text:
    16612.
    PULLMAN COMPANY et al. v. STRANG.
    1. There was no merit in any of the special grormds of the demurrer to the petition.
    2. A sleeping-ear company is not a carrier of passengers. From the pleadings and the evidence one of the defendants appeared to be only a sleeping-car company, and the court erred, as to that defendant, in charging the jury to the effect that it was a common carrier and owed the plaintiff the duty of exercising extraordinary care and diligence for her safety. The court erred also in such instructions as 'submitted to the jury the question of whether that defendant was liable for injuries suffered by the plaintiff because she was not furnished a safe place to alight, or because of her having to walk to the station from the place of her disembarking over a rough and dangerous railroad-track.
    3. But it does not follow from the above that the sleeping-car company was not shown to have violated any duty to the plaintiff whatever. It is the duty of such a company to notify a passenger riding in one of its cars of his or her arrival at destination, notwithstanding it is not a common carrier. A breach of such duty would be negligence, and a passenger aggrieved thereby would be entitled to recover nominal damages. The plaintiff was not entitled, however, to reeqver of the defendant sleeping-car company in this case such damages as the jury by their verdict awarded to her.
    4. The evidence showing, without dispute, that the railway company required the plaintiff to alight at the particular place where she left the car, the court did not, as against that defendant, erroneously express an opinion on the facts when instructing the jury to determine “just where the plaintiff was required” “to alight or disembark.” But the charge was inapplicable and erroneous as to the other defendant.
    5. Where a married woman in a state of pregnancy suffers physical injuries which are caused by another’s negligence, but which would not have resulted except for her delicate condition, she is not to be debarred from recovering damages from the person guilty of the negligence merely because her peculiar condition may not have been known to the other party.
    6. The jury could have found, under the evidence, that the only discomfort which the plaintiff experienced by reason of the negligence complained of consisted of fright, nervous shock, or mental suffering. There was no evidence of wilful or wanton misconduct on the part of either of the defendants, the evidence showing merely a failure of duty. In such a case there can not, in this State, be a recovery for mere fright, nervous shock, or mental suffering. A portion of the court’s charge could have been taken as stating a contrary rule, and was erroneous.
    Appeal and Error, 4 O. J. p. 937, n. 6.
    Carriers, 10 C. J. p. 828, n. 61; p. 839, n. 76; p. 844, n. 4; p. 853, n. 64; p. 1097, n. 40; p. 1168, n. 44; p. 1169, n. 47; p. 1172, n. 16; p. 1179, n. 99, 1; p. 1183, n. 21, 31; p. 1185, n. 61; p. 1186, n. 74; p. 1187, n. 79.
    Damages, 17 C. J. p. 751, n. 32; p. 755, n. 63; p. 778, n. 70; p. 831, n. 54, 56; p. 832, n. 67'; p. 838, n. 91, 93; p. 1066, n. 17; p. 1075, n. 3.
    Pleading, 31 Cyc. p. 51, n. 71.
    Trial, 38 Cyc. p. 1652, n. 86.

      7. But tlie jury, on tlie other hand, would have been authorized, under the evidence, to allow damages for fright and also for accompanying physical injury, both as a result of the defendant’s negligence. It was therefore not necessary to a recovery that the plaintiff should show that the defendant’s conduct, causing the fright and injury, was wilful or wanton. Even “in the absence of wilfulness or wantonness, mere wrongful acts of negligence will authorize a recovery, where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury,” and in such case both the fright or mental suffering and the accompanying physical injury may be considered as elements of damage.
    8. The evidence authorized the inference that the plaintiff suffered a hemorrhage as a consequence of the defendant’s negligence, but not that she suffered the miscarriage as a result thereof. It follows that the charge of the court submitting to, the jury the first of these issues was not subject to the exception that it was unwarranted by the evidence; but a similar exception to a further charge submitting the cause of the miscarriage as a question of fact was well taken.
    Decided February 16, 1926.
    Damages; from Sumter superior court—W. M. Harper, judge pro hae vice. May 19, 1925.
    Application for certiorari was made to the Supreme Court.
    Mrs. Marie Strang brought a suit for damages against the Central of Georgia Eailway Company and the Pullman Company. She alleged: that on the afternoon of November 26, 1923, she became a passenger upon the defendant railway company’s train at a point in Florida, to be transported to Americus, Georgia, that on boarding the train she purchased the right to occupy a berth in one of the Pullman Company’s sleeping cars, attached to the train, in which car she made her journey, and that the train was scheduled to arrive and did arrive at Americus at about three o’clock in the morning of November 27th. The agent and employee of the Pullman Company agreed, at her request, to notify her in ample time for her to make ready to alight on the arrival of the train at her destination, and also to notify her of such arrival. He complied with his promise to awaken her, and she got up and dressed and awaited notice that the train had reached the station. This further notice was not given her, however, by any agent of either company until she had been carried beyond the station for a distance of about a mile. The agent of the Pullman Company then called to her and said, “We are about to carry you by your station,” and directed her to alight, with which direction she complied, not knowing at the time that the train had passed the station. As a result she was compelled to walk, alone and in the nighttime, along the railroad track to the station at Americus. She was not familiar with the track and had no way to protect herself. The track was rough, in that the cross-ties were above the surface of the earth, and in that gravel was between' the rails and the cross-ties, “all of which impeded the walking of petitioner . . and made walking therein and thereon difficult and dangerous.” [She was directed to alight at a point where there were two lines of railroad-tracks and at a point where many trains passed. Between that point and the station there were many sidetracks, on which and on the main line a switch-engine was at work.]- It was alleged that because of the negligence of the defendants “in putting her off said train at said place, she became frightened and nervous and sick, and that upon reaching the station at Americus she was yet sick, and continued to be sick for the remainder of her journey to Eufaula, Alabama, her ultimate point of destination, which she reached.” The petition further alleged:
    “10. Petitioner shows that as a result of said defendant’s said negligence, she was confined to her bed for a period of six days at Eufaula, Alabama, and .that at the time of her discharge from defendant’s train she was in a delicate condition physically, a condition of gestation, and that on account of said defendant’s negligence she suffered as a cause thereof a severe hemorrhage of the womb, resulting from her fright and from her long walk of about a mile as aforesaid down said line of track to said station, which caused petitioner great pain and suffering, both mental and physical, and that petitioner continues to suffer from the effects of said fright and long walk in mental and physical agony, all of which is the result of the defendant’s wanton carelessness as aforesaid. And petitioner avers that on account of said defendant’s gross and inexcusable negligence she suffered .a miscarriage, which caused her great disappointment and mental and physical pain and agony, which was caused by said defendant’s said act of negligence.
    “11. Petitioner shows that up to. the time of said defendant’s said negligence she was a well, healthy, and able-bodied woman, but that since that time, due to defendant’s negligence as aforesaid, she has become highly nervous and suffers great pain, all of which is the result of such miscarriage, which causes petitioner extreme anxiety about her well being, and has produced a general nervous and physical breakdown.”

      The petition, fairly construed, complains of negligence in the failure of the defendants to notify the plaintiff of her arrival at the station in Americus, in carrying her beyond the station and in causing her to alight at an unsafe and dangerous place, and in making it necessary for her to walk' along an unsafe and dangerous route to the station. In paragraph 13 the plaintiff waived the “several contracts entered into between her and the defendants,” and declared that her action was in tort, and claimed damages in the sum of $10,000. The Pullman Company filed no demurrer. A demurrer on general and special grounds was filed by the railway company, but the general grounds were not insisted upon. The special grounds of the demurrer were overruled, and exceptions were duly taken. Each defendant answered by a general denial. The case proceeded to trial, and the jury found in favor of the plaintiff $5,000. The defendants filed a joint motion for a new trial, which was overruled, and the defendants excepted. Other facts will be stated in the opinion.

      Dorsey, Brewster, Howell & Heymm, Mark Bolding, Stephen Pace, R. L. Maynard, H. A. Wilkmson, for plaintiffs in error.

      James A. & John A. Fort, Terrell & Terrell, contra.
   Bell, J.

(After stating the foregoing facts.) Counsel for the railway company insist that the court erred in overriding its special demurrer to certain allegations in the petition, to the effect that the plaintiff had been under the care of physicians and was yet “under medical attention,” but at the time of bringing her action was unable to allege the amount of her expenses by reason thereof, which she prayed leave to show later by amendment. By reference to the record it appears that the averments objected to were voluntarily stricken by the plaintiff, by a formal amendment which the court allowed. The demurrer therefore evidently accomplished its purpose, and it makes no difference what ruling the court made thereon.

One ground of the special demurrer objected to the averment of “wanton carelessness,” in the 10th paragraph of the petition, as being a mere conclusion, unsupported by the alleged facts. The petition set forth in detail the particulars in which the plaintiff claimed the defendants were negligent, and it was therefore permissible to characterize the alleged default as wanton. “Mere conclusions of the pleader should of course be stricken, but it is permissible to characterize the nature and effect of any given set of facts, after the facts are themselves fully stated.” Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (1), 623 (82 S. E. 299). The allegations shown in the brackets in the above statement were made by one of the amendments to the petition, and were demurred to upon the grounds: (1) that they set forth a new cause of action; (2) that the facts stated therein had no relation to the case, since they were not alleged to be and could not be the proximate or a contributing cause of the alleged injury; (3) that it was not shown where the switch-engine was being operated in relation to the plaintiff or on which track. The plaintiff, by the allegations objected to, was undertaking to describe the place where she was caused to alight, and the route over which it was necessary for her to walk in order to reach the station. It was permissible for her to do this, and, since she averred that she was frightened and made sick and suffered physical injuries at the same time, she could also describe the surroundings as contributing to the general result. None of the other grounds of the special demurrer are insisted upon in this court. We see no error in any ruling of the court on the special demurrers.

In the motion for a new trial several portions of the court’s charge to the jury are excepted to because they were predicated upon the theory that the Pullman Company was a carrier of passengers and owed to the plaintiff the duty of extraordinary care and diligence. It appears by the pleadings and the evidence that this defendant was engaged only in the business common and usual with sleeping-car companies, and it is held in practically all the decided cases that a sleeping-car company is not a common carrier of passengers. In Hughes v. Pullman Palace Car Co., 74 Fed. 499, the court said: “While it is true that the owners of sleeping cars as ordinarily operated on our railroads are not to be treated as common carriers with respect to their liability to patrons, it is especially true, from the nature and character of their business, in which they are brought into close and important relations, affecting the comfort and safety of a large class of the traveling public, they ought to be and must be held responsible for the discharge of certain general duties, involving the exercise of ordinary and reasonable care towards them. In many respects their responsibilities approach those of carriers, and while, by the adjudicated cases, they are not made subject to the degree of care to which carriers are held, they certainly ought not be absolved from the general duty of treating their patrons with ordinary care and attention, whether the contract involved in a ticket sold by them prescribes it in terms or not. The adjudicated cases to which my attention has been called support the foregoing general proposition.”

In Calhoun v. Pullman Palace Car Co., 159 Fed. 387 (1) (86 C. C. A. 387, 16 L. R. A. (N. S.) 575), the United States Circuit Court of Appeals of the sixth district said: “The railroad company is the carrier and is the party with whom the passenger contracts for' his transportation. Among other things it contracts to supply him with the usual conveniences for his comfort while being transported. The parlor or sleeping-car company’s business is to provide the passenger with certain conveniences and comforts which are in addition to those contracted for by the railroad company. Those duties to the passenger which are incident to the carrier’s contract for transportation continue to rest upon the railroad company, notwithstanding he may have another contract with the sleeping-car company for special accommodations. . . The duties of the sleeping-car company to the passenger are coextensive with the nature of its contract. It does not undertake those which belong to the railroad company. . . It follows that the obligation of the sleeping-car company must be dependent upon the contract which the passenger is expected to have with the railroad company. And, since it has no control over that or its execution, it is not responsible for the manner in which it is carried out. These propositions express, as we think, the doctrine generally held upon this subject, and seem to be the logical relation of the law and facts. Duval v. Pullman’s Palace Car Co., 62 Fed. 265 (10 C. C. A. 331, 33 L. R. A. 715, 23 U. S. App. 527); Paddock v. Atchison, T. & S. F. R. Co., 37 Fed. 841 (4 L. R. A. 231); Campbell v. Pullman Car Co., 42 Fed. 484; Pennsylvania Co. v. Roy, 102 U. S. 451 (26 L. ed. 141); The Express Cases, 117 U. S. 1 (6 Sup. Ct. 542, 628, 29 L. ed. 791); Chicago &c. R. Co. v. Pullman Car Co., 139 U. S. 79 (11 Sup. Ct. 490, 35 L. ed. 97).”

In Pullman Palace Car Co. v. Gavin, 93 Tenn. 53 (23 S. W. 70, 21 L. R. A. 298, 42 Am. St. R. 902), it was held: “The law is well settled that a sleeping-car company is not a common carrier. They differ radically in the kind of service rendered the public. The contract of the sleeping-car company is to lodge the passenger, while that of the carrier is to carry him.” See also Pullman Co. v. Lutz, 154 Ala. 517 (45 So. 675, 14 L. R. A. (N. S.) 907, 129 Am. St. R. 67); Myers v. Pullman Co., 149 Ky. 776 (149 S. W. 1002, 41 L. R. A. (N. S.) 799). In 10 C. J. 1168 is the following: “Palace and sleeping-cars are operated in connection with railroad trains, generally by independent companies that make a business of the ownership and management of such cars, and the status of such a company, except where it is declared by a statutory or -constitutional provision to be a common carrier, is not that of a common carrier of goods or of passengers, nor that of an innkeeper, although it bears some marked resemblance to each. Such a company, however, is a public servant, and its relation to the public imposes on it certain duties and liabilities in the carriage of passengers and their effects; and the State may impose on it reasonable regulations for the common good, subject to the constitutional limitations for the protection of rights to life, liberty, and property.” This statement is abundantly supported by the authorities cited. In Allen v. Pullman’s Palace Car Co., 191 U. S. 179 (24 S. Ct. 39, 48 L. ed. 134), the Supreme Court of the United States observed that “a sleeping-car is obviously a means of public transportation;” but this was not to hold that a sleeping-car company is a carrier of passengers, and we think the intimations by that court are rather to the effect that such a company is not a carrier. Pennsylvania Co. v. Roy, 102 U. S. 451 (26 L. ed. 141); Robinson v. B. & O. R. Co., 237 U. S. 84 (59 L. ed. 849, 35 Sup. Ct. 491).

The exact question has not been decided in this State, and counsel for the plaintiff contend that, whatever might have been the law previously, the relation of a sleeping-car company to a patron on an interstate journey is now fixed by the following provision of the amendment of June 29, 1906, to the interstate-commerce'act: “The term, ‘common carrier,’ as used in this aet, shall include express companies and sleeping-car companies.” The principal .objects of the original act “were to secure just and reasonable charges for transportation; to, prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities; to inhibit greater compensation for a shorter than for a longer distance over the same line, and to abolish combinations for the pooling of freights.” See Interstate Commerce Commission v. Baltimore &c. R. Co., 145 U. S. 263 (12 S. Ct. 844, 36 L. ed. 699). “Prior to the amendment of June 29, 1906, express companies were not specifically subject to the terms of the interstate-commerce act and the several amendments thereto, as common carriers.” United States v. Wells-Fargo Express Co., 161 Fed. 606; affirmed in American Railway Express Co. v. U. S., 212 U. S. 522 (29 S. Ct. 315, 53 L. ed. 635). This language is equally applicable to sleeping-car companies, and it would seem that Congress has made these companies subject to the provisions of the act solely for the purposes thereof. Upon a consideration of the objects of the original act and the amendment, we do not think the above provision was intended to be determinative of the relation between sleeping-car companies and their patrons, or of the degree of care owing by such companies to their patrons. On the other hand, our opinion is that Congress merely undertook thereby to make these companies, for the purpose of regulation and control, subject to the jurisdiction of the interstate commerce commission and amenable to the other provisions of the act, and that our conclusion as to whether in the instant case the Pullman Company was a common carrier should be arrived at without reference to such provision. While in Pullman Company v. Custer, 140 S. W. 847, an action for an alleged wrongful ejection, which was decided in 1911 but in which no reference was made to the act of June 29, the Court of Civil Appeals of Texas said, “We think the relation of passenger and carrier arose between the parties by the sale to appellee and his friends of Pullman seat checks,” it was further held in that case that “The question of whether or not the Pullman Company is a common carrier in the ordinary sense of the term is wholly immaterial, in so far as concerns the duty of its employees to treat its passengers courteously and considerately.” It seems that the gist of the decision was that the sleeping-car company, while not technically a common carrier, must be held to its appropriate duties in its business with the public. Compare Pullman Palace Car Co. v. Lawrence, 74 Miss. 782 (22 So. 533). We have found but oue decision tbe language of which might appear to be at variance with our view with respect to the effect of the act of June 29, 1906, and that is in the ease of Pullman Co. v. Linke, 203 Fed. 1017, decided by the Federal district court of the southern district of Ohio. But all that was necessary to be ruled upon r the subject in that case was whether, under the existing facts, a car of the Pullman Company was an instrument of interstate commerce when seized under a State attachment. The company could have been engaged in interstate commerce without being a carrier, and could even have been so engaged independently of the provisions of such amendment. Being of the opinion that the act of June 29, 1906, docs not affect the question for determination, we are constrained to hold, in accordance with the decided weight of authority, that the relation of passenger and carrier did not exist between the Pullman Company and the plaintiff in this case. Our ruling, therefore,-is that the court erred in giving the instructions which stated expressly or impliedly that the Pullman Company was a carrier of passengers and owed to the plaintiff the duty of extraordinary diligence. The court erred also in submitting to the jury the question whether this defendant was liable for any in-jury suffered by the plaintiff because she was not furnished a safe place to alight, and because of her having to walk back to the station from the place of her disembarking, over a rough and dangerous railroad-track. Mize v. Southern Ry. Co., 15 Ga. App. 265 (5) (82 S. E. 925).

But it does not follow from what we have said that the Pullman Company owed the plaintiff no duty whatsoever. It is the duty of a sleeping-car company, although it is not a common carrier, to notify a passenger of his or her arrival at destination. See Pullman Co. v. Lutz, 154 Ala. 517 (45 So. 675, 14 L. R. A. (N. S.) 907, 129 Am. St. R. 67). See also the note to that case in«L. B. A. The allegations and the evidence sufficiently showed a violation of such duty by this company, and thus would have authorized a verdict against it for nominal damages. G. S. & F. Ry. Co. v. Corry, 149 Ga. 295 (99 S. E. 881); Southern Ry. Co. v. Cartledge, 10 Ga. App. 523 (1) (73 S. E. 703); Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (3), 131 (56 S. E. 119); Jeter v. Davis, 33 Ga. App. 733 (3), 740 (127 S. E. 898). There was evidence to the effect that, although the train did stop at or near the station, the plaintiff was given no notice of the fact, and was not notified until she had been carried a considerable distance beyond. The plaintiff was not, however, entitled to recover of the defendant such damages as the jury by their verdict awarded to her. It could not be said that the discomforts and injuries which she may have sustained by reason of the negligence of the railway company in the further happenings were the natural and proximate result of the failure of the Pullman Company to notify the plaintiff of her arrival at her destination. Any default by the railway company was a separate and independent agency, the operation of which the Pullman Company could not be held to have foreseen and anticipated as a result of its own negligence. The expectation should have been that the railway company would discharge its own duty and see that" the plaintiff arrived at her destination without injury, notwithstanding the breach of the duty by the Pullman Company. See G. S. & F. Ry. Co. v. Corry, supra. If it had appeared that the neglect by the Pullman Company induced some non-negligent act of the other defendant, it might perhaps have, been liable for the consequences of such subsequent act, but that question is not presented for decision. It was the duty of the railway company as well as of the Pullman Company to announce the plaintiff’s station; and the duties of the two companies in this respect, while concurrent in time, were otherwise separate and distinct, and the subsequent omissions of the railway company relate back not to the failure of .the Pullman Company to announce the station, but to its own failure to do so. Our conclusion in this connection does not contravene the rule that a person who is grossly negligent himself has no right to count on proper diligence by others, to whom his negligence may result in injury. Davis v. Whitcomb, 30 Ga. App. 497 (8) (118 S. E. 488).

Even if we are incorrect in holding in the preceding division of this opinion that the Pullman Company was not a carrier of passengers, its only negligence was its failure to announce the station, because in neither view was it the duty of that company to provide the plaintiff with a safe and proper place to alight, or with a safe way of egress from the train to the station. These matters, under the ruling in Mize v. Southern Ry. Co., supra, were solely within the responsibilities of the railway company. In that case this court, speaking through Judge Wade, said: “Where a passenger of the Southern Railway Company purchased a ticket of the Pullman Company entitling her to ride in a Pullman car, which was a part of the train in which she was a passenger over the line of the railway company, and, on reaching her destination after dark, was ‘ordered to alight from said ear’ by ‘the person who had charge of said car,’ and did alight at an unusual, unsafe, and dangerous place (the train having stopped short of the station), and thereby suffered injuries, her right of action, if any, was against the railway company, and not against the Pullman Company.”

Both defendants complained that the court erroneously expressed an opinion on the facts in instructing the jury as follows: “The question of fact for you to determine and say is where the plaintiff was required, by the agents of these defendants, to alight or disembark from the car in which she was riding on that occasion.” They contend that it was issuable, under the evidence, as to whether the plaintiff was required to disembark at any place. And it is insisted also on the part of the Pullman Company that the instructions were inapplicable because that defendant was not a common carrier. From what is said above, we think the charge was error as to the Pullman Company. But, as to the other defendant, the evidence was undisputed that the first notice which the plaintiff had of having reached her destination was when the train was about to stop a considerable distance beyond; and that, at the invitation of the porter on the sleeping-car, she alighted as soon as the train stopped, but that she did not know until she had disembarked that she was not alighting at a proper place. It thus appears that she was offered no choice as to the place of disembarking, and that she did not voluntarily get off at an unsuitable place. The railway company was bound by the conduct of the porter as if he had been its actual agent and employee. G. S. & F. Ry. Co. v. Corry, supra; Robinson v. B. & O. R. Co., 237 U. S. 82 (35 S. Ct. 491, 59 L. ed. 849). It seems, therefore, to have been established without controversy that the railway company did require the plaintiff to alight at the particular place. It is not error for the trial judge to express an opinion 'as to a fact which is established by the evidence without dispute. Flowers v. Faughnan, 31 Ga. App. 364 (2) (120 S. E. 670).

What we shall say hereafter would be applicable to both defendants alike, except for the fact that we have already referred to the only default which could be chargeable to the Pullman Company, and have ruled sufficiently on the contentions of that defendant. In the following discussion, therefore, we shall deal with the case as if the railway company were the only party complaining. It is contended that in no event wras the plaintiff entitled to recover for injuries resulting from the defendant’s negligence by reason of her condition of pregnancy, because the defendant' had no knowledge or notice of such condition. As to whether this contention might be well founded, if it appeared that the plaintiff’s physical injury and suffering were merely the result of fright, it is unnecessary in this case to decide. See Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304); Pettett v. Thompson, 33 Ga. App. 240 (25 S. E. 779); Williamson v. Central of Ga. Ry. Co., supra. Her evidence supported the allegations of negligence, including the averment as to the unsafe and dangerous character of the railway-track. She testified that in walking back to the station she stumbled several times and became sick, and the jury could have found that on account of her delicate condition some physical injury proximately resulted to her directly from the defendant’s negligence. The case is not one wherein the plaintiff seeks to recover for physical injury resulting from fright, but is one where the evidence would have authorized the conclusion that the fright was attended with physical injury, both being the direct result of the defendant’s negligence. The physical injury did not necessarily depend upon the plaintiff’s excitement. The jury could have found that her nervousness and fright constituted an element of damage additional to, rather than causing, the physical injury alleged. The plaintiff, therefore, was not to be debarred from a recovery merely because the defendant did not know of her delicate condition. See Augusta &c. R. Co. v. Randall, 79 Ga. 304 (6) (4 S. E. 674); Georgia R. & B. Co. v. Usry, 82 Ga. 54 (2) (8 S. E. 186, 14 Am. St. Rep. 140). In Mann Boudoir Car Co. v. Dupre, 54 Fed. 646 (21 L. R. A. 289), the United States circuit court for the southern district of Mississippi, with reference to a contention identical with that now under consideration, said: “This theory, and the requested charge embodying it, would require every pregnant woman to refrain from travel; to take all the risks of the negligence of public carriers; or to proclaim her condition to the servants of the carriers, We are not willing to sanction by our authority a rule that would so shock the delicacy, dignity, and sense of justice of our Tionorable women not a few/ The subject called for careful direction of the jury in order to exclude damages too remote; that is, such as were suffered from the action of some intervening cause, or contributed to by the negligence of thr plaintiff below. Where, however, the proof satisfactorily shows that ■ the misconduct of the carrier’s servant to her while she was a passenger in the carrier’s car was the proximate cause of such an injury to a married woman, the carrier should not be held exempt from liability on account of the fact that her condition was unknown to the servants of the company.”

We have been content to forego a search for other authorities upon the point.

While, as we have said, the jury might have done so, they were'not bound to find, under the evidence, that the plaintiff suffered any physical injury whatever as a result of the defendant’s negligence. They could have found that the only discomfort which she experienced by reason thereof consisted of fright, nervousness,' or excitement. With reference to the defendant’s conduct, the evidence shows nothing more than a failure of dirty, and this alone could not have amounted to wilfulness or wantonness. Southern Ry. Co. v. Bryant, 105 Ga. 316 (1) (31 S. E. 182); Southern Ry. Co. v. Davis, 132 Ga. 812 (3) (65 S. E. 131). And in this State a recovery can not be had solely for fright, nervous shock, or mental suffering, caused by mere negligence. Green v. So. Ry. Co., 9 Ga. App. 751 (72 S. E. 190) ; Chapman v. W. U. Tel. Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183). The excerpt from the charge of the court excepted to in ground 14 of the motion for a new trial could have been misunderstood as stating a contrary rule. This excerpt was as follows: “ On the other hand, if you should believe that after the train in question had reached Americus, Ga., that this plaintiff was carried beyond the station, and was required by the employees of the defendants to disembark at an unsafe and dangerous place, and that by reason of having been required to disembark at an unsafe and dangerous place, and at an unusual distance, if you believe it was an unusual distance, from this station, that the plaintiff, as a result of having been required to so disembark, became frightened, and excited, and nervous, and if you should believe that any damage resulted to hex such as the law contemplates should be recovered by her, about which I will charge you, then, of course, if you believe that to be the facts of this case, the plaintiff would be entitled to recover such damages as the law contemplates recoverable under conditions of that kind.” No question of physical injury was referred to, and we are of the opinion that the charge was error. And this is true notwithstanding the court in a subsequent portion of the charge told the jury that if the plaintiff suffered no physical injury, she would be entitled to recover nominal damages only. The latter instruction did not immediately follow the other, but was given remotely therefrom, and the jury did not likely understand it as a modification of the instruction complained of. Furthermore, it did not instruct the jury that for mere negligence there could be no recovery for fright alone. If the plaintiff had been entitled to recover nominal damages only, such right would'have accrued simply because of the defendant’s negligence, and not because of fright. A similar attack is made upon other extracts from the court’s charge, all of which we have carefully examined. In the respect indicated we find that error as assigned was committed only in the excerpt first referred to in this division.

A further contention of counsel is that the plaintiff was not entitled to recover substantial damages, because the only physical injuries shown either by the pleadings or the evidence to have been suffered by her appear to have resulted from fright, and that in such a case no recovery could be had in the absence of wilful and wanton negligence, which the jury could not have found to exist in this case. We can not agree with this contention, for the reason that, as already stated, we think the evidence would have authorized a finding that the plaintiff suffered not only fright, but also attendant physical injury, both as a result of the defendant’s negligence. Such being the case, the jury would have allowed damages both for the fright and the injury, irrespective of the absence of evidence to show that the defendant’s conduct was wilful or wanton. Hines v. Evans, 25 Ga. App. 829 (1) (105 S. E. 59). Whether it would have been necessary for the plaintiff to show wilfulness and wantonness in order to recover for physical or mental impairment resulting from fright, as distinguished from such impairment accompanying fright, where that and the fright both resulted from the defendant’s negligence, is another question which it is unnecessary to decide in the present case.

“It is one of the duties of a railway company carrying passengers, in order to afford them an opportunity to leave the train at the station of their destination, to have the name of such station announced upon the arrival of the train.” G. S. & F. Ry. Co. v. Corry, supra. Where the relation of carrier and passenger is once established, it would ordinarily continue until the passenger is safely deposited at his point of destination, and until he has left or has had a reasonable opportunity to leave the premises of the carrier. Brunswick &c. R. Co. v. Moore, 101 Ga. 684 (28 S. E. 1000); Georgia R. & B. Co. v. Brooks, 30 Ga. App. 692 (3) (119 S. E. 424). Where the train passes the station or the usual place for passengers to alight, and the carrier requires a passenger to alight in an unusual and unsafe place, it would be liable for resulting injury. Mize v. Southern Ry. Co., supra. The evidence sufficiently showed that the railway company was negligent as alleged. The questions now for determination are, was there any evidence to show that such negligence was the cause of the plaintiff’s hemorrhage, and, even if so, was such causal connection also established as to her miscarriage? The trial judge charged the jury, in effect, that if they found that the defendant was negligent, and that such negligence “was the proximate cause of the subsequent hemorrhage and the subsequent miscarriage or abortion, if the same ensued,” then they would be authorized “to allow damages within the measure as contemplated by law for such injury.” He further charged the jury, in substance, that if they found that the defendant’s negligence, if any, produced the hemorrhage, but should not believe that it produced the miscarriage, they would allow damages “for just such injury” as the plaintiff suffered as a result of the defendant’s negligence. The defendant, in its motion for a new trial, excepted to these charges upon the ground that they were unwarranted by any evidence in the case, thus raising the questions referred to above. We think the evidence authorized the court to submit-to the jury the question of whether the plaintiff’s hemorrhage was caused by the defendant’s negligence, but not whether her miscarriage was caused thereby. The transactions wherein the defendant is alleged to have been negligent occurred at about three o’clock in the morning of November 27. About three weeks previously thereto the plaintiff went with her husband in an automobile from her home in Columbus, Georgia, to Miami, Florida, a distance of about seven hundred miles, as shown by the evidence, making the trip in six days, traveling a part of each day. She remained in Miami' about eight days and “rode around Miami some in an automobile. In returning from Miami, she traveled by railroad as far as Daytona, where she was met by her husband, who brought her by automobile to Gainesville, Florida, a distance of more than fifty miles. She went immediately thence to Jacksonville by railroad and, after remaining there a few hours, boarded the defendant's train in the evening of November 26 for Americus. She was in Americus about two hours and a half, and went from there, on another of defendant's trains, to Eufaula, Alabama, arriving at 8:35 a. m. on November 27. After staying a week or so in Eufaula she returned in an automobile to,her home in Columbus, the distance being approximately sixty miles. A day or two thereafter she went from her home to Atlanta, a distance of more than one hundred miles, this trip also being made in an automobile. She went there to consult a physician. She returned to Columbus on a train. She went to Atlanta again in an automobile, for the same purpose, on January 2. She testified that the physician in Atlanta examined her, but did not treat her or prescribe for her. Her miscarriage occurred on January 8, after her return from the second trip to Atlanta. Her first hemorrhage occurred in Eufaula on November 28, in the early part of the morning. ’ This, however, subsided in “a day or two.” She was acquainted with a physician in Eufaula, who had been “her family physician.” She testified that she did not consult a physician in Eufaula, because she was a trained nurse and knew and did what a doctor would do. She did not consult any physician except the one in Atlanta, until January 7, the day before her miscarriage, when she was seen and examined by a Doctor Murray of Columbus. The causes of miscarriages and preventive treatment were fully explained to her during her study and training for the profession of a trained nurse. As bearing further upon the happenings in Americus and upon her condition and conduct previously and subsequently, she testified as follows: “The railroad-track between the place where I was put off and the station was quite rough. It caused me to stumble in walking, I stumbled often. . . I walked part of the way and ran part of the way. . . I was frightened, and I was very nervous by the time I reached the station. . . When I finally arrived at the station I was quite nervous and upset over it, . . when I arrived at Eufaula really ill. I was ill. for about a week. . '. At the time I was directed to leave the train as I described I was pregnant. The length of time was about six weeks. The day after I arrived at Eufaula I had some bleeding. The duration of the bleeding was only for a day or two. That did not cause as much pain and suffering as alarm as to what it might bring forth. From that time on I felt the effects of this experience I had undergone. During the month of December, 1923, I was not at all well, as I said, and very, very nervous. . . I did not do anything in the way of lifting heavy burdens or taking violent exercise of any kind. I lived a quiet life and stayed in the house a great deal. I was not doing anything at all strenuous. Subsequent to November 28, 1923, nothing occurred to me to cause me any violent excitement of any sort or to cause me to strain myself in any way physically. . . I did not ride around in Eufaula. I did not walk except a few steps around the house. I did not stay in bed all the time I was in Eufaula. There was just one hemorrhage. I went to bed and spent the greater part of the time in bed. I was in bed part of the time; in the middle of the day rested a lot; sat in the living room and went to the dining room to dinner. I walked around the house very little. I went back and forth to my dinner, and then went back to bed in the afternoons. I did not go out of the house at all during those eight days while I was in Eufaula. . . I did not walk any in Columbus except around the house. I was not confined to my room in Columbus. I didn’t go anywhere, but I walked around the house. . . My health was good up until the night I was put off the train beyond Americus. Since that time my health has not been as good as it was. On my automobile rides to Florida and elsewhere I did not receive any fright or jar or fall or anything of that sort.”

The only physician who testified was Dr. W. S. Prather, who did not examine or treat the plaintiff. In answer to a hypothetical question describing what had happened to the plaintiff in Americus and asking if a miscarriage would probably result, he testified: “Well, it possibly could produce' that result.” While he testified at length, he at no time testified more definitely in the plaintiff’s favor. A further question was propounded as follows: “Doctor, if a person, as I have detailed, just an imaginary upon [one?] such as I have suggested, had gone through the experience I have enumerated; and that person was pregnant at the time; and a miscarriage followed; and it further appearing that there had been no jar, or jolt, or any other thing or excitement, or any exertion on the part of that person; if that appeared and a miscarriage occurred, would you then say that the miscarriage was the natural and probable result of the experience that I have just related ?”

The witness answered: “If there was no other cause at all and this thing happened, and we got hold of everything on the subject, and couldn’t ascribe it to anything else, it probably would be the existing [exciting?] cause of the beginning of a miscarriage.” It was the opinion of this witness that “to ride in an automobile a long distance would be much worse than in a Pullman car on the modern trains we now have,” and that “a shaking about, a jolting of the body, a shake of any kind, or strain, or any kind of nervous irritation would be a cause of an abortion; that could produce it.” To quote from his testimony further: “A hemorrhage is really the first symptom they usually have. I would say that where a hemorrhage has occurred, that could be the forerunner of what I call a threatened abortion. In a case where a lady had a threatened abortion by a slight hemorrhage, in that condition it would be a pretty good idea for her to call a physician. It would be necessary for her to call a physician, if there was much hemorrhage. As to what is necessary in a case of hemorrhage of that kind in the way of treatment, in order to prevent the threatened miscarriage or abortion being brought about, the first thing to do is to put them to bed and keep them there several days. It would be necessary for a woman, if she had that threatened abortion, to stay in bed for several days until the symptoms of the hemorrhage had disappeared, and she had no pain or soreness in the abdomen. And even if that took a month or longer, it would be necessary for her to remain in bed, if gestation was to continue; pregnancy was to continue. To say the least of it, it would be a very imprudent thing to do, instead of her going to bed, for a woman to walk around the room, to be in bed part of the time and on her feet part of the time.” Question: “Supposing that within four or five days after this hemorrhage, this woman got in a. car and traveled from Eufaula, Alabama, to Columbus, Georgia?” Answer: “I would expect as a probable result of that kind of a trip the symptoms to return. In that case I would probably expect a return of it; of course, it don’t do it every time, but that would be a probable thing to suspect. I would not advise a woman in that condition to ride that far in an automobile. I really think it would be a dangerous thing for her to do; that’s the reason I said I wouldn’t advise it.” Question: “From Eufaula, Alabama, to Columbus, Georgia, must be more than a hundred miles. Supposing that it’s anywhere from fifty to a hundred miles, it wouldn’t be a very good thing for her to do, to ride that far in an automobile?” Answer: “I expect it would be about the worst thing she could do. And I wouldn’t be surprised, where a thing like that happened, to see a miscarriage or abortion brought about as a result of that.” Question: “In addition to that, if after remaining in Columbus for a day the same woman that we are talking about should get in a car and go to Atlanta, a distance of a hundred miles, after taking the trip from Eufaula to_Columbus?” Answer: “I would expect, as a result of that, it would add to the risk already incurred.” Question: “Supposing she stayed in Atlanta two or three days, was on her feet part of the time, part of the time riding, part of the time in a hotel, that then she got on the train and went back to Columbus, —supposing that took place about a week after the trip from Eufaula, and then, supposing that about a month after that the same woman should take another trip from Columbus to Atlanta, a distance of one hundred miles, and then take a trip from Atlanta back to Columbus, a distance of a hundred miles in an automobile, Buick car?” Answer: “It looks like only probable after having a threatened abortion, it would certainly occur as a result of that.”

The above statement embraces the substance of all the evidence in the record as to the proximate cause of any of the plaintiff’s pains or injuries. Considering the plaintiff’s evidence as to her conduct and feelings previously to and immediately after the defendant’s alleged negligence, including the statement that she stumbled several times in walking along the railway-track, and the physician’s testimony that “a shock of any kind” would be a cause of an abortion, of which a hemorrhage is the first symptom, and bearing also in mind the plaintiff’s evidence to the effect that the hemorrhage appeared within approximately twenty-four hours from the defendant’s alleged wrong, we can not say, as a matter of law, that she did not suffer a physical injury as a result thereof. We are of the opinion that the jury were authorized (though not required) to find that the plaintiff’s hemorrhage was a consequence of a physical injury which she had suffered at the time and place claimed, and we conclude, therefore, that the court did not err in submitting to the jury the question of the proximate cause of that condition. See Georgia R. & B. Co. v. Usry, supra. The miscarriage, however, did not occur until forty days after the defendant’s alleged wrongful act. Considering this and the other circumstances, the jury • certainly could not have found that the miscarriage was a result of the defendant’s negligence, in absence of further evidence of some character. The evidence of the only physician who testified could have aided the jury but little, if any, upon the immediate question for their determination. His evidence shows that the question was one which would be fraught with gravest uncertainty, even in the minds of physicians. Under all the evidence, the cause of the miscarriage was either left hopelessly to conjecture, or the unfortunate happening was attributable to the plaintiff’s own conduct. The solution of the question as to the proximate cause of such injury depending upon circumstantial evidence only, the rule as enunciated by this court in Georgia Ry. & El. Co. v. Harris, 1 Ga. App. 714, 717 (57 S. E. 1077), was applicable: “When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent 'conclusions. The established fundamental rules applicable to circumstantial evidence are the same in civil as in criminal trials. In both eases it is required that the circumstances relied upon be not only consist-, ent with the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis. In civil cases this consistency with the one and inconsistency with the other is required to be established only by a mere preponderance; in criminal cases, to the exclusion of reasonable doubt.”

In Patten v. Texas & Pac. Ry. Co., 179 U. S. 658 (21 S. Ct. 275, 45 L. ed. 361), the Supreme Court said: “It is not sufficient for the employee to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” While that case was one arising out of the relation of master and servant, the principles therein expressed are applicable in any case where the question in dispute is to be settled by circumstantial evidence. See also Carroll v. Atlanta Paper Co., 7 Ga. App. 584, 586 (67 S. E. 680); Stone v. Crewdson, 44 Wash. 691 (87 Pac. 945); Anton v. Chicago &c. Ry. Co., 92 Wash. 305 (159 Pac. 115). Counsel for the plaintiff contend that the defendant should not be allowed to escape damages merely because the probability of the miscarriage may have been enhanced by the plaintiff’s trips in an automobile to Atlanta to consult a physician, since these activities by her were rendered necessary by the defendant’s negligence. This would assume that the evidence sufficiently fixed the cause upon the defendant except for such activities. But to take the contention as made, the defendant could not be held liable for the consequences of an intervening agency, unless the same should reasonably have been anticipated under ordinary circumstances as the natural and probable result of its own wrongful act. Wilson v. Central of Ga. Ry. Co., 132 Ga. 215 (1) (63 S. E. 1121). It is very true that if the acts of the plaintiff intervened between the defendant’s wrong and the injury suffered, and concurred in producing the injury, the defendant should not thereby be excused, if such intervening acts were the natural result of, or were naturally and reasonably induced by, the antecedent acts of the defendant. Sparta Oil Mill v. Russell, 6 Ga. App. 293 (4) (65 S. E. 37); Burnett v. Rome Ry. & L. Co., 7 Ga. App. 323 (66 S. E. 803). But it can not be said that the plaintiff’s journeys by automobile to Atlanta to consult a physician were the natural result of or reasonably induced by the defendant’s negligence. The thing that ordinarily would have happened, and which might have been anticipated, was that the plaintiff would exercise ordinary prudence to get to her home or to some other reasonably convenient and suitable place, and there, if desired, obtain such proper and necessary medical services as were reasonably within her reach. There is nothing to show that it was necessary for the plaintiff to take the trip to Atlanta, and her going there does not appear to have been the natural result of or to have been reasonably induced by the defendant’s negligence. See Georgia R. &c. Co. v. Usry, supra; Central of Georgia Ry. Co. v. Price, 106 Ga. 176 (32 S. E. 77, 43 L. R. A. 402, 71 Am. St. Rep. 246). The plaintiff was under the duty of exercising ordinary care to reduce the consequences of the defendant’s negligence as far as practicable (Civil Code (1910), § 4398); and when we consider her own expert knowledge as to the proper conduct of a woman in her condition, it is well nigh, if not altogether, conclusive that she wholly failed to comply with this duty; but, whether she was negligent or not, if the miscarriage was attributable to her own act as the proximate cause, she could not recover therefor.

“If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer.” Civil Code (1910), § 4509. “Damages traceable to the act, but not its legal or material consequence, are too remote and contingent.” Civil Code (1910), § 4510. “The negligence complained of must be the main, controlling, and preponderating cause ascertained and distinguished from other causes, in order to be the subject of a recovery.” See Macon v. Dykes, 103 Ga. 847, 849 (31 S. E. 443).

In the instant case there were several reasonable hypotheses as to the cause of the injury with which the evidence was not less consistent than with the conclusion sought to be established. It follows that the evidence was insufficient to authorize a finding that the miscarriage was the proximate result of the defendant’s negligence, and that the court’s charge submitting such question to the jury was unwarranted.

While we have held that the able and learned trial judge committed some errors, there are many other exceptions to excerpts from the court’s charge, none of which are subject to the criticisms made of them. We have not deemed it necessary to refer to them in detail. The court erred in overruling the motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    13603.
    American Railway Express Company v. Daniel.
    Appeal and Error, 4 C. J. p. 1247, n. 33 New.
    Decided February 18, 1926.
    Action for breach of contract; from Madison superior court— Judge W. L. Hodges. April 4, 1922.

      Alston, Alston, Foster & Morse, Clarence E. Adams, for plaintiff in error. Berry T. Moseley, contra.
   Stephens, J.

The Supreme Court of the United States having reversed the judgment of the Supreme Court of Georgia (157 Ga. 731, 121 S. E. 686), which affirmed the judgment of this court (29 Ga. App. 780, 116 S. E. 660) affirming the judgment of the superior court of Madison county, the judgment heretofore rendered by this court is vacated, and the judgment of the trial court overruling the defendant’s motion for a new trial is reversed. American Railway Express Co. v. Daniel, 269 U. S. 40 (70 L. ed. 14, 46 S. Ct. 15).

Judgment reversed.

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


text:
    14885.
    Knight v. Herring & McGehee.
    Decided February 18, 1926.
    Garnishment; from Muscogee superior court—Judge Munro. July 7, 1923.

      Hatcher & Hatcher, for plaintiff.

      J. E. Chapman, A. W. Cozart, for defendants.
   Stephens, J.

Applying the rulings of the Supreme Court in answer to questions certified in this case (161 Ga. 58, 129 S. E. 526), the judgment is affirmed.

Judgment affirmed.

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


text:
    16203.
    Hancock v. Green Miller Company.
    Executions, 23 C. J. p. 597, n. 29; p. 603, n. 54, 57; p. 605, n. 78, 80. 6
   Stephens, J.

1. On the trial of a claim case the claimant is not entitled to the opening and conclusion in argument, where he contends that at the time of the levy the property levied upon was in his possession, and where the evidence makes an issue as to this. Bones v. Printup, 64 Ga. 753; Smith v. Wellborn, 75 Ga. 799 (6); Smith v. Rothschild, 13 Ga. App. 293 (5) (79 S. E. 88). The trial court did not err in denying to the claimant the right to open and conclude the argument.

2. A charge in a claim case that, upon the introduction in evidence by the plaintiff in execution of the execution and levy showing possession of the property levied upon in the defendant in execution at the time of the levy, a prima facie case for the plaintiff in execution is made, is not error. Doyle v. Donovan, 76 Ga. 44.

Decided February 18, 1926.

Levy and claim; from city court o£ Houston county—Judge Biley. December 29, 1924.

J. M. Hancock, for plaintiff in error.

Houser & Maihews, contra.

3. Where a claim of title is filed to property levied upon, an issue of fraud in the acquirement of title by the claimant may be inquired into without being specially pleaded. See, in this connection, Civil Code (1910), § 5651; Tifton Ry. Co. v. Butler, 4 Ga. App. 191, 195 (60 S. E. 1087) ; Smith v. Hodges, 8 Ga. App. 785 (2) (70 S. E. 195).

4. Where it appears from the evidence that when the claimant acquired title to the property levied upon, which consisted of live stock and personal property used on a farm, by purchasing it from the defendant in execution, the claimant knew that the defendant was in debt and was “broke” and “could not pay his debts,” and that the claimant was at the time endeavoring to find some one to take charge of the business . of the defendant in execution and to make arrangement with the latter’s creditors or some one by which the “place” of the defendant in execution could be “run,” and where it appears from the evidence that when the claimant bought the property the suit in which the execution issued was pending, in which suit the claimant was attorney for the defendant in execution, and that the sale was made within a month prior to the rendition of the judgment on which the execution issued, and where it appears from the evidence that the property levied on, after it was bought by the claimant, was allowed to remain upon the place, and that at the time of the levy the property was in the defendant’s possession, the evidence was sufficient to present an issue of fact for a jury as to whether the sale was one made in fraud of the defendant’s creditors. This is true irrespective of any actual good intention to assist the defendant on the part of the claimant. The court did not err in presenting the issue of fraud in the charge to the jury.

5. Where it appears from the evidence that when the claimant bought the property levied upon he was attorney for the defendant in execution in the suit then pending in which the present execution afterwards issued, the inference is authorized that the claimant was at the time the attorney for the defendant in execution. The charge of the court, to the effect that if this relationship existed it could be considered by the jury, was adjusted to the evidence and was not error for the reason assigned.

6. No error of Jaw appears, and the evidence authorized the verdict in favor of the plaintiff in execution, finding the property subject.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    16221.
    Amerson v. Cox.
    Frauds, Statute of, 27 C. J. p. 207, n. 51; p. 381, n. 66.
    Decided February 18, 1926.
    Complaint; from Taylor superior court—Judge Munro. November 29, 1924.

      J ere M. Moore, for plaintiff in error. G. W. Foy, contra.
   Stephens, J.

1. A contract between one who has sold land and given a bond for title therefor and one who has taken from the purchaser a transfer of the bond and has assumed the purchaser’s outstanding obligation for the purchase-money to the seller and has taken possession of the land, by which contract it is agreed that the person who took the transfer of the bond, and thereby became substituted for the purchaser of the land from the original seller, may rescind the contract of sale and relinquish possession of the land and obtain a cancellation of his obligation, upon his subsequent inability to carry out his contract by meeting the payments due for the purchase-money, is a contract by which the latter purchaser agrees to resell the land to the original seller, and is therefore a contract for the sale of land which the statute of frauds (Civil Code of 1910, § 3222 (4) ) requires to be in writing. Walker v. Malsby Co., 134 Ga. 399 (2) (67 S. E. 1039); Anderson v. Anderson, 128 Wash. 504 (223 Pac. 323, 38 A. L. R. 202).

2. In a suit by the original seller against the last purchaser, upon one of o the promissory notes given for the purchase-money by the original obligee and which had been indorsed by the defendant, the court properly excluded evidence setting up a parol agreement of rescission between the plaintiff and the defendant, as indicated above, upon objection made by the plaintiff’s counsel upon the ground that the agreement was not in writing.

3. The remaining grounds of the motion for a new trial, not being insisted upon by counsel for plaintiff in error, will be treated as abandoned.

4. The above evidence having been properly excluded, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Jenlmis, P. J., and Bell, J., concur.


text:
    16240.
    Miller v. Timmerman.
    Sales, 35 Oye. p. 233, n. 98.
    Trial, 38 Oye. p. 1667, n. 85.
   Stephens, J.

1. In a suit for the recovery of the purchase-price of an alleged definite number of feet of lumber at a definite price, which the plaintiff had shipped to the defendant, testimony of the plaintiff to the effect that he himself checked the lumber when it was loaded on .a railroad-car for shipment, that the number of feet sued for was correct, and that the amount sued for was due by the defendant, was insufficient to establish as a fact that all the lumber shipped was of the grade contracted for, and that therefore the full amount sued for was correct, where the plaintiff elsewhere testified that he told the defendant that he (the plaintiff) thought that all of the lumber “but about twenty or twenty-five pieces would cheek out,” authorizing an inference that the lumber was not of the grade contracted for, and where there was positive testimony for the defendant, not denied by the plaintiff, that a substantial number of feet of the lumber were culls and not of the grade contracted for. The only testimony tending to establish the correctness of the amount sued for being that of the plaintiff himself, which must be construed most strongly against him, the evidence failed to furnish sufficient data to authorize the verdict found in the full amount sued for.

Decided February 18, 1926.

Complaint; from city court of Valdosta—Judge Little. December 19, 1924.

Franklin & Langdale, for plaintiff in error.

John B. Otktm, contra.

2. Where from uncontradicted evidence it appeared that the lumber shipped had been actually received by the defendant, although he contended that some of it did not come up to the specifications of the contract and that he had not accepted it as being in compliance with the contract, the court, after charging in effect, as provided in section 4137 of the Civil Code (1910), that after acceptance of goods purchased, the presumption is that they are of the quality ordered, did not err in stating to the jury that it was undisputed that the lumber shipped had been “received and accepted” by the defendant. The charge is not subject to the exception that the court instructed the jury that the defendant, in receiving the .lumber, meant to waive his rights as respects that portion of the lumber which did not measure up to the specifications of the contract.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.


text:
    16244.
    New York Life Insurance Company v. Cobb.
    Appeal and Error, 4 O. J. p. 996, n. 68.
    Life Insurance, 37 C. J. p. 645, n. 13.
   Stephens, J.

1. Where an applicant for life insurance stated in his application that the only disease from which he had suffered was an attack of neuralgia from the teeth about four years prior to the date of the application, which attack lasted for three days and was moderate, and that he had completely recovered therefrom, that he was treated for such disease by a named physician, the .only physician who had treated him, when in fact the ailment from which he had suffered was designated by the attending physician as “facial paralysis,” from which he completely recovered after having all his teeth extracted, and when in fact the physician named had examined him eight or ten times during a period of about four years, and at one time had found that he showed symptoms of an abnormally high blood pressure, which might have been brought on from the condition of the teeth or from overeating or overwork, or from kidney trouble, and that the physician had warned him that unless he followed a diet he might suffer from apoplexy, and where in fact none of the examinations showed kidney trouble, or any other trouble than as indicated above, it can not be held as a matter of law that the applicant, in his application for insurance, misrepresented material facts.

Decided February 18, 1926.

Rehearing denied February 25, 1926.

Complaint; from Cherokee superior court—Judge Blair. December 5, 1924.

Application for certiorari was denied by the Supreme Court.

Bryan & Middlebroolcs, Howell Brooke, Louis H. Cooke, for plaintiff in error.

Wood & Yandiviere, contra.

2. Although a' witness for the defendant may have testified as to the good character of the insured without the foundation having been formally laid for such testimony, yet where the extent of the knowledge of the witness as to the character of the insured appears from the evidence, the admission of his testimony that the character of the insured was good, if error, was harmless to the defendant. The probative value of such evidence was for the jury.

3. The. evidence authorized a finding that the testimony of another physician, which was favorable to the defendant, had been impeached, and also authorized the verdict found for the plaintiff. No error of law appears.

Judgment affirmed.

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


text:
    16323.
    Golden's Foundry & Machine Company v. Wight et al.

    Corporations, 14 C. J. p. 308, n. 88, 89; 14a C. J. p. 591, n. 67.
    Partnership, 30 Cyc. p. 402, n. 39 New; p. 592, n. 26.
   Stephens, J.

1. A corporation may transact business within its corporate powers in a name other than its legally authorized corporate name. Saunders System v. Drive It Yourself Co., 158 Ga. 1 (123 S. E. 132) ; Home Machine & Foundry Co. v. Davis Foundry & Machine Works, 135 Ga. 18 (3) (68 S. E. 800); McClain v. Georgian Co., 17 Ga. App. 648 (3) (87 S. E. 1090); 14 C. J. 591.

2. The officers of a corporation who transact its business under an assumed or trade name are not liable to a person dealing with them as a corporation in ignorance of this fact for a debt contracted by them under the assumed name, upon the theory that they are partners, having assumed to act as a corporation before having complied with the statutory requirements prerequisite to their organization as a corporation legally authorized, to do business. Pilsen Brewing Co. v. Wallace, 291 Ill. 59 (125 N. E. 714, 8 A. L. R. 579).

Decided February 18, 1926.

Complaint; from Grady superior court—Judge Custer. February 7, 1925.

Henry B. Goetchius, Titus & Delete, for plaintiff.

3. In a suit against named persons, which seeks to recover against them as partners upon a contract made by them with the plaintiff in behalf of a purported corporation styled Wight & Jones Company, where it appears from undisputed evidence that the plaintiff contracted with Wight & Jones Company as a corporation, that the name Wight & Jones Company was but an assumed or trade name of an existing corporation styled Wight-Jones Seed & Implement Company, and that the contract sued on was executed by the corporation acting in its assumed or trade name through the defendants as its legally authorized officers, a verdict for the defendants was properly directed.

4. No error appears.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., ooneur.


text:
    16334.
    Rosenberg v. Bennett, superintendent of banks.
    Banks and Banking, 7 C. J. p. 502, n. 70 New; p. 504, n. 80; p. 505, n. 88.
   Stephens, J.

1. One who buys stock in a bank, and has it entered on the books of the bank in his own name as guardian for his minor child, is himself, as between him and the bank, the owner of the stock, and the provisions of section 2 of article 18 of the act of August 16, 1919, creating the State banking department (Ga. L. 1919, pp. 135, 189; Park’s Code Supp. 1922, § 2279 (b)), excepting from personal liability as stockholders those holding stock in a bank as guardian, are not applicable. Where the bank has been taken over by the superintendent of banks under the authority of the act of August 16, 1919, supra, such person is individually liable for an assessment made against him as stockholder by the superintendent of banks. Park’s Banking Law of Georgia, 381; Foster v. Chase, 75 Fed. 797; Aldrich v. Bingham, 131 Fed. 363.

2. The present owner of stock, against whom such an assessment is made, can not defeat liability therefor upon the ground that under the provisions of sections 3 and 4 of article 18 of the act of August 16, 1919 (Ga. L. 1919, pp. 135, 190; Park’s Code Supp. 1922, § 2279 (c) (d)), a former stockholder from whom he purchased the stock within six months prior to the date of the failure of the bank may be liable for an assessment thereon. The right to enforce the assessment against the former stockholder is in the superintendent of banks, and not in the present stockholder.

3. -A present stockholder against whom an assessment has been made under the authority of the act of August 16, 1919, supra, can not defend against such assessment upon the ground that the former stockholder from whom he purchased the stock had no title.

Decided February 18, 1926.

Affidavit of illegality of execution; from Walton superior court — Judge Fortson. February 13, 1925.

Application for certiorari was denied by the Supreme Court.

J. II. Fdicer, A. 8. Grove, for plaintiff in error.

Roberts £ Kelley, J. 0. Knox, contra.

4. In a suit by the superintendent of banks to enforce the levy of such an assessment against one who has purchased stock in a bank and caused it to be entered on the books of the bank in his own name as guardian for his minor child, a verdict for the plaintiff was properly directed, and the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


text:
    16485.
    Holloway v. Mayor and Aldermen of Milledgeville.
    Appeal and Error, 4 O. J. p. 1036, n. 69.
    Evidence, 22 O. J. p. 563, n. 81.
    Municipal Corporations, 28 Cyc. p. 1489, n. 46; p. 1518, n. 22; p. 1519, n. 28; p. 1520, n. 29.
    Negligence, 29 Cyc. p. 549, n. 50; p. 550, n. 59; p. 635, n. 68; p. 645, n. 50; p. 649, n. 84 New.
    Trial, 38 Cyc. p. 1600, n. 51; p. 1610, n. 96; p. 1618, n. 36.
   Stephens, J.

1. Where damages were alleged against a city as resulting from alleged negligent maintenance of certain of its streets under the conditions narrated in the report of this case in 32 Ga. App. 734 (124 S. B. 802), in passing upon a demurrer to the petition, a charge of the court which, in stating the plaintiff’s contentions, narrated only one of the contentions as a ground of negligence was not error where the court did not expressly so limit the contentions of the plaintiff, but invited the jury to an inspection of the petition for an ascertainment of the contentions of the parties.

2. Where, in a suit against the city to recover damages for personal injuries suffered by the plaintiff as the result of the overturning in a street of the city of an automobile in which the plaintiff was riding and which was driven by another person, it was inferable from the evidence that the plaintiff’s injuries were caused either by the negligence of the defendant or by the negligence of the driver, whose negligence was not imputable to the plaintiff, it was error prejudicial to the plaintiff for the court to instruct the jury that if the driver could have avoided the occurrence by ordinary care, the plaintiff could not recover. Such charge imputed the negligence of the driver to the plaintiff.

3. While husbands are in fact frequently amenable to the commands of their wives, the law does not place the husband in such a subservient situation. While the husband, when operating an automobile in which the wife is riding but which does not belong to her, may follow the wife’s suggestions and obey her commands as to the course to be pursued along the highway, such does not, as a matter of law, constitute the husband the agent of the wife, or establish such a relationship between them as to impute to the wife the negligence of the husband in operating the automobile in such a manner that it falls into a ditch along the highway and injures the wife. Civil Code (1910), § 3475; Southern Ry. Co. v. King, 128 Ga.. 383 (2) (57 S. E. 687, 11 L. R. A. (N. S.) 829, 119 Am. St. R. 390).

Decided February 18, 1926.

Action for damages; from Baldwin superior court—Jud^e Park. April 15, 1925.

Allen & Pottle, for plaintiff.

Hines & Carpenter, Henry C. Hammond, for defendant.

4. It was error to instruct the jury that certain acts in the handling of the automobile by the driver constituted negligence. Whether such acts constituted negligence was a question for the jury.

5. Where there was no evidence that the driver of the automobile was intoxicated, it was error prejudicial to the plaintiff for the court in his charge to the jury to state that in determining whether the driver was negligent the jury could consider whether the driver was under the influence of strong drink “which he may have taken previous to the occurrence.”

6. The following in the charge was argumentative and calculated to prejudice the case of the plaintiff, and was therefore error: “Calamities and casualties are common to all, but because they occur it by no means follows that such as may be so unfortunate are entitled to recover compensation in damages out of some other person . . who may be able to pay damages, unless the person” causing the damage fails to exercise ordinary care and diligence.

7. In view of the allegations in the plaintiff’s petition, indicated in 32 Ga. App. 734 (2), the court erred in instructing the jury that the lawful act of the city in placing an obstruction in the street was “an act of prudence on the part of the city,” and not negligence. It was a question for the jury whether such act, under all of the circumstances, was negligent.

8. The fact that the placing of a guard-rail at places similar to the one on the street where the injury complained of occurred was not customary is incompetent as tending to prove that the city, in failing to place such a guard-rail, was not guilty of negligence. The evidence to this effect was improperly admitted.

9. The testimony of a witness that, in his opinion, the wrecking of the automobile was caused by its going too fast or by turning too short, or by carelessness in its operation, was merely the opinion of the witness, and such evidence was improperly admitted.

10. Except as above indicated, no error appears.

Judgment reversed.

Bell, J., concurs.

Jenkins, P. J., concurs in the judgment.


text:
    16502.
    Carrollton Bank v. Glass.
    Garnishment, 28 O. J. p. 3.7, n. 69; p. 214, n. 72; p. 217, n. 21.
    Decided February 18, 1926.
    Levy and claim; from city court of Carrollton—Judge Hood. April 23, 1925.

      Willis Smith, Boykin & Boykin, for plaintiff.

      B. M. Smith, B. D. Jackson, contra.
   Stephens, J.

1. A suit is pending, in the sense of section 5265 of the Civil Code (1910), relative to the grounds for the issuance of garnishment proceeding's, although a judgment may in fact have been rendered in the suit, when there still remains a legal possibility that the judgment may be reversed and that the defendant may ultimately prevail, as when a bill of exceptions to the judgment has been tendered and certified by the trial judge and has been filed with the clerk of the Court of Appeals. See Bode v. Welch, 29 Ohio St. 19, 22; Brown v. Foss, 16 Me. 257.

2. The affidavit for garnishment is amendable by striking therefrom the words “for which judgment has been obtained,” and inserting in lieu thereof the words ““for which suit is now pending.” Civil Code (1910), § 5706. Such amendment does not set out a new cause of action. Rowland Co. v. Kell Co., 27 Ga. App. 107 (107 S. E. 602).

3. The bond executed by an applicant for garnishment, as required under section 5268 of the Civil Code (1910), is amendable. Civil Code (1910), § 5707; Janes v. Tomlinson, 30 Ga. 540. Where neither the obligations of the sureties are altered nor the .rights of the opposite party prejudiced, such bond may be amended in any manner to conform to the requirements of the statute, without the consent of the sureties. Gittens v. Whelchel, 12 Ga. App. 141 (76 S. E. 1051). Such bond, therefore, is amendable, without the consent of the sureties, by striking therefrom the words, “or it should appear that the amount sworn to be due on such judgment is not due,” and inserting in lieu thereof the words “the plaintiff fails to recover in said suit pending.”

4. Where a plaintiff instituted process of garnishment upon the ground that a judgment had been obtained against the defendant, but where the judgment had been excepted to and the bill of exceptions had been filed in the Court of Appeals, it was error for the trial judge, after the Court of Appeals had reversed the judgment, to refuse to allow the plaintiff in garnishment to amend the affidavit and bond in a manner to conform to the statutory requirements for the issuance of garnishment upon a suit pending, and thereafter sustain the defendant’s motion to dismiss the garnishment upon the ground that since the reversal of the judgment upon which it was issued there appeared no foundation in fact for the issuance of the garnishment.

Judgment reversed.

Jenlcins, P. J., cmd Bell, J., concur.


author: Stephens, J. Stephens, J.

text:
    16581.
    BARROW COUNTY COTTON MILLS v. BURTON.
    Master and Servant, 39. O. J. p. 798, n. 41; p. 799, n. 47.
    Decided February 18, 1926.
    Rehearing denied February 27, 1926.
    Damages; from Barrow superior court—Judge Stark. April 30, 1925.
    This is an action for damages for personal injuries alleged to have been received by the plaintiff while a servant of the defendant, engaged in doing general repair work as a carpenter on the mill buildings belongings to the defendant.
    The petition alleges that the plaintiff was ordered to repair the roof of the porch of a certain building, that he was directed to go to a particular place upon the roof and to saw the roof in two in order that the same might be repaired, that while engaged in sawing the roof the part thereof on which the plaintiff was standing gave way, throwing his right leg through the hole which was formed when the roof gave way, and that the plaintiff received severe injuries. The petition further alleges that the roof on which the plaintiff was working was, at the spot where the roof gave way, rotten, decayed, and insufficient to bear the weight of the plaintiff, and that the decayed condition of the roof was unknown to the plaintiff but was well known to the defendant.
    The plaintiff testified as follows: “I was working for the Barrow County Cotton Mills; I was general utility man; as general utility man I had to do the general repairing. . . Mr. Lewis Lanthier was my boss man, gave me orders. . . Mr. Lanthier directed me to do something to the roof; he told me to cut into that roof and repair it. . . I knew nothing about the condition of the roof; Mr. Lanthier gave me directions as to where I should stand while I was doing the work, he pointed out where for me to cut in into . . at the point where he pointed out to me I could see no weakness in the roof. . . I started to work at the place indicated and pointed out to me by Mr. Lanthier; I sawed down some three or four feet to the place where it gave way; I went to turn around there and my right foot went through; the whole roof did not fall in; just this point gave way. . . The rafters run back toward the mill; . . there is no boxing to conceal them, open and exposed to view. . . He was sending me up there to cut the roof in two and take out the rotten part. . . The rafters looked sound. . . I was standing at a point where I could see through; I could see that the sheeting was rotten in the corner. . . I had knowledge that the roof was rotten in the extreme corner; I didn’t know whether the timbers were sound or rotten that I was standing on.”
   Stephens, J.

Where the roof of a porch is constructed in such a manner that it is open and exposed to view, with no boxing to conceal the rafters, a rotten condition of the roof is known to a servant who is directed by the master to go upon the roof and cut out a rotten portion thereof and make repairs. Although the master may have ordered the servant to go to a particular place upon the roof to remove the rotten portion, and may have assured the servant that that particular place was a safe place for the servant to work, the dangerous condition of the place was actually known to the servant. The servant, therefore, can not recover from the master for an injury sustained by the servant while in the performance of the work as a result of the servant’s stepping into a rotten place in the roof. Hightower v. Southern Ry. Co., 146 Ga. 279 (91 S. E. 52, L. R. A. 1917C, 481); Southern Ry. Co. v. Taylor, 137 Ga. 704 (73 S. E. 1055); Niblett v. LaGrange Mills, 18 Ga. App. 173 (88 S. E. 1009).

Judgment reversed.

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

The jury returned a verdict in favor of the plaintiff for $1500. The defendant’s motion for a new trial was overruled, and the movant excepted. “

G. A. Johns, for plaintiff in error. R. B. Russell Jr., contra.

ON MOTION EOR REHEARING.

Stephens, J.

A dangerous condition of a roof is known to a servant who is directed b.y the master to go upon the roof to cut out a rotten portion thereof and make repairs. The servant, in going upon the roof with such knowledge, assumes the risk incident to its rotten condition and is therefore not relieved from that assumption by the order of the master or the master’s assurance of safety.

In this ease, although the master may have ordered the servant to go to a particular place upon the roof to remove the rotten portion and may have assured him that that particular place was a safe place for him to work, the dangerous condition of the roof was nevertheless known to the servant. The servant therefore assumed the risk incident to the rotten condition of the roof, and by the exercise of ordinary cart; could have discovered the dangerous and rotten condition of the particular place where he was ordered to work and which the master assured him was safe. He therefore can not recover from the. master for an injury sustained by him in the performance of the work, resulting from stepping into a rotten place in the roof.

Rehearing denied.


text:
    16591.
    Orange Crush Bottling Company v. Smith.
    Appeal and Error, 4 C. J. p. 920, n. 53; p. 1068, n. 16.
    Damages, 17 C. J. p. 801, n. 32; p. 1080, n. 48.
    Motor Vehicles, 28 Cyc. p. 47, n. 20; p. 49, n. 49.
    Decided February 13, 1926.
   Stephens, J.

1. In a suit for damages for personal injuries, where it appeared from the evidence that the plaintiff, while standing upon a sidewalk, was injured by being knocked down by a motor-truck belonging to the defendant, which left the street and ran upon the sidewalk, testimony that the truck was in good condition except that “the threads were stripped on the nut that goes over the flange of the axle that holds the axle in,” when considered with further evidence that the driver of the truck leaped from the truck and left it uncontrolled as it was running down a steep hill prior to its collision with the plaintiff, authorized the inference that the truck was not equipped with efficient and serviceable brakes. The trial court, therefore, did not err in instructing the jury that the law requires motor-vehicles while in use upon the public streets to be equipped with efficient and serviceable brakes, and that the operation of the truck along the public streets not so equipped constituted negligence per se. Ga. L. 1921, p. 256.

2. Where there is no allegation based upon the incompeteney of the driver, evidence offered by the defendant to the effect that the driver was competent -vfras properly excluded.

3. Whether or not, in such a suit, the evidence authorized the inference that the plaintiff’s earning capacity had been totally impaired temporarily, it was not error prejudicial to the defendant for the court to charge the jury that the jury would not be authorized to return a verdict “for the total impairment that extended into the future.”

4. An instruction to the jury that the plaintiff would be entitled to recover the reasonable expenses that were incurred for medical attention “on account of injuries” was equivalent to an instruction that the plaintiff could recover the “necessary expenses consequent upon the injury,” as provided in section 4505 of the Civil Code (1910).

5. The charge of the court clearly confined the jury to the contentions of the plaintiff as contained in the petition, and otherwise fairly to the defendant presented the issues in the case.

6. The verdict for the plaintiff was authorized by the evidence, and in view of the nature of the plaintiff’s injuries the verdict can not, as a matter of law, be said to be excessive.

7. The other assignments of error, not being insisted upon by the plaintiff in error, will be treated as abandoned.

Judgment affirmed.

Jenlcins, P. J., and Bell,' J., concur.

Action for damages; from Fulton superior court—Judge Humphries. May 16, 1925.

Jones, Evins, Moore & Powers, for plaintiff in error.

Branch & Howard, contra.


text:
    16628.
    Hill v. Security Loan & Abstract Company.
    Eorcible Entry and Detainer, 26 C. J. p. 816, n. 74; p. 841, n. 28 New; p. 844, n. 85 New; p. 861, n. 95.
    Trial, 38 Cyc. p. 1271, n. 43 New; p. 1786, n. 93.
   Stephens, J.

1. The proceeding to eject an intruder upon lands upon an affidavit made by one in good faith claiming possession thereof, as provided under section 5380 of the Civil Code (1910), being strictly summary in its nature and designed to effect an immediate eviction, and there being no provision in the statute as to when an issue formed upon a counter-affidavit to such a proceeding under section 5382 of the Civil Code (1910) may be tried, the trial of such an issue may be had at the term of court during which the counter-affidavit is filed.

2. Under section 5380 of the Civil Code (1910) as to the removal of intruders upon lands, no process or return of service is required.

3. That the alleged intruder whom it was sought to evict under the summary process described in section 5380 of the Civil Code (1910) claims the legal right tó possession of the land in good faith is a legal defense against eviction under such process. See in this connection Nichols v. Chandler, 46 Ga. 480; Lane v. Williams, 114 Ga. 124 (39 S. E. 919) ; Foreman v. Pelham, 8 Ga. App. 822 (70 S. E. 158).

4. Possession obtained under a contract of rental procured from the owner of the land by fraud is not a possession in good faith. Where the owner of land offers to rent it to a prospective tenant upon the condition that the prospective tenant procure the consent of a third person entitled to possession of the land, and the prospective tenant falsely states to the owner that such consent has been procured, when the statement is' made for the purpose of inducing the owner to make the contract of rental and does so induce the owner, an inference of fact is authorized that the contract of rental was procured by fraud, and that the entry of the prospective tenant and his holding the land thereunder was in fraud of the owner and not in good faith.

5. Upon the trial of an issue formed by a counter-affidavit interposed to a proceeding to evict under section 5380 of the Civil Code (1910), the trial judge did not err in overruling the defendant’s objection to trying the ease at the term of court at which the counter-affidavit was returned, as being premature, and did not err in overruling the defendant’s motion to dismiss the proceedings upon the ground that there appeared to be no process or return of service.

6. Where, upon the trial of such an issue, the court clearly instructed the jury that the plaintiff could not recover and evict the defendant if it appeared that the possession of the defendant was in good faith, the charge elsewhere to the effect that the sole issue for determination was whether the plaintiff or the defendant did in good faith claim the leghl right to the possession of the land, and that the plaintiff could recover if it appeared that the plaintiff claimed the right to possession of the land in good faith and that the defendant did not hold the possession in good faith, is not error requiring a new trial.

Decided February 18, 1926.

Eviction; from Stewart superior court—Jule Felton, judge pro hac vice. May 30, 1925.

R. S. Wimberly, for plaintiff in error. G. Y. Ilarrell, contra.

7. The evidence authorized the verdict for the plaintiff.

Judgment affvrmed.

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