, then the sale to the plaintiff was necessarily by the assured’s implied consent.
    6. Any distinct act of dominion wrongfully asserted over another’s property, in denial of his right or inconsistent with it, is a conversion. Any act which negatives or is inconsistent with the owner’s title and right of possession is necessarily wrongful. It is not error, therefore, to instruct the jury that such an act would amount to a conversion, without also informing them that in order to amount to a conversion it must have been wrongful.
    7. Nor, in view of the issues, did the court commit reversible error in so instructing the jury as to make the claim asserted by the defendants, —namely, that the title to the property was in the insurance company, —depend upon its right of subrogation, notwithstanding that the insurance company at the time of paying the alleged loss took a writing from the assured expressly conveying to it the property which was the subject-matter of the insurance, since the company could not have had title either by this instrument or under the right of subrogation unless the property had in fact been stolen, and since the instruction complained of required the jury, if they found the property had been stolen, to recognize the right of the insurance company under its claim of subrogation as fully as they might have recognized such right under the purported express conveyance.
    8. The evidence authorized the verdict, and for no reason urged was it error to overrule the defendants’ motion for a new trial.
    Decided December 15, 1924.
    Trover; from Fulton superior court—Judge Ellis. January 15, 1924.
    Application for certiorari was denied by the Supreme Court.
    On July 20, 1920, Morris Miller purchased and had delivered to him a new five-passenger Buick touring automobile from John M. Smith Company, taking a bill of sale from the seller to himself. On the same date he procured to be issued in his favor by the Provident Washington Insurance Company, through their agents Haas & Howell, a policy upon the automobile, insuring it against theft for the period of one year. The policy contained a provision “requiring the assured to assign to the company .upon the payment of a loss for the theft of the car all of his right, title, and interest in and to the car, as well as all right of recovery against any party for loss or damage to the car.” On December 27, 1920, Miller submitted to the company sworn “proofs of loss,” in which he claimed that the automobile was stolen from him on the previous October 27th. The amount of his claim was $1450. Attached thereto was the original bill of sale procured by him from the dealer at the time of his purchase. The insurer paid the claim and took from him a receipt, which recited that in consideration of the payment he invested the company “with full rights of ownership in and title to” the automobile, and in which he also subrogated the company to all his “claims or rights against any third person or persons to the amount of the loss and expenses paid.”
    ' The Automobile Underwriters’ Detective Bureau, acting for the insurer and having located the automobile in the .possession of H. A. Godby, demanded the same of him on December 3, 1921. The detectives declared to him that the car was stolen property to which the insurance company had title, and inquired of him whether he would surrender it peaceably or would exact that they proceed at law for its recovery. He permitted them to take it without process. He subsequently brought an action of trover against Haas & Howell, in which a verdict was rendered in his favor for $1000 as the value of the property, and for $500 as hire. . The defendants made a motion for á new trial, which was overruled, and error is assigned upon that judgment. Other material facts are given in the opinion. All the transactions involved in the case occurred in the city of Atlanta except as otherwise stated.

      Underwood, Pomeroy & Haas, for plaintiffs in error.

      Hardwick & Jordan, contra.
   Bell, J.

(After stating the foregoing facts.)

One of the contentions made by the plaintiffs in error, the defendants in the court below, is that, assuming that the plaintiff had title to the automobile, the evidence failed to show any possession of ox any exexcise of dominion over the car by them, or any act on their part amounting to a conversion. It is insisted that the evidence established, without dispute, that the Automobile Underwriters’ Detective Bureau was maintained by certain insurance companies, including the Provident Washington, and that the defendants Haas & Howell had no connection therewith. After the ear had been seized by the detectives it was stored in a garage, from which it was later delivered to a salvage company on the order of the detective bureau. The salvage company sold it for the insurer and remitted to the insurer the proceeds of the sale. It is contended that the defendants had no relation, directly or indirectly, to any of these transactions.

We can not agree that the evidence was such as to demand a finding in favor of these contentions. Mr. Herman J. Haas, a member of the defendant firm, testified that when Miller informed them that the car was stolen they immediately notified the Automobile. Underwriters’ Detective Bureau “to try and look out for it.” The detectives, on the seizure of the car, having referred Godby to Haas & Howell, his wife called at their office on the same day and had a conversation with Mr. Haas, looking to a recovery of the automobile. She testified: “I went to the office of Haas & Howell . . to see if I could get the car, and I talked with Mr. Herman Haas. . . He said they had the car; I understood him to say that. He says, ‘We have the car.’ I says, ‘What can I do Mr. Haas ?’ And he says, ‘I don’t know, unless I sold it back to you.’ I says, T don’t want to buy our own car,’ and he says they had the car and it was stored down on Auburn Avenue. He says, ‘We have it stored.’ . . I was in the office of Haas & Howell at that time. . . He wouldn’t deliver the ear back. He insisted I pay the money for it. He called up John M. Smith and asked him the price of a car, and then turned to me and said, ‘The price of the car, judging hy what they said, would be between $800 and $1000/ and he said he could sell the car back to me. . . I did not pay the $600, and they never delivered the car to me. . . I went there for the purpose of getting the car.” “I don’t know that what he did was on the information from my conversation, or on his own knowledge. . . I couldn’t say that Mr. Herman Haas spoke of it as ‘them’ or ‘they.’ I couldn’t say that the [he] said ‘we’ the insurance company. . . He said ‘we.’ I presumed he meant Haas & Howell. He didn’t say the insurance company.” The plaintiff also introduced a letter dated March 17, 1922, signed by Haas & Howell, addressed to his wife, reading as follows: “Replying to your favor of the 11th, I regret exceedingly that we can not accept $400 for this car. As stated to you before, $500 would be the minimum price that I would be willing to sell it for.” It is not insisted that Mr. Haas was not speaking with the full authority of the firm of which he was a member. If, in using the word “we,” he referred to the insurance company and not to his firm, he nevertheless, in thus speaking in the first person, identified his firm with the act of the insurance company in seizing the car. The testimony of the plaintiff’s wife was contradicted at every point where it would tend to connect the defendants Haas & Howell with the conversion, but, the jury having found in favor of the plaintiff, this court, on a consideration of the general grounds of the motion, is bound by that version of the testimony most favorable to the plaintiff which the jury were authorized to adopt. The evidence of Mrs. Godby and the letter quoted above tended to show admissions on the part of the defendants from which it was infer-able that they were parties to the conversion of the automobile,— assuming that the plaintiff had title'thereto. Upon this point tire jury were fully authorized to find in favor of the plaintiff.

“Whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor in case of an agent, that he delivers the property to his principal before receiving notice of the claim of the owner. If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the recovery of the property or for damages, 'as the plaintiff may elect.” Flannery v. Harley, 117 Ga. 483, 485 (43 S. E. 765). “An agent, who for and in behalf of his principal takes the property of another without the latter’s consent, 'is as to him guilty of a conversion, although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith; and such agent may be sued in trover for the property, even after his delivery of it to his principal.” McConnell v. Prince, 12 Ga. App. 54 (76 S. E. 754), and cases cited. See also National Bank of Tifton v. Piland, 22 Ga. App. 471 (96 S. E. 341); Coley v. Dorich, 139 Ga. 239 (77 S. E. 77); Wilkes v. Dixie Cotton Co., 143 Ga. 588, 589 (85 S. E. 706); Ocean Steamship Co. v. Southern States Naval Stores Co., 145 Ga. 798 (89 S. E. 838); Porter v. Jones, 23 Ga. 467 (1); Byrd v. Freeman, 32 Ga. App. 112 (122 S. E. 630).

It is true that admissions may be the subject of explanation (Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (5), 93 S. E. 511; William Hester Marble Co. v. Walton, 22 Ga. App. 433 (4), 96 S. E. 269; 1 R. C. L. 473, § 9), but where the party to whom they are ascribed denies that he made them, and it is thus issuable before the jury whether they were made or not, and there is nO evidence that, if they were made, their author was laboring under a misapprehension of the facts, their effect is not avoided as a matter of law merely by other testimony pointing to a different conclusion, even though such other testimony is not directly contradicted. Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656 (2) (116 S. E. 325); Redd v. Lathem, 32 Ga. App. 214 (1) (123 S. E. 175). Thus, the jury were not precluded from inferring, from the evidence in relation to the admissions, that the defendants were parties to the conversion, merely because there was other testimony which, if standing alone, might have demanded the conclusion that the defendants were in no way connected therewith. The rule is not here applicable, that, where an inference is drawn solely from circumstances and is not demanded thereby, it may be overcome as a matter of law by the positive and uncontradicted testimony of an unimpeached witness, consistent with the circumstantial evidence relied on by the other party. Frazier v. Georgia R. Co., 108 Ga. 807 (1) (33 S. E. 996); Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1) (37 S. E. 863); Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81 (4) (94 S. E. 65); Neill v. Hill, 32 Ga. App. 381 (123 S. E. 30).

If the defendants had admitted (or not denied) the making of the admissions, and had shown by unimpeached evidence consistent therewith that they were made by piistake, or the like, a very different question would have been presented. See Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S. E. 435).

It is further urged that the verdict should be set aside on the ground that there was no sufficient proof of the value of the hire. The only evidence on this point was that of the plaintiff himself, who testified as follows: “I don’t know what the reasonable value of the hire of that car would be per day,—I have never hired a car very much,—but anywhere from $5 to $10 a day. I don’t know much about the subject, but I should say $5' a day for hire.” There was no objection to this testimony. The original cost of the automobile, which was a Buick touring car, was not in dispute. It could not have been in use more than a year and a half before the detectives seized it. The jury upon competent evidence found its value at that time to be $1000. The testimony of the witnesses as to the value of the hire thus related to the hire of an article, as to the cost, value, and apparent serviceability of which the jury were informed by the other evidence. While the plaintiff estimated that the value of the hire would be $5 per day, the jury allowed only about a dollar per day from the date of the seizure until the trial. We can not say that their finding on this issue was without evidence to support it. See Civil Code (1910), § 5875; Moon v. Wright, 12 Ga. App. 659 (7) (78 S. E. 141); Maynard v. American Railway Express Co., 29 Ga. App. 329 (2) (115 S. E. 35), and cases cited.

This contention of the plaintiff in error is made only under the general grounds of the motion, in which the verdict is attacked as a whole. It may be that there should have been a special assignment going to the specific part of the verdict relating to hire. Believing, however, that the finding for hire was warranted, we assume, without deciding, that the question is properly raised. See Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522 (8) (124 S. E. 72).

There is yet another question presented under the general grounds of the motion, and it is one that has caused us much difficulty. As a preface to its consideration we should state some additional facts. The plaintiff purchased the automobile on November 6, 1920, from a man representing himself as Scott Hughes. Hughes had xuu an advertisement of an automobile for sale in an Atlanta newspaper, to which the plaintiff had responded by telephone. As a result Hughes carried the car to the plaintiff’s home in College Park, and-sold and delivered it to him for the consideration of $1150, which the plaintiff paid by a check produced at the trial. It will be noticed that this transaction was only about ten days after the loss as alleged by Miller in the proofs of loss submitted by him to the insurer, and was some weeks before the insurer paid the “loss” and took the receipt purporting to convey to it the title to the automobile and to subrogate it to the rights of Miller. There is no question as to the identity of the car, and it is undisputed that the title at one time was in Morris Miller. Miller was introduced as a witness by the defendants, and testified to the facts generally set forth in the proofs of loss. His evidence, in part, was as follows: “Some time in October I had to go to New York . . on some business. I sent the chauffeur home to get some papers, so when he came back with the papers, a short time after-wards, when he went down to get the car, it was missing, and I have never seen it until this day. The last time I saw it was in October. . . I had it just a short time, a couple of months or a little longer. I was paid under my insurance policy for the theft of my car; I think I was paid $1450. I never sold that car or transferred it to anybody but the insurance company. I never sold it to Scott Hughes, I don’t know Scott Hughes. . . I never turned that car over to some one who called himself Scott Hughes, for the purpose of selling it.” There was no other evidence whatsoever in regard to the circumstances of the alleged theft of the automobile. Neither the “chauffeur” nor “Hughes” testified, nor was either accounted for. The plaintiff introduced in evidence certified copies of an indictment and conviction of Morris Miller in the State of Louisiana for the offense of highway robbery, and of au indictment and conviction against him in Fulton superior court for the offense of receiving stolen goods. Two witnesses introduced by the plaintiff testified that they knew Miller’s general character, that it was bad, and that they would not believe him on oath.

It is insisted on behalf of the plaintiffs in error that the evidence demanded a finding against the plaintiff’s claim of title, and that the title to the automobile was in a third person, namely the insurance company. Generally, where the plaintiff in a trover action relies on his title, to recover possession of property, and the evidence shows that a paramount outstanding title is in a third person, he can not recover. Beverly v. Wilson, 19 Ga. App. 393 (1) (91 S. E. 515). A plaintiff in trover must recover on his title, and not on a lack of title in the defendant. Everroad v. Dickson Planing Mill Co., 26 Ga. App. 329 (1) (106 S. E. 193); Perdue v. Griffin, 32 Ga. App. 100 (1) (122 S. E. 713). There is also a rule that “the bare possession of goods without any strict legal title confers a right of action .against a mere wrongdoer, having no right, and not clothed with any authority from the real owner.” Mitchell v. Georgia & Alabama Railway, 111 Ga. 760 (1), 763 (36 S. E. 971, 51 L. R. A. 622). The code provides that “mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner of the person wrongfully deprived of possession.” Civil Code (1910), § 4482. Whether, in view of this code section, the defendants will be permitted to assert as a defense that the title was in a third person,—that is, in the insurance company,—unless they were authorized to act for it in the transaction which the jury treated as a conversion, it is unnecessary to decide. We will assume that they were entitled to set up that defense. Did the evidence then demand a finding in their favor upon this question?

Title to the property having been shown to have been at one time in Morris Miller, a presumption of his ownership would continue until the contrary appeared. Coleman v. Rice, 105 Ga. 163 (31 S. E. 424); Russell v. Morris, 134 Ga. 65 (2) (67 S. E. 404); Sasser v. Byrd, 8 Ga. App. 824 (70 S. E. 157). There is another rule, however, to the effect that the law presumes that title follows the possession of property, and this presumption applies to personalty as well as realty. McLendon v. Horton, 95 Ga. 54 (2) (22 S. E. 45); Reid v. Bull, 25 Ga. 28 (3); Mashburn v. Dannenberg Co., 117 Ga. 567 (4), 579 (44 S. E. 97); Burt v. Rubley, 113 Ga. 1144 (1) (39 S. E. 409); Harris Loan Co. v. Elliott, 110 Ga. 302 (3) (34 S. E. 1003); Collins v. Taggart, 57 Ga. 355, 356; Culpepper v. Culpepper, 18 Ga. App. 182 (3) (89 S. E. 161); Branch v. American Agricultural Chemical Co., 22 Ga. App. 52 (2) (95 S. E. 476); Cox v. Adams, 2 Ga. 158 (2); Mitchell v. Georgia & Alabama Railway, 111 Ga. 760 (supra). “Generally a deed is not necessary to convey titles to personalty.” Civil Code (1910), § 4186. Thus, when it appeared that the plaintiff was in the peaceable possession of the automobile prior to the execution of the papers upon which rested the claim of the insurance company, and that such possession remained in the plaintiff until the seizure of which he complained in his suit, the presumption arose, in the absence of anything to the contrarj', that the title was in him; that it had passed to him from Milled through Scott Hughes with the delivery of the automobile. The presumption that title was still in Morris Miller was overcome by the presumption that the title followed the car. See Farmers Bank v. Powell, 29 Ga. App. 100 (2) (113 S. E. 818). The burden of the evidence was then shifted to the defendants to maintain their contention that the title did not follow the property, but that because it had been stolen the title thereto remained in Miller until he made the conveyance to the insurance company. In order to carry this burden they relied solely upon the testimony of Miller. In view of the impeaching testimony, the jury were authorized to disregard his evidence entirely. Civil Code (1910), §§ 5883, 5884. Their verdict indicates that they did so.

The mere act of impeachment, however, could not establish a substantive fact. Central Railroad Co. v. Mallsby, 90 Ga. 630 (4) (16 S. E. 953); Georgia Railroad Co. v. Andrews, 125 Ga. 85, 87 (54 S. E. 76); Stallins v. Southern Ry. Co., 140 Ga. 55, 57 (78 S. E. 421). The case should be considered, therefore, merely as if Miller had never testified. The jury having had the right to discard his evidence in toto, and it appearing by the verdict that they did so discard it, we should pass upon the question as to whether the verdict was authorized just as though we found no testimony from him in the record. This leaves the case exactly where it was before the defendants introduced him. We have seen that at that point there was a presumption that the title passed out of him and through Scott Hughes into the plaintiff Godby along with the possession of the automobile. The defendants having failed to carry the burden,—that is, the evidence which they offered for that purpose having been wiped out,—the presumption in favor of the plaintiff continued. That presumption being that Miller had parted with his title not later than November 6, 1920, before the execution of the papers to the insurance company on the following December 27th, it results that these papers gave the insured nothing, and the attempt on the part of the defendants to assert title in a third person or to show that the plaintiff himself did not have title failed. See, in this connection, Giles v. Citizens Insurance Co., 32 Ga. App. 207 (122 S. E. 890).

There are certain other facts which are material to be examined in connection with the matters discussed in the preceding paragraph. We have thus far omitted them for the purpose of clarity. The plaintiff testified: “The man I bought the car from produced a bill of sale from John M. Smith. . . It seems there had been a car bought from one party and delivered to another. He brought and purported to give me the original bill of sale from John M. Smith Company. He also gave me a bill of sale himself at the time I delivered the check for the car.” It appears that the original and true bill of sale issued by John M. Smith Company to Morris Miller was attached to the proofs of loss and remained thereafter in the possession of the insurance company. What Hughes claimed to be a bill of sale from John M. Smith Company must, therefore, have been a forgery. This document is not shown in the record, and we are unable to determine whether it purported to convey the property to Scott Hughes or to some other person. It is inferable from the testimony of the plaintiff that the grantee therein was some other person. However, in our view, the result of the case would not necessarily be different whether the grantee was Scott Hughes or some one else.

The question now is, whether or not the presumptions in favor of the plaintiff which we have alluded to in the preceding paragraph were conclusively rebutted by the fact that Hughes delivered along with the automobile a spurious bill of sale. In other words, did this fact impeach the presumption to which the plaintiff otherwise would have been entitled, and leave intact the other presumption that the title remained in Morris Miller, in the absence of anything to the contrary ? We must remember that we are still to consider the case as if Morris Miller had never “testified. Thus, we have Miller in the possession of the car at one time, and it is next seen in the possession of Hughes. The inference is authorized, therefore, that the property passed directly from Miller to Hughes, there being no evidence of intermediate possession by any one else. If this be true, they at some time came together and consummated a transaction with reference to the automobile, unless it was stolen. We have attempted to show that under the facts as dealt with in the preceding division of this opinion, the inference was not demanded that the car had been stolen. Was it demanded in view of the further facts touching the fictitious bill of sale? If Hughes was the purported grantee in such document, the inference would be authorized that he himself was implicated in the forgery. The jury were also warranted, as we have seen, in finding that Miller was a person of bad character. The jury could thus have believed that neither Hughes nor Miller would seriously object to participation in a dishonest transaction. While, as we have stated above, the mere act of impeaching a witness does not prove a substantive fact, yet his general bad character as shown at the same time could be considered by the jury in determining whether he would enter into a scheme to defraud the insurance company. McClure v. State Banking Co., 6 Ga. App. 303 (65 S. E. 33). Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence. Civil Code (1910), § 4626.

Hnder the circumstances, we do not think that the presumption which otherwise would have existed in favor of the plaintiff was necessarily negatived by the fact that his vendor delivered to him a forged bill of sale. The jury in their rightful province were authorized to believe that Scott Hughes procured the automobile directly from Morris Miller, and that the instrument in question did not show a theft, but was a device concocted between them for the double purpose of concealing Miller’s prior ownership, making it safer for him to represent that it had been stolen, and of satisfactorily meeting whatever inquiry a purchaser might make as to Hughes’ right to sell, and that the genuine bill of sale was retained for the purpose of delivery to the insurance company. They were authorized thus to find that the forged bill of sale was the result of a mere collusion between Miller and Hughes to defraud the insurance company, and, in spite of it, to conclude that the true legal title was transmitted to the plaintiff in the sale to him by Hughes.

The case would not be weaker for the plaintiff if the grantee in the instrument was some one other than Hughes himself.

The evidence authorizing the inference that both Hughes and Miller were characters who would not hesitate to engage in a fraudulent enterprise, and that there was no intermediate holder, we can not say that the conclusion was demanded that Hughes did not have the right to sell the automobile, merely because he may have misrepresented the true source of his title.

Let it be understood that we do not hold in this connection that proof that the two men were of bad character would be sufficient, without more, to establish the existence between them of an unlawful agreement to make a covert disposition of the automobile in order that one of them might defraud the insurer by a false claim of loss. We saw in the preceding division that in the absence of the fraudulent bill of sale the inference was warranted (even demanded when we also omit the testimony of Miller) that the title to the property was in the plaintiff. What we hold here is, that this inference was not conclusively rebutted by the presence of that document, but that the facts touching the same, in view of all the circumstances, could have been explained by the jury in some other way. Thus, the finding of the existence of such conspiracy, which we think was authorized upon a consideration of all the evidence, depends not alone upon the facts first referred to in this immediate connection, but upon those together with the inference which we had observed to have been authorized in favor of the plaintiff’s claim of title, before we entered upon a discussion of the effect of the forged bill of sale.

The position of the defendant in error may be strengthened by the additional facts that Hughes advertised the automobile for sale in a newspaper in the city where Miller resided and within a very few days after the date of the alleged theft; that he demonstrated it upon the open streets shortly thereafter in the town of College Park; that he delivered what appeared to the plaintiff to be the original keys to the ear, and that Miller, when making the proofs of loss, on being called upon by the defendants, then as insurance agents, to deliver the keys, represented that he had them and would prodlice them, but never did.

What is said above practically disposes of one of the grounds of the motion for a new trial, in which error is assigned upon the following charge of the court:' “If you believe, under the evidence, that the car was not stolpn, but was sold to the plaintiff with the knowledge and consent of Morris Miller in November, 1921, then Morris Miller would have no title or interest in the car and could not have conveyed any right to the insurance company or any other person.” It is insisted that there was no evidence to show that the car was sold to the plaintiff with the knowledge and consent of Miller, and thus that the charge was unwarranted.

The decisive issue in the case was whether the car was stolen. If it was, the insurance company had the title thereto. If not, the title was in the plaintiff. Perhaps the possession of the automobile by Hughes would not raise a presumption that he was the agent of another to sell it, but merely that he himself was the owner. If he had bought it from Miller, his resale would necessarily be by Miller’s consent, though not perhaps with his knowledge. If Hughes procured the automobile from Miller by purchase, actual knowledge by Miller of the resale would be immaterial, and an unauthorized reference thereto in the charge would be harmless. The conclusion is demanded that if the car was not stolen, there was a valid sale to the plaintiff. The excerpt complained of having instructed the jury that, if they believed the car was not stolen, then Miller would have no title or interest therein and could not have conveyed any right to the insurance company, the defendants were not prejudiced by the instruction that, as a condition to this result, the car should have been sold to the plaintiff with the knowledge and consent of Miller.

In saying in the preceding paragraph that the jury were authorized to infer the existence of a collusion between them, we referred to a possible scheme by the execution of which Miller would be enabled to collect unjust money from the insurance company, and not tp a state of facts establishing the relation of principal and agent for the sale of the automobile. It may be that the only inference beneficial to the plaintiff to be drawn from the mere fact that the possession of the ear, which at one time was in Miller, subsequently passed to Hughes was that Hughes thereupon became the owner authorized to sell in his own right, and not as agent for another, and that the charge complained of was inaptly intended to submit the question of agency. Even in this view, we would think the charge harmless for the reasons given.

Error is also assigned upon the following charge of the court: “By conversion is meant any wrongful act of dominion in denial of the plaintiff’s right. That is to say, if the defendants did any act negativing or inconsistent with plaintiff’s possession, the plaintiff can recover against them.” The only complaint upon this excerpt is that it omitted to tell the jury that the defendants’ act should be wrongful before it could amount to a conversion. The last sentence in the excerpt being an explanation or modification of the first, the omission is apparent; but we do not think that the charge was thereby rendered erroneous. If this instruction had been given in the abstract, so as to refer to the owner's right, and not to the “plaintiff’s right,” and to “plaintiff’s possession,” and had not stated that under the conditions embraced therein the “plaintiff” could recover, we should have no hesitancy in upholding it under the decisions in Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (1) (52 S. E. 802), and Roper Wholesale-Grocery Co. v. Faver, 8 Ga. App. 178 (2) (68 S. E. 883). If the plaintiff’s title had been conclusively established, the court then could very well have instructed the jury that “if the defendants did any act negativing or inconsistent with plaintiff’s possession,” the plaintiff could recover, without reference to the wrongful character of the act; for in that case the only issue would be one of conversion, and such act, if committed, w^ould necessarily be wrongful. There is no exception, however, upon the ground that this excerpt improperly assumed the plaintiff’s ownership, and under this assumption the charge was not erroneous. This is not to intimate that other assignments in this connection might have been sustained, since it appears, by an examination of the general charge, that the jury were fully informed that the plaintiff could not recover unless he sustained his claim of title.

The court charged the jury as follows: “Defendants claim that this car was sold by John M. Smith Company to Morris Miller, that this car was stolen from the possession of Morris Miller, that an insurance company of which defendants were agents paid the loss under provisions of a theft policy theretofore issued by such insurance company to Morris Miller, and that at or about the time of such payment the insurance company took from Miller a contract subrogating the insurance company to the rights of Miller, if he had any rights in this car. The right of subrogation does not exist until there arises a legal duty to pay a loss on the part of the person or corporation claiming to be subrogated. The right of subrogation would give to the insurance company just such right, or the person acting for it, such rights in the car as Morris 'Miller had. . The burden would, be upon the defendants, on the issue oil subrogation, to show that the car was stolen and that thereby the insurance company became liable to pay the loss.” It is assigned that this charge is error “because the evidence shows that the insurance company paid Miller $1450, taking from Miller an assignment of his entire right, title, and interest in the automobile. Movant contends that the insurance company thereby became vested with the full legal title to the automobile, and that this title was not affected in any way by the fact as to whether the automobile had been stolen or not, and likewise was not dependent upon the question as to whether the insurance company was under a legal obligation to pay Miller’s loss or not. Movant contends that the insurance company had a right to pay Miller and acquire title to the car, and that its title thus acquired was not affected by the truth or falsity of Miller’s representations as to the loss of the car, and it was therefore error for the court to charge that the burden would he upon the defendants to show that the car was stolen, and that thereby the insurance company became liable to pay the loss.”

There is no exception upon the ground of a misstatement or of an insufficient statement of the defendants’ contentions, nor is there an assignment upon the failure of the court to instruct the jury in reference to the insurance company’s claim based upon the stipulation whereby Miller, in consideration of the payment of the loss, expressly invested the insurance company with the title to the automobile. There was no harmful error in the charge for any reason assigned, since the insurer did not acquire title either by subrogation or conveyance, unless the automobile had been stolen, and since the charge instructed the jury that “the right of subrogation would give to the insurer just such right, or the persons acting for it, such rights in the car as Morris Miller had.” While the insurance company would have had the right to obtain the title to the automobile by express conveyance irrespective of subrogation (see Irvin v. New Brunswick Fire Ins. Co., 32 Ga. App. 182, 122 S. E. 710), the paper which it took for that purpose conveyed nothing if the car had not been stolen but had previously been sold and conveyed by Morris Miller to some one else. So that, whether the insurance company claimed by an express conveyance or by the right of subrogation, legal or conventional, the burden was upon the defendants to establish that the car was stolen, in order to maintain the defense that the title thereto was in the insurance company. There is no cause for a new trial in the assignments upon the above excerpt.

This and the other rulings made above are controlling of an assignment upon a further excerpt from the charge of the court, as made in the fourth and only remaining ground of the amendment to the motion for a new trial.

The evidence authorized the verdict and for no reason urged was it error to overrule the motion.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    15471.
    MAYOR AND ALDERMEN OF SAVANNAH v. WATERS.
    Ii was in the exercise of a governmental function that the street-sweeper employed by the municipality, as appears from the plaintiff’s petition, swept up and piled in the street the leaves, sticks, and other trash which covered it, and set fire to the. pile; and therefore the municipality was not liable for the injuries alleged to have resulted from negligence of the sweeper in setting fire to the trash and leaving it unguarded.
    Decided December 15, 1924.
    Action for damages; from city court of Savannah—Judge Freeman. February 23, 1924.

      P. P. Mclnlire, for plaintiff in error.

      Oliver & Oliver, John Z. Ryan, contra.
   Jenkins, P. J.

The amended petition for damages against the municipality on account of the death of the plaintiff’s daughter, aged four years and fourteen days, in effect alleged, that while the plaintiff was necessarily absent from her home in the city, a street-sweeper, who was an employee of the municipality, swept up with a scrub-brush a quantity of leaves, sticks, “and other trash,” which covered the paved street, and after piling them in front of the gate to the plaintiff’s home, set fire to the pile of trash and went away; that the child played about the flame, and her clothing-caught fire, and this caused injuries which resulted in her death: and that the city was negligent “in that the street-sweeper who was an employee” thereof “set fire to the pile of trash and left it unguarded, and did not take other measures to prevent children from playing about the fire and becoming burned and injured.” Exception is taken to the overruling of general and special demurrers to the petition.

“The duty of keeping the streets of a municipality free from matter which, if allowed to remain, would affect the health of the public, is a governmental function, the exercise of which would exempt the municipality from liability to a suit for damages” for the negligence of servants of the city while actually engaged “in and about such work.” And thus a petition which relates to the work of hauling in a municipal cart “the sweepings of the street” describes a governmental function, and this is so notwithstanding the petition describes such sweepings as “dirt and trash.” Mayor &c. of Savannah v. Jordan, 142 Ga. 409 (1 a, b), 410, 411, 414 (83 S. E. 109, L. R. A. 1915C, Ann. Cas. 1916C); Love v. City of Atlanta, 95 Ga. 129 (51 Am. St. Rep. 64). This doctrine has, however, been construed and applied together with the other equally well-established rule that, if a city negligently and tortiously allows obstructions thus created to remain in its streets or sidewalks, or negligently fails to repair defects thus' created in a street or sidewalk, after the exercise of its governmental function has ceased, there may be a recovery against the city. City of Augusta v. Cleveland, 148 Ga. 734, 736, 737 (98 S. E. 345); Mayor &c. of Savannah v. Waldner, 49 Ga. 316; Mayor &c. of Savannah v. Spears, 66 Ga. 304; Bell v. Mayor &c. of Savannah, 139 Ga. 298 (77 S. E. 165). “But none of these cases” recognizing such liability are cases “where at the time the injury occurred, the municipality was in the actual performance of a governmental function.” Mayor &c. of Savannah v. Jones, 149 Ga. 139, 146 (99 S. E. 294). Under the allegations of the instant petition, the negligence complained of relates to the lack of care in the actual performance by the city of the destruction by it of the accumulated trash, and consequently its general demurrer to the petition should have been sustained.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15474.
    LONG CIGAR AND GROCERY COMPANY v. HARVEY.
    1. The “bulk-sales” statute was inapplicable in this ease, the transaction in question not being a sale or transfer of the merchant’s “stock of goods” out of the ordinary course of trade, or a sale or conveyance of “substantially the entire business” of the vendor.
    2. The claimant’s own testimony being the only evidence offered in support of her claim, and being, as to a part of the goods in question, self-contradictory upon the vital issue of ownership, the verdict in her behalf was in part contrary to law, as being without evidence to support it; and for this reason a new trial must be granted.
    Decided December 15, 1924.
    Levy and claim; from city court of Oglethorpe—Judge Greer. February 9, 1934.

      Jule TV. Felton, for plaintiff.

      J. J. Bull & Son, contra.
   Jenkins, P. J.

The provisions of sections 3226 to 3229 inclusive of the Civil Code (1910), known as the “bulk-sales act,” being in derogation of the common law and of the right to alienate property without restriction, must be strictly construed. Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359 (3) (78 S. E. 1078); Cooney v. Sweat, 133 Ga. 511, 512 (1) (66 S. E. 257); Bank of LaGrange v. Rutland, 27 Ga. App. 442 (2). In some jurisdictions, by the -terms of the bulk-sales statute, a sale of “any portion” of a stock of merchandise otherwise than in the ordinary course of trade is covered by the provisions of the act (27 C. J. 880, § 889); in other jurisdictions the statute deals with such n sale of a “material portion;” in others a “major part” (27 C. J. 882, § 890); but “ Tulk-sales acts’ is a generic term descriptive of a class of statutes designed to prevent the defrauding of creditors' by the secret sale in bulk of substantially all of a merchant’s stock of goods. The general scheme of these statutes is to declare such bulk sales fraudulent and void as to creditors of the vendor, or presumptively so, unless specified formalities are observed.” 27 C. J. 873, § 881. In Georgia the act provides that “any sale or transfer of a stock of goods, wares, or merchandise out of the usual or ordinary course of the business or trade of the vendor, or whenever thereby substantially the entire business or trade theretofore conducted by the vendor shall be sold or conveyed, or attempted to be sold or conveyed, to one or more persons, shall be deemed a fraudulent transaction or transfer in bulk in contemplation of this and the three preceding sections.” Civil Code (1910), § 3229. In the instant case, the goods claimed by the defendant in error not constituting the merchant’s “stock of goods,” sold out of the ordinary course of trade, and there not being a conveyance of “substantially the entire business,” the “bulk-sales” statute is by its terms inapplicable thereto.

“The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.” Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (1) (51 S. E. 438); Western & Atlantic R. Co. v. Evans, 96 Ga. 481 (23 S. E. 494); Sheppard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23). “Belatively to the revising powers of this court, the jury are the exclusive judges of the credibility of witnesses. Rome R. Co. v. Barnett, 94 Ga. 446 (20 S. E. 355). Therefore this court will not reverse a judgment overruling a motion for new trial, on the ground that the verdict was contrary to evidence, when the presiding judge in the exercise of his discretion has allowed the verdict to stand, and the same is supported by the evidence of any of the witnesses sworn on the trial, notwithstanding much of the evidence tended to impeach the credibility of such witnesses,” and “this rule is not inapplicable because the verdict complained of was rendered on the evidence of witnesses who were parties to the case.” But, since “a person testifying in his own behalf is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him,” he is not entitled to prevail, even under the power of the jury to accept his testimony, unless “by his evidence he establishes’a cause of action, or a defense, as the case may be, and from no view of his testimony would a finding against him be warranted.” Southern Bank v. Goette, 108 Ga. 796 (1, 2) (33 S. E. 974). In the instant case the property claimed included, in addition to “groceries” and items which in the common practice of the grocery trade might be included within the meaning of that term, numerous items which could not be so designated. There was no evidence' tending to establish the claim except that of the claimant, who in one portion of her evidence testified that she bought all of the property claimed, but in another portion testified, “I just bought the groceries.” Thus, under the general grounds of the motion for new trial, since the claimant’s testimony upon the vital issue as to her ownership was self-contradictory, under the above rule the verdict in her behalf as rendered was in part contrary to law as being without evidence to support it; and for this reason only a new trial must be granted.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Jekkins, P. J.

text:
    15477.
    SCHOFIELD’S SONS COMPANY v. DUGGAN & JONES.
    Ordinarily, when one transfers property to another, who accepts it, a promise to pay its reasonable value is implied.
    The evidence authorized the finding in favor of the plea of set-off, based upon the furnishing of defendant’s lumber to the plaintiff, shipped to fill the plaintiff’s order to another.
    Decided December 15, 1924.
    Complaint; from Pulaski superior court—Judge Graham. February 2, 1924.

      Strozier & Beaver, for plaintiff.

      Lawson & Ware, for defendants.
   Jekkins, P. J.

Schofield’s Sons Company sued Duggan & Jones on an open account which in the trial the defendants did not deny, but against which they sought to set off the value of a car of lumber. Sams-Mathews Lumber Company was indebted to Schofield’s Sons Company, and the evidence showed that in repeated letters they offered to settle the indebtedness in part by delivering lumber. Schofield’s Sons Company finally, under this offer, ordered a car, and after some correspondence received a letter from SamsMathews Company, as follows: “Deferring to your order L-8826, beg to advise that we are loading this order in car Sou. 133893, and same will go forward tomorrow or Monday.” Sams-Mathews company procured this lumber from Duggan, or had Duggan ship it to Schofield. Mathews, the manager of the company, testified in portions of his evidence that Sams-Mathews Company, being themselves unable to furnish the lumber ordered, had before the shipment bought it from Duggan; but elsewhere stated that it remained Duggan’s lumber, and was not sold by Duggan to them, and by them to Schofield. There was no evidence that Schofield’s Sons Company ever expressly dealt with Duggan, or had any knowledge that the lumber belonged to Duggan, except that the bill of lading for the shipment of the property in “Southern car No. 133893” showed the name of Duggan as consignor, and in the invoice sent to Schofield preceding or accompanying the shipment the name of Duggan appeared as the person to whom Schofield’s Sons Company was “Debtor,” typewritten just above the printed name of Sams Lumber Company (a concern having no apparent connection with the transaction), and at the bottom of the invoice appeared in typpwriting the following unsigned statement: “We had to malye this shipment from D. E. Duggan’s lumber, and did not have the sheathing boards to load in the car.” Duggan transferred the account and invoice for the lumber to the firm of Duggan & Jones before the suit was brought. The trial judge submitted to the jury the question of liability to Duggan under an alleged implied contract. The jury found in favor of this set-off, and the plaintiff excepts to the overruling of its motion for a new trial, based on the general grounds, and on certain excerpts from the charge of the court.

1. “Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” Civil Code (1910), § 5513. The evidence was in dispute as to whether it was the defendant, or the person With whom the plaintiff had originally contracted for the car of lumber, who was the owner thereof at the time of shipment to the plaintiff. The evidence was slight as to knowledge by the plaintiff that the car belonged to the defendant at the time of shipment, acceptance, and use by the plaintiff. The bill of lading, together with the invoice which designated Schofield as debtor to Duggan, demanded an inference that Duggan was the shipper, and that the shipment was “from Duggan’s lumbar,” and that Schofield had knowledge that the lumber had originally belonged to Duggan, and they authorized a finding that the plaintiff had knowledge that, while Sams-Mathews Company had contracted to deliver the car, they were unable to do so, and upon their request Duggan was making the delivery, which the plaintiff had previously requested from the company, and that Duggan was the owner of the lumber at the time of the shipment; and the other‘Tacts and circumstances disclosed by the record did not compel, 'although they might have authorized, a different conclusion.

2. The instructions of the court fairly submitted the question at issue to the jury, and contained no material error. The trial judge in the exercise of his discretion having overruled the motion for new trial, this court can not interfere.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15482.
    Pettett v. Thompson.
    Decided December 15, 1924.
   Jenkins, P. J.

1. In the absence of an allegation charging wilful and wanton negligence, no recovery can be had in this State on account of mere fright, nervous shock, or mental suffering; but even for mere negligence, if the fright, shock, or mental suffering results naturally in mental or physical impairment, that is to say, if the knowledge of the defendant was or should have been such that the resulting injury could under the circumstances have been reasonably foreseen and anticipated as the direct, natural, and probable consequence of his act, a recovery against him may be had, and in such a ease the original fright, shock, or mental suffering can also be considered as an element of damage. Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183); Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304); Charleston & Western Carolina. Ry. Co. v. Hart, 23 Ga. App. 161 (97 S. E. 866).

2. In this case, for the reason that no wilful or wanton negligent act directed against the plaintiff is alleged, the recovery sought is not and could not be for mere fright, shock, or mental suffering; and for the same reason the plaintiff would be limited in her recovery to such mental or physical impairment as the knowledge which the defendant had or is legally chargeable with having would have caused him to reasonably foresee and anticipate as the direct, natural, and probable consequence of his alleged acts and conduct. Hines v. Evans, 25 Ga. App. 829, 835 (105 S. E. 59). While the petition states that the miscarriage and its attendant ill effects were “directly traceable to the injury caused by the actions and threats” alleged to have been directed by the defendant against plaintiff’s husband in her presence, the petition in no way shows that these were or should have been anticipated by the defendant as the natural, reasonable, and probable consequences of his alleged acts and conduct. It is not alleged that the defendant knew or should have known of the plaintiff’s state of pregnancy at the time of the alleged tort, and in this respect, as well as in the very much milder allegations of alleged negligence, the instant case is much weaker than the case of Goddard v. Watters, supra, in which the sustaining of the defendant’s demurrer was upheld.

Judgment affirmed.

Bell, J., concurs. Stephens, J., concurs specially.

Action for damages; from Gordon superior court—Judge Tarver. January 2, 1924.

Y. A. Henderson, J. G. B.' Envin, for plaintiff.

Morris, HawTcins & Wallace, for defendant.


author: Bell, J.

text:
    15521.
    KOKOMO RUBBER CO. v. ANDERSON.
    Although a lessee in possession knowingly and arbitrarily violates his obligation to deliver the rented .premises to his landlord at the expiration of his term, and thus renders it impossible for the landlord to comply with the implied warranty in a lease to a second lessee, for a term to commence at the expiration of the term of the first lessee, that the leased premises shall be open to entry by the second lessee at the time fixed for his taking possession, such breach by the first lessee does not, without more, amount to a tort against the second lessee, and can not be the basis for an ex delicto action by the second lessee against the first lessee for the recovery of damages suffered by the second lessee because of the resultant breach of such warranty by the lessor or owner.
    Decided December 15, 1924.
    Action for damages; from 'Fulton superior court—Judge Ellis. January 19, 1924.
    Certiorari was granted by tbe Supreme Court.
    Some time in May or earlier in 1920 Thomas J. Anderson leased from William H. Black a certain building in the city of Atlanta known as No. 103-105 North Pryor street, at a stipulated annual rental, for a period of five years to commence on September 1, 1920. The Kokomo Rubber Company was already in possession of the store known as No. 103 as a tenant under Black for a term ending on August 31, 1920, paying a monthly rental of $125. Anderson with the consent of Black subleased this store to the Hughes Piano Company for five years at $300 per month, to commence at the expiration of the lease of the rubber company, which was notified of the sublease several months before the end of its term. The rubber company did not quit as-it ought to have done under its lease, and Anderson was unable to give possession to his subtenant, Hughes Piano Company. After Anderson had made several demands on the rubber company to vacate, in order that Hughes Piano Company might enter, he notified it on September 3rd that the piano company would cancel its lease unless permitted to enter without further delay, and that he (Anderson) would hold it responsible for any loss which he sustained by reason of its continued occupancy. This notice was ignored, and the piano company notified Anderson on September 8th that the contract between thetu was cancelled. The piano company moved into another building and the fruits of Anderson's contract with this company were lost. The rubber company did not vacate the premises until the latter part of September, 1920. It had claimed an inability to get possession of another place it had rented. In response to the demands for possession, it replied with a positive refusal, claiming that it would be liable only for double rent. Nothing was done by Black amounting to an acquiescence in the holding over. He brought proceedings to eject, but not until after the piano company had withdrawn from its contract. Anderson, as soon as he got possession, rented the property to different persons for various terms at the best price obtainable, and brought suit against the rubber company for the difference between the amounts so received and the price at which he had rented the property to the Hughes Piano Company. He sued also for punitive damages, laying his entire damages at $15,000. The petition alleges: “That the Hughes Piano Company cancelled its lease with petitioner solely because of defendant's arbitrary and unlawful retention of said property, by reason of which William H. Black, the landlord, could not put petitioner or the Hughes Piano Company in possession;” and that all of petitioner's “loss and damages were occasioned by defendant's unwarranted and arbitrary and illegal action in interfering with and unlawfully holding possession of property leased by peti-’ tioner.”
    The defendant demurred upon the ground that “said petition sets forth no cause of action, . . for the reason that the damages therein sought to be recovered are too remote and contingent and not susceptible of computation, and not within the contemplation of the parties;” “that the petition shows that plaintiff could have reduced the damages to a sum not exceeding double rent for the month of September, 1920, had he promptly resorted to the statutory mode of dispossession provided by law, and if said course had been pursued by the plaintiff even as late as the 4th of September, 1920, defendant could have been expelled from the premises in three days time, which date was prior to the 8th of September, the date upon which the five years lease of the Hughes Piano Company is alleged to have been cancelled.” The demurrer prayed judgment by the court that the petition set forth no cause of action “except to the extent of double rent of the premises” during the time of the holding over. The demurrers were overruled, and.the defendant excepted. The exceptions were dismissed by this court (Kokomo Rubber Go. v. Anderson,, 29 Ga. App. 98, 114 S. E. 64), since the judgment made no final disposition of the case, the demurrer not disputing that a cause of action was set forth for some amount. Leave was given, however, that the official copy of the bill of exceptions of file in the office of the clerk of the trial court should operate as exceptions pendente lite.
    The original answer, which, consistently with the demurrer, contended that the measure of the plaintiff’s damage was double rent, was amended to allege that the measure was only the fair rental value of the premises during the period of "the holding over. The case proceeded to trial, and the trial resulted in a verdict in favor of the plaintiff for $11,605. Barring the conclusions, such of the averments of the petition as were not admitted by the answer were established without dispute. The defendant made a motion for a new trial, which was overruled, and it excepted. Error is also assigned upon the pendente lite exceptions to the overruling of the demurrer. The motion for a new trial contains several special assignments of error, but 'in the view which this court takes of the case, it is not necessary to state them in detail, as they will be controlled by the rulings upon the general grounds of the motion.

      II. A. Etheridge, Little, Powell, Smith & Goldstein, for plaintiff in error.

      McDaniel & Neely, II. L. Greene, contra.
   Bell, J.

(After stating the foregoing facts.)

1. Assuming that the plaintiff, or, instead, his lessee, the .Hughes Piano Company, might have been entitled to an action against the defendant for the recovery of possession, or for mesne profits (38 Cyc. 1072-3; Parker v. Salmons, 113 Ga. 1167 (5), 39 S. E. 475; Bigelow on Torts, p. 233), such is not the character of the action as brought. The suit is not sustainable under the Civil Code, § 4471, providing that the bare right of possession of-land authorizes the recovery of damages for the withholding of the 'right, for two reasons: First, if, before entry, Anderson had a right of possession, he had sold the same to the piano company; second, the plaintiff’s lease from Black was one in reversion, giving the plaintiff no interest in the property, nor any right of possession until entry. His lease was to commence in the future, at the expiration of the term of the defendant. “At common law, the estate in a lease, to commence in futuro, did not vest until the tenant had accepted it by entering in possession; but until possession, he held the right of entry, which was- called his interest in the term, or interesse termini.” Field v. Howell, 6 Ga. 423 (3), 431; 16 R. C. L. 638, § 124; 4 Kent’s Commentaries (14th ed.) 97. The defendant, therefore, violated no right of possession of the plaintiff. Prior to the plaintiff’s entry, his rights were only in his contract with Black.

His lease did not make him the defendant’s landlord. Any right, therefore, to proceed against the defendant as a tenant holding over remained in Black. “The right to maintain an action against a tenant for damages for wrongfully holding over is generally held to be restricted to the landlord, and it has been held, though the authorities are not in entire accord, that such an action can not be maintained by one to whom the landlord has leased the premises for a term to commence after the expiration of the over-holding tenant’s term.” 16 R. C. L. 1168, § 690; L. R. A. 1915C, p. 169, note. The defendant’s original entry was lawful, and although his holding over was wrongful, it was not a trespass. Compare Sheftall v. Zipperer, 133 Ga. 488 (2) (66 S. E. 253). It was even wrongful only as against Black because Black could have consented and made it legal, irrespective of the wishes of Anderson or the piano company. Stanley v. Stembridge, 140 Ga. 750 (4) (5) (79 S. E. 842); King v. Durkee-Atwood Co., 126 Minn. 452 (148 N. W. 297, L. R. A. 1915C, 235).

While it is true that the plaintiff does not appear to have proceeded upon the theory that the defendant was his tenant, the case, as we construe it, can be upheld, if at all, only as an action on the case, which “is an action for the recovery of damages, for acts unaccompanied with force, and which in their consequences only are injurious; for though an act may be in itself lawful, yet, if in its effects or consequences, it is productive of any injury to another, it subjects the party to this action.” Hendrick v. Cook, 4 Ga. 241, 260. Such an action is brought under our Civil Code, § 4405, providing that “when the law requires one . . to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the party may recover.” Do either the averments or the evidence make a ease against the defendant under these principles? To answer this question it is necessary to determine the rights and duties of the various parties concerned. Black owed Anderson the duty to see that leased premises were open to entry at the time fixed for Anderson’s taking possession. If this were not true, the case would end here, because if such duty did not rest upon Black with respect to Anderson, it would not have been imposed upon Anderson with respect to the piano company, and, therefore, the piano' company would not have been justified in repudiating its contract with Anderson merely because the defendant rubber company refused to vacate, but should itself have borne the burden of recovering possession. Stiger v. Monroe, 109 Ga. 457 (1) (34 S. E. 595).

This court, however, is committed to the doctrine that “In a lease contract, where there is no stipulation to the contrary, the lessor impliedly warrants that the leased premises shall be open entry by the lessee at the time fixed for taking possession.” Browder-Munget Co. v. Edmondson, 7 Ga. App. 843 (1) (68 S. E. 4531); Watkins v. Stulb, 23 Ga. App. 181 (3) (98 S. E. 94). See also 16 R. C. L. 724, § 215; King v. Reynolds, 67 Ala. 229, 232 (42 Am. R. 107); Herpolsheimer v. Christopher, 76 Neb. 352 (111 N. W. 359, 9 L. R. A. (N. S.) 1127); Sloan v. Hart, 150 N. C. 269 (63 S. E. 1037, 21 L. R. A. (N. S.) 239, 134 Am. St. Rep. 911). It thus appears that the defendant’s holding over rendered Black and Anderson, successively, unable to comply with their lease contracts. In these circumstances Anderson was compelled to lose the fruits of his contract with the piano company. But what duty has been violated by the defendant rubber company ? Only the obligation to deliver possession to his landlord at the expiration of his term. Civil Code (1910), § 3697. The petition does not charge the violation of any other, although it is averred that the breach of this duty was unwarranted, arbitrary, and illegal. The petition seeks, in its last analysis, to recover damages of the defendant for the defendant’s breach of a contract between it and Black, upon the theory that such breach indirectly interfered with the contractual relations between Black and the plaintiff. The wrong of the defendant was to Black, and it is the general rule that one person, can not maintain an action against another for an injury to a third person on the ground that the wrong has also indirectly injured the plaintiff by reason of his contractual relations with the third person. 37 Cyc. 394. “No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract.” Civil Code (1910), § 4408. To the same effect, see 38 Cyc. 433.

Our Supreme Court, in Byrd v. English, 117 Ga. 191 (43 S. E. 419, 64 L. R. A. 94), held that a party to a contract who is injured by reason of the failure of the other party to comply with its terms, can not recover damages of a third person for his negligent act by which the performance of the contract was rendered impossible. This case would be controlling of the question now before us if the act therein complained of had been wilful and arbitrary instead of merely negligent. The exact point seems, however, to be fully covered by the New Jersey case of Dale v. Grant, 34 N. J. Law 142, from which the Supreme Court quotes with approval in the opinion in Byrd v. English, in which it was said: “A case in point which well illustrates the principle governing the case now under consideration is that of Dale v. Grant, 34 N. J. L. 142, where it was held that ‘a party, who by contract is entitled to all the articles to be manufactured by an incorporated company —he, such party, furnishing the raw materials—can not maintain an action against a wrongdoer, who, by a trespass, stops the machinery of such company, so that it is prevented from furnishing, under said contract, manufactured goods to as great an extent as it otherwise would have done/ In the opinion (p. 149) the court says: ‘The law does not attempt to give full reparation to all parties injured by a wrong committed. If this were so, all parties holding contracts, if such exist, under the plaintiffs who may have been injuriously affected by the conduct of the defendants, would be entitled to a suit. It is only the proximate injury that the law endeavors to compensate; the more remote comes under the head of damnum absque injuriad ”

All that was done by the defendant was to prevent Black from carrying out his contract with Anderson, which it did by wrongfully holding over. Does the duty owed by one party to a contract constitute the object of a right which a stranger to the contract can infringe and thereby render himself answerable ex delicto? In other words, was Anderson’s right to have performance by Black analagous to ownership or possession? The answer it seems should be in the negative. Again, the breach of a duty arising merely in virtue of a contract, such as was the defendant’s wrong here, ordinarily will not give rise to a cause of action in favor of a stranger, as was the plaintiff to the contract between the defendant and Black. See Pollock on the Law of Torts (11th ed.), 556-8. Cf. Daugherty v. Herzog, 145 Ind. 255 (44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204).

The case does not fall within the line of those authorities which hold that if a third person maliciously interferes with or procures one of the parties to a contract to violate it, ho will be liable to the other contracting party for the resulting injury. See Employing Printers Club v. Blosser Co., 122 Ga. 509 (3), 519 (50 S. E. 353, 69 L. R. A. 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694); Southern Ry. Co. v. Chambers, 126 Ga. 404 (1, 2) (55 S. E. 37, 7 L. R. A. (N. S.) 926); Luke v. Dupre, 158 Ga. 590 (124 S. E. 13); Duane Chair Co. v. Lewallen, 22 Ga. App. 307 (1) (95 S. E. 997); Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752); Hughes v. Bivins, 31 Ga. App. 198 (1) (121 S. E. 590); Collier v. Moore, 31 Ga. App. 227 (120 S. E. 441). Whether a liability would have resulted if the defendant had been guilty of some affirmative action, such as fraud, deceit, violence, or intimidation, rendering performance by Black impossible, or had had a specific and positive intention to injure the plaintiff, by means of its continued occupancy, rather than merely to unfairly serve its own convenience and advantage, we think it clear that, with neither of these elements present, the holding over can not be said to be a breach of any duty to the plaintiff. See Cooley on Torts (3d ed.), 588, 592. Cf. Brink v. Wabash R. Co., 160 Mo. 87 (60 S. W. 1058, 53 L. R. A. 811, 813, 83 Am. St. Rep. 459). The rights of the plaintiff arose out of a contract. The duty of the defendant was imposed by entirely different contract. There was no privity between them under either contract. The damages resulting from an indirect injury to the rights of the plaintiff by the violation of the duty of the defendant are plainly too remote to form the basis of an action for damages.

We conclude that the plaintiff neither alleged nor proved a cause ■ of action.

If the holding over was a tort against Anderson, the same might have been claimed by the piano company or by any one holding under Anderson through successive leases. The line might have extended through any number of successive lessees, with the right in any or all of them to sue, who elected to do so. We think that to uphold the action would be a radical departure from established principles, and before assenting to a doctrine which would so likely prove extremely dangerous in some cases, we should require the most clear and unequivocal authority. None has been found.

It follows, that while the demurrer did not challenge the plaintiff’s right of any recovery whatever, but merely contended that a recovery could not be had to the extent prayed, the court ‘erred in overruling it. It was further and consequent error to refuse the defendant’s motion for a new trial.

Judgment reversed.

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


author: Jénkins, P. J.

text:
    15531.
    LAMON v. PERRY.
    1. As to tlie amount of damages awarded for the injury to the automobile, the verdict was possibly not unauthorized. The testimony relied on by the plaintiff as to amounts expended for repairs was somewhat vague and speculative, but no exception to its admission was taken.
    2. The court erred in not allowing counsel for the defendant to ask the plaintiff, on cross-examination, whether she had assigned her claim for damages.
    3. The instruction to the jury as to the speed limit for automobiles under a municipal ordinance was harmless to the defendant, in view of other instructions.
    4. Since the defense of “contributory” or comparative negligence was pleaded, although in a somewhat meager way, and was involved under the evidence, the law upon the issue thus raised should have been given in charge to the jury.
    Decided December 15, 1924.
    Action for damages; from city court of Savannah—Judge Freeman. February 20, 1924.

      Mclniire, Walsh & Bernstein, for plaintiff in error,

      Gonnerai & Hunter, B. B. Gubbedge Jr., contra,
   Jénkins, P. J.

In an action to recover damages for injuries to an automobile from a collision, the measure of damages is “the difference between the value of the property before the damage and afterwards” (Douglas v. Prescott, 31 Ga. App. 684 (1), 121 S. E. 689), but in a ease where the owner has undertaken to make proper and necessary repairs, he may, in establishing such damage, include such proper and necessary expenses, provided such items are the direct and proximate result of the collision, and represent the reasonable value of such necessary material and labor, and provided the aggregate of these amounts, together with hire on the machine while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the value of the machine before the injury with interest thereon. Civil Code (1910), § 4505; Savannah Electric Co. v. Crawford, 130 Ga. 421 (2) (60 S. E. 1056); Telfair County v. Webb, 119 Ga. 916 (47 S. E. 218); So. Ry. Co. v. Stearns, 8 Ga. App. 111, 112 (68 S. E. 623); 17 Corpus Juris, 877 (§ 183 and notes). In a case where the rule of comparative negligence or diminution of damages may be applicable under the issues raised, the amount found under the rule stated may be reduced, accordingly as the jury may apply such rule of diminution. Value may be shown by the testimony of experts, or by other testimony as to the nature of the injuries sustained and as to the material and labor supplied; and testimony as 'to the actual cost is admissible, such cost being a circumstance which may be considered by the jury in determining such value, under their right to weigh all the facts and circumstances bearing upon that question, and to form their own judgment on the data in evidence, without being absolutely bound by the opinion of witnesses. So. Ry. Co. v. Williams, 113 Ga. 335 (1), 336 (38 S. E. 744); Martin v. Martin, 135 Ga. 162 (68 S. E. 195); Baker v. Richmond City Mill Works, 105 Ga. 225 (31 S. E. 426); Jennings v. Stripling, 127 Ga. 778, 784 (56 S. E. 1026); Great American Fire Asso. v. Jenkins, 11 Ga. App. 784 (5), 787 (76 S. E. 159). But “the cost of an article” or the amount paid for service “is not the criterion of its value” {So. Ry. Co. v. Williams, supra), and, “without more, is not sufficient proof” to authorize a verdict. Watson v. Loughran, 112 Ga. 838 (3), 841 (38 S. E. 82); Allen v. Harris, 113 Ga. 107 (4), 109 (38 S. E. 322). However, if the nature of the injury, the character of the services rendered, and the amount paid therefor are proved, but there is a mere omission on the part of a witness to say that he thinks the amount was reasonable, it can not be said that there is nothing on which the jury may base a verdict, since they “are not bound by the opinion evidence, but may put their own estimate upon the value of the services in view of their nature and character, and the attendant circumstances." Ga. Ry. & Elec. Co. v. Tompkins, 138 Ga. 596 (8), 603 (75 S. E. 664). Under these rules it might possibly be said that the verdict with respect to the amount of damages was not altogether unauthorized. Although the testimony relied upon as to the amounts actually expended for material and repairs was somewhat vague and speculative, no exception to its admission for such purpose was taken and preserved. See Bull v. Carpenter, 32 Ga. App. 637 (124 S. E. 381, 382).

“A chose in action arising from a tort is assignable where it involves, directly, a right of property.” Where there has been a complete legal assignment of such a chose in action, the assignee may institute and maintain an action against the defendant tortfeasor for the entire damage sustained, and the assignor “is not a proper party plaintiff to the suit.” Sullivan v. Curling, 149 Ga. 96 (1) (99 S. E. 533, 5 A. L. R. 124). But where there is only a partial assignment of the chose in action and damages resulting from a tort, as by an insured person to an insurance company, whose payment of a policy covers only part of the loss, and especially where there has been no proper legal assignment, “the tendency of the courts is to hold that the action must be brought in the name of the insured, and that the insurer is not a necessary or proper party.” Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522 (2), 523 (116 S. E. 35), and cases cited.

“Under our Code [of 1882], § 2244 [Civil Code of 1910, § 3653], all choses in action are assignable, but as construed by the decisions . . the assignment must not rest in parol, but must be in writing.” Hartford Fire Ins. Co. v. Amos, 98 Ga. 533, 534 (1) (25 S. E. 575); Foster v. Sullive, 110 Ga. 297 (1) (34 S. E. 1037). The writing renders it an assignment at.law; and while one who takes a chose in action by oral assignment under facts and circumstances rendering it valid as an equitable transfer has the rights of an equitable owner under what is termed.an equitable assignment, a written assignment at law is necessary to entitle the owner to sue in a direct action at law in his own name. Benson v. Abbott, 95 Ga. 69, 72 (22 S. E. 127); Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 417 (71 S. E. 734); Few v. Pou, 32 Ga. App. 620 (124 S. E. 372).

While it is true that where irrelevant evidence is admitted over objection, such admission “is not cause for a new trial, unless a valid objection to its admission is made,” and the statement of one or more specific grounds of objection is a waiver of other grounds (So. Pine Co. v. Smith, 113 Ga. 629 (3), 633, 38 S. E. 960; Cox v. Cody, 75 Ga. 175 (1 a); Goodtitle v. Roe, 20 Ga. 140 (4); Waxelbaum v. Berry, 99 Ga. 280, 25 S. E. 775; Pearson v. Forsyth, 61 Ga. 537 (1)), the rule is not the same where the testimony has been excluded, but in such a case, “if testimony was properly rejected, the ruling of the court will be sustained, although he may have given an insufficient, or even a wrong reason therefor. ” Smith v. Page, 72 Ga. 539, 544; Barksdale v. Security Investment Co., 120 Ga. 388 (4), 395, 396 (47 S. E. 943).

The question asked by the defendant of the plaintiff, as to whether she had assigned to a named insurance company “her- claim against the defendant for damages to her automobile,” was, therefore, not objectionable for the reason urged, to wit, that-the claim was not assignable. The claim being assignable, upon proof of a complete legal assignment the person injured could no longer maintain the action. While it is true that, where the assignment, in order to be valid, must have been reduced to writing, the writing itself is the best evidence of the same, and, consequently, an affirmative answer to the question asked would not of itself have entitled the defendant to a nonsuit, still, since the information sought was such as lay peculiarly within the knowledge of the plaintiff, the court should have allowed the defendant, on cross-examination, to develop tentatively the information sought, in order'that the defendant might, if he could, legally prove the writing thus ascertained to be in existence.

The instruction by the court with reference to a municipal ordinance limiting to eight miles an hour the speed of automobiles in making turns and at intersecting streets was not harmful to the defendant, under his contention that the plaintiff herself failed to exercise ordinary care and was proceeding at an unlawful speed under the law of Georgia in force at the time of the collision, in December, 1920, limiting the speed at such intersections to six miles, since the. court, in connection with the charge on the portion of the ordinance relating to the eight-mile speed, plainly told the jury that the six-mile limit of the State law superseded that part of the ordinance, and that such provision of the ordinance would not apply.

“In a suit for a negligent tort, where the question of diminution of damages by reason of negligence on the part of the person injured is not raised by the pleadings of either party, it does not constitute reversible error for the court, in the absence of a request, to omit to charge on that subject, where he has charged fully as to the effect of the negligence of the injured person upon the right to recover at all; although it is the .better practice to charge on the subject of comparative negligence and diminution of damages where the evidence authorizes it.” Powell v. Berry, 145 Ga. 696 (5) (89 S. E. 753, L. R. A. 1917A, 306); Savannah Elec. Co. v. Crawford, 130 Ga. 421 (1), 424, 425 (60 S. E. 1056); So. Ry. Co. v. Hooper, 110 Ga. 779 (2) (36 S. E. 232); Savannah Elec. Co. v. Thomas, 30 Ga. App. 405, 407 (12) (118 S. E. 481); Davies v. West Lumber Co., 32 Ga. App. 460 (123 S. E. 753); Ga. R. Co. v. Brooks, 30 Ga. App. 692 (1) (119 S. E. 424). But under the rule that “the law of the case must be given to the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or whether the attention of the court be called thereto or not” (Central R. v. Harris, 76 Ga. 500 (1 b), 511), where comparative negligence or diminution of damages becomes an issue by being specifically raised in the pleadings, and under any phase of the evidence, it is reversible error not to charge thereon, even in the absence of a request. Since the term “contributory” negligence has been construed by the courts as synonymous with what is perhaps more accurately termed “comparative negligence” or the rule of diminution of damages, where the plaintiff’s negligence is not such as to wholly bar a recovery (Savannah Elec. Co. v. Crawford, supra), and since the plea of the defendant in the instant case expressly sets forth the defense of “contributory” negligence, although in a somewhat meager way, the law upon the issue thus raised by the plea and involved under the evidence should have been charged.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15534.
    Herndon v. Chamberlin.
    Decided December 15, 1924.
    Trover; from Taliaferro superior court—Judge Shurley. March 8, 1924.
    Herndon brought bail-trover against Chamberlin for a saw-mill saw, alleging that “demand has been made for said saw and possession refused.” The defendant answered that he was “in possession of said saw as an employee and agent of the White & Hamilton Lumber Co., to whom said saw belonged,” denied “any demand for same by plaintiff,” and alleged that the plaintiff had “no title to said saw, nor any right to the possession, custody, or control of same.” There was no proof of demand. The evidence was in conflict as to whether the plaintiff or the third person held the title and right of control. The jury found for the defendant; and the plaintiff’s motion for new trial was overruled. Exception was taken to the following excerpts from the charge of the court: that the plaintiff “must show you, first, that the title to the saw is in him, and that demand has been made upon Mr. Chamberlin (the defendant), and that Mr. Chamberlin has refused to deliver it;” and “if you should not believe that the title to the saw was in Mr. Herndon (the plaintiff), although you should further believe that the title to the saw was not in Mr. Chamberlin, or if you should believe that no demand has been made for the saw on Mr. Chamberlin and refusal on his part, then I charge yoii you would not be authorized to find for the plaintiff at all.” It was contended that these instructions were error for the reason that it was unnecessary for the plaintiff to prove a demand and refusal, since the defendant in his answer admitted possession and set up a claim of title in a third person as his bailor, adverse to the claim of title of the plaintiff.
   Jenkins, P. J.

“In an action for tlie recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence of the conversion; and where the conversion is shown by other evidence, such proof is not essential.” Merchants & Miners Trans. Co. v. Moore, 124 Ga. 482 (52 S. E. 802); Beasley v. Cen. of Ga. Ry. Co., 29 Ga. App. 584 (1) (116 S. E. 227). Likewise, it is unnecessary to prove a demand and refusal, or any other conversion of the property, where the defendant in his answer admits possession in himself and denies the plaintiff’s averments of title. Securities Trust Co. v. Marshall, 30 Ga. App. 379 (3) (118 S. E. 478); Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821). The fact that the plaintiff’s petition, in the usual trover form, alleged demand and refusal did not render proof thereof necessary for a recovery, where the defendant’s answer claimed lawful possession in himself through title in another, and wholly denied the plaintiff’s title and right. The instructions with reference to demand and refusal being erroneous, a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur.

J. A. Mitchell, for plaintiff.

Iiawes Cloud, for defendant.


text:
    15537.
    Williams v. Green.
   Jenkins, P. J.

1. “A motion to continue the trial of a case is addressed to the sound discretion of the trial court, and its judgment thereupon will not be reversed except where the discretion is flagrantly abused.” Hilton v. Haynes, 147 Ga. 725 (2), 727; Civil Code (1910), § 5724. The court did not abuse its discretion in refusing the plaintiff’s motion for a continuance, based on the ground of surprise, where the defendant, to meet the plaintiff’s special demurrer, amended his plea of recoupment by merely itemizing a lump amount claimed as damages in his original plea.

2. The court did not err in overruling the plaintiff’s demurrer as to the item in the defendant’s plea setting up that, “as -a result of said accident, his said automobile has depreciated in value of not less than $50,” the demurrer as to that item being based solely on the ground “that the defendant can not legally recover the item of $50 set forth in paragraph seven of said plea.”

3. The fact that one against whom a finding and judgment are rendered in the municipal court of Atlanta makes in that court a motion for new trial, but abandons it, and it is dimissed for want of prosecution, will not prevent him from assigning error on the original judgment, in a timely petition for certiorari, on the ground that the finding and judgment are contrary to law, as without evidence to support it.

4. The evidence, although conflicting, authorized a finding for the defendant on the issue of the respective diligence and negligence of the parties in the collision of their automobiles, and likewise sustained the finding and judgment as to the item of $28.60 expended by the defendant in having his car repaired. Evidence, however, was wholly lacking to sustain the item of $50 claimed on account of the alleged depreciation of the ear in consequence of the collision. The only testimony in this connection was that of the defendant himself, as follows : “I am not familiar with second-hand car values,—in fact know nothing about depreciation of second-hand cars as the result of use or accident; never bought a second-hand car in my life. Think this car has depreciated $100 in value since the accident; think it worth to-day $100 less than at the time of the accident.” The only damage, só far as in any way indicated by the evidence, was to the “fender and axle” of the ear, for which, the defendant testified, he paid the item claimed for repairs “to have it 'put in proper shape.” The case was tried on June 20, 1923, and the collision was on May 1, 1923. The evidence of the defendant, which must be taken most strongly against him, not only specifically indicates that the only injury to the car was thus “put in proper shape,” but the general reference to depreciation, which is in seeming conflict with his specific testimony, even if it might otherwise be considered under the rule stated in Bull v. Carpenter, 32 Ga. App. 637 (124 S. E. 381), is in no way connected with the injury, but such depreciation might have resulted from other causes. The item of $50 included in the recovery of the defendant being contrary to law, as unsupported by evidence, the judgment is affirmed, provided the defendant shall see proper to write off this item of his recovery at the time the judgment of this court is made the judgment of the court below; otherwise the judgment of the superior court overruling the certiorari is reversed, and a new trial granted.

Decided December 15, 1924.

Certiorari; from Fulton superior court—Judge Ellis. February 14, 1924.

Hutcheson & Morris, for plaintiff.

McDaniel & Neely, H. L. Greene, for defendant.

Judgment affirmed, on condition.

Stephens and Bell, JJ., concur.


text:
    15548.
    GEORGIA RAILWAY AND POWER COMPANY v. EUBANKS.
    Waiver of the right to rely on other grounds in the reviewing courts was made in the municipal court by the statement of counsel for the movant, on the hearing of the oral motion for a new trial, that he relied on one specified ground alone and would not insist upon others.
    With reference to the right to recover as damages expenses incurred by the plaintiff in the repair of his automobile, the case is controlled by the ruling in Lamon v. Peiry, ante, 248. The evidence authorized the verdict.
    Decided December 15, 1924.
    Certiorari; from Fulton superior court—Judge Ellis. January-25, 1924.

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

      Roy Lewis, contra.
   Jenkins, P. J.

1. Where, on certiorari from the municipal court of Atlanta, the only exception was to the overruling of an oral motion for new trial, and, as appears from the answer of the judge of that court, counsel for the movant, on the hearing of the motion, stated that he relied upon only one specified ground and would not insist upon others, the movant thereby waived any right to insist before the superior court or this court that the overruling of the motion for a new trial was erroneous upon any ground other than that so expressly relied upon.

2. This ease, with reference to the right of the plaintiff to recover expenses incurred in the repair of his. automobile, is controlled by the ruling made in Lamon v. Perry, 33 Ga. App. 248 (125 S. E. 907). The plaintiff sought to recover damages as shown by an itemized list of payments for material and labor to a named person, $128.40, loss of earnings of the car (used as a taxicab) while being repaired, $150, and the price of a new tire to replace one entirety destroyed) $43.35; total $321.75. The jury returned a verdict for $221.75. There was no exception relied upon that the evidence was not sufficient to sustain a recovery for the items of lost profits and the cost of the new tire, aggregating $193.35, and no attack is made upon the right to such a recovery. The only exception relied upon was: “because the plaintiff failed to prove that the bill which he had paid to have his car repaired was a reasonable •and fair bill for the services rendered, and because there was no proof or evidence as to the reasonableness of such amount expended.” Under the rule referred to it can not be said that the verdict including those items was without evidence to support it. The driver of the injured taxicab testified in detail as to the nature and extent of the injuries, that the items for repairs listed “were necessary,” and particularly as to the cost of one item,—“I know about the one wheel that there was $18 repairs on; that is correct.” The owner of the car also described the injuries in detail, and testified that “these repairs were necessary to be done,—one wheel $18, straightening fenders $12, running board mat $2.50, screws and washers, 75 cents, one front wheel $12; that was the mechanics bill, I had to do all that; . . that is the bill I had to pay,” and as to the total expenses which he had paid and incurred.

3. There was no error in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.