text:
    18935.
    SOUTHERN RAILWAY COMPANY v. WOODWARD.

      Decided January 22, 1929.

      McDaniel, Neely & Marshall, for plaintiff in error.

      Clarke & Clarke, contra.
   Bell, J.

Bichard Woodward brought suit against Southern Bailway Company under the Federal employer’s liability act, to recover damages for injuries which he sustained while employed as an oiler or car-greaser in the switch-yard of the railway company at Atlanta, known as Inman yard. The plaintiff recovered a judgment, the court refused a new trial, and the defendant excepted.

Under the general grounds it is argued that as a matter of law the defendant was not negligent, but that the plaintiff’s injury was due solely to his ovm negligence, or to a risk which he assumed. In the special grounds are assignments upon several excerpts from the court’s charge.

The plaintiff was injured in a yard where there were many tracks, and where cars were being constantly shifted in making and breaking up trains, and for other purposes. The plaintiff was ordered by his foreman, with a colaborer, to go to and grease certain cars that were about to be dispatched. In obeying this order he undertook to cross a track upon which four empty cars were standing at rest, and went upon the track at a distance of eight or ten feet from them. He testified that before doing so he looked to see if any train or car was approaching, and saw none. As he reached the middle of the track certain loaded cars were kicked against the empties from the opposite end, cansing them to lurch suddenly-and rapidly forward, so that they struck and injured him.

The petition alleged, in substance, that it was customary in this yard to have the brakes applied on cars that were standing idle, so as to prevent their moving a greater distance than four or five feet when other cars were driven or kicked against them, and that the defendant was negligent in failing to observe this custom on the particular occasion. The petition may be construed as averring indirectly but inferentially that this practice was intended to promote the safety of employees other than the switching crews.

There was evidence to the effect that car-greasers and other employees, in the discharge of their duties, were frequently passing in and about the yards and over the tracks, and the jury could have found that this fact was known to the switching crew responsible for the movement which caused the injury.

This court, of course, has nothing to do with conflicts in the testimony, and, in determining whether the verdict was authorized, must view the evidence as a whole in the light most favorable to the plaintiff, although his own testimony must be construed most strongly against him.

The plaintiff was injured on Track 9. He testified: '“I crossed over 9, eight or ten feet from where the cars were standing. As I crossed I looked up towards the end, towards the office. There was nothing attached, nothing coming that I could see. . . As to what is the custom when cars are left on a track in the yard, like those were left on Track No. 9, about putting on brakes and chocking them — when they leave cars it is customary to tie up the brakes. When another car hits them they don’t go over four or five feet. That is the general custom out there all the time. I have observed that a good long while. I worked on the rip track, all around in the yard. When I was knocked down, that train was coming awful fast. I tried to get out of the way but could not. It did not make much fuss. The ear just hit and it was right there. When I heard it hit the other, it was coming then. When the cars came together it made a fuss. When they hit the other cars they both came with a fast lurch.”

The plaintiff was corroborated by another witness, W. M. Moss, who was a former employee of the railway company, and who testified as follows: “I have switched trains out there about nine years. I know the custom out there in that yard. When three or four cars are standing still,' say on Track No. 9, the custom about putting on brakes or chocking the cars is to put on brakes or chock cars to keep them from rolling out. . . They tie up the brakes on standing cars they leave on No. 9. As to whether they do anything else, there are times when they chock them, yes. When you leave them and there is space of two or three car lengths south, they should be chocked to keep them from going the other way. If you hit them they roll forward, then roll back if it is on grade. If the brakes are on and they are chocked, the usual speed, the customary speed, in kicking cars in where cars are standing still is anywhere from five to ten miles. When you kick them in and cars are standing on the other track, if the cars have brakes, at five or ten miles the cars won’t go but a little ways, not over three or four feet. My testimony was that .they would have the brakes on on the incline and be chocked. What we term chock is a piece of wood or a railroad spike, anything, a small bolt, put under the wheel to keep it from rolling. When they are making up trains in that yard and there are left three or four ears on one track, standing there long enough to [for] a man to walk between track Number 9 and 10 and then to cross over between 8 and 9, and then get back on that track, and these cars were standing two or three car-lengths from anything on the south, and they were making up trains from the north, kicking them in from there, the custom about what they do with trains standing on track Number 9 is to set up the brakes, where they are building a train, on the first car in the track, set up the brakes to keep them from being knocked out or some employee injured working around the train. When' you are building a train and have got your brakes set up tight enough to hold the cars, it is not customary to chock the cars with the brakes on, because if you set the brakes up tight enough to hold them when cars have got to be shoved, they don’t chock them. As to what is the custom when the brakes are set up tight enough, and how far they ordinarily move when other cars are kicked in on them — if the brakes are set up tight enough to hold them, it is according to how fast the speed is when they hit them. At the customary speed in making up cars, 'they would not move anywhere if the brake was set up tight enough. Probably it would jar them a little ways, two or three feet. If these cars had been standing a short time while making up a train on the north side, and a man undertook to cross the track south eight or'ten feet behind them, and before he got across these cars moved and caught him eight or ten feet and then moved a car-length, that is not the custom in that yard. If there is a string of cars south some two car-lengths from some cars that had been standing, three or four on track No. 9, if those cars that were standing on track No. 9 two or three car-lengths from the string down south, when they were put there the ordinary and customary way was to set up the brakes on them. As to how far I would say it would knock them, if the brakes were on that car and some other cars were coming down on it — if the brakes were set up good and tight, it would have to be running pretty fast to knock them any distance at all, some three or four feet. It would have to hit pretty hard to move them that much if the brakes were very tight. There are rules and customs the way they set out there generally in making up trains. . . As to Mr. Neely asking if I chocked one end without doing anything else, and as to whether I have ever seen them do that in the yard, the first cars — no. The first cars are supposed to have the brakes on them. As to whether they chock them or put on the brakes where they are not connected with other cars two or three car-lengths away — they would chock them. When three or four cars are left on the track two or three car-lengths from cars that are standing still, the custom is to put on the brakes. As to what is the custom'between cars attached to cars separated about two or three car-lengths standing still — to leave the brakes on the ones you have separated from the ones that had the brakes on when you separated. . . [The] man that was working in the field should have tied the brakes on these four cars. As to whether he should have done so if these other cars had brakes, yes.”

J. B. Edwards, yard-inspector, testified that he inspected the cars after the accident, and did not find the brakes tied on these empty cars. There was other evidence from which it might have been inferred that the brakes were not on. In fact, the defendant has made no contention to the contrary in this court.

One of the witnesses who testified as to the constant presence in the yard of workmen other than the switching crews was C. J. Conley, whose evidence was in part as follows: “Switchmen and greasers are crossing these tracks all the time. They look ont for themselves though. As to whether greasers, switchmen, and all of them constantly cross cracks 8 and 9 all during the day and night, not that special track, they cross several tracks. They cross all of those tracks. As to whether I have crossed them sometimes, you have got to. It is a yard.”

Will Evans, the fellow workman of the plaintiff, testified that the foreman, Mr. Kirbo, “sent both of us over there. We had to cross the tracks behind trains.”

The plaintiff testified that he was supposed to look out for his own safety, and the testimony from practically every other witness was to the effect that this was true of all the employees.

Even though it might seem impractical and unlikely that cars standing in a busy switch-yard, and subject to be moved at any time, should have the brakes applied so as to limit their movement when struck by other cars, and although we, if sitting as triors, might be inclined to doubt that' any custom of so controlling them, for the safety of employees, was ever established in this yard, yet the testimony as to the existence of such a custom or practice is in reference to facts the contrary of which a reviewing court can not know without proof, and was thus to be weighed and passed upon by the jury. The members of this court can not take judicial notice of what was done, or say as a matter of law what ought to have been done in the yards of the railway company as respects the matter of applying brakes to standing cars, under the circumstances here disclosed. The evidence for the plaintiff not being inherently improbable, the opposition thereto in the evidence for the defendant merely made a jury question.

The jury must have found that the operations were not carried on in the usual manner, and that if this had been done the cars would not have been driven far enough to strike the plaintiff some eight or ten feet away, else they would have returned a different verdict. “What ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not;” and yet “what usually is done may be evidence of what ought to be done.” Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468 (23 Sup. Ct. 622, 47 L. ed. 905).

Notwithstanding a switch-yard may be a place of intense action, where dangers are great and constantly recurring, it was the duty of the railway company, through each of its employees, to exercise reasonable care for the safety of the other employees, and in the discharge of such duty it was not only proper but necessary to have regard for the normal activities. Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203). True, there may have been no obligation upon any member of the switching crew to give warning or notice to the plaintiff that cars were about to be kicked against other cars on the track which the plaintiff was crossing, provided all were handled in the usual manner. But that is not the question. The defendant’s main fault, if such fault existed, lay in its failure to anticipate that employees like the plaintiff might at any time be passing to and fro in the yard, so conducting themselves as to be safe in the ordinary course, but in positions of instant peril if the normal course were interrupted. In such a ease there would seem strong reason why the clock should do clock work.

According to the contentions and evidence of the plaintiff, if the cars had been “tied” with the brakes in the usual manner, they would have moved not more than four or five feet, or at any rate less than the distance which he had reasonably chosen for his own safety, and he would have crossed unhurt. On the contrary, something happened out of the ordinary and he was caught unawares. Under all the facts and circumstances we can not say that the happening was not a negligent one. Until the contrary appears, an employee ordinarily has the right to assume that his employer has exercised proper care with'respect to providing a safe place of work, and that his fellow servants will not be negligent toward him. Gila Valley, Globe & Northern Ry. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229, 58 L. ed. 521). “To subject an employee, without warning, to unusual dangers not normally incident to the employment, is itself an act of negligence.” Chesapeake & Ohio Ry Co. v. Proffitt, 241 U. S. 462 (36 Sup. Ct. 620, 60 L. ed. 1102).

We fully recognize that the question of whether the defendant was negligent must be determined under the applicable principles of law as interpreted by the Federal courts, and that before a finding adverse to the railway company upon this question can be sustained, the matter must be put reasonably beyond the realm of speculation and conjecture. We think the evidence comfortably did that in this case.

The case at bar is easily distinguished from the case of Gulf, Mobile & Northern R. Co. v. Wells, 275 U. S. 455 (48 S. Ct. 151, 72 L. ed. 370), wherein the Supreme Court held that there was no evidence that the engineer knew or ought to have known that Wells, the complainant, was not on the train but was attempting to get on it after it had started, and was in a situation in which a jerk of the train would be dangerous to him. Here the members of the switching-crew, as above stated, knew or should have known that some workman in the switch-yard might be in danger at any time, should the modus operandi be changed. An established custom or practice may assume the force of a rule.

In Aerkfetz v. Humphreys, 145 U. S. 418 (12 S. Ct. 835, 36 L. ed. 758), the plaintiff had “an abundance of time” to observe the approach of the train, and there could have been no thought' by the trainmen that he would pay no attention to his own safety. The cars were moving slowly along the track, the speed being about that of a man walking, and they could not have been moved “at any slower rate of speed.” In that case there was nothing to show any unusual movement or handling of the cars.

In our opinion the judgment should not be reversed, either because the evidence failed to show that the defendant was negligent, •or because, it established as a matter of law that the defendant was not negligent, and certainly we can not say that the plaintiff’s own negligence was the sole proximate cause of his injury.

Much that we have said above is related in a general way to the defense of assumption of risk, to which we will now advert more directly. Neither the plaintiff’s testimony nor that of other witnesses to the effect that he was supposed to look out for his own safety can be taken as establishing that he assumed risks other than those which he was bound to assume under the law. While, in the absence of a special contract, he assumed without qualification all risks normally and necessarily incident to his employment, these did not include extraordinary hazards such as the negligence of his employer or of a fellow servant, with which he is not to be charged unless he had notice thereof, or unless the dangers arising therefrom were so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. Southern Ry. Co. v. Wessinger, 32 Ga. App. 551 (6), 560 (124 S. E. 100), and cases cited.

Assuming that the defendant was negligent (and this we have said the jury could have found to be true), it does not appear that the plaintiff had notice of such negligence, or that it was observable by him, in such time that he should have avoided the consequences.

In Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218 (46 S. Ct. 495, 70 L. ed. 914), the employee was using a velocipede on the tracks in going to his work, and was killed through failure of the train operators to maintain a lookout while the train was in motion. The Supreme Court said: “If the accident had happened an hour later when the deceased was inspecting the track, we think that there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely on his own watchfulness and keep out of the way. The railroad company was entitled to expect that self-protection from its employees.” We do not interpret this decision as holding that the railway company would have been entitled to expect self-protection from an employee as. against acts of negligence on the part of others for whose conduct it was responsible.

In Connelley v. Pennsylvania R. Co., 119 C. C. A. 392 (201 Fed. 54, 47 L. R. A. (N. S.) 867), it was held that one employed as a trackwalker takes the risk of trains operated in a proper and usual way. So in the present case the plaintiff would have assumed the risk, as a matter of law, if the cars had been operated'and controlled without negligence and in the usual manner. In the Connelley case the trainmen appeared to have taken all necessary precautions for workmen in the yard, and the decedent was killed because the train suddenly emerged from a cloud of steam and fog, so that his presence was discovered too late for him or the trainmen to avoid the casualty.

In the absence of actual or presumed notice to the contrary, the plaintiff “had the right to act upon the belief that the usual method would be followed,” and that the cars standing by would not be uncontrolled, but that, as was the custom, they would be held by brakes, so as to prevent their coming suddenly and violently upon him on impact from other cars. Chicago &c. Ry. Co. v. Ward, 252 U. S. 18 (4) (40 S. Ct. 275, 64 L. ed. 431).

The burden of establishing the defense of assumed risk rested upon the railway company, and before this defense may be held proved as a matter of law, the evidence introduced “to show such assumption must be clear and uncontradicted.” Chesapeake & Ohio Ry. Co. v. Winder, 33 Fed. (3d ed.) 794. Compare W. & A. Railroad v. Helzel, 38 Ga. App.. 556 (6) (144 S. E. 506). The evidence here did not measure up to this standard, and, consequently, the verdict settled that issue.

In one of the special grounds of the motion for a new trial the movant complained of an instruction to the jury that if they should find the plaintiff entitled to recover, they should reduce the amount of his damage to its present cash value by any correct method of calculation satisfactory to them, “using in the calculation the seven per cent, basis, that being the legal rate of interest in this State.” The attack upon this charge is based upon the decision of the United States Supreme Court in the case of Chesapeake & Ohio Ry. Co. v. Kelley, 341 U. S. 485 (60 L ed. 1117, 36 Sup. Ct. 630, L. R. A. 1917 F, 367), wherein it was held: “The present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance, according to the circumstances, for the earning power of money, is the proper measure of recovery in an action against an interstate railway carrier under the employer’s liability act.”

That ease, so far as it goes, is, of course, controlling upon the question here presented; and it was followed by this court in Central of Georgia Ry. Co. v. Goens, 30 Ga. App. 770 (7) (119 S. E. 669), and in Western & Atlantic Railroad v. Townsend, 36 Ga. App. 70 (7) (135 S. E. 439). Under the Kelley case, supra, the legal rate of interest in Georgia could not be adopted as the fixed basis of reduction in computing the damages recoverable for the loss of future earnings or benefits, but would be simply one of the “local conditions not to be disregarded” in determining the proper result. It was thus incorrect to instruct the jury as a matter of law that this rate should be used in their calculations to ascertain the present value. We are constrained to hold, however, that the railway company was not harmed by this instruction.

According to the further reasoning of that case the standard of computation should not be such as would contemplate '“the exercise of financial experience and skill in the administration of the fund,” because “where this is necessarily employed the interest return is in part earned by the investor rather than by the investment.” Also, it was there seemingly intimated that the interest or income which should be obtained by a person of ordinary prudence would be the proper rate of discount, for it was said that “Ordinarily a person seeking to recover damages for the wrongful act of another must do that which a reasonable man would do under the circumstances to limit the amount of his damages.” Following this idea, this court in the Townsend case, supra, speaking through Jenkins, P. J., said: “It thus might seem that in order to eliminate the personality of the plaintiff in determining the amount of the damages when considered in connection with the duty to reduce the award to its present cash value, the sum awarded should be made to that fictitious person known only to the law, who is assumed to be a reasonable man exercising ordinary care and diligence.”

The railway company certainly could not expect the adoption of a higher standard than that of the man of ordinary prudence; and, assuming this to be the proper standard, we think a rate of discount higher than 7 per cent, would be greater than a jury would be authorized to allow in cases of this sort. Yery few of the States have, a higher interest rate except under special contract, and it is not usual, if ever possible, to obtain a more generous return on tax-free investments. The instruction here was as to a net rate, which the court assumed to be what money should earn year in and year out, with never a loss and never an idle day, and beyond all taxes and expenses. The “fictitious person” of the law referred to by Judge Jenkins would do exceedingly well to have his money earn quite so much. If he succeeded in doing more, he should not be classed longer merely as a man of ordinary prudence, but should be ranked with those possessing skill and judgment as a financier. We hold as a matter of law that the jury, after “making' adequate allowance, according to the circumstances, for the earning power of money,” should not have scaled the amount of the damage more than they rvere instructed to do in this case.

In Louisville & Nashville R. Co. v. Holloway, 246 U. S. 525 (3) (62 L. ed. 867, 38 S. Ct. 379), the Federal Supreme Court, having occasion to deal again with one phase of the same question, held that the defendant railway company, in an action for death under the Federal employer’s liability act, is not entitled to have the jury instructed as a matter of law that money will be worth to the widow the legal rate of-interest. But this was merely to say that the railway company could not demand as a matter of right a discount of as much as six per cent., and is very different from the proposition that, after being allowed a discount at the rate of seven per cent, by instructions from the court, it might reasonably have obtained more from the jury had they been permitted to pass upon the question.

In the still more recent ease of Gulf &c. Ry. Co. v. Mosler, 275 U. S. 133 (72 L. ed. 200, 48 S. E. 49), it was held that in awarding damages under the Federal employer’s liability act, the jury must determine the present value of the pecuniary loss, calculated as bearing interest at the highest net rate that can be had on money safely invested. But that case cited and followed the Kelley case, supra, and did not purport to change the rule laid down therein. Our conclusion in the present case is not inconsistent with what was held in the Mosler case.

While agreeing with the plaintiff in error that the charge in question was incorrect, we are yet of the opinion that it was harmless to the party complaining.

The court did not commit reversible error in any of the other instructions. There was no error in refusing a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    18936.
    Turner v. Fuller.
    Decided January 22, 1929.
   Jenkins, P. J.

The petition in this case showing affirmatively on its face that the plaintiff would in no event be entitled to recover, the exception to the verdict, based upon the ground that it was contrary to law and the evidence, and without evidence to support it, must be sustained. See Greeson v. Bailey, 167 Ga. 638 (146 S. E. 490) ; Gunn v. Johnson, 29 Ga. App. 610 (116 S. E. 921); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 733 (6, 7) (116 S. E. 922).

Judgment reversed.

Stephens and Bell, JJ., concur.

E. J. Stoddard, T. Elton Drake, for plaintiff in error.

Bell & Bell, George L. Bell Jr., contra.


author: Stephens, J.

text:
    18937.
    Strickland v. Willet.
    Decided January 22, 1929.

      R. B. Blackburn, for plaintiff in error.

      Burress & Dillard, contra.
   Stephens, J.

1. This being a suit upon a promissory note, where the defendant pleaded a failure of consideration in that the note was given to the plaintiff in payment of a premium upon an insurance policy issued to the defendant by an insurance company of which the plaintiff was the general agent, and that it was agreed at the time of the execution of the note, and as a consideration for its execution, that a former policy, which the company had issued to the defendant, should be surrendered to the company and the surrender-value in the policy, accruing to the credit of the defendant, should be credited on the premium for which the note was given, and the inference being authorized by the evidence offered for the plaintiff that no such condition as pleaded by the defendant was attached to the defendant’s liability upon the note, the verdict found for the plaintiff was authorized.

2. The court did not err in sustaining the objections urged by the plaintiff to certain evidence offered by the defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    18939.
    Seaboard Air-Line Railway Company v. Dorchester Consolidated School District et al.

   Jenkins, P. J.

Prior to the act of 1922 (Ga. L. 1922, p. 153), there was authority, under the act of 1919 (Ga. L. 1919, p.-288), for any school district to supplement the funds received from the State public-school funds, by levying a tax for educational purposes, upon an election being had for such purpose, not to exceed five mills on the dollar. This provision of law did not require, as does the subsequent act of 1922, that in the call for such election the additional tax proposed to be levied should be specified. See Stapleton v. Martin, 164 Ga. 336, 347 (6) (138 S. E. 767). The passage of the act of 1922 did not render invalid any election already held under the act of 1919. Accordingly, where an affidavit of illegality is filed to a tax-execution, issued on account of failure to pay such a local school tax, based upon the ground that the order calling the election did not specify the amount or rate of taxation to be authorized, and where in the record there is nothing that shows whether the election to determine whether the district should have local tax was held before or after the passage of the act of 1922, it will not be presumed that the levy was invalid because the order calling the election failed to specify the amount of the additional tax proposed to be levied, but, the burden of proof being upon the affiant attacking the execution, it will be assumed, nothing being shown to the contrary, that the election was legally had prior to the passage of the act of 1922 requiring such specification.

Decided January 22, 1929.

This court can not, as suggested in brief of counsel, take judicial cognizance that the school district in question was not in existence when the act of 1922 was approved.

Under the foregoing rulings, the judgment overruling the affidavit of illegality must be affirmed.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Gony&rs & Gowen, for plaintiff in error. O. G. Dorsey, contra.


author: Bell, J.

text:
    18943.
    Greenblatt v. McCurdy.
    Decided January 22, 1929.

      D. K. Johnston, for plaintiffs in error. Paul L. .Lindsay, contra.
   Bell, J.

1. “In an action for damages for a conversion of personalty, proof of title to the property in the plaintiff, possession in the defendant, a demand for possession, and a refusal by the defendant to surrender the property to the plaintiff, prior to the filing of the suit, makes a prima facie case for recovery, although it does not appear that the defendant was in possession at the time the suit was filed.” Chambless v. Livingston, 123 Ga. 257 (2) (51 S. E. 314) ; Farrar Lumber Co. v. Pickering, 22 Ga. App. 404 (2) (95 S. E. 1001) ; Planters Warehouse v. Sims, 35 Ga. App. 212 (2) (132 S. E. 252).

2. The evidence introduced by the plaintiff in this case was sufficient to establish a prima facie ease of conversion by the defendant; and, there being material conflicts in the testimony, the evidence of the defendant did not conclusively rebut the inference of such conversion. Mitchell v. Atlantic Coast Line R. Co., 34 Ga. App. 437 (129 S. E. 901) ; Mitchell v. Martel Mfg. Co., 27 Ga. App. 57 (107 S. E. 600) ; Blackwell v. Dannenberg Co., 32 Ga. App. 307 (2) (123 S. E. 179). The superior court did not err in dismissing the certiorari.

Judgment affirmed.

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


text:
    18946.
    NAPIER et al. v. POOL.

      Decided January 22, 1929.
    Rehearing denied February 21, 1929.

      John B. L. Smith, Joseph LeConte Smith, George A. Pindar, for plaintiffs in error.

      McClellan & Jacobs, contra.
   Bell, J.

This was a suit by Mrs. W. C. Pool against E. Tris Napier and E. Tris Napier Company, a corporation, to recover damages for personal injuries alleged to have been sustained by the plaintiff in falling through the floor of a dwelling house occupied by the plaintiff with her husband and rented by the husband from the defendants, the cause of action being grounded upon the alleged neglect of the defendants to make necessary repairs. The defendants demurred generally and special! y, the court overruled the demurrers, and exceptions were taken. The plaintiff recovered a verdict for $2,000, after which the defendants made a motion for a new trial, which was refused, and the case was then brought to this court.

Without setting forth the allegations of the rather lengthy petition, or the numerous grounds of the demurrers, we may say that we have carefully considered the same, and have concluded that under the rulings made in Stacie v. Harris, 111 Ga. 149 (36 S. E. 615), and Miller v. Jones, 31 Ga. App. 318 (120 S. E. 672), the petition set forth a cause of action and was not subject to any of the demurrers.

The contentions most vigorously pressed in this court have to do with the effect of certain parol evidence in regard to the terms of the contract of renting, it being insisted by counsel for plaintiffs in error that the contract appeared from the evidence to be in writing and to limit the obligations of the landlords touching the matter of repairs. The evidence disclosed that the house had been occupied by the plaintiff and her husband under a previous contract, which was about to expire, and that before the husband would agree to rent the place for another term he demanded certain assurances as to repairs, which it is claimed by thet plaintiff were given by Mr. Napier, representing himself and the other defendant, partly in writing and partly in parol. The only evidence, however, of a written contract was the testimony of Mr. Pool to the effect that he gave rent notes on printed forms, in one of which was written: “E. Tris Napier Company agrees to put fastenings to windows, where needed, and to stop leaks on front porch.” None of the notes were introduced in evidence, and the quoted stipulation was merely read from one of them by Mr. Pool while he was on the witness stand testifying for the plaintiff. It does not appear to whom the notes were payable, and their contents were not otherwise definitely shown, except that from the testimony of the same witness it appeared that they were dated September 21, 1926, payable the first day of October, and so on.”

While the stipulation above quoted was in reference only to windows and the porch roof, Mr. Poole testified: “I rented this house for another year, beginning October, 1926. At that time I told him the windows were in bad shape, the flooring, there were four or five planks that looked like they were decaying. . . It was agreed that he was to fix the flooring when I signed these notes. The note that Mr. Napier prepared did not contain the whole contract I made with him. It did not profess to embody all the repairs Mr. Napier agreed to make. I don’t think it embodies anything but the windows and the leaks. He wrote what was in the note and handed me the notes to sign, and I says, I can’t sign the note,’ and he says, Why ? ’ and I says, ‘ It don’t call for what you. agreed to do ’; and we had an argument of half an hour before I signed the note; Mr. Napier did not tell me that was all he intended to do. He said he would send the carpenter out there and do what ought to be done to the house. That was the part of the same conversation in which. I had taken up before.” It was undisputed that the defendants had not repaired the floor at the time of the plaintiff’s injury.

It is insisted for the plaintiffs in error that the evidence as above outlined disclosed that the parties had reduced to writing what appeared to be a valid contract of renting, and that since it contained specific provision for certain repairs to be made by the landlords, it should be taken as embracing the final and whole agreement of the parties upon that subject, and as excluding any prior or contemporaneous parol agreement to make other or additional repairs. It is contended that the evidence of the plaintiff’s husband as to a verbal agreement to repair the floor was inconsistent with the written terms of the contract, and that, although this evidence was admitted without objection, it should have been disregarded, out of respect for the parol-evidence rule. This is one of the theories upon which it is argued that the verdict was without evidence to support it, and contrary to law.

We can not agree that the verdict should be set aside upon the grounds stated. Irrespective of whether the contentions of the plaintiffs in error might be sustainable in other circumstances, it does not appear, from the evidence, that the writing purported to contain all the stipulations of the contract. We say this because the notes were not introduced in evidence, and, with the exception of the one provision which a witness read out while testifying, the record fails to show anything specific as to their contents which would be material to the question under consideration. A contract may be partly in writing and partly in parol, and that which is in parol may be proved, where it appears from, the face of the instrument or from the attendant circumstances that the writing was not intended to embrace the entire agreement between the parties, and where that which it is sought to show as a collateral verbal agreement does not in any way conflict with or contradict what is contained in the writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (6, 7) (37 S. E. 485, 81 Am. St. R. 28); Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (6) (88 S. E. 954).

Mr. Pool testified that he did not think the note from which he read embodied anything “but the windows and the leaks,” but so far as appears there may have been other provisions showing affirmatively that the stipulation as to the repair of these was not intended to be exhaustive, and that what was shown by parol was consistent with the written instrument considered as a whole. It is a rule of construction that the whole contract should be looked to in arriving at the construction of any part of it (Civil Code of 1910, § 4268 (3)), and where only some isolated provision is shown, and it does not appear what else the instrument may have contained, it is impossible to determine whether testimony as to some collateral verbal agreement tends to infringe upon the rule against admitting parol evidence to vary the terms of a written instrument.

The defendants prepared the notes and were presumably acquainted with their contents, and the fact that no objection was made to the evidence regarding the verbal agreement to repair the floor would seem, in some measure, to indicate that this evidence was admissible. “Evidence is presumed to be admissible unless some objection is made which shows the contrary.” Jasper County v. Butts County, 147 Ga. 672, 673 (95 S. E. 254).

Furthermore, the testimony of Mr. Pool, to the effect that the notes which contained the stipulation as to the windows and leaks “did not profess to embody all the repairs Mr. Napier agreed to make,” was not a violation of the parol-evidence rule, but was secondary evidence as to the contents of the writing, and, having been admitted without objection, should not be absolutely ignored, where the instrument itself was not introduced in evidence for construction by the court.

If we are correct in the conclusion just stated, there was no merit in any of the exceptions to the court’s charge; and the same would also be true of an assignment upon the refusal of a request to charge. It may be further said of the request, however, that it was not accurately adjusted to the facts, and could have been refused for that cause. It was framed upon the hypothesis that Mr. Pool '“refused to sign rent notes for a new term of renting, unless and until the repairs which were to be made were enumerated in one of the notes, and [that] Mr. Napier refused to have any other items of repairs mentioned in the note.” According to the testimony, neither Pool nor Napier so refused, but, on the contrary, the notes were finally executed with one item of repairs omitted, though fully agreed to.

It is further insisted that the verdict was wrong because it appeared that Mr. and Mrs. Pool had occupied the house for nearly a year) and took it “for the second term as it was, and defendants were bound to make no repairs of then known defects, except such as they expressly agreed to make.” It is true that a landlord is not liable for injuries to a tenant or to another standing in his right (Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (2), 118 S. E. 694), resulting from a patent defect in the premises existing at the time of the lease, and of which the tenant knew or had means of knowing equal to those of the landlord, unless the rent contract stipulates to the contrary. Aiken v. Perry, 119 Ga. 263 (3) (46 S. E. 93). Nor is the landlord liable for such injuries arising from latent defects, unknown to the tenant, existing at the time of the lease, “unless the landlord actually knew, or by the exercise of ordinary care on his part might have known, of their previous existence.” McGee v. Hardacre, 27 Ga. App. 106 (107 S. E. 563).

But, in addition to his evidence as set out above, the witness Pool, who was the tenant, testified: “What caused the plank that broke with my wife to fall through was that the water had leaked on it until it decayed the sill under it. I went underneath the house after she was hurt. I saw signs of decay; the sill was rotten. That could have been seen by anybody making an inspection of the porch. I could not see that defective condition of the plank that broke with Mrs. Pool from the top of the flooring.” There was evidence to the same efEect from Mrs. Pool, as follows: “I did not know that the part of the floor that fell with me was dangerous before I fell through. There was nothing about that plank that broke in, the top surface, to indicate to a careful person that it was dangerous to step on the part of the porch that fell in. In regard to the floor as a whole, there were other planks that gave evidence of weakness four or five feet from where I fell [italics ours]. I did not walk on that part of the porch. After I was able to get up and walk around, I did not ascertain what caused the plank to break. I saw the plank that broke. It had decayed underneath; it was not decayed at all on the top surface.”

In view of this evidence, it should not be held as a matter of law that the particular defect was patent or that it was such that under the ordinary rule governing the relation of landlord and tenant, the defendants conld have had no possible legal duty concerning it.

While the evidence shows that the parties did agree specially as to certain matters, such as repairing windows, stopping leaks on front porch, and “fixing the floor,” it can not be said absolutely under the evidence that such special agreement, as to these subjects, was intended to be exclusive, or that as to the floor it included more than the repair merely of the “four or five planks that looked like they were decaying.” It was in evidence that Mr. Napier promised that “he would send the carpenter out there and do what ought to be done to the house.” This was to imply that as to the general condition of the premises the common duty of a landlord as declared by law would stand without change and be applicable as between the parties. The evidence authorized the inference that the plank that broke was another and different plank from those mentioned in the negotiations which .culminated in the second contract, and, more than this, that it actually gave way because of a rotten sill. In these circumstances it became a legitimate inference that the defect complained of was a matter as to which the rights and liabilities of the parties would be governed by such general, rule rather than by the terms of the special agreement.

In other words, while it is seen that as to certain particular subjects there was an agreement tending to vary what might otherwise have been the duty of the landlords, yet the cause of the controversy could have been found to lie jn a different subject, with reference to which the duty as to repairs was to be determined by implication of law.' Indeed, the special agreement seems to have had the effect of increasing, instead of limiting the liability of the landlords; but as to the matter upon which the cause of action was predicated their obligation appears to have been neither greater nor less than that implied by law. At least this is the case as the jury could have found it to be, under the evidence.

The petition suggested nothing as to a special agreement. But . since as to the duty of the landlords we must hold that the allegations were supported by the evidence, it is unnecessary to determine whether in such a case there would be a fatal variance between the allegata and the probata should it appear that the duty claimed to have been breached arose only by an express undertaking.

The new lease contract was entered into on September 21, but the old lease did not expire until September 30, after which the new lease became immediately effective. The plaintiff was injured on October 27, after the beginning of the new term. The evidence shows that at the making of the new agreement the defendants were put upon notice that the porch was in a condition of disrepair, and especially that certain planks appeared to be decaying. While there was no other evidence upon the subject of notice, yet, since the landlords became obligated to repair this portion of the premises, and should have done so within a reasonable time, they were chargeable with notice of all defects which a compliance with such obligation might have disclosed and would be liable in damages for injuries resulting from hidden defects which should thus have been discovered. Godard v. Peavy, 32 Ga. App. 121 (122 S. E. 634); Turner v. Dempsey, 36 Ga. App. 44 (135 S. E. 220). Express notice of a defect is unnecessary in order to bind the landlord where he already knows of it, or is in such position that by the exercise of ordinary care he should have discovered its existence. Ross v. Jackson, 123 Ga. 657 (51 S. E. 578) ; Gulhman v. Castleberry, 49 Ga. 272; White v. Montgomery, 58 Ga. 204; Florence v. Northcull, 145 Ga. 265 (88 S. E. 933); McYere v. Withers, 15 Ga. App. 688 (84 S. E. 163); Dougherty v. Taylor, 5 Ga. App. 773, 776 (63 S. E. 928); McGee v. Hardacre, supra.

Where the landlord is in such position as to be chargeable with such duty, it is immaterial that the facts creating such responsibility as to knowledge may have arisen at the making of the lease contract and before occupancy thereunder, or that no later notice was given. Compare Williams v. Jones, 26 Ga. App. 558 (106 S. E. 616); Marr v. Dieter, 27 Ga. App. 711 (4) (109 S. E. 532).

Under the facts of this case the question of whether the period from September 21 until October 27 was a reasonable time within which defendants should have performed the duty to make the repairs was one for determination by the jury. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (3) (58 S. E. 200).

It does not appear from the evidence as a matter of law that the plaintiff could have avoided the injury by the exercise of ordinary care. Stack v. Harris, 111 Ga. 149 (36 S. E. 615); Miller v. Jones, 31 Ga. App. 321 (120 S. E. 672).

In one of the grounds of the motion for a new trial it is complained that the verdict is contrary to law for the reason that it is joint against both defendants, and that there is no evidence to support it “as against one of defendants; and since it must be set aside as against one of them, it follows that it must be set aside as against both.” ' Irrespective of whether it be true that the verdict, if supported as to one but not as to the other, should be set aside as to both, we think the evidence was sufficient to show that each of the defendants was liable, and .that the liability was joint.

According to the testimony of the plaintiff’s husband, the contract was made with Mr. Napier, and the evidence did not demand the inference that he was acting solely as agent for the Napier company. Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 35 Ga. App. 94 (132 S. E. 454). On the other hand, the jury were authorized to find that he was a party to the contract. As to the other defendant, there was the stipulation, “E. Tris Napier Company agrees to put fastenings to windows, where needed, and to stop leaks on front porch.” Presumably this company would not have agreed to make these repairs unless it was a party to the renting. It was not necessary for the plaintiff to show that the defendants were joint or common owners of the property; for if they leased the house as contended, ownership would be immaterial, in view of the issues made. Strickland v. Stiles, 107 Ga. 308 (3) (33 S. E. 85).

There was no contention by counsel for the plaintiffs in error, either in the argument or in the briefs, that the evidence failed to show the authority of Mr. Napier to represent the company in making the rent contract, although the point has been made in the motion for a rehearing wherein it is further insisted that the question was inherent in the general grounds of the motion for a new trial. The thing previously urged was that the stipulation contained in one of the notes as quoted above should be taken as constituting the entire.contract upon the subject of repairs, and both of the defendants relied upon this as their principal ground of defense.

But to look to the matter upon its merits, it appears that there was a ratification, even if no original authority. Mr. Napier purported to act for the other defendant in preparing the rent contract and in placing therein the stipulation referred to. The tenant occupied the premises under the contract as thus made and presumably paid the rent. It is shown in the record that the case was the subject of a previous trial, and that in that hearing the circumstances of the making of the contract and of the interpolation of the clause mentioned were inquired into. Even if the company had no previous knowledge upon the subject, it was informed in that trial of what had been done by the other defendant in its behalf. So far as appears, there was never in the court below any suggestion that the agreement was not made with full authority from all parties concerned. “To bind the principal, there is no necessity for a positive or direct confirmation on his part, of the act of the agent, but it may arise by implication, from the acts or proceedings of the principal in pais. 3 Chitty on Com. and Manuf. 197, 198; 1 Livermore on Agency, 45; Story on Agency, § 253. And for this purpose the acts and conduct of the principal are construed liberally in favor of the agent. Slight circumstances and small matters will sometimes suffice to raise the presurpption of ratification.” Byrne v. Doughty, 13 Ga. 46 (3, 4), 52; Strong v. West, 110 Ga. 382, 387 (35 S. E. 693); Thompson V. Neely, 32 Ga. App. 131, 134 (123 S. E. 171). A ratification by the principal refers back to the act ratified, and becomes effective as if originally authorized; and a ratification once made can not be revoked. Civil Code (1910), § 3591.

Even as to a wilful trespass committed by an agent, the Supreme Court has said that, although the agent may have exceeded his authority in so doing, his act was capable of ratification, which could be implied from the acts or silence of the principal, and that where once made it could not be revoked. Byne v. Hatcher, 75 Ga. 289 (3). See further, in this connection, Ellis v. U. S. Fertilizing & Chemical Co., 64 Ga. 571 (4); Crockett v. Sibley, 3 Ga. App. 554 (2) (60 S. E. 326); Civil Code (1910), §§ 3601, 3603, 4416; 2 C. J. 470, 521; 21 R. C. L. 919, § 99.

From all the facts and circumstances the jury were authorized to infer not only that Mr. Napier had authority to enter into the agreement upon the terms' shown by the evidence, but that having such authority the notice which he received in making the contract was such as to bind both himself and the other defendant, and to make each of them liable for any negligence in failing to discover and repair the defect.

There being evidence tending to show that the plaintiff’s injury practically disabled her for several weeks, during which she suffered much pain, that at the time of the trial (about fifteen months after the accident) she was still suffering to some extent, and that her suffering would probably continue indefinitely, it 'can not be said as a matter of law that the verdict is so large as to demand the inference that it was induced by prejudice, bias, or mistake on the part of the jury. Central of Georgia Ry. Co. v. O’Kelley, 14 Ga. App. 273 (2) (80 S. E. 688); Lamb v. Kennedy, 15 Ga. App. 533 (2) (83 S. E. 796); Cohen v. Phipps, 33 Ga. App. 431 (126 S. E. 881); Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (4), 605 (124 S. E. 92), and cit.

The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    18950.
    KESLER v. COMMERCIAL CASUALTY INSURANCE COMPANY.
    Decided January 22, 1929.

      Bryan & Middlebroolcs, E. B. Everett Jr., for plaintiff.

      Harold Hirsch, Welborn B. Cody, for defendant.
   Bell, J.

Mrs. Georgia Anna Kesler brought suit against Commercial Casualty Insurance Company upon a policy of insurance issued by the defendant to the plaintiff’s husband, insuring him against death by accident and naming the plaintiff as the beneficiary. A general demurrer to the petition was sustained by the trial court and the plaintiff excepted.

The material facts alleged in the petition were as follows: The insured applied for the policy on August 9, 1926, paying in advance $8 to cover the policy fee and tire first monthly premium, each amounting to $4. The policy was issued and delivered on August 10, 1926, and contained the following provisions:

'“Commercial Casualty Insurance Company, Newark, New Jersey (hereinafter called the company), in consideration of the policy fee of four and 00/100 dollars and the monthly premium of four and 00/100.dollars, and of the statements in the application for this policy, a copy of which'is endorsed hereon and made a part of this contract, does hereby insure 'Philip Joner Kesler, of Miami, Fla., herein referred to as the insured, a carpenter on buildings by occupation, subject to all conditions and limitations hereinafter contained and endorsed hereon, or attached hereto, from 12 o’clock noon, standard time at the place where the insured resides on the day this contract is countersigned, until 12 o’clock noon, such standard time, of the first day of' September, 1926, and for such time thereafter as the premiums paid by the insured, as herein agreed, shall maintain this policy in force.
“After two months from date of issue or reinstatement after lapse, and so long thereafter as this policy is maintained in continuous force as provided by its terms, a grace of ten days will be allowed for the payment of monthly premiums, during which ten-day period the insurance hereunder, except as to the benefits granted under Part 3, shall continue in force subject otherwise to all of the terms and conditions of this policy.
“If default be made in the payment of the agreed premium for • this policy, the subsequent acceptance of a premium by the company or-by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereof sustained and such sickness as may begin more than ten days after the date of such acceptance.
“Any premium paid to the company for any period not covered by this policy will be returned.upon request.
.“This policy will continue in force, subject to its provisions, as long as the premium shall be paid as agreed herein, unless it is sooner terminated in accordance with its terms.
“Failure to comply with all the terms, conditions and provisions of this policy shall bar the right to recovery for any claim made hereunder.”

In addition to the advance payment of $8 as above referred to, the insured paid and the company accepted on account of premiums $4 on September 4 and $12 on October 1, 1926. The insured died from accidental causes on January 13, 1927.

It is seen.from the above statement that the entire amount paid by the insured upon premiums was $20. It is the contention of the plaintiff that this amount kept the policy in force for a period of five months from date of issue, or until January 10, 1927, .and that with the ten-day. period of grace added the policy was good until January 20, 1927; and that since the insured-died prior to that date, the company was liable. On the other hand, it is com tended by the defendant that, under the express terms of the contract, the first premium was intended to pay for insurance only until September 1, 1926, and that, after crediting the four subsequent monthly payments and allowing for the. period of grace, the policy expired on January 10, 1927, three days prior to the insured’s death. It is thus insisted on the part of the insurer that the policy lapsed before the happening of the event insured against, and hence that liability did not attach.

. Under the contentions just stated, the sole question for determination would be, whether the first premium, called a monthly premium, was intended to keep the policy in force for a full month, or merely for the space between August 10, the date of issue, and September 1 following, amounting to but twenty-one days.

The only provisions of the policy having reference to the amount of the premiums and the period of time to be covered by each respectively are in the recital of the consideration, coupled with whatever words of limitation may follow in that connection, and in the stipulation as to grace, in which there is reference to “monthly payments.” The reasonable intendment of the policy is that for monthly premiums in a certain sum the insured would be protected from month to month for as long as such premiums would maintain the policy in force. A monthly premium is such an amount as will buy insurance for a month, and if the payment of the first premium was to cover a period of only twenty-one days, then it was not a monthly premium and it would be a misnomer to call it such. The insistence of the defendant is in effect that the first premium amounting to $4, although termed a monthly premium, was not intended to be such in fact. There is nothing in the policy to show that one of the later premiums, any more than the first, should pay for a month's insurance, and yet the parties evidently did not intend that even as between themselves, and for the purposes only of the particular contract, a month should not be of the usual duration, but should be reduced to a period of twenty-one days. If the “monthly” premium paid in October was good for a month's insurance, why should the monthly premium in the same amount paid in August be of a lesser value? Admittedly, for no other reason than that the policy recites that in consideration of the payment thereof the company insured the holder (from August 10) until September 1. Is this a sufficient reason? We think not. It is noted that the policy does not state in express terms that for the initial payment the insurance was to be in force until September 1 and no longer. Such a construction would be inconsistent with the idea of a monthly payment as otherwise expressed in the policy, and would make the policy self-contradictory.

Aside from the clause just mentioned, there is nothing to indicate a distinction between the value of the first and the other premiums. The period-of-grace clause contains a reference in general terms to “monthly premiums,” and was to become operative after two months from date of issue. Unquestionably, “two months” was intended here to mean two months, and not a month and twenty-one days; and yet it was hardly contemplated that the payment of more than two monthly premiums would be necessary to render the grace period available.

We can not agree with counsel for the insurer in the statement that there is neither inconsistency nor ambiguity in the written terms of the agreement. If we interpret the policy as saying in one place that the first premium was to pay for insurance only until September 1, there is a plain contradiction in the language employed; and if this interpretation is not given, there is still such ambiguity as makes it necessary to examine the whole instrument for the purpose of ascertaining the intention of the parties. If a policy of insurance is susceptible of two constructions, the construction most favorable to the insured will be given effect. Columbia Casualty Co. v. Rogers Co., 157 Ga. 158 (121 S. E. 224); Penn Mutual Life Ins. Co. v. Milton, 160 Ga. 168 (1) (127 S. E. 140, 40 A. L. R. 1382). If one provision of a policy is absolutely repugnant to another provision, the one most advantageous to the insured will be enforced, while the other provision will be ignored. Clay v. Phoenix Ins. Co., 97 Ga. 44 (1), 52 (25 S. E. 417). We do not think it necessary, however, to apply this rule to the extent of altogether disregarding any of the terms of the policy involved in this case. In our opinion the reasonable and proper construction of the whole agreement is that each premium, the first as well as others, would buy insurance for the space of one month, but that the second premium should be due and payable on the first of September, 1926, this being ten days in advance, and that the subsequent premiums should be payable in like manner upon the first of each succeeding month thereafter. See, in this connection, Wells v. Hartford Fire Ins. Co., 36 Ga. App. 789 (2) (138 S. E. 276); 32 C. J. 1196, 1309. As we have already pointed out, the policy, in providing that for the policy fee and the first premium the policyholder would be insured until the following September 1, does not in express terms limit the protection to the intervening period. The only - colorable basis for such an inference is a negative pregnant, and this is entirely overcome by the natural import of the more direct provisions of the contract.

The policy took effect on August 10, and, for the first payment, was good for a month, or until September 10, although the second premium was due ten days before the expiration of that time. The other premiums paid by the insured carried the policy until January 10, 1927, and, the period-of-grace clause' having now become operative, the policy would have continued in force until January 20 of that year. The insured having died from accidental cause on January 13, before the expiration of that period, the insurer became liable. Ætna Insurance Co. v. Palmer, 159 Ga. 371 (125 S. E. 829); Parham v. National Relief Assurance Co., 33 Ga. App. 59 (125 S. E. 519); Stout v. Missouri Fidelity & Casualty Co. (Mo. App.), (179 S. W. 993); Fallis v. Mass. Bonding & Ins. Co., 210 Mo. App. 579 (243 S. W. 217); Lale v. Business Men’s &c. Co. (Mo. App.), 275 S. W. 962; Landrigan v. Mo. State Life Ins. Co., 211 Mo. App. 89 (245 S. W. 382); Scholz v. Standard Accident Ins. Co., 145 Va. 694 (134 S. E. 728). Under the above construction, which might or might not be the proper one if the date of issue had been materially nearer to that fixed for the second payment, the payment of $4 on September 4, 1926, as the second monthly premium, was not made within the time stipulated; but irrespective of what might otherwise have been the effect of such default, the failure to pay the premium the full days in advance as stipulated in the policy appears to have been waived by the company, since the delayed payment, and the succeeding payment of $12 on October 1, 1926, were each accepted without question, and the policy was allowed to run as if all payments had been made strictly in accordance with the specific terms of the contract.

The present case is to be distinguished from that of Mutual Life Ins. Co. v. Stegall, 1 Ga. App. 611 (58 S. E. 79). In the instant case the policy was issued and delivered on August 10, and was immediately accepted by the insured, he having paid the policy fee and the initial premium in advance. In the Stegall case the facts were as follows: “The application was made on August 1; thirty days afterwards the policies were issued in New York, and bore date August 30, 1904, and carried insurance on the life of Stegall from that date, thus making the year of insurance end on August 30, 1905. It is true that the insured did not receive the policies until November 19, 1904, and it is equally true that the company was not bound, under the terms of the contract, until he had paid the premium and received the policies. He asked for the insurance on August 1, and agreed to accept the policies and pay the premiums when issued; the company accepted his application and furnished the contracts on August 30; he did not then receive them, but let them lie dormant until November 19; he then paid for them and accepted the policies as they stood, carrying insurance back from August 30, and stipulating that, to keep the policies in force, the next annual premium must be paid August 30, 1905. He asked for no change, none was made; he knew what he received. His beneficiary stands today on the contracts containing these stipulations. Nothing can be clearer to our minds than that on failure to pay the annual premiums provided for, on August 30, 1905, the policies lapsed, and were not in force at the time of the death of the insured, October 39, 1905.” In that case the insurer had accepted the application and was tendering insurance according to the terms thereof during the entire period from August 30 to November 19. It was the fault of the applicant that he was not insured in the meantime.

It follows from what has been said that the petition set forth a good cause of action in favor of the plaintiff and therefore was not subject to general demurrer.

But there is still another theory upon which the plaintiff was entitled to recover. Granting for the sake of the argument that the insurer is right in its contention that the first premium carried the policy only until September 1, the policy was nevertheless in force on January 13, 1937, in view of other provisions which we have not heretofore taken into consideration, nor referred to except in the statement of facts. Under the construction insisted upon by the insurer, the policy would have lapsed at noon of September 1, since the payment of the second premium was not made until September 4. In the interim the insured was not protected, because he had not paid for insurance for this period; whereas the policy provided that it would continue in force subject to its provisions as long as the premiums should be paid as agreed, and that failure to comply with all the terms and conditions thereof should bar the right to recover for any claim made thereunder. Plumer v. Continental Casualty Co., 12 Ga. App. 594 (1) (77 S. E. 917); Mutual Fire Co. v. Maple, 60 Or. 359 (119 Pac. 484, 38 L. R. A. (N. S.) 736). If the policy had lapsed, which must have been the case if the position taken by the insurer is the proper one, then payment on September 4 and its acceptance by the company automatically operated as a reinstatement, under the stipulation in regard to that subject as set forth in the above statement. Such reinstatement would not be retroactive so as to cover the period of such suspension. Eallis v. Mass. Bonding & Ins. Co., 310 Mo. App. 579 (343 S. W. 317), supra; 1 C. J. 413; 33 C. J. 1357. The policy expressly provides that “any premium paid to the company for any period not covered by this policy will be returned upon request.” The reinstatement became operative either on the acceptance of the second premium on September 4 or at the expiration of the “more than ten days after the date of such acceptance.” Further than this, it is unnecessary to determine from what time under the instant contract the reinstatement should be calculated. If the policy should be deemed to have been revived on September 4, the premium paid on that date, together with the $12 paid on October 1, kept the policy in force as reinstated until January 4, 1927, and, the reinstatement having occurred more than two months previously, the period-of-grace clause again came to the rescue, continuing the policy until January 14, which was one day after the insured’s death. On the other hand, if the reinstatement should be held to date only from the expiration of the “more than ten days after” the acceptance of the second premium, then the policy ran to a date beyond the insured’s death, irrespective of the ten-day-grace period. So we are of the opinion that even if the insurer should be correct in its contention as to the value and effect of the first premium, it would necessarily follow that the policy should be treated as having been reinstated, and that under its terms as a reinstated agreement it was in force at the time of the insured’s death.

The court erred in sustaining the general demurrer and dismissing the petition.

Judgment reversed.

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


text:
    18951.
    Mumford v. Mechanics Loan & Savings Company.
   Jenkins, P. J.

“Where a contract is induced by the actual, moral fraud of one of the parties, his liability for property obtained under the contract may be enforced according- to the terms of the contract, or the defrauded party may waive the contract and sue in tort for the damages sustained on account of the fraud. In the first event, the liability of the debtor under the terms of the contract itself is a contractual liability, -and a discharge in bankruptcy releases him therefrom. Ford v. Blackshear Mfg. Co., 140 Ga. 670 (4) (79 S. E. 576) ; Sanger v. Barrett (Tex. Civ. App.), 221 S. W. 1087. In the latter event, the liability of the debtor is one arising in fort, for property obtained by false pretenses, and a discharge in bankruptcy does not release him therefrom. Donnelly Co. v. Milligan, 37 Ga. App. 530 (140 S. E. 918).” Symmes v. Rollins, 39 Ga. App. 53 (146 S. E. 42). This being a suit on a contract which it is alleged was induced by the defendant’s fraudulent misrepresentations, in which the plaintiff sought to recover interest and attorney’s fees as provided by the contract, the case conies within the rule announced in Ford v. Blackshear, supra. The defendant’s plea of discharge in bankruptcy should have been sustained, and the verdict in favor of the plaintiff was not authorized. Accordingly, the judge of the superior court erred in overruling the defendant’s petition for certiorari.

Decided January 22, 1929.

Rehearing denied February 20, 1929.

Charles W. Anderson, for plaintiff in error.

Burress & Dillard, contra.

Judgment reversed.

Stephens and Bell, JJ., eoneur.


text:
    18983.
    Collins v. Kennedy.
    Decided January 22, 1929.

      Eason & Everelt, for plaintiff in error.
   Bell, J.

1. In a suit in a justice’s court, service made after the expiration of the term to which the suit is returnable amounts to no service whatever, and is void; and in such a case no judgment can legally be rendered against the defendant where service is not waived. Western & Atlantic R. Co. v. Pitts, 79 Ga. 532 (2) (4 S. E. 921); Peck v. LaRoche, 86 Ga. 314 (12 S. E. 638) ; Civil Code (1910), § 5570.

2. It is unnecessary to traverse an entry of service which shows upon its face that the service was void. Hence, where a constable’s return affirmatively disclosed that the attempted service was not made until after the expiration of the term to which the suit was made returnable, an affidavit of illegality attacking the judgment upon that ground should not have been dismissed because the constable had not been made a party to a traverse of such entry or return of service. Since the traverse as filed was unnecessary, it was immaterial that the constable was not made a party thereto. Keaton v. Moore, 59 Ga. 553; Strauss v. Owens, 6 Ga. App. 415 (2) (65 S. E. 161) ; Caldwell v. Alexander Seed Co., 17 Ga. App. 571 (87 S. E. 843).

Judgment reversed.

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


author: Jenkins, E. J.

text:
    18984.
    Barnett et al. v. Ferris.
    Decided January 22, 1929.

      A. L. Miller, for plaintiffs in error. George H. Perry, contra.
   Jenkins, E. J.

1. A promissory note in which the obligation is written “I or we promise to pay,” signed by a principal and indorsed on the back by sureties, is a joint and several obligation as to the principal and sureties signing it, and the holder of such a joint and several note may hold the obligors jointly or severally, may sue any one of the signers alone, may sue the principal and sureties jointly, or, at his option, he may sue either the principal or the sureties alone. The fact that on the death of one of the sureties the plaintiff may dismiss his suit against that surety, without prejudice, and proceed against the remaining defendants, does not operate as a discharge in favor of the other sureties. Reid v. Flippen, 47 Ga. 273; Booth v. Huff, 116 Ga. 8 (42 S. E. 381, 94 Am. St. Rep. 98); Brooks v. Thrasher, 116 Ga. 62 (2) (42 S. E. 473); Heard v. Tappan, 116 Ga. 930 (1) (43 S. E. 375) ; McMillan v. Heard National Bank, 19 Ga. App. 148, 151 (91 S. E. 235) ; Johnson v. Georgia Fertilizer & Oil Co., 21 Ga. App. 530 (2, 3) (94 S. E. 850) ; Amos v. Continental Trust Co., 22 Ga. App. 348 (2) (95 S. E. 1025) ; McKibben v. Fourth National Bank, 32 Ga. App. 222 (5) (122 S. E. 891).

2. The court, in the absence of any request for special instructions, charged fully and fairly upon the principle that the release of the sureties would be effected by any act of the creditor which increased their risk, and the judgment in favor of the plaintiff can not be set aside on account of the judge’s failure to go more specifically into the details of the defense relied upon by the defendants. In fact the judge specifically and at length charged upon the principle that if the contract of suretyship was induced by misrepresentations made to the sureties by the creditor, they would not be bound, and there ivas no evidence supporting the other contention set up by the plea, that the contract of the principal debtor was induced by misrepresentations made to the latter by the creditor, and that such fraud practiced upon the principal debtor by the creditor operated to increase the risk of the sureties.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18986.
    Coppage v. Martin.
   Bell, J.

Where property was levied upon by virtue of a distress warrant, and was claimed by a third person from whom the sheriff accepted the usual damage and claim bonds, and to whom he delivered the property, the sheriff could not afterwards discharge or waive any of the terms of the claim bond “so as to affect the interest therein of the plaintiff in fi. fa., without his consent.” Boyd v. Crews, 32 Ga. App. 138 (5) (122 S. E. 802), Farmers & Merchants Bank v. Cochran, 37 Ga. App. 794 (1) (141 S. E. 919). In the instant suit against the surety upon a claim bond there was no evidence that the plaintiff consented to the substitution of another bond with another security in lieu of the bond sued On. The court did not err in the admission or exclusion of evidence, or in directing the jury to find in favor of the plaintiff. Judgment affirmed.

Decided January 22, 1929.

C. E. Parrish, for plaintiff in error.

H. L. Jackson, Joseph A. Alexander, contra.

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


text:
    18987.
    HERNDON v. CHAMBERLAIN.
    Decided January 22, 1929.

      J. A. Mitchell, for plaintiff. Hawes Cloud, for defendant.
   Jenkins, P. J.

The only question involved in this case is whether the trial judge committed error in allowing the testimony of a witness on a former trial of the case to be read in evidence, upon the showing made that the witness, although within the jurisdiction of the court and possessing mental capacity to testify, was physically unable to travel so as to attend court as a witness, and had been in that physical condition for about two years.

Hnder the provisions of section 5773 of the Civil Code (1910), “the testimony of a witness, since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testified.” While the question as to the inaccessibility of a witness is one for determination by the trial court in the exercise of a sound discretion, under the law governing in this State, when a witness can not be actually brought to court in order to testify, it is the duty of the party desiring his; evidence to sue out interrogatories or take his depositions; and in the entire absence of any showing that such could not have been accomplished, it can not be said that the court was authorized to permit the testimony of the witness on the former trial to be read into the record. The rule permitting the use of the testimony of a witness on a former trial arises from the necessity of the case. Ordinarily, the party against whom a witness testifies is entitled to subject him to cross-examination. There might be various changes in the status of the case after the time of his previous testimony, such as would render additional cross-examination desirable.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18991.
    Driskell et al. v. Hardin et al.

    Decided January 22, 1929.
   Jenkins, P. J.

On exceptions to tlie first grant of a new trial,-the only-question that the appellate court will determine is whether the verdict was demanded by the evidence, and this, under the rulings, is true even though the trial judge may have specifically and in terms based his grant of a new trial on some other ground of the motion. Cox v. Grady, 132 Ga. 368, 370 (64 S. E. 262); Gresham v. Lee, 28 Ga. App. 576 (112 S. E. 524); Rowe Brothers Motor Express Co. v. Twiggs County, 152 Ga. 548 (110 S. E. 303). Accordingly, since it is conceded by the plaintiffs in error that the verdict in their favor was not demanded, the judgment of the superior court granting a new trial will be affirmed, without adjudicating whether a contrary verdict was demanded. Judgment affirmed.

Stephens and Bell, JJ., concur.

Park & Strozier, J. M. Fletcher, for plaintiffs.

Ryals, Anderson & Anderson, A. M. Zellner, for defendants.


text:
    18999.
    Hazlehurst v. Stahl Florida Properties Company.
    Decided January 22, 1929.

      Oliver & Oliver, for plaintiff in error.

      Travis & Travis, contra.
   Jenkins, P. J.

“Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon.” Civil Code (1910), § 5541. But “in a suit on a promissory note which contains an unconditional and unequivocal promise to pay, but which contains also a reference to a collateral agreement, it is not necessary to plead the collateral agreement by attaching a copy of it to the petition, where it does not appear from the reference to it in the note.that it is such an agreement as would vary or affect the terms of the note.” Chatham Motor Co. v. Commercial Credit Co., 28 Ga. App. 428 (111 S. E. 688). Accordingly, where, as in the instant case, a suit is based upon a written and unconditional promise to pay, which merely sets forth, that the obligation is secured by a land contract, and where only a personal judgment is sought against the defendant, and no relief is prayed for which must be based upon the security contract referred to, the petition is not subject to demurrer on the ground that the contract referred to is not attached thereto. The note sued on being unconditional in its obligation, any advantage which the defendant might seek to take of any clause which might possibly be contained in the security contract, as construed in connection with the instrument sued on, could be pleaded by the defendant as a matter of defense.

Judgment affirmed.

Stephens amd Bell, JJ., concur.


author: Jenkins, R. J.

text:
    19000.
    Montgomery v. Maryland Casualty Company et al.'

    Decided January 22, 1929.
   Jenkins, R. J.

Under the terms of the workmen’s compensation act, in order for compensation to be due, the injury to the employee must arise both out of and in the course of the employment. Neither alone is enough. Georgia Railway & Power Co. v. Clore, 34 Ga. App. 409, 410 (129 S. E. 799). In the instant case the deceased watchman, who, it appears from the findings of the industrial commission, was drowned while seeking to save the life of his dog which had fallen into a river, can not be said to have met his death in the performance of his duties to his master. The dog, while the personal property of the watchman, was not furnished by his employer, nor was the employee expected or required to provide a dog. A failure to have provided such an animal, or to have prevented its loss by drowning, would not, in any sense of the word, have constituted a dereliction of any actual or implied duty on the part of the employee, nor would it have resulted in any loss to his employer. Consequently the judge of the superior court did not err in sustaining the finding- of the commission refusing compensation. Judgment affirmed.

Stephens and Bell, JJ., concur.

II. Mercer Jordan, Bouhan & Alkinson, for plaintiff. •

Eartridge & Brennan, for defendants.


text:
    19002.
    Watkins v. Jones.
    Decided January 22, 1929.
   Jenkins, P. J.

In the instant claim case the evidence authorized the judgment of the trial magistrate finding the property subject, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

E. L. Smith, for plaintiff in error. Gowart & Durden, contra.


text:
    19005.
    Davidson v. Nalley Land & Investment Company.
   Jenkins, P. J.

1. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Tinsley v. Gullett Gin Co., 21 Ga. App. 513 (2), 516 (94 S. E. 892). In the instant case it appears, from the testimony of the defendant, that he was able to read, and did actually read a part of the instrument sued upon, but ceased to read when told by the opposite party that the homestead waiver clause, to which the defendant had objected, was stricken out. There was no proof of any emergency such as would excuse the failure of the defendant to read the instrument, or of any misleading artifice or device perpetrated by the opposite party such as would reasonably prevent him from reading it. Although the testimony of the defendant indicates that his eyesight was not very good, that the instrument was signed at night, under a very poor artificial light, and that he did not make a practice of reading at night, there is a total lack of any proof going to show that the defendant was unable, by reason of his defective eyesight, to read the contract, and that he was, therefore, obliged to rely upon the representations of the plaintiff as to its contents. Accordingly, the verdict in favor of the plaintiff upon the issue of fraud raised by the defendant’s plea was deinanded, and the court did not err in directing the verdict.

2. It appears-that the land for which the purchase-money notes sued on were given was held by a receiver appointed by the court, and that during a portion of the time it was thus held by the receiver he turned the property over to the plaintiff as his agent, to manage and control for him. The defendant contends that he was entitled as a credit on the note to whatever he was able to show was a fair rental value for the premises for the period during which the land was thus held by the plaintiff under the receiver, but since the receiver, rather than the person holding under him, was accountable for the rents and profits, the court did not err in refusing to submit to the jury the issue made by the evidence as to the rental value of the premises.

Decided January 22, 1929.

J. 8. Edwards, J. R. Hutcheson, for plaintiff in error.

J. J. Barge, Lawton Nalley, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    19006.
    International Agricultural Corporation v. Ingram et al.

   Stephens, J.

1. Where the local agent of a fertilizer corporation, having power to sell fertilizers for and in behalf of his principal, sells fertilizers for his principal and takes from the purchaser a note for the purchase-price, payable to his principal, and where afterwards this local agent accepts from the debtor a number of bales of cotton as security for the debt represented by the note, and, under instructions from the debtor to sell the cotton and apply the proceeds to the debt, sells the cotton and applies the proceeds to the debt, and afterwards an amount representing the proceeds derived from the sale of the cotton is credited on the note, and in a suit by the principal on the note this credit appears, and only the balance of the indebtedness represented by the note, less the credit, is sued for, the inference is authorized that the local agent, in accepting the cotton from the debtor and selling it under instructions from the debtor, acted as an agent of the fertilizer corporation.

2. Where, in a suit on a note instituted by the payee thereof against the maker and another as a surety thereon, there was evidence to the effect that the principal debtor, on or about the time the note fell due, delivered to the authorized agent of the plaintiff a number of bales of cotton, to be held by the agent as security for the payment of the note, and afterwards instructed the agent to sell the cotton at the then-prevailing market value of cotton, which was high enough to cause the cotton to sell at a sum sufficient to discharge the entire’ indebtedness, and also where, there was evidence to the effect that the agent did sell the cotton under instructions from the pledgor, but sold fit at another time and when the market value of the cotton ’was not: high enough to cause the cotton to sell at a sum sufficient to discharge the entire indebtedness, and sold it at a price which was considerably less than the amount of the indebtedness, the inference was authorized that there was a contract between the pledgor and the payee of the note, through the latter’s authorized agent, to sell the cotton for the benefit of the pledgor and apply the proceeds towards the payment of the indebtedness; and, although there was an issue of fact as to when and at what market price the cotton was to be sold, the evidence authorized the inference that it was agreed between the parties that the cotton was to be sold at the time when its market value was such that a sale of the cotton would bring a sum sufficient to discharge the indebtedness. The evidence further authorized the inference that the plaintiff, through its authorized agent, failed and refused to sell the cotton pursuant to agreement at a time when "its market value was such that, from a sale of the cotton, a sufficient sum to discharge the entire indebtedness would have been realized, and that, in so doing, the plaintiff violated its contract with the pledgor, to the damage of the pledgor in the full amount of the indebtedness; and the verdict found for the defendants against the right of the plaintiff to recover was authorized.

Decided January 22, 1929.

Rehearing denied March 2, 1929.

Homer Beeland for plaintiff. C. W. Foy, for defendants.

3. The only issue as to the amount of the defendants’ damage being as between the amount which the cotton would have brought if sold at, the time at which the defendants contended it should have been sold and the amount which the cotton actually brought when sold at a later date by the plaintiff, and there being no evidence as to the value of the cotton at any other time, and the jury having found generally for the defendants, and not having found in any sum against the plaintiff by way of recoupment or counterclaim, errors, if there were any, made by the judge of the trial court in submitting in the charge to the jury any issue as to a recoupment or counterclaim by the defendants against the plaintiff, or as to the right of the defendants to recover the highest proved value of the cotton after the date of its sale, were harmless to the plaintiff.

4. The verdict found for the defendants was authorized, and no error of law appears.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    19032.
    Jenkins v. Best Trading Company.
   Stephens, J.

1. Whatever inference tending to establish title in the defendant in fi. fa. may in a claim case be drawn from the fact that at the time of the levy the property levied upon was in his possession, the inference is conclusively rebutted by undisputed evidence that the property consisted in part of crops grown upon land belonging in part to the claimant and in part rented by the claimant from the owner and for which the claimant paid the rent out of her own money; that the crops were produced from money which the claimant had borrowed upon her own credit, and were produced by her labor and the labor of her children, notwithstanding the defendant in fi. fa., who was her husband, “had a general supervision of the farm and directed what work” was to be done by those working the crops, and also by undisputed evidence that the title to an automobile levied on, which had originally been bought by the defendant in fi. fa. under a retention-of-title contract, was in the claimant as transferee from the seller, the claimant having acquired the title for an adequate and valuable consideration. Sinclair v. Hewett, 102 Ga. 90 (29 S. E. 139) ; Dollar v. Busha, 124 Ga. 521 (52 S. E. 615) ; Moore v. Kendall, 10 Ga. App. 375 (73 S. E. 542). This is true notwithstanding there was in the record evidence, admitted without objection, of an admission made by the defendant in fi. fa. at the time of the levy that a part of the crops levied on belonged to him. Such evidence being hearsay, and not being admissible as an admission made prior to the litigation and as having probative value under section 5776 of the Civil Code of 1910, it can not have probative value as tending to establish title in the defendant in fi. fa. to any part of the crops levied on.

Decided January 22, 1929.

P. G. King, Lowrey Stone, for plaintiff in error.

Zach Arnold, contra.

2. Upon the trial of a claim case the- only issue is as to the title of the property levied on. Blackstock v. Blackman, 152 Ga. 179 (5) 108 S. E. 775); Denton v. Hannah, 12 Ga. App. 494 (9) (77 S. E. 672). Where the property levied on consisted of crops grown in the year 1927 and claimed by the wife of the defendant in fi. fa., evidence that in the year 1924 the plaintiff sold fertilizer to the defendant in fi. fa. under the belief that the defendant in fi. fa. owned the land upon which the crops levied on were made three years later, and that the defendant in fi. fa. then told the witness that the land belonged to the defendant in fi. fa., was irrelevant and immaterial to the issue. Title to or proprietorship in the farm in 1924 did not in any way tend to illustrate the title to the crops grown on the same farm in 1927, at a time when the land upon which these crops were made in part belonged to the claimant or were rented by her from another. This evidence tended to prejudice the claimant’s case and was improperly admitted.

3. The verdict found against the claimant, finding the property subject, was without evidence to support it, and the court erred, as against the claimant, in admitting in evidence the testimony referred to in paragraph 2-above.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


text:
    19066.
    Forster, administrator, v. Southern Railway Company.
    Decided January 22, 1929.
   Jenkins, P. J.

1. A railroad company can not be held liable for an injury received by a passenger while being transported over the company’s lines by virtue of a gratuitous pass which provides that the passenger assumes “all risk of personal injury and of loss of or damages to property from whatever causes arising,” unless the injury was inflicted wilfully and wantonly. Lanier v. Bugg, 32 Ga. App. 294 (1) (123 S. E. 145).

2. To authorize a recovery against a railroad company for injuries to a person received while riding on such a free pass, the plaintiff should allege and show that the conduct of the defendant was “such as to evince a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 (1), 565 (63 S. E. 642) ; Southern Ry. Co. v. Davis, 132 Ga. 812, 816 (65 S. E. 131) ; Harris v. Reid, 30 Ga. App. 187 (2) (117 S. E. 256).

3. In the instant case the petition as amended alleged: that the plaintiff was on board a northbound passenger train, riding on a free pass; that orders had been given the engineer in charge of the train to go into a siding at a designated station to permit a southbound passenger-train to pass, and that orders had been given the engineer in charge of the southbound train to keep to the main line at that station; that the engineer of each train had been apprised of the orders given to the other; that the engineer of the northbound train, as it approached the station, thus knew that the southbound train was on the main line at the station, and that in violation of his expressed orders, and while conscious of his actions, and without having overlooked or misinterpreted his orders, he wilfully ran the northbound train, traveling at a high rate of speed, over the main line and into the southbound train standing on the main line at the station where the northbound engineer had orders to take the siding. It is alleged that these acts constitute wilfullness and wantonness on the part of the defendant company, and that the injury to the plaintiff was wilfully and wantonly inflicted. Held: The allegations of the petition, which, in judging their sufficiency as against a general demurrer, must be taken as true, would authorize a jury to find that the injury to plaintiff was occasioned by “that entire absence of care which would 'raise the presumption of conscious indifference ” on the part of the defendant’s engineer, or that, with reckless indifference, he “acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct would be to inflict injury.” Harris v. Reid, supra; New York Central R. Co. v. Mohney, 252 U. S. 152 (40 S. Ct. 287, 64 L. ed. 502, 9 A. L. R. 496). Accordingly, the court erred in sustaining the demurrer and dismissing the petition.

Judgment reversed.

Stephens and Bell, JJ., concur.

Porter & Mebane, for plaintiff.

W. H. Trawick, C. C. Bunn, Maddox, Matthews & Owens, for defendant.