text:
    17304.
    SOUTHERN PACIFIC COMPANY v. DiCRISTINA et al.

    1. The present writ of error is one of which this court, and not the Supreme Court, has jurisdiction.
    2. Objections which go to the judgment only and do not extend to the verdict cannot properly be made grounds of a motion for a new trial. The same is true of exceptions to a judgment overruling a motion to strike or dismiss the suit, in the nature of a motion for a nonsuit.
    3. There being no conflict in the testimony and nothing ro discredit any • Avitness testifying, and the evidence introduced, Avith all reasonable deductions or inferences therefrom, having demanded a finding of liability as for damage to the goods in transit as a result of the defendant’s negligence, any errors which the court may have committed in charging the jury upon any subject not relating to the amount of the damage AA'ere harmless to the defendant. There Avas no reversible error in any of the court’s rulings or charges, nor in the final judgment refusing a new trial.

      Carriers, 10 C. J. p. 333, n. 78; p. 334, n. 86; p. 371, n. 52; p. 3S9, n. 97; p. 517, n. 54.
    Trial, 38 Cyc. p. 1516, n. 55; p. 1534, n. 34; p. 1536, n. 36; p. 1565, n. 84.

      Decided February 14, 1927.
    Attachment; from Chatham superior court — Judge Meldrim. February 20, 1926.

      Lawton & Cunningham, for plaintiff in error.

      Joseph H. Ross, contra.
   Bell, J.

The plaintiffs in this case, H. E. & R. DiCristina, were consignees of a carload of lettuce, delivered to Southern Pacific Company, at Los Angeles, California, on May 16, 1921, to be transported to the plaintiffs in Atlanta, Georgia. The bill of lading was duly signed by the shipper and was indorsed, “Reiced [preiced?] ear. Reiee at all regular icing stations to destination,” and routed the shipment over the lines of the Southern Pacific Company, the Louisville & Nashville Railroad Company, and the Atlanta & West Point Railroad Company. It acknowledged receipt of the goods as being “in apparent good order,” and contained, among others, the stipulation that “except where the loss, d'amage, or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence as a condition precedent to liability, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property.” The shipment, for some reason not shown, was given a different routing from that prescribed in the bill of lading, and on May 26 was found by consignees in the possession of the Nashville, Chattanooga & St. Louis Company in Chattanooga, Tennessee, when they ordered it diverted to W. C. Crenshaw & Company of Richmond, Virginia. The goods arrived in Richmond on May 31 in a damaged condition. They were disposed of at a loss, and the plaintiffs brought this suit against the Southern Pacific Company, initial carrier, to recover for the loss sustained. The suit was instituted by the process of attachment, under which there was seized in this State a freight-car belonging to the defendant, which it replevied. The defendant moved to dismiss the attachment, and the judgment overruling this motion wás affirmed in Southern Pacific Co. v. DiCristina, 33 Ga. App. 439 (127 S. E. 151).

The defendant's answer to the declaration in attachment, like its bond to replevy the property, contained a protestation against the court’s jurisdiction. The trial resulted in a verdict in favor of the plaintiffs, and the case is here upon exceptions to a judgment refusing the defendant’s motion for a new trial.

It is only through the medium of its motion for a new trial and of the exception to the judgment overruling it that the defendant has sought to present any question for decision at this time. Special grounds 4, 5, and 6 assign error upon the judgment for various reasons, namely, because the court was without jurisdiction to render it; because a general judgment against the defendant, rendered upon the theory of jurisdiction acquired by the act of the defendant in replevying the property, which it had replevied under protest for use in interstate commerce, amounts to “a denial of due process of law and of equal protection of the law, in violation of the constitution of the United States, in. that it requires this defendant to submit its person to the jurisdiction of the court or to lose its property”; and because such judgment constitutes an unwarranted and unlawful interference with interstate commerce, “in violation of the commerce clause of the constitution of the United States, in that it requires this defendant, which is á nonresident common carrier engaged in interstate commerce, to either submit its person to the jurisdiction of the court or to lose its property in interstate commerce.” Special ground 11 complained that the court erred in failing to sustain the defendant’s motion to dismiss the attachment and declaration in attachment, which motion was in the nature of a motion for nonsuit, based on evidence which the defendant claimed disclosed'that the seizure of the freight car was an unwarranted interference with interstate commerce, “in violation of the commerce clause of the constitution of the United States.”

Upon the oral argument in this court a question arose as to whether the case involved an attack upon the constitutionality of a Federal statute, and counsel were requested to file supplemental briefs upon the question whether this court or the,Supreme Court had jurisdiction of the writ of error. Upon examination of the record, we are clear that the case is one falling within the jurisdiction of this court. “Under the constitutional amendment of 1916, defining the jurisdiction of the Supreme Court and the Court of Appeals of this State, the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the United States, and that do not involve the constitutionality of any law of the State or of the United States or of any treaty.” Gulf Paving Co. v. Atlanta, 149 Ga. 114 (99 S. E. 374); Daniel v. Claxton, 35 Ga. App. 107 (132 S. E. 411). The attack in this case is against the constitutionality of a judgment or of a suit, and not of a statute. Furthermore, there is not, within the rules of practice obtaining in this State upon the subject, any sufficient designation of the particular provision of the constitution alleged to have been violated. See, in this connection, Griggs v. State, 130 Ga. 16 (60 S. E. 103); Dobbs v. Bullard, 149 Ga. 553 (101 S. E. 122); Johnston v. Brenau College, 146 Ga. 182 (5) (91 S. E. 85); Anderson v. State, 2 Ga. App. 1 (58 S. E. 401).

Having concluded that the special grounds of the motion for a new trial referred to in the preceding division raise no question that this court is without jurisdiction to decide, we will now sa'y that they present no question for decision. If a judgment or decree is erroneous or illegal, it should be excepted to directly. Objections which go to the judgment only and which do not extend to the verdict can not properly be made grounds of the motion for new trial. Collins v. Carr, 118 Ga. 205 (4) (44 S. E. 1000); Phillips v. Paul, 148 Ga. 104 (2) (95 S. E. 969); Adams v. Carnes, 111 Ga. 505 (4) (36 S. E. 597); Bullock v. Dunbar, 114 Ga. 754 (7) 40 S. E. 783). The same is true of exceptions to the overruling of a motion to strike or dismiss the suit in the nature of a motion for a nonsuit. Farmers Union Warehouse Co. v. Stewart, 138 Ga. 733 (75 S. E. 1131). See cases cited in 8 Michie’s Enc. Dig. Cum. Supp. 856-859.

Other grounds of the motion for a new trial-assign error upon certain excerpts from the charge of the court, one of which was an instruction to the effect that if the shipment was handled by a railroad not specified in the routing, then the defendant railroad company would not have the right to rely upon the provisions of the bill of lading as to the filing of the claim within six months, the exception thereto being that a mere misrouting would not amount to an abandonment of the bill of lading or to a waiver of its terms. This point seems to have been theoretically well taken, in view of Ga. Fla. & Ala. R. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L. ed. 948); Barrett v. Van Pelt, 268 U. S. 85 (45 Sup. Ct. 437, 69 L. ed. 857); Davis v. Roper Co., 269 U. S. 158 (46 Sup. Ct. 28, L. ed. 209). If error Was committed as alleged, however, it was immaterial in the present case, in the view that we take of the evidence on the subject of negligence. Under the act of March 4, 1915, amending the interstate-commerce act of February 4, 1887, as amended by section 7 of the act of June 29, 1906, it is unnecessary that the plaintiff shall file a claim within the time named in the bill of lading, if the loss or damage complained of was due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence. It would seem that an error such as here alleged would be harmless in any case which was actually submitted and tried on the theory of the defendant’s negligence and in which the jury were required by the court to return a verdict in favor of the carrier if they found it was not negligent. We will not say that the present case proceeded exclusively upon that issue. We shall endeavor to show presently, however, that the evidence demanded the inference that the loss was due to the company’s negligence with respect thereto . while the goods were in transit, and if this is true, it will still follow that the charge of the court above referred to could not have prejudiced the defendant, for in that case none of the errors which the court may have committed in charging the jury could be material.

One excerpt from the charge of the court, submitting to the jury the question of negligence, was excepted to upon the ground that there was no evidence that the failure of the defendant and its connecting carriers to properly ice the shipment, if there was. such a failure, was due to negligence, or that the delay in transportation, if there was a delay, was due to negligence, and upon the further ground that the instruction told the jury, in effect, that “proof of damage to delay or to improper refrigeration would authorize them to conclude, without. more, that the delay or improper refrigeration was due to negligence; in other words that the proof of damages raised a presumption of negligence.” Among the other exceptions was one to an instruction on the subject of burden of proof, which was assigned as error upon the ground that it improperly placed the burden upon the defendant to show that it iced the lettuce at its regular icing stations as required by the bill of lading, whereas the burden was on the plaintiff to show a noncompliance with this requirement. None of the exceptions seem quite to raise the question which has been argued at length in the briefs, as to whether the court erred in charging the jury that if there is a delivery of goods to a common carrier in good condition and delivery at destination in bad condition, there arises a rebuttable presumption that the carrier was negligent. See, in this connection, Chesapeake &c. R. Co. v. Thompson Co., 270 U. S. 416 (46 Sup. Ct. 318, 70 L. ed. 659). In charging the jury upon the burden of proof in a suit of this sort against a carrier for damage to an interstate shipment of goods, where the plaintiff seeks to show negligence in order to bring himself within the final proviso of the Cummins amendment, it might perhaps be inaccurate to speak of a presumption, even a rebuttable presumption, although in the Thompson case just cited the Supreme Court of the United States said, “There is no language in the statute from which a purpose may be inferred to vary or limit the common-law rules governing proof of negligence as a fact in issue, and the shipper may follow these rules when he seeks to show that no notice of claim was necessary.” While, as we have already stated, we think it unnecessary to decide whether there were errors in the charge of the court, the attention which we have given to the several assignments of error to which we have just referred has led us to consider certain legal principles which are pertinent in determining whether the evidence demanded the finding that the defendant was negligent. In the Thompson case, supra, it was further said: “The respondent therefore had the burden of proving .the carrier’s negligence as' one of the facts essential to recovery. When he introduced evidence to show delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner became subject to the rule applicable to all bailees, that such evidence makes out a prima facie case of negligence. [Citing authorities.] But even if this prima facie case be regarded as sufficient in the absence of rebutting evidence to entitle the plaintiff to a verdict, . . the trial court erred here in deciding the issue of negligence in favor of the plaintiff as a matter of law. For the petitioner introduced evidence of the condition of the cars from the time of shipment to the time of arrival, which persuasively intended to exclude the possibility of negligence.” In the present case the evidence showed, without dispute, that the lettuce was delivered to the carrier in good condition and was delivered to the consignee in bad condition. This made a prima facie case of negligence. The Supreme Court in the Thompson case left it undecided whether, in this situation, the plaintiff would be entitled to a verdict, as a matter of law, in the absence of rebutting evidence. In that case the carrier introduced evidence tending to exclude the possibility of negligence. In the present case the carrier was silent. Moreover, the plaintiffs did not content themselves merely with evidence as to the condition of the goods respectively at delivery to the carrier and at delivery to the consignee. Several witnesses, who appeared to have been competent to give opinions upon the subject, testified that if the carrier had properly iced the car at “regular icing stations,” or if the car had been properly equipped and properly refrigerated, the shipment would have arrived at destination in good order. C. M. Otoy testified that he personally superintended loading the lettuce in Los Angeles, and that it was then fresh, green, and firm and in first class merchantable condition, trimmed, and packed in ice, and that if the shipment reached Kichmond “spotted and with some decay, and rotted as soon as the ice got from it,” as appeared .from the testimony of another witness, “it must have been due to the refrigeration, that is, that it was not properly iced, as it left here in good condition. It must have been heated somewhere in transit.” H. E.' DiCristina, one of the plaintiffs, testified: “This car would have arrived in good condition, if in good order at the time of shipment and properly refrigerated or iced. The same would be true if the bill of lading provided for reicing at all regular icing stations.” There was other evidence to the same effect. In the light of all the evidence, we think there was no reasonable supposition to be indulged by the jury save that of the defendant’s negligence. Upon what basis could the jury have reasoned to any other conclusion, in the absence of testimony, circumstantial or otherwise, tending to exclude the possibility of the defendant’s negligence? While it is true that where reasonable men might differ as to inferences to be drawn from certain evidence, the matter is one for solution by the jury, yet where, under all the circumstances, only one conclusion is reasonably possible, the qiiestion ceases to be issuable as one of fact and becomes a question of law. Dixon v. Bristol Savings Bank, 102 Ga. 461 (2) (31 S. E. 96, 66 Am. St. R. 193); Civil Code (1910), § 5926. The rule that in a case of this sort the burden is upon the plaintiff throughout the entire trial (Bland v. Chicago R. Co., 232 S. W. 232, and cases cited) does not mean that the plaintiff may never be entitled to a verdict as a matter of law. There was no conflict in the testimony and nothing to- discredit any witness. Tinder the evidence the court, in our opinion, would have been authorized to direct a verdict in favor of the plaintiff on the issue of negligence, leaving only for their determination the amount of the damage. See, in this connection, Buswell v. Fuller, 89 Me. 600 (36 Atl. 1059); Cogdell v. Wilmington &c. R. Co., 132 N. C. 852 (44 S. E. 618); Russell v. Oregon R. Co., 155 Fed. 22 (83 C. C. A. 618); 5 Wigmore on Evidence, 2494, 2495 (2b); 2 Wharton on Evidence, 2d ed., § 371; Galveston &c. R. Co. v. Wallace, 223 U. S. 481 (32 Sup. Ct. 205, 56 L. ed. 516); Hyer v. Holmes, 12 Ga. App. 837 (79 S. E. 58).

It is true that one or more witnesses testified to the effect that this damage could have been caused by “the lettuce being diseased when shipped.” But this was expressed in each instance not as a probability, but merely as a possibility or conjecture, and there was no such testimony from any witness who knew of the condition of the lettuce when it was delivered to the carrier in Los Angele's. Evidence of this character should not alter the conclusion that the inference of the defendant’s negligence was demanded from all the evidence. The initial carrier was liable for damage by negligence of connecting carriers. Ga., Fla. & Ala. R. Co. v. Blish Milling Co., supra.

There was some issue in the trial as to whether there was delay and as to the effect of the delay, if any, upon the shipment. But we think it is unnecessary to bring any question of delay into this decision, nor have we considered what might possibly be the result of the deviation from the route prescribed in the bill of lading. See, in this connection, 4 R. C. L. 812, § 268 et seq.

There was evidence sufficient to establish the value of the lettuce on its arrival at destination. The court did not err in the admission of testimony upon that subject nor in charging the jury thereon. It follows, from what we have said,, that no reversible error was committed, and that the court below ruled correctly in refusing a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17281.
    ATLANTIC COAST LINE RAILROAD CO. v. VARNER.
    1. A bill of lading' stipulation providing-, in accordance with the Cummins amendment of March 4, 1915, to the interstate-commerce act of February 4, 1887, as amended by section 7 of the act of June 29, 1906, that claims for loss or damage to property must be made in writing within six months after delivery to consignee, is complied with by the filing of suit against the proper carrier within that period.
    2. The evidence was sufficient to authorize the inference that the damage was caused by the defendant or a connecting carrier. The verdict was amply supported by the evidence and there was no error in refusing a new trial.
    Carriers, 10 C. J. p. 333, n. 7S; p. 371, n. 52; p. 389, n..97.
    Decided February 14, 1927.
    Damages; from Worth superior court — Judge Eve. March 6, 1926.

      Perry & Tipton, Pope & Bennet, for plaintiff in error.

      J. S. Ridgdill, contra.
   Bell, J.

Varner recovered a verdict against the railroad company for alleged damage to an interstate shipment of watermelons. The company’s motion for- a new trial was overruled, and it excepted. Only two points of several raised in the motion for new trial are insisted upon by counsel for the plaintiff in error.

The first question is, where, as here, the bill of lading for an interstate shipment requires, as a condition precedent to liability, that notice of the claim be presented within six months, is such stipulation complied with by the filing of suit within that period ? In the present case the only claim by the plaintiff was by suit within less than six months after the delivery of the property, and the trial court charged the jury that this was a sufficient compliance with the stipulation of the bill of lading for the making of a claim within such period, and on this instruction the defendant assigns error. In Williamsport Lumber Co. v. Baltimore &c. R. Co., 71 W. Va. 741 (77 S. E. 333), the Supreme,Court of Appeals of West Virginia said, among other things, that a stipulation such as the one here under consideration affords reasonable notice to the carrier, admonishing it “of liability which it may avoid by finding and delivering the lost goods, or by adjusting the loss with the owner without litigation.” But in Barrett v. Van Pelt, 268 U. S. 85 (45 Sup. Ct. 437, 77 L. ed. 333), the Supreme Court of the United States said, “Notice and filing of claim warns the carrier that there may be need to make investigations which otherwise might not appear to be necessary; and if notice of claim is given and filing of claim is made within a reasonable time it serves to enable the carrier to take timely action to discover and preserve the evidence on which depends a determination of the merits of the case.” The purpose as thus expressed would be fully sub-served by the presentation of the claim in the form of suit. Clauses in contracts like that under consideration have been held complied with by the bringing of suit within the time specified. 10 C. J. 336, and cases cited. It is pointed out by counsel for plaintiff in error that in none of the cases referred to in this text was the stipulation contained in an interstate bill of lading, to be construed, as this one must be, under Federal statutes. It is also urged that since the carrier is a public-service corporation, under strict governmental regulation, whose expenses and losses must be ultimately borne by the public in the form of freight and passenger tariffs, the stipulation as to notice, as a condition precedent to liability, in its interstate bills of lading, should, in order that these tariffs may be kept as low as possible, be given a construction favorable to the carrier. We are aware of no law under which a contract to which even the State is a party is to be interpreted more favorably to the State or by a different rule from that which would obtain as between individuals.

Section 411 of the Civil Code of Georgia (1910) provides that “All claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred.” The courts of this State have several times held that the bringing of suit within this time limit is a sufficient presentation of the claim within the meaning of this section. Dement v. DeKalb County, 97 Ga. 733 (25 S. E. 382); Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651); Mitchell County v. Dixon, 20 Ga. App. 21 (92 S. E. 405); Pearson v. Newton County, 119 Ga. 863 (147 S. E. 180); Godfrey v. Jefferson County, 21 Ga. App. 384 (94 S. E. 604). And yet, in construing this section, the courts had for consideration the rights of the individual on the one hand and those of the public on the other. In the absence of any adjudication by the Supreme Court of the United States and of any precedent in this State on the subject, we think the principle of the cases last above cited should govern our decision in this case.

Counsel for the plaintiff in error refer to the Texas case of Schaff v. Exstein, 270 S. W. 589, in which it was held that a claim filed with the wrong carrier and by it forwarded to the right carrier was not a compliance with the contract, and cite also the decision in Manby v. Union Pacific R. Co., 10 Fed. (2d) 327, to the effect that neither a letter inquiring or complaining about a diversion nor an oral conversation with the company’s agent would be sufficient. In both of these instances, the plaintiff did less than what was required under the contract. In the present case, the plaintiff by suit did more than was required. The plaintiff 'could have filed his claim with the company, and also could have brought suit, both within the six months period.. In that event, what would have been the value or necessity of the extrajudicial notice? We think the stipulation was not intended necessarily to allow the company an opportunity to avoid the cost and expense of litigation, and we must hold with the trial judge that suit was the equivalent of a claim within the meaning of the contract.

The next contention of the plaintiff in error is that the verdict for the plaintiff was contrary to law and the evidence, because there was no evidence showing that the damage was caused by the defendant or any of its connecting carriers. The bill of lading recited that the goods were received “in apparent good order,” and the evidence showed that they arrived at destination in bad order. In the absence of anything in rebuttal, this evidence was sufficient to make a prima facie case of liability. See Forrester v. Ga. R. Co., 92 Ga. 699 (19 S. E. 811); Central R. Co. v. Hasselkus, 91 Ga. 382 (3) (17 S. E. 838, 44 Am. St. 37); Ohlen v. Atlanta & West Point R. Co., 2 Ga. App; 323 (58 S. E. 511); Hartwell Ry. Co. v. Kidd, 10 Ga. App. 771 (3) (74 S. E. 310); Atlantic Coast Line R. Co. v. Thomasville Live Stock Co., 13 Ga. App. 102, 109 (78 S. E. 1019). See especially Chesapeake &c. R. Co. v. Thompson Co., 270 U. S. 416 (46 Sup. Ct. 318, 70 L. ed. 659). Moreover, there was testimony from the plaintiff as follows: “As to the general appearance of the ear when I first opened it, some of the melons were standing on their ends, some of them were bursted open, some of them, the ends of them were driven into each other, and some of them were bruised up to where you could not sell them. The car seemed to have received a hard lick. Some of them seemed to be entirely crushed or mashed. They were mostly in one end of the car, apparently from the jolting or jarring of the car, and the car had been hit hard too.” In view of this and the other evidence, and of the fact that the carrier offered no evidence in rebuttal, we think the evidence authorized the inference not only of damage at the hands of the defendant or a connecting carrier, but also of negligence. See Southern Pacific Co. v. DiCristina, 36 Ga. App. 433 (3). We are quite clear that the second contention of the plaintiff in error is without merit.

Adverting to the question first discussed above, if the evidence demanded a finding that the damage occurred in transit and by the defendant’s negligence (which question it is unnecessary to decide in this case), then the court’s charge that the filing of suit was the equivalent of notice within the terms of the bill of lading would not have afforded cause for a new trial, even though erroneous. See Southern Pacific Co. v. DiCristina, supra.

Judgment affirmed.

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


text:
    17285.
    Scarborough v. Walton.
    Decided February 14, 1927.
    Damages; from city court of Macon — Judge Hall. February 20, 1926.

      Brock, Sparks & Russell, for plaintiffs in error.

      Robert W. Barnesj Ryals, Anderson & Anderson, contra.
   Bell, J.

This case is controlled by the decision in Scarborough v. Walton, ante, 428.

Judgment affirmed.

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


text:
    17328.
    STROTHER v. HARPER.
    The refusal of the court to open the “default” in this case was not erroneous for any reason urged.
    Judgments, 34 O. J. p. 311, n. 5; p. 365, n. 67.
    Decided February 14, 1927.
    Trover; from city court of Washington — Judge Sutton. March 6, 1926.

      B. W. Forison, for plaintiff in error. William Wynne, contra.
   Bell, J.

In this cause the suit was returnable to a quarterly term of the city court of Washington. No plea having been filed at the first term, the case was marked in default. At the second term the defendant moved to open the default and to be allowed to plead. This motion was denied, and, after judgment in favor of the plaintiff, the defendant excepted. Counsel for the plaintiff in error, in his brief, states that “The controlling question in this case is whether or not the trial judge, in refusing to allow the default opened at the trial term, abused the discretion vested in him by law for opening defaults at the trial term,” and, after making reference to the several sections of the Civil Code (§§ 5653 to 5656 inclusive) relating to defaults in the superior court, says that “the foregoing sections of the code apply to the city court of Washington.” See Ga. L. 1905, p. 399, §§ 17, 31, and Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915), in which the Supreme Court construed certain provisions of the act creating the city court. The above statements of counsel for the plaintiff in error make it unnecessary for this court to decide any such question as was raised and decided in Bridges v. Wilmington Savings Bank, 36 Ga. App. 239 (136 S. E. 281). Since counsel for the plaintiff in error has taken the position that the code provisions on the subject of defaults are applicable in this case, and since, in our opinion, the judgment should be affirmed even upon that theory, it is unnecessary to decide any question except whether the showing, as made for opening the default, was such that the motion therefor should have been granted under rules obtaining in the superior court, and it is merely assumed that such rules are here applicable. See Morgan v. Prior, 110 Ga. 791 (36 S. E. 75); Dodson Supply Co. v. Harris, 114 Ga. 966 (41 S. E. 54); Fla. Central R. Co. v. Luke, 11 Ga. App. 290 (75 S. E. 270); Riverdale Pecan Co. v. Cutter, 16 Ga. App. 631 (85 S. E. 929); Buford v. So. Colton Oil Co., 20 Ga. App. 581 (85 S. E. 929; Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (93 S. E. 530); Daniel v. Nixon, 21 Ga. App. 206 (93 S. E. 1013).

The opening of a default on motion made at the trial term, after the defendant has complied with the provisions of section 5656 of the Civil Code, is a matter within the discretion of the trial judge, and his discretion in opening or refusing to open such default will not be controlled unless it has been manifestly abused. Lythgoe v. Carson, 18 Ga. App. 83 (88 S. E. 989).

It can not be said that the trial judge has abused his discretion in such a matter, unless all the facts and .circumstances demand, as a matter of law, a different conclusion from that reached by him. See Sherman v. Stevens, 30 Ga. App. 509 (1), 518 (118 S. E. 567). Where the showing made for the purpose of opening .the default was that the attorney for the defendant had a leave of absence from a certain term of court, which was the appearance term of the case in which the default was entered, and that in “checking up his cases” for that term, and, in “preparing defenses to be filed in those in which it was necessary to file defenses at said term, said attorney, in some way, overlooked this case,” and, not being present when the appearance docket was called, did not know until the trial term that he' had overlooked filing the necessary plea or that the case had been marked in default, and that on discovery of these facts he moved promptly to open the default, complying with the terms of section 5656, these facts without more did not, as a matter of law, require the opening of the default.

Assuming, without deciding, that the presiding judge, in granting the leave of absence, might have allowed time for filing an answer, beyond that prescribed by statute, yet the leave of absence as granted, not having specially so provided, did not render it unnecessary to answer before the call of the appearance docket (Beacham v. Kea, 118 Ga. 406, 45 S. E. 398), and proof in mere general terms that the attorney “in some way overlooked this case” did not furnish a compelling reason for opening the default at the trial term.

While we have decided the case upon the theory .that the provisions of the code in reference to defaults are applicable, it is noticed that the act creating the city court of Washington provides that “whenever and in all cases where the rules of the superior courts can not be made applicable on account of the difference in tlie constitution of said courts, then s.aid city court judge may make and promulgate rules to cover such cases,” and, as was said by the Supreme Court in Beacham v. Kea, supra, construing an identical provision in the act creating the city court of Dublin, “if the superior court practice can-not apply, then this is a case to be governed by the rules made and promulgated by the judge of the city court. The record is silent as to whether the judge had promulgated any rule governing the case, and we must presume, therefore, that there was á rule under which the court was authorized to find that the answer was filed too late.” See also, in this connection, Cheatham v. Brown Furniture Co., 118 Ga. 420 (45 S. E. 399).

Judgment affirmed.

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


text:
    17336.
    Barkley v. American National Insurance Co.
    Accident Insurance, 1 C. J. p. 478, n. 68,1 70, 72; p. 479, n. 82; p. 506, n. 73.
    Dismissal and Nonsuit, 18 C. J. p. 1178, n. 87.
    Insurance, 32 C.'J. p. 1318, n. 94; 33 O. J. p. 16, n. 75; p. 21, n. 70; p. 23, n. 98; p. 25, n. 18, 19, 23; p. 27, n. 55; p. 28, n. 63; p. 33, n. 25; p. 35, n. 38.
   Bell, J.

1. Insurance policy clauses which prohibit waivers, except such as are indorsed upon the policy by specified officers of the company, usually refer to those provisions which enter into the contract, and do not affect, conditions which are to be performed after loss or injury, such as giving notice and furnishing proofs. “These may be expressly waived, -or waived by conduct inconsistent with an intention to enforce a strict compliance with the condition, by which the insured is led to believe that the insurer does not intend to require such compliance. An adjuster sent to adjust a loss presumably has authority to' waive proof of loss.” Corporation of the Royal Assurance v. Franklin, 158 Ga. 644 (3) (124 S. E. 172, 38 A. L. R. 626). These principles are applicable in a suit on a policy of accident insurance.

2. While it is the well-settled rule in this State that, where notice of loss or injury, or proofs thereof, have not been given or furnished in accordance with provisions of the policy requiring the same as conditions precedent to liability, the company’s subsequent absolute refusal to pay because of the noneompliance with such provisions, or for some other reason, will not estop the company from setting up as a defense the failure of the insured to make such reports (Volunteer State Life Ins. Co. v. McGinnis, 29 Ga. App. 370, 374, 115 S. E. 287; Penn Mutual Ins. Co. v. Milton, 33 Ga. App. 634 (3), 127 S. E. 798) , yet where the company, instead of making any sort of refusal to pay, retains the belated notices and proofs and invites tlie assured to furnish additional reports as specified in the policy, and the assured does so, such conduct on the part of the company in thus inducing the assured to incur expense and trouble, in the belief that his failure to comply strictly with the terms of the policy would not be charged against him, will estop the company from insisting upon a forfeiture as a result of his noncompliance with the provisions of the policy as to notice and proofs of loss. Travelers Ins. Co. of Hartford v. Edwards, 122 U. S. 457 (30 L. ed. 1178, 7 Sup. Ct. 1249); Trippe v. Provident Fund Society, 140 N. Y. 23 (35 N. E. 316, 37 Am. St. R. 529, 22 L. R. A. 432); 1 C. J. 478-480.

Decided February 14, 1927.

Rehearing denied February 26, 1927.

Complaint on accident policy; from city court of Macon — Judge Hall. March 16, 1926.

Application for certiorari was denie'd by the Supreme Court.

B. J. Fowler, for plaintiff.

Martin, Martin & Snow, for defendant.

3. Applying these rulings to the facts of this case, the evidence would have authorized the inference that the company was estopped to insist upon a forfeiture of the plaintiff’s claim, because of his failure to furnish reports and proofs of his injury as required by the policy, and, a prima facie case being otherwise made out, the court erred in granting a nonsuit.

Judgment reversed.

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


text:
    17363.
    SEABOARD AIR LINE RAILWAY CO. v. SARMAN.
    Under the rulings of the Supreme Court in English v. Rosenkrante, 150 Ga. 745 (105 S. E. 292), and City of Tallapoosa v. Brook, 143 Ga. 599 (85 S. E. 755), where to a suit the defendant files a plea of res adjudicata which is submitted to the trial judge for determination upon an agreed statement of facts without the intervention of a jury, a judgment in favor of the plaintiff, to the effect that the plea be not sustained, is not such a judgment as can be excepted to in a direct bill of exceptions. There being, under the above authorities, no final judgment and no judgment which would have been a final disposition of the cause “if it had been rendered as claimed by the plaintiff in error” (Civil Code, § 6138), this court is without jurisdiction to pass upon the writ of error, and it must be dismissed. See further, in'" this connection, Johnson v. Merchants & Farmers Bank, 141 Ga. 721 (81 S. E. 873) ; Johnson v. Battle, 120 Ga. 649 (2) (48 S. E. 128) ; Smith v. Leveret te, 18 Ga. App. 582 (89 S. E. 1094) ; Floyd v. Massachusetts Mills, 25 Ga. App. 519 (2) (103 S. E. 801) ;• Samson Tractor Go. v. Furlong, 28 Ga. App. 659 (112 S. E. 903) ; Payne v. American Surety

      Co., 30 Ga. App. 127 (117 S. E. 275) ; Chatham Motor Co. v. Lincoln Motor Co., 31 Ga. App. 229 (2) (120 S. E. 444).

      Appeal and Error, 3 C. J. p. 433, n. 7; p. 461, n; 59; p. 610, n. 7; 4 C. J. p. 580, n. 28.

      Decided February 14, 1927.
    Rehearing denied February 26, 1927.
    Damages; from Camden superior court ■ — ■ Judge Highsmith. February 13, 1926.

      C. B. Conyers, for plaintiff in error.

      Reuben R. & Lowry Arnold, E. C. Hill, B. A. Atkinson, contra.
   Bell, J.

In this case the defendant filed a plea of res adjudicata, which was submitted to the trial judge for determination without the intervention of a jury, upon an agreed statement of facts. The judge, upon a consideration of the pleadings and the agreed facts, ordered “that said plea be not sustained and that judgment be and it is hereby rendered in favor of the plaintiff upon said plea.” The defendant has ’brought the case to this court, assigning error upon this judgment. There were no other proceedings in the court below.

Although there has been no motion to dismiss the bill of exceptions, yet, the judgment complained of not being, in the light of the decisions, such a judgment as could be excepted to directly, this court is without jurisdiction to pass upon the merits of the writ of error, and in such a case should dismiss the writ of its own motion. Floyd v. Mass. Mills, 25 Ga. App. 519 (1) (103 S. E. 801); Teasley v. Cordell, 153 Ga. 397 (112 S. E. 287). Under the record, the only judgment which we can render is a judgment of dismissal.

Writ of error dismissed.

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

ON MOTION TO AMEND JUDGMENT OE DISMISSAL.

The plaintiff in error by its counsel has moved that this court amend the judgment of dismissal in this ease so as to provide that the official copy of the bill of exceptions of file in the office of the clerk of the trial court shall operate as exceptions pendente lite. It seems that according to the precedents the motion should be denied. See United Glass Co. v. McConnell, 110 Ga. 616 (2) (36 S. E. 58); Harvey v. Bowles, 112 Ga. 421 (2) (37 S. E. 364); Berryman v. Haden, 112 Ga. 752 (4) (38 S. E. 53); Thomasville Iron Works v. Clark, 16 Ga. App. 537 (2) (85 S. E. 674); Hines v. Jolly, 24 Ga. App. 201 (100 S. E. 638). Before rendering the judgment dismissing the writ of error, we considered the question of whether we should grant to the plaintiff in error the leave which it asks by the present motion, and thought that in view of the authorities it would not be proper to do so. We are still of that opinion. Motion denied.

Jenhins, P. J., and Stephens, J., concur.


text:
    17485.
    FLODING INCORPORATED v. GUNTER.
    This was an action against a corporation to recover commissions alleged to have been earned by the plaintiff in consummating sales of its stock. The defendant, being the issuer, was not required to obtain a permit from the securities commission before putting the stock on the market. If the plaintiff was required to do this before proceeding, as agent or solicitoi-, to sell the stock or offer it for sale, there being nothing in the record to show that when entering into the contract sued on the parties anticipated that the plaintiff would sell or offer to sell the stock without complying with the law, the defendant can not escape liability for commissions merely because the plaintiff, after the making of the contract, may have violated the criminal law in selling the stock without a license.
    Brokers, 9 O. J. p. 566, n. 56, 57.
    Contracts, 13 O. J. p. 539, n. 15.
    Licenses, 37 C. J. p. 271, n. 50; p. 277, n. 43; p. 278, n. 61 New.
    Decided February 14, 1927.
    Certiorari; from Fulton superior court — Judge E. D. Thomas. May 17, 1926.

      Candler, Thomson & Hirsch, Welborn B. Cody, for plaintiff in error.

      A. E. Wilson, contra.
   Bell, J.

Gunter brought suit in the municipal court of Atlanta against W. E. Floding Incorporated, to recover commissions alleged to have been earned by him in selling stock of the defendant corporation. The trial having resulted in a verdict and judgment in favor of the plaintiff, the defendant carried the case by certiorari to the superior court, the certiorari was dismissed, and the defendant excepted.' The sole question for determination in this court is whether the recovery was unauthorized because the plaintiff sold the stock in violation of the securities law (Ga. L. 1920, p. 250). Although it is true that the defendant corporation was the issuer, and therefore was not itself required to obtain a permit from the securities commission for the sale of its stock before putting the stock on the market (Smith v. State, 161 Ga. 103, 129 S. E. 766), it seems that the plaintiff, before proceeding, as an agent or solicitor, to sell- or offer for sale such stock, should have obtained a permit or license to do so in accordance with the securities act (Ga. L. 1920, p. 270, sec. 36). Without a compliance with this statute by him (assuming such compliance to be. necessary), the courts would probably refuse to enforce against a purchaser a contract for the sale of such stock, and if the sales were merely executory and nonenforceable, the plaintiff might possibly be precluded from recovering, because his services were of no value. See McLamb v. Phillips, 34 Ga. App. 210 (129 S. E. 570); Witt v. Trustees Loan & Savings Co., 33 Ga. App. 802 (127 S. E. 810); So. Flour & Grain Co. v. Smith, 31 Ga. App. 52 (120 S. E. 36); City of Jeffersonville v. Cotton States Belting & Supply Co., 30 Ga. App. 470 (7) (118 S. E. 442); Bartow Guano Co. v. Adair, 29 Ga. App. 644 (4) (116 S. E. 342). But such is not the present case. The evidence authorized the inference that the sales were all executed and that the stock was paid for. If the plaintiff had applied for the license and if the securities commission had granted his application and issued the license, his sales would have been legal. There is nothing in the record to show that, when the defendant employed the plaintiff to sell its stock and agreed to pay him a certain commission for his services, the parties contemplated the doing of an illegal act. In the absence of anything to the contrary, the assumption is that both parties anticipated that the plaintiff would comply with the law. “A contract will be construed as made for a legal, rather than for an illegal purpose; and the more especially when such contract is attacked by a party thereto who has been benefited thereby.” Virginia Bridge Co. v. Crafts, 2 Ga. App. 126 (3) (58 S. E. 322); Kiser Co. v. Padrick, 30 Ga. App. 642 (2) (118 S. E. 791). So far as appears, the contract between the plaintiff and the defendant was not itself founded upon any immoral or illegal consideration; and this being true, the defendant can not escape liability for commissions on sales actually consummated, merely because the plaintiff may have violated the criminal law in executing the contract, there being nothing to show that the defendant intended or expected such violation, or was concerned in it, or even know of it. See Russell v. Turner, 14 Ga. App. 344 (1, 2) (80 S. E. 731); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (3) (37 S. E. 485, 81 Am. St. R. 28); Kessler v. Pearson, 126 Ga. 725 (55 S. E. 963, 8 Ann. Cas. 180); Phenix Ins. Co. v. Clay, 101 Ga. 331 (28 S. E. 853, 65 Am. St. R. 307). It follows that the municipal court did not err in rendering judgment in favor of the plaintiff, and that the superior court properly dismissed the certiorari.

Judgment affirmed.

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


text:
    17510, 17537.
    WATSON v. GEORGIA SOUTHERN & FLORIDA RAILWAY CO., and vice versa.

    1. In an action against a railway company, under the Eederal employer’s liability act (U. S. Comp. St. §§ 8657-8665) to recover damages for personal injuries to, or the death of, an employee, liability can not be predicated upon the defendant’s violation of a Eederal statute enacted for the safety of employees, unless there is a causal connection between such violation and tñe injury or death.
    2. Violation of the Eederal boiler-inspection act (U. S. Comp St. § 8630 et seq.) by a railway company, in failing to observe a rule of the interstate commerce commission requiring that each locomotive used in yard service at night be equipped with two lights in good condition, one in the front and one in the rear, of sufficient illumination to enable a person in the cab, having “the usual visual capacity required of cngineermen, to see in a clear atmosphere a dark.object as large as a man of average size standing erect” at a distance of 300 feet, was not a contributing proximate cause of the death of fin employee who, in order to reach the rear of the tender for the purpose of hanging a lantern thereon as required by a private rule of the company, undertook to walk upon a wet and slippery iron rod extending around the tender, and who, merely because of the inherent difficulty of accomplishing this act, slipped and fell, and thus received injuries which resulted in his death.

      3. Measured by the principles enunciated above, the petition in this case failed to set forth a cause of action. The court therefore did not err in sustaining the general demurrer thereto.
    Master and Servant, 39 C. J. p. 442, n. 32; p. 445, n. 33; p. 448, n. 46; p. 916, n. 15; p. 1070, n. 62.
    Decided February 14, 1927.
    Rehearing denied February 26, 1927.
    Action ior damages; from city court of Macon — Judge Hall. May 28, 1926.
    Application for certiorari was made to the Supreme Court.

      O. L. Clements, John B. L. Smith, Joseph LeConie Smith, W. E. Martin Jr., for plaintiff.

      Hall, Grice & Bloch, for defendant.
   Bell, J.

This action, under the Federal employer’s liability act of April 22, 1908, against the railway company, for the wrongful death of the plaintiff’s intestate, is predicated solely upon the violation by the railroad of the Federal boiler-inspection act of February 17, 1911, as amended by several later enactments, including that of June 7, 1924, in its failure to observe rule 131 of the interstate-commerce commission requiring that each locomotive used in yard service at night should be equipped with two lights in good condition, one in the front and one in the rear, of sufficient illumination to enable a person in the cab, having “the usual visual capacity required of engineermen to see, in a clear atmosphere, a dark object as large as a man of average size standing erect” at a distance of 300 feet. Watson, the decedent, employed as a hostler’s helper, was assisting in moving a locomotive from the defendant’s roundhouse in Macon, Georgia, across the yards to the terminal station to be there attached to an interstate train. This engine was not provided with any light whatever at its rear, in accordance with the rule of the interstate-commerce commission. It had previously been equipped with such light, but it was in disrepair and completely out of service at the time of the decedent’s death. The defendant had promulgated a private or internal rule providing that when an engine is running backwards at night a white light must be displayed on the rear of the tender. The decedent had, in the line of his duty, been manipulating the switches and giving signals to the hostler in the cab of the locomotive in the removal thereof as indicated above. In turning the switches he carried a lantern, and, after turning the last switch, he undertook to climb upon the rear of the tender for the purpose of hanging the lantern thereon as the white light to be displayed in obedience to the rule of the company. In order to do this it was necessary for him to “pull himself up on a side of said tender and walk upon a very small metal rod around the rear of said tender while the same was in motion. It was a very dark, rainy, stormy night, and said locomotive and its appurtenances were wet and slippery, so that the said feat which said [decedent] was required to perform was extremely dangerous.” Consequently, his foot slipped and he fell upon the track, receiving injuries which resulted in his death. This is a statement of the substantial facts as they are alleged in the petition. The court dismissed the petition on general demurrer, and the plaintiff excepted.

The petition shows upon its face that the decedent was engaged in an act obviously so dangerous that a person of ordinary prudence would not have undertaken it. But if the railway company was in the violation of a Federal statute enacted for the safety of employees, and such violation was a contributing proximate cause of the decedent's death, the fact that he may have been guilty of an obviously dangerous act, or that his conduct was such that in other circumstances it might have amounted to an assumption of the risk, is a matter to be ignored in determining the rights of the parties. That such is the meaning of the liability act has been held in numerous cases.

However, it was not the purpose of this act to exclude the doctrine of proximate causation, as it is generally understood and applied in the courts. Where an action against a railway company to recover damages for injury to one of its employees is grounded upon the defendant’s violation of a Federal statute, there must necessarily, as in other cases, be a causal connection between the company’s delinquency and the injury, in order to render the company liable. If we are to understand that counsel for the plaintiff make a-contention to the contrary, we must overrule it, in view of a number of decisions of the Supreme Court of the United States, including Davis v. Wolfe, 263 U. S. 239 (68 L. ed. 284, 44 Sup. Ct. 64). In that case Mr. Justice Sanford, after examining four other cases therein cited, said: “The rule clearly deducible from these four cases is that, on the one hand, an employee can not recover under the safety-appliance act if the failure to comply with its requirements is not a proximate cause of the accident, but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury; and, on the other hand, he can recover if the failure to comply with the requirements of the act is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection.”

The company’s wrong, even if it consists of the violation of one of the safety statutes, can impose no liability unless it at least bears to the injury such relation that the company could be regarded as a joint tort feasor, considering the conduct of the employee, if we may, as though it were the conduct of a third person. In that case the company’s violation of the statute would be regarded in law as the sole proximate cause of the injury, regardless of what the conduct of the employee, ás contributing thereto or as assuming the risk, may have been in fact. Even assuming that the defendant violated the boiler-inspection act as alleged in the present case, we think that such violation was not a contributing proximate cause of the decedent’s death, but that it merely created an “incidental condition or situation” in which the decedent caused his own death in the performance of an obviously dangerous act. We will not say that the statute which is alleged in this case to have been violated was not enacted for the safety of the decedent while riding upon an engine required to be lighted as prescribed; nor that he might not have been within the protection of the act when going upon the tender, even in the manner set forth in the petition, if, as was the case in Grand Trunk R. Co. v. Lindsay, 233 U. S. 42 (58 L. ed. 838, 34 Sup. Ct. 581, Ann. Cas. 1914C, 168), he had done so for the purpose of ascertaining and, if possible, remedying the defect caused by the company’s nonperformance of its duty under the statute, or if, as was true of the employee in Chicago R. Co. v. Schendel, 267 U. S. 287 (69 L. ed. 614, 45 Sup. Ct. 303), he had gone into the dangerous place because the equipment of the car did not meet the statutory requirements especially intended to protect men in his position. See, in this connection, L. & N. R. Co. v. Layton, 243 U. S. 617 (61 L. ed. 931, 37 Sup. Ct. 456); Minneapolis &c. R. Co. v. Goneau, 269 U. S. 406 (70 L. ed. 146, 335, 46 Sup. Ct. 129).

We are of the opinion, however, that the decedent was not endeavoring to make amends for his master’s violation of the law by remedying, and if possible getting along with, the deficient means and appliances provided, but that on the other hand he was engaged simply in obeying a private rule of his master to do something entirely different from what the latter was required to do for the safety of his employees under the statute. He was attempting to place the lantern on the tender because his master had told him to do so, and not because the lantern could answer in place of the light specified in the rule of the interstate-commerce commission, nor because he was seeking to supply for his own safety that which his master ought to’ have supplied but did not. If the rule of the company had required the decedent to go upon the tender and to ring a bell or blow a horn, or expose a red light, instead of to display a white light as from a lantern, and if,, in obeying this rule, the decedent had slipped and fallen and had thus sustained injury, it certainly could not have been said in that case that the defendant’s violation of the statute was a contributing, proximate cause of the injury.

The case actually before us is- not materially different in those essential features by which we are to determine its standing before the law. The character of the light emanating from the lantern as to strength and brilliancy is not shown, and in the absence of anything on this point except what, if anything, we may know judicially of lanterns in such use, we should take it that this light was incomparable with that expected by the rule of the interstate-commerce commission. It seems, therefore, that the rule of the company, as to the hanging out of the lantern, could not be considered as more than a mere pretense at a compliance with the law. We should prefer to regard it, however, not as a pretense, but as a means adopted by the company to reduce the accidents which might result from its failure to perform its prescribed legal duty. It is not alleged that the required light would have shone upon the place from which the plaintiff fell, or would have added to his safety in doing the particular act attempted. Moreover, the statute under which the right is claimed in this case was not enacted in order to make it safe for the decedent to walk upon a rod around the tender for the purpose of placing a lantern on the rear of the tender in obedience to a private rule of the company. And yet, if it had transpired that, while he was doing so, the engine collided with another object because of the absence of the light demanded by the law, and if, in consequence of such collision, the plaintiff had been hurt or killed, the company might, perhaps, have been liable. There was no such collision, however; and since the casualty did not result from the failure or inability of the decedent or any member of the crew of the particular engine to see as they should have seen by a light conforming to the legal requirements, or from the failure or inability of any other person elsewhere to observe the approaching engine as it could have been observed if properly lighted, there appears no causal connection between the defendant’s violation of the statute and the decedent’s death. In addition to the authorities already cited, see St. Louis R. Co. v. Conarty, 238 U. S. 243 (59 L. ed. 1290, 35 S. Ct. 785); Lang v. N. Y. Ry. Co., 255 U. S. 455 (65 L. ed. 734, 41 S. Ct. 381); Great N. Co. v. Otos, 239 U. S. 349 (60 L. ed. 322, 36 S. Ct. 124); Atchison &c. R. Co. v. Swearingen, 239 U. S. 339 (60 L. ed. 317, 36 S. Ct. 121); San Antonio R. Co. v. Wagner, 241 U. S. 476 (60 L. ed. 1110, 36 S. Ct. 626); Spokane R. Co. v. Campbell, 241 U. S. 497 (60 L. ed. 1125, 36 S. Ct. 683); Atlantic R. Co. v. Parker, 242 U. S. 57 (61 L. ed. 150, 37 S. Ct. 69); Baltimore &c. R. Co. v. Wilson, 242 U. S. 295 (61 L. ed. 312, 37 S. Ct. 123); Louisville R. Co. v. Layton, 243 U. S. 617 (61 L. ed. 931, 37 S. Ct. 456); Great Northern R. Co. v. Donalson, 246 U. S. 121, 62 L. ed. 616, 38 S. Ct. 230, Ann. Cas. 1918C, 581); Baltimore &c. R. Co. v. Groeger, 266 U. S. 521 (69 L. ed. 419, 45 S. Ct. 169); Bohm v. Chicago R. Co., 161 Minn. 74 (200 N. W. 804).

The affirmance of judgment on the main bill of exceptions makes it unnecessary to pass upon the cross-bill.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

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


author: Stephens, J.

text:
    17117.
    Bridges et al. v. City Council of Augusta, for use, etc.
    Constitutional Law, 12 C. J. p. 1272, n. 23.
    Licenses, 37 C. J. p. 239, n. 60; p. 240, n. 63.
   Stephens, J.

1. Where one conducts a business which consists in “dry cleaning, storing and pressing of clothes, rugs, and other fabrics,” under a license issued to him by a city to carry on the Business of a “pressing club” or “similar business,” and executes to the city a bond, which recites that he contemplates taking out a license to carry on the business of a pressing club or similar business in the city, and obligates him to “return such personal property as may be entrusted t'o [his care] in the conduct of said business . . or make good all damages that may be sustained by loss or damage to said property, whether by theft or otherwise, while in possession or care of said principal obligor,” this obligation to be void if he should do this, “otherwise to remain in full force and virtue,” such bond, by virtue of the obligor’s obtaining such license for the purpose of carrying on the particular business contemplated by him and by virtue of his securing the bond, which is made applicable to such business as a pressing club or similar business, is applicable to the business of “dry cleaning, storing and pressing of clothes, rugs, and other fabrics,” conducted by the obligor; and where the obligor fails to make good to the owner any damage to personal property entrusted to his care in the conduct of suen business, he is liable under the bond for such damage.

Decided February 24, 1927.

Certiorari; from Richmond superior court — Judge A. L. Franklin. December 19, 1925.

W. Inman Curry, for plaintiffs in error.

Cumming & Harper, Archibald Blackshear, contra.

2. Since the obligor unconditionally contracts to “make good all damages that may be sustained by loss or damage to said property, whether by theft or otherwise, while in [his] possession or care,” it is no defense to a suit against him upon the bond, to recover loss or damage to property entrusted to his possession or care, that he exercised due care and diligence in the care of the property, and that the property sued for was damaged by fire without fault on his part.

3. Since the obligor has, under the bond, contracted for an absolute liability, without reference to negligence, for damage to property entrusted to his care in the conduct of such business, it is no violation of the obligor’s constitutional right, against being deprived of property without due process. of law, to construe the bond as imposing such unconditional liability upon him.

4. In a suit by the city, as obligee under the bond, against the obligor, to recover the amount of the damage to property by fire while entrusted by the owner to the obligor in the conduct of such business, a verdict for the plaintiff is authorized.

Judgment affirmed.

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


text:
    17125.
    Messenger Publishing Company v. Overstreet.
    Accord and Satisfaction, 1 C. J. p. 582, n. 33.
    Chattel Mortgages, 11 C. J. p. 463, n. '70, 72; p. 541, n. 52; p. 682, n. 64.
    New Trial, 29 Cyc. p. 760, n. 89.
   Stephens, J.

1. The overruling of a claimant’s motion to dismiss a levy does not affect the verdict, and therefore can not be excepted to in a. motion for a new trial.

2. Where one purchases mortgaged property with actual notice of the mortgage, the description of the property in the mortgage need not be of a definiteness sufficient to constitute constructive notice, by a record thereof, to a purchaser of the property, but need only' be sufficiently definite to constitute a good description as between the parties to the mortgage. Where the property is described in the mortgage as the mortgagor’s “one-third interest in the outfit, stock, bills receivable, etc.,of the Laurens Stamp and Printing Company,” the description is sufficiently definite as between the parties to the mortgage.

3. Where a lienholder creditor has agreed to accept from the debtor certain property in full satisfaction and payment of the indebtedness, and where, after a tender and delivery of the property to the creditor by the debtor, the creditor refuses to accept the property and returns it to the debtor, who retains it without making a further and continuous tendel’ of the property to the creditor, there has been no satisfaction of the debt, and therefore no discharge of the lien. Ragan v. Newton, 27 Ga. App. 534 (109 S. E. 412).

Decided February 24, 1927.

Levy and claim; from city court of Dublin — Judge Bidgood. December 15, 1925.

Application for certiorari was made to the Supreme Court.

S. W. Sturgis, for plaintiff in error.

Hightower & New, Hardwick & Adams, contra.

4. Where property is levied on under a mortgage foreclosure, and a purchaser of the property from the mortgagor flies a claim of title thereto, and in support of the claim evidence is adduced in behalf of the claimant, a corporation, to the effect that when the claimant purchased the property from the mortgagor it was agreed between the mortgage creditor, who was the plaintiff in ft. fa., and the claimant that the mortgage creditor would accept in full payment of the indebtedness secured by the mortgage certain corporate stock in the claimant corporation, but where it does not appear from the evidence that the mortgage creditor agreed to accept, in satisfaction of the indebtedness, the claimant’s promise and obligation to pay and deliver the stock to the mortgage creditor, and where it does not appear that the mortgage creditor agreed to accept, in satisfaction of the indebtedness anything less than an actual performance of the claimant’s obligation by an actual delivery to the mortgage creditor of the stock agreed upon, no executory agreement in accord and satisfaction is established, but at best there is established only an agreement by which the indebtedness will be satisfied only upon a delivery to the mortgage creditor of the stock agreed upon. Civil Code (1910), § 4326.

5. The evidence authorized a verdict finding the property subject, and no error of law appears.

Judgment affirmed.

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


text:
    17161.
    Barron & Son v. Gentile Brothers Company.
    Contracts, 13 C. J. p. 701, n. 66.
    Dismissal and Nonsuit, 18 C. J. p. 1153, n. 3.4.
    Factors, 25 C. J. p. 401, n. 56; p. 404, n. 31; p. 405, n. 33.
   Stephens, J.

1. In a suit to recover damages for an alleged breach of contract by the terms of which the defendant was to act as agent for the plaintiff firm and sell a carload of peaches which the plaintiffs had delivered to a carrier, consigned to themselves at the point of destination, and which was at the time en route, where there was evidence to the effect that the person who loaded the car and delivered the peaches to the carrier, and who took the bill of lading therefor, signed the bill of lading in the name of the plaintiff firm by himself as agent, that some of the peaches belonged to the person who loaded the car, some to the plaintiffs, and some to another person, that the person who loaded the ear was a son of one member of the plaintiff firm and a brother of the other, and had authority to handle the peaches just as he would if they were his own, that he represented the plaintiffs in “handling that matter,” that he approached the defendant and said, “I have got a car of peaches I would like to sell you,” that the defendant stated that he would handle the car upon a brokerage basis, and this was agreed to, and the bill of lading was left with him, that the person who loaded the car and thus dealt with the defendant gave to the defendant information as to the “pack of the peaches,” that the person dealing with the defendant talked to the defendant as “W. W. Barron & Son,” the name of the plaintiff firm, and that correspondence about the matter afterwards was addressed by the defendant to the plaintiffs, the inference was authorized that the defendant knew that some of the peaches belonged to the plaintiffs, and that the' bill of lading was issued in the name of the plaintiff firm, and the inference is further authorized that the contract was made with the defendant by the plaintiffs through the person dealing with the defendant as the plaintiffs’ agent.

Decided February 24, 1927.

2. The inference is authorized that the plaintiffs had the right, as the contracting parties, to maintain the suit against the defendant to recover damages for the entire carload of peaches. Allen v. Southern Ry. Co., 33 Ga. App. 209 (126 S. E. 722). It was error to grant a nonsuit upon the ground that it was conclusively established that the person who had the negotiations with the defendant was a party to the contract as principal, and that the plaintiffs were not parties to the contract, and that therefore the plaintiffs had not proved their case as laid.

3. The evidence authorized the inference that by the contract sued upon the defendant agreed to act as agent for the, plaintiffs, and sell for them a carload of peaches which they had shipped by railroad under a bill of lading issued to them and under which the peaches were consigned to them, to a certain point of destination, that the bill of lading permitted a diversion of the shipment to another point of destination while en route, that by the terms of the agreement the defendant agreed with the plaintiffs to order the railroad to divert 'the car of peaches from the point to which it had been consigned, to another point agreed on, where it was believed that the market would be more favorable to an advantageous sale of the peaches, that the agent violated this agreement and. by mistake ordered the diversion of another car, and did not order the car shipped by the plaintiffs diverted until later, when he discovered this mistake, and when it was too late for the ear which should have been diverted to reach the point agreed on in time to permit a sale of the peaches during a high state in the market, and the car did not reach that point until after a fall in the market and after the peaches had deteriorated because of delay en route, to the damage of the plaintiffs.

4. The evidence authorized the inference that the defendant breached the contract, to the damage of the plaintiffs, and it was error to grant a nonsuit.

Judgment reversed.

Jenlcins, P. J., and Bell, J., eoneur.

Levy and claim; from city court of Dublin — Judge Bidgoocl. December 15,1925. ' ■

S. W. Sturgis, for plaintiff in error.

Hightower & New, Hardwick & Adams, contra.


text:
    17173.
    Tarver v. Swann.
    Evidence, 22 O. J. p. 1256, n. 67, 68.
    Eire Insurance, 26 O. J. p. 58, n. 83; p. 59, n. 92; p. 114, n. 23; p. 522, n. 37.
   Stephens, J.

1. Where, accompanying an application to an insurance company for a policy of fire insurance, the applicant executes a series of notes for the premium, one of which is payable to the soliciting agent of the company who procured the application, and the others of which are-payable to the company, the consideration for all the notes, including the note payable to the agent, is the acceptance of the application and the issuance of the policy. Upon the acceptance of the application by the company and the execution of a valid and binding contract of insurance, the applicant’s obligation upon the note payable to the soliciting agent will be determined by the terms and conditions of the contract as expressed in the application and the policy.

2. Where an insurance company has accepted an application for insurance and has issued the policy, actual delivery of the policy to the applicant is not essential to the consummation of a contract of insurance, unless such a delivery is expressly provided for in the application or the policy. Civil Code (1910), § 2470; New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134). Where both the application and the policy are silent as respects actual delivery of the policy being essential to a consummation of the contract, the contract becomes consummated upon the retention by the company of the notes and the issuance of the policy and mailing it to its local agent for delivery to the applicant.

3. Where an application for insurance, which, upon the consummation of the contract of insurance, became a part of the contract, provided that the company should “not be bound by any act done or statement made by or to any agent, or other person, which is not contained in this application,” an agreement not contained in the application or the policy, made between the applicant and the local agent, when the application and notes were signed, to the effect that the contract of insurance would not be consummated until actual delivery of the policy to the applicant, and that upon failure to make such actual delivery the applicant would not be bound upon the notes, did not become part of the contract. Upon the trial of a suit brought against the applicant by the agent, to recover upon the note payable to the agent, it was error to admit in evidence the testimony of the applicant that it was agreed between him and the local agent that if the insurance company accepted the application, the policy would be delivered to the applicant, and that if the company did not accept the application, the notes signed by the applicant would be returned to him. Home Ins. Co. of New York v. Swann, 35 Ga. App. 358 (133 S. E. 280).

Decided February 24, 1927.

Appeal; from Early superior court — Judge Yeomans. January 30, 1936.

Lowrey Slone, for plaintiff. G. L. Glessner, for defendant.

4. A verdict having been found for the defendant, the trial court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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


text:
    17252.
    Concealed Bed Corporation v. Williams.
    Fraud, 26 O. J. p. 1062, n. 50; p. 1065, n. 66; p. 1066, n. 71; p. 1082, n. 89, 3; p. 1108, n. 28; p. 1137, n. 78; 27 O. J. p. 29, n. 63; p. 30, n. 77; p. 31, n. 86; p. 32, n. 94; p. 33, n. 1, 7; p. 36, n. 39; p. 37, n. 47.
   Stephens, J.

1. Where a person represents that he has authority to negotiate in behalf of another a contract containing certain stipulated terms, that he has the ability to procure the other person to sign and execute as a contract a certain written instrument containing the stipulated terms referred to, that it is the present intention of the person making the representations to procure the signature ol the other person to the written instrument, and that it is also the present intention of the other person to sign the written instrument and thereby execute it as/ a contract, the representations constitute representations of present existing facts, and may amount to a fraud. Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299 (68 S. E. 1077).

2. Where such representations are false and the person making them, with knowledge of their falsity, induces another, who relies upon them as true, to pay out, in consideration of the execution of the contract, a sum of money which he does not owe, and where the person whose signature to the contract was to be procured afterwards refuses to sign it and the contemplated contract is never executed, and the party paying the money receives no consideration therefor, such representations amount to a fraud perpetrated upon the person who pays out the money, and the latter, in parting with the money, relying upon such false representations, is thereby defrauded.

3. The facts outlined in paragraphs 1 and 2 above as being sufficient to set out a cause of action for fraud and deceit are in effect contained in the allegations of a petition where it is alleged: that the plaintiff was a stockholder in a corporation A, which was^ indebted either to the defendant or to a corporation B in a certain sum of money, that the defendant, by and through a named person, who was its president, represented to the plaintiff that, if the plaintiff would pay A’s indebtedness, both the defendant and B would agree to ship to A certain articles of merchandise, that such agreement was evidenced by a written instrument which the defendant, through its said president, signed and executed, but which was not signed and executed by B, that the defendant, through its said president, represented to the plaintiff that the defendant and its said president had authority from B to negotiate the said contract, and it was B’s intention to sign and execute the contract and thereby ratify the defendant’s negotiations, and the defendant would procure B’s ratification of the agreement; and where it is further alleged that the plaintiff, relying upon these representations as true, paid the indebtedness of A, that the representations made by the defendant through its said president were false and were known to the defendant to be false, that B lias never signed or executed the contract, and that neither the defendant nor B has ever performed any of the obligations contained in the contract, but have failed and refused to ship any of the merchandise as provided for in the contract; although repeatedly requested by the plaintiff to do so, and where it is further alleged that the plaintiff has received nothing whatsoever for and in consideration of the money thus paid out in reliance upon the alleged false and fraudulent representations of the defendant, and that as a result of such alleged false and fraudulent conduct on the part of the defendant the plaintiff has suffered a total loss in the amount of the money paid .out.

Decided February 24, 1927.

Attachment; from city court of Atlanta — Judge Reid. February 22, 1926.

STATEMENT OF FACTS BY STEPHENS, J.

F. Graham Williams brought suit against Concealed Bed Corporation alleging: that the defendant had injured and damaged him in the sum of $1,105, with interest thereon at seven per cent, from October 24, 1924; that the plaintiff on said date was a stockholder in' the Holmes Disappearing Bed Company of Georgia; that the latter corporation was a distributor in the State of Georgia for the concealed or disappearing beds manufactured by the defendant or the Holmes Disappearing Bed Company of Chicago; that at the said time the Holmes Disappearing Bed Company of Georgia was indebted to the defendant or to the Holmes Disappearing Bed Company of Chicago in the sum of $1,105, which the Holmes Disappearing Bed Company of Georgia was unable to pay; that the defendant, the Concealed Bed Corporation, “acting by and through its president J. A. Stephens, did at that time by fraud and false representations induce the plaintiff to pay said indebtedness for said Georgia corporation”; that “said fraud and false representations consisted of the statement by said president, Stephens, acting for defendant, that the Concealed Bed Corporation and said Stephens liad authority to negotiate for the Holmes Disappearing Bed Company of Chicago an agreement whereby, if plaintiff would pay said account, shipments of parts and beds would be made by said Holmes Disappearing Bed Company of Chicago and the defendant to said Georgia corporation, upon the terms set forth in the agreement hereto attached and marked 'Exhibit A,’ and that it would have said agreement ratified and approved by the proper officer of said Holmes Disappearing Bed Company of Chicago, and that it was the bona fide intention of both of said corporations and of the said Stephens, as president of defendant, to enter into a valid and binding agreement with the plaintiff and said Georgia corporation, as set forth in said 'Exhibit A’”; that “all of said representations were false and fraudulent and were made knowingly by said Stephens, acting for defendant, for the purpose of including [inducing?] plaintiff to pay said $1,105, which they knew he was under no legal obligation to do, and without any intention whatsoever of ever complying with any of the terms of said agreement, and without any intention whatsoever at that time of ever performing or complying with any of the terms of the agreement which is referred to as 'Exhibit B’”; that “said defendant or Stephens had no authority to make said agreement referred to as 'Exhibit A’ on behalf of said Holmes Disappearing Bed Company of Chicago, and that its representation to plaintiff that it. had such authority was fraudulent and false”; that.“the payment of said sum of money by plaintiff was induced by said false and fraudulent representation and by the fraud of the defendant and its president, in that plaintiff charges that neither said defendant nor its president ever had any intention of making or performing any of the terms of either of the agreements referred to as 'Exhibit A’ and 'B/ but that it was a scheme and a plan on the part of the defendant and its president to induce the plaintiff to pay the debt of the Georgia corporation without obtaining anything whatsoever for it”; that “the defendant nor said Holmes Disappearing Bed Company of Chicago has performed any of the obligations stated in said contract marked ' Exhibit A,’ but have breached all of the premises and agreement contained therein”; that “although repeatedly requested to do so by the plaintiff, said defendant has failed and refused to ship any of the beds or parts of beds referred to in said 'Exhibit A’”; that “by reason of said conduct and fraud and misrepresentation of said defendant, plaintiff lias been injured and damaged in the sum of $1,105, which has been a total loss to him, in that said Holmes Disappearing Bed Company of Georgia is insolvent and has been ever since said debt was paid.” The written instrument, as contained in “Exhibit A,” was signed by Concealed Bed Corporation, by J. A. Stephens, president, and the Holmes Disappearing Bed Company of Georgia, by A. C. Conyers, vice-president, but was not signed by Holmes Disappearing Bed Company of Chicago, although a blank for its signature was indicated. In so far as its contents are material, this instrument contains obligations upon the part of the defendant and the Holmes Disappearing Bed Company of Chicago to ship material for the manufacture of beds when required by the opposite party to the contract. “Exhibit B” reads as follows:

4. The petition set out a cause of action and the demurrer thereto was properly overruled.

Judgment affirmed.

Jenlcvns, P. J., cmd Bell, J., concur.

“Atlanta, 'Ga. Oct. 24, 1924.

“Mr. E. Graham Williams, c/o E. Graham Williams Brick Co.,

“Candler Building, Atlanta, Ga.

“Dear Sir: In order to get the matter between the Holmes Disappearing Bed Company of Ga. and the Concealed Bed Corporation and Holmes Disappearing Bed Company of Chicago adjusted today I hereby obligate myself and agree to have the agreement which I signed for the Concealed Bed Corporation of this date signed by the president of the Holmes Disappearing Bed Company of Chicago. I will send you a letter or settlement showing authority of Concealed Bed Corporation to sell products of Holmes Disappearing Bed Company of Chicago and Marshall & Stearns Co. of Illinois.

“Concealed Bed Corporation, by A. J. Stephens, President.”

The court overruled the general demurrer to the petition.

Walter S. Dillon, for plaintiff in error.

Troutman & Troutman, contra.


text:
    17276.
    Tuck v. Kellum.
    Husband and Wife, 30 O. J. p. 892, n. 96; p. 894, n. 14; p. 1019, n. 44; p. 1020, n. 46, 48; p. 1028, n. 28.
   Stephens, J.

1. Where a married woman signs a note ostensibly as a maker jointly with her husband, when in fact she is a surety only, before she can establish the fact of her suretyship as against the payee of the note it must be made to appear, despite her apparent relationship as principal, that the payee, with knowledge of the facts which would constitute her a surety, contracted with her as a surety. Civil Code (1910), § 3556. Hall v. Rogers, 114 Ga. 357 (40 S. E. 250).

Decided February 24, 1927.

Complaint; from city court of Athens — H. S. West, judge pro hac vice. March 9, 1926.

Thomas & Thomas, O. J. Tolnas, for plaintiff in error.

Wolver M. Smith, contra.

2. In a suit against a married woman on a note which she signed ostensibly as a maker jointly with her husband, where she filed a plea of suretyship, and where the only evidence adduced in support of the plea was her own testimony that -she received no money or other thing of value from the plaintiff at the time of the execution of the note, and had not since received any money or other thing of value from the plaintiff, such evidence, in the absence of any evidence tending to show that the payee of the note, at the time of its execution, knew that she received no money or other thing of value, and that therefore the payee contracted with her as a surety, was not sufficient to authorize a finding sustaining the plea, and the court did not err in directing a verdict for the plaintiff. Trammell v. Swift Fertilizer Works, 121 Ga. 778 (49 S. E. 739). Judgment affirmed.

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


text:
    17331.
    Bennett, superintendent, v. Danforth.
    Evidence, 22 O. J. p. 984, n. ,97; p. 990, n. 50.
    I-Iusband and Wife, 30 C. J. p. 887, n. 17; p. 892, n, 96; p. 1019, n. 44; p. 1020, n. 46, 48; p. 1028, n. 28.
   Stephens, J.

1. Where a married woman signs a note ostensibly as a maker jointly with her husband, when in fact she is a surety only, before she, can establish the fact of her suretyship as against the payee of the note it must be made to appear, despite her apparent relationship as principal, that the payee, with knowledge of the facts which would constitute her a surety, contracted with her as a surety. Civil Code (1910), § 3556. Hall v. Rogers, 114 Ga. 357 (40 S. E. 250).

2. Since a wife may borrow money upon her own account and give it to her husband, and since she may constitute him her agent to exchange her note for money borrowed by her and to receive the money, and may constitute him a trustee of the funds thus received, it can not be said as a matter of law that a wife who signed a note jointly witli her husband did so as a surety, where the note was payable to a bank and the husband took it to the payee bank and represented to the bank that the wife was the principal on the note, and that he was signing it as surety for her, and obtained from the bank money thereon which he placed to his credit in the bank, where the bank had no further knowledge of the facts of the transaction and where the bank did not know what the husband intended to do with the money and did not know that the money would afterwards be used by tlie husband in payment of his own debts. These facts authorized the inference that the husband, when taking the note to the bank and getting money thereon, acted as agent for the wife. It follows, therefore, in a suit'by the payee bank to recover against the wife on the note, where she filed a plea of suretyship, and where the evidence authorized a finding that the facts were as above indicated, it was error to direct a verdict for the defendant.

Decided February 24, 1927.

Complaint; from Gwinnett superior court — Judge Stark. March 3, 1926.

Davie & Reid, Kelley & Kelley, for plaintiff.

W. L. Nix, I. L. Oakes, for defendant.

3. The testimony of a person that he placed money in a bank to his own aecoimt and cheeked on it, and testimony of an officer of the bank that when a loan was made the money was placed to a certain person’s checking account, were substantive facts not dependent for their existence upon the records of the bank, and such testimony therefore was not inadmissible upon the ground that the books of the bank were the best evidence of the facts testified to.

Judgment reversed.

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


text:
    17382.
    YEOMANS v. BEASLEY.
    1. Where the only ground of exception presented in a motion for a new trial, the overruling of which is brought to this court for review, is that the verdict is contrary to law and without evidence to support it, and where it appears that under a proper application of the law the evidence supports the verdict, the judgment of the lower court overruling the motion for a new trial and sustaining the verdict and judgment must necessarily be affirmed.
    2. Where, in such a case, the plaintiff sued for an amount alleged to be due him as rent, and the verdict was for him in a certain sum, and where the evidence clearly and unequivocally authorized the inference that the amount found in the verdict was due him by the defendant, the verdict was, without doubt, supported by the evidence, and was not contrary to law, and this court, on well-settled principles, can not do otherwise than sustain the verdict and affirm the judgment overruling the motion for a new trial. This court is therefore authorized to conclude that the ease was brought to this court for delay only, and is authorized to assess damages against the defendant, as prescribed in section 6213 of the Civil Code (1910). The motion of the defendant in error to award damages for bringing the case to this court for delay is granted.
    Decided February 24, 1927.
    Appeal and Error, 4 C. J. p. 852, n. 56.
    Costs, 15 C. J. p. 281, n. 9.
    Landlord and Tenant, 36 C. J. p. 442, n. 30.

      Distraint; from city court of Beidsville — Judge Cowart. March 8, 1926.

      H. H. Elders, for plaintiff in error. H. C. Beasley, contra.
   Stephens, J.

Beasley sued Yeomans for $400 claimed as rent for land. Yeomans admitted the contract sued on, but pleaded a recoupment and set-off in the sum of $303 for labor $nd material furnished by him in repairing a house on the rented land, and in clearing and fencing new ground thereon, and also for labor furnished in removing stumps from the land.

The defendant testified that he performed the services under a contract by which the plaintiff obligated himself to pay the defendant for the services. The plaintiff testified that as part of the contract of rental the defendant agreed to make and pay for all repairs to the houses and fences on the place, and to clean up and put in a good state of cultivation an amount of land equal to that which the defendant stated that he had cleared, that the plaintiff consented to the defendant’s erecting a fence around the land that was cleared, and paid the defendant for all of the stumps which he had removed from the land, and that he did not owe the defendant anything.

The testimony of the plaintiff clearly authorized the inference that he owed the defendant nothing, except possibly the amount claimed by the defendant, which was $32, for erecting a fence around the new ground, which the plaintiff testified that he authorized the defendant to do; but as the jury found for the defendant upon the plea in recoupment and set-off in the amount of $50, which they charged against the plaintiff’s undisputed claim of $400 by rendering a verdict in the sum of $350, the verdict for the plaintiff was clearly authorized by the evidence.

Since the verdict found is excepted to in the motion for a new trial filed by the defendant, which was overruled only upon the ground that it was contrary to law and without evidence to support it, and since the testimony of the plaintiff authorizes the verdict found for the plaintiff, no error appears, and the judgment overruling the defendant’s motion for a new trial must be affirmed.

Since the evidence for the plaintiff clearly and unequivocally authorized the verdict, and since it is a well-established rule of law that a verdict authorized by the evidence, under a proper application of well-settled principles of law, must be affirmed when excepted to only upon the general grounds, it clearly appears that the bill of exceptions brought to this court is brought here for the purpose of delay only.

The judgment will not only be affirmed, but the motion of the defendant in error to award damages for delay is granted. The' judgment, therefore, will be affirmed, with ten per cent, of the amount of recovery in the trial court awarded as damages for bringing the case to this court for delay only, as prescribed in section 6213 of the Civil Code (1910).

Judgment affirmed, with damages.

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


text:
    17409.
    Cassidy et al. v. Cullens.
    Appeal and Error, 4 C. J. p. 1029, n. 30; p. 1032, n. 36.
    Landlord and Tenant, 36 C. J. p. 223, n. 5; p. 224, n. 6; p. 250, n. 87; p. 253, n. 47.
   Stephens, J.

1. Knowledge by a tenant that the floor in one of the rooms of the house which the tenant is occupying sags by reason of a leaning condition of one of the supporting pillars, and that it would be dangerous for a person to walk upon the floor in that room, is not necessarily knowledge that the floor of an immediately adjoining portion of the house outside the room, which does not sag but which is supported by a sill resting on the same leaning pillar, is also dangerous for use b'y one walking upon it. Where it does not appear that the tenant knew that the sill of the porch rested upon the pillar, and where it does not appear that such fact was patent to the ordinary observation of one occupying the house as a tenant, it can not be said as a matter of law that the tenant, with knowledge of the dangerous condition of the floor of one of the rooms, could by due care have discovered the dangerous condition of the floor in the portion of the house immediately adjoining. In a suit by the tenant against the landlords to recover for injuries sustained by the tenant by reason of the floor of the adjoining portion of the house falling in with the tenant and causing injuries, the petition is not subject to demurrer on the ground that it appears therefrom that the tenant, by the exercise of due care, could have discovered the dangerous condition of the floor, and that therefore the tenant’s injuries were due to the tenant’s own negligence. Stack v. Harris, 111 Ga. 149 (36 S. E. 615).

2. A charge which inaccurately states a contention of one of the parties as presented by the pleadings and the evidence, but which substantially states such contention, is not necessarily harmful to the opposite party. In a suit by a tenant against the landlords to recover damages for injuries alleged to have been sustained by her as a result of the falling in of the floor of a porch of a house on the rented premises which she was occupying as tenant, where the petition alleged that the sill which supported the porch connected with other supports of the house and rested upon the leaning pillar which acted as a support of the floor of the kitchen, and that by reason of this insecure condition of the porch the floor of the porch collapsed with the plaintiff, causing her certain injuries described, and where there was evidence in support of these contentions and also evidence that a sill supporting the porch and a sill supporting the kitchen both rested upon the pillar, which was rotten, and that the plaintiff did not know that the sill supporting the porch rested upon the pillar, or that the porch was in a dangerous condition, the charge of the court in the following language, though perhaps inaccurate, substantially stated the plaintiff’s contention and was in no wise harmful to the defendants: “The plaintiff contends . . that a certain sill under the kitchen or porch became rotten and in a dangerous condition, but that the sill connected with another sill of which she had no notice, and had no reason to suspicion that that sill was dangerous; that when she went upon the back porch, this other sill of which she had no notice fell,” and caused her injuries.

Decided February 24, 1927.

Certiorari; from Bibb superior court — Judge Malcolm D. Jones. April 17, 1926.

Hunter & Daley, for plaintiffs in error.

Thomas A. Jacobs, Jr., contra.

3. The evidence authorized the inference that the injuries of the plaintiff were not due to the plaintiff’s negligence or to her lack of due care, but . that the injuries proximately resulted from the defendants’ negligence in failing to discover the dangerous condition of the porch and to make the repairs necessary to remove this condition after due notice to the defendants from the plaintiff of the dangerous condition of the floor of the kitchen.

4. The verdict for the plaintiff was authorized, and no error of law appears. The judge of the superior court therefore did not err in overruling the certiorari.

Judgment affirmed.

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