text:
    18166.
    McLENDON v. DANIEL.
    The evidence authorized submission to the jury of the question as to contributory negligence of the plaintiff, who was suing for damages on account of alleged malpractice of a surgeon.
    In omitting the word “skill” and using different language from that of the code, the trial judge, in view of the evidence and of the remainder of his charge to the jury, did not commit an error which would entitle the plaintiff to a new trial, when, immediately after charging the rule laid down in the code, that a surgeon must exercise “a reasonable degree of care and skill” (Civil Code of 1910, § 4427), he charged that the plaintiff would not be entitled to recover if the defendant exercised “all • ordinary and reasonable care, diligence, and prudence.”
    Upon the issue whether the defendant’s service in setting the fracture' should have been followed up by attending the patient in order to give any needed treatment, or whether this duty devolved upon the other physician, who, the defendant contended, was the physician in charge, and upon the other issues involved, the evidence warranted the jury’s finding in favor of the defendant.
    Physicians and Surgeons, 30 Cyc. p. 1570, n. 19; p. 1587, n. 78; p. 1588, n. 87 New, 88; p. Í589, n. 90.
    Trial, 38 Cyc. p. 1779, n. 75.
    Decided December 15, 1927.
    Action for damages; from Colquitt superior court—Judge W. E. Thomas. April 15, 1927.

      The plaintiff, McLendon, who lived at the village of Funston, in Colquitt county, suffered a fracture of a limb on April 16, 1924. The evidence shows that he immediately called in Dr. Stripling, who lived near by, and that Dr. Stripling, with his approval, called in the defendant, Dr. Daniel, a resident of Moultrie, Georgia, who set the broken limb, and bandaged it with a plaster cast, after first wrapping it with a gauze bandage, but without the application of cotton batting between the bandage and the cast. The evidence, including the testimony of Dr. Stripling, appears to be undisputed that the limb was properly set and bandaged according to the method used, although Dr. Stripling testified that the better method would have been to employ the use of cotton batting as indicated above. All the testimony indicates, however, that the method actually used was one approved by the medical profession, the remedy in all such treatments in case of swelling being to slit the cast. There was also evidence to the effect that the use of cotton batting was not intended to obviate the necessity of cutting the cast in case of swelling, but only to make the limb more comfortable.
    The evidence of the defendant was to the effect that he was called in only to assist in setting the limb, and that Dr. Stripling had general charge of the case; he testified that he instructed Dr. Stripling to cut the cast in case the swelling of the leg should render it necessary. This testimony was disputed by Dr. Stripling. The plaintiff and Dr. Stripling testified that after the setting of the leg, and during the first five days- thereafter, they repeatedly called Dr. Daniel, advising him as to the painful condition of the patient, and asking that he return to render further attention to the case. This testimony was disputed by D'r. Daniel. Dr. Daniel testified that in passing the house of the plaintiff on April 21, five days after thé limb had been set, he voluntarily stopped to see how the plaintiff was getting on, and that Dr. Stripling, seeing him enter the house, joined him there. The evidence is undisputed that during the period of five days indicated the limb had become swollen and diseased to the extent that certain of the tissues in the foot had died, and that the condition of the foot, on account of the constriction of the cast, when Dr. Daniel returned on April 21 was serious. There is no dispute by any one that the case, after the setting of the limb on April 16, up to the cutting of the cast on April 31, was not properly handled, the contention of the plaintiff being that Dr. Daniel was responsible for the lack of proper treatment, while the contention of the defendant Daniel was that he had completed his connection with the case when he set the limb and turned it over to the regular attending physician. The evidence shows that after the bandage was removed by Dr. Stripling at the direction of Dr. Daniel on April 31, Dr. Daniel took up the treatment of the limb, he contending that he did so as the associate of Dr. Stripling, and the plaintiff and Dr. Stripling contending that Dr. Daniel was then acting as the attending surgeon in the case, and that Dr. Stripling was merely rendering friendly services to his neighbor. According to Dr. Daniel’s testimony, this association with Dr. Stripling in the treatment of the case continued until some time in July, when Dr. Stripling left for Florida and he took complete, charge of the ease; and after taking complete charge he continued the treatment until some time .in August when he was discharged by the plaintiff. The record shows that the limb was amputated above the knee on August 39 by another surgeon. The evidence is undisputed that after Dr. Daniel returned to the case on April 31 he removed certain diseased portions of the foot. The plaintiff testified that he besought the defendant to amputate the leg at that time. The record does not show what Dr. Stripling then counseled with reference to the amputation. The evidence of Dr. Daniel was that the amputation could not with propriety have been made at that time, as the line of demarcation had not become established as to where the diseased tissues extended; that he believed that the paring off of the diseased portions of the foot was the proper treatment at that time; that after such treatment granulation set in, and the condition of the patient showed improvement, and that he believed the leg and the major portion of the foot could have been thus saved but for the unsafe and improper conduct on the part of the plaintiff and the other physician in removing the limb from the fracture box into which it had been placed, and allowing the patient to be raised up in order to wash the limb by the side of the bed. He testified that the displacement of the setting as disclosed by . the x-ray at the time of the amputation was thus occasioned. He testified also to the improper conduct of the plaintiff in walking about on crutches prior to the amputation.

      The gist and effect of the plaintiff’s allegations is to charge the defendant with a failure to exercise a reasonable degree of care and skill in the method employed in bandaging the limb, as has already been indicated; that he was guilty of negligence in neglecting the patient and in failing to return, diagnose and relieve the pressure caused by the swelling against the plaster cast until after it had resulted in the diseased condition of the tissues; and that the defendant failed to use a reasonable degree of care and skill after he returned to the treatment of the case in diagnosing and treating the gangrenous condition by reason of which it finally became necessary to amputate the limb above the knee.
    The verdict was in favor of the defendant, and the plaintiff made a motion for a new trial, which was overruled, and he excepted. The special grounds of the motion can be resolved into two main exceptions, one that the court erred in charging as to contributory negligence on the part of the plaintiff, and the other amounting to an exception to the failure to charge the jury that even though the defendant may have been skilled in his profession, he was nevertheless charged with the duty to exercise reasonable care and skill in the performance of his duties as such, the contention being that the charge of the court relieved the defendant from liability if he exercised ordinary care, diligence, and prudence, even though he may not have exercised reasonable and proper skill. The portions of the charge upon which these exceptions are based are as follows: “The law provides that a person professing to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from the want of such care and skill will be a tort for which recovery may be had. If the plaintiff in the case has sustained his case as it is pleaded, if the evidence in the case sustains the plaintiff’s case as it is pleaded, the plaintiff will be entitled to recover. The plaintiff can not recover if the defendant, Dr. Daniel, exercised all ordinary and reasonable care, diligence and prudence, or if the injury was 'caused by the failure of the' plaintiff to exercise due care, of if both persons were at fault, and the plaintiff, by the exercise of due care, could have avoided the consequences to himself caused by the defendant’s negligence, if you find that the defendant was negligent.”

      In another portion of the charge the court instructed the jury as follows: “If you believe the plaintiff called Dr. Daniel for the purpose of setting his leg only, and not to administer the sub- . sequent treatment that might be needed, then the defendant, Dr. Daniel, would not be liable for anything that was done or anything that was not done but ought to have been done subsequent to the time he set the leg. He would not be liable for the failure to cut the plaster cast or loosen it, if he was called in merely to set the leg and not to render the necessary subsequent treatment.” “Should you- believe that the defendant, Dr. Daniel, was called in at first only for the purpose of assisting Dr. Stripling, but later on he took charge of the case, he' would then, from that time on, be bound to exercise ordinary care and skill in the treatment of the leg. However, the defendant, Dr. Daniel, would have a right to refuse under these circumstances to amputate plaintiff’s leg when he needed it amputated, if he had not agreed to do it, provided he fully and fairly advised the plaintiff, McLendon, that he would not amputate it, and informed him he would have to employ other surgeons for this purpose.”

      E. K. Wilcox, Dowling & DeLoache, for plaintiff.

      J. 0. Gibson, J. II. Hill, Erode, Spa/rles & Bussell, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) 1. In this suit for damages on account of alleged malpractice by a surgeon, it was not error, in view of the testimony submitted authorizing the same, for the court to submit to the jury the ques. tioh of contributory negligence on the part of the plaintiff.

2. “A person professing to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill will be a tort for which a recovery may be had.” Civil Code (1910), § 4427. This standard, when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar- conditions and like surrounding circumstances, is ordinarily employed by the profession generally. Fincher v. Davis, 27 Ga. App. 494 (5) (108 S. E. 905). It has been held that it is not the mere possession of the requisite professional skill, but its exercise, which is required. Akridge v. Noble, 114 Ga. 949 (41 S. E. 78); Hinkle v. Smith, 12 Ga. App. 496 (77 S. E. 650); Grubbs v. Elrod, 25 Ga. App. 108 (102 S. E. 908). In the instant case, where the plaintiff sought to establish lack of care and skill in setting and bandaging a fracture, in failing thereafter to attend the patient in order to diagnose his condition and administer such treatment as developments rendered necessary, and in failing, after subsequently resuming treatment, to properly diagnose and treat the diseased condition which had arisen, and where the court charged the jury in the language of the code-section quoted, to the effect that the defendant was required to exercise a reasonable degree of care and skill, instructing them immediately thereafter that if the plaintiff had sustained his case as laid he would be entitled to recover, but not so if the defendant “exercised all ordinary and reasonable care,diligence, and prudence,” it would not seem that a verdict in favor of the defendant should be set aside on the theory that the court, after thus twice explicitly charging that the plaintiff could recover if the defendant had failed to exercise care and skill, nullified this instruction when, in stating the converse of the proposition, he used the words “care, diligence and prudence” instead of the words “care and skill.” But even if the 'instruction indicated must needs be taken as so- inaccurate as would, under ordinary circumstances, necessitate the granting of a new trial, such would not be the case where, as here, it is shown, without dispute, that all reasonable care and skill were used in the setting of the fracture according to a method approved by the medical profession, and where it appears that, so far as the alleged neglect in failing to attend the patient after the limb had been set is concerned, the defense set up by the defendant was not that the patient had been properly looked after, not that he had received either care or skilled attention, during the period immediately following the setting of the fracture, but that such neglect was not his neglect, but the neglect of another physician, who had the case in charge, and where, so far as relates to the subsequent treatment given by the defendant after he had again taken hold of the case, the court specifically, and without any sort of possible qualification or equivocation, charged the jury that the defendant was required to exercise all reasonable care and skill.

3. The pressure of the.case centered upon the disputed issue with respect to the second allegation of negligence; that is, whether the defendant’s service in setting the fracture should have been followed up by attending the patient in order to render any needed treatment, or whether this duty devolved upon the other physician, who, the defendant contended, was the physician in charge. Upon this issue, as upon the other disputed issue involved in the third allegation of negligence, the evidence, while in conflict, was such as fully to warrant the jury’s finding in favor of the defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
      18169.

    DONNELLY COMPANY v. MILLIGAN.
    A discharge in bankruptcy does not release a bankrupt from liability for obtaining property by false pretenses or false representations.
    Where, as in this-ease, in testing, as against a general demurrer, a petition in an action on an account, its allegations show that the account sued on consisted of unusual and extraordinary purchases of groceries, very greatly in excess of any possible reasonable needs of the defendant, and made on the eve of bankruptcy and. when he was aware of his insolvency and his inability to pay for .them, and that the goods were bought in contemplation of fraudulent bankruptcy, it can not be held that the alleged facts show such an ordinary relation of debtor and creditor as would take from the jury the consideration of the question of fraud.
    The petition not being subject to general demurrer, though subject to the special demurrer, and the judge having sustained both the special and the general demurrer, without giving the plaintiff an opportunity to amend, the judgment is reversed.
    Appeal and Error, 4 O. J. p. 747, n. 42; p. 1165, n. 47, 50.
    Bankruptcy, 7 O. J. p. 400, n. 23; p. 417, n. 88.
    Decided December 15, 1927.
    Complaint; from city court of Macon—Judge Hall. April 25, 1927.

      John J. McCreary, for plaintiff.

      Jaclcson & Jackson, for defendant.
   Jenkins, P. J.

1. A discharge in bankruptcy does not release a bankrupt from liability for obtaining property by false’ pretenses or false representations. Orr Shoe Co. v. Upshaw, 13 Ga. App. 501 (2) (79 S. E. 362); Brandt v. Klement, 20 Ga. App. 664 (93 S. E. 255). False representations may consist in the purchasing of goods with no present purpose of paying for them, and in contemplation of a fraudulent insolvency, and ordinarily it is a question for the jury to determine from the evidence whether the circumstances adduced, even though they be slight, are sufficient to carry conviction of the existence of such fraud. Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299 (2) (68 S. E. 1077). While it has been held that the mere fact that a defendant procured credit for an ordinary current purchase of goods, and subsequently failed to meet his obligation, 34 days prior to voluntarily going into bankruptcy, was not of and within itself sufficient to establish that he purchased the goods with no present intention of paying therefor, but in contemplation of a fraudulent insolvency, since ordinarily the breach of a promise to perform some act in the future, especially a promise to pay money, is not, of and within itself, sufficient to establish fraud in legal acceptation (Brooks v. Pitts, 24 Ga. App. 386, 100 S. E. 776), still where, as here, in testing a petition as against general demurrer, its allegations show that the account sued on consisted of unusual and extraordinary purchases of groceries, very greatly in excess of any possible reasonable needs of the defendant/ and made on the “very eve of bankruptcy,” while the purchaser was aware of his insolvency, and of his inability to pay therefor, and that the goods were bought in contemplation of a fraudulent bankruptcy, it can not be said that the facts alleged set forth such an ordinary relation of debtor and creditor as would take from the consideration, of the jury the question of fraud.

2. “When a demurrer containing several grounds (some of the grounds being directed to the merits, and some special in their nature) is sustained and the petition is dismissed, there is no presumption that the ruling was based upon the special grounds of the demurrer rather than upon the general, but the judgment will be treated as sustaining the demurrer as a whole and upon all of the grounds therein contained, and the judgment of dismissal will be affirmed, if this judgment was right for any reason which was presented by the general demurrer.” Pennington v. Douglas &c. Railway Co., 3 Ga. App. 665 (60 S. E. 485). In the instant case the petition was subject to special demurrer, but not subject to dismissal on general demurrer. In such a case,—that is, where the court sustains both general and special demurrers and dismisses the action, but without giving the plaintiff opportunity to amend,—the judgment will be reversed if it appears that the general demurrer was improperly sustained. The proper judgment on a special demurrer, going only to the meagerness of the allegations, is not a peremptory judgment of dismissal, but a judgment requiring the plaintiff to amend and to make his petition more certain in the particulars wherein he has been delinquent. McSwain v. Edge, 6 Ga. App. 9 (2) (64 S. E. 116). Whether upon the petition being amended to meet the special demurrers it will then appear to set forth a cause of action, must be left for further action in the trial court.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Jenkins, R. J.

text:
    18184.
    Chalker & Russell v. Savannah Motor Car Co. Inc.
    Appeal and Error, 4 O. J. p. 852, n. 56.
    Bailments, 6 C. J. p. 1139, n. 2.
    Costs, 15 C. J. p. 89, n. 54 New.
    Trover and Conversion, 38 Cyc. p. 2096, n. 65; p. 2109, n. 88.
   Jenkins, R. J.

1. The remedy of a mechanic who has made repairs for a vendee upon machinery held by him under a title-retention contract is by paying the vendor the balance of the purchase-price of the property due by the vendee, and then subjecting the property to the mechanic’s lien for the labor and material furnished under his contract with the vendee. Baughman Automobile Co. v. Emanuel, 137 Ga. 354 (73 S. E. 511, 38 L. R. A. (N. S.) 97).

2. In a trover suit brought by the reservation-of-title owner against a mechanic in possession of the property, the court did not err in rejecting the proffered amendment to the plea of the defendant mechanic, which undertook to set up that the repairs were made by the defendant for the vendee of the automobile, and that the veiidee “was authorized by the said plaintiff [vendor] to have said car repaired,” since the effect of such a proposed amendment would go merely to indicate that the vendee was acting in the matter of having the car repaired with the approval of the vendor, and not that the vendor had obligated itself to be responsible for the cost thereof, the effect of the allegation set forth in the proposed amendment amounting to nothing more than the provision set forth in the contract of purchase and sale whereby the purchaser was authorized and obligated to keep the car in repair at her own expense.

3. “In actions for the recovery of personal property, if the defendant at the first term will tender the property to the plaintiff, together with reasonable hire for the same since the conversion, disclaiming all claim of title, the costs of the action shall be paid by the plaintiff, unless he can prove a previous demand of the defendant, and a refusal to deliver it up.” Civil Code (1910), § 4494. However, “a tender in trover must embrace all the property claimed by the plaintiff, and must be unconditional.” Georgia &c. Ry. Co. v. Blish Milling Co., 15 Ga. App. 142 (8) (82 S. E. 784). Accordingly, the requirements of the code-section quoted can not be taken as having been met when the alleged tender of the automobile consisted of an offer to return it stripped of various parts of the machinery with which it was equipped when received by the defendant, and likewise stripped of the various portions of the equipment which had been substituted for the original equipment by the defendant mechanic.

Decided December 15, 1927.

Certiorari; from Chatham superior court—Judge Meldrim. April 16, 1937.

Statement oe eacts by Jenkins, P. J.

This was a suit in trover instituted in the city court of Savannah by Savannah Motor Car Company Inc., the vendor of an automobile under a recorded contract of purchase and sale reserving to it the title to the property, against Chalker & Bussell, mechanics to whom the vendee had carried the automobile for the purpose of having it repaired. The defendants, in answer to the suit, undertook to plead a tender back of the automobile, and also to set off the repair bill on the same in the sum of $366.76. A verdict for $571.15 having been rendered in favor of the plaintiff, the case was taken by certiorari to the superior court. The judge of the superior court overruled the certiorari, accompanying his judgment with the following written opinion: “The writ of certiorari should not be granted unless it clearly appears that there has been substantial error committed by the court below. Reference to the grounds set out in the petition and the answer of the learned judge of the city court to. the writ forces the conclusion that no substantial error has been committed. The only question raised that has given me any serious concern is the ruling of the court below in sustaining the demurrer to the amended answer. On August 31, 1926, the defendants amended their answer, and to that amendment the plaintiff demurred, which demurrer was sustained on December 11, 1926. The second paragraph of the amendment is in these words: That the said Lizzie Myers was authorized by the said plaintiff to have said car repaired.’ It will be remembered that Savannah Motor Car Co. sold to Lizzie Myers a car, retaining title. The contract of sale was recorded 10th September, 1925, and among other stipulations contained the following: ‘I (Lizzie Myers) agree at my own expense to keep said motor-car in good repair and running order.’ It was further agreed that the title to, ownership in, and right of possession of said car are vested in the vendor.’ It appears that Lizzie Myers, the vendee, took the car to the defendants in the trover case for repairs, and a bill of $366.76 was incurred. It appears that certain parts of the car had been removed by the defendants and sent to the factory for new parts. The defendants tendered to the plaintiff in trover the car as it stood in their possession at the time the suit was brought, which tender was rejected. The plaintiff sought to recover $571.15, the same being the alleged value of the car, and for this amount a verdict was rendered in favor of the plaintiff.

4. The court correctly charged the jury that the agreed contract price of the property as between the vendor and vendee was not to be taken as the measure of damages in a suit against one who was not a party to that contract. The court further correctly charged them that the measure of- damages was the highest proven value of the property between the date of the conversion and the time of the trial. There was proof for the plaintiff going to show that the market value of the property when taken over by the defendant for repairs was from $1,000 to $1,200, whereas the amount of the recovery was in the sum of $571.15. The jury were authorized to infer that the value of the automobile after it had been repaired by the defendant, at which time delivery to the plaintiff was refused, had not been diminished so as to reduce the value below the amount of the recovery, and the court did not err in allowing the plaintiff to prove its value at the time it was taken over by the defendant for repairs in order to establish its value at the time its surrender was refused after the repairs had been made.

5. The evidence demanding a verdict in favor of the plaintiff, and authorizing the verdict in the amount rendered, under the rules of law stated above, none of the exceptions taken would authorize the reviewing court to set aside the verdict and judgment. The judge of the superior court properly overruled the defendant’s certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

“The contention on the part of the plaintiff in certiorari was that Lizzie Myers brought the car to them for repairs, and that she was authorized to have the car repaired. This contention forms the amendment of the defendant, it is that Lizzie Myers was authorized by the plaintiff to have said car repaired. Judge Freeman struck that amendment. The question is: Did he err in so striking it?

“The car belonged to the Savannah Motor Car Company. No one without authority could bind it for repairs. It is insisted that Lizzie Myers was authorized to bind the Savannah Motor Car Company, and for the reason that under the terms of the contract the vendee agreed to keep said motor car in good repair and running order. The defendants, Chalker & Bussell, were bound to take notice of the terms of the contract between Lizzie Myers and the Savannah Motor Car Company. By reference to that recorded retention-title contract, it appears that the repairs were to be at the 'expense of Lizzie' Myers. Not only is this true, but Lizzie Myers could not bind the Savannah Motor Car Company without authority from it. It is not pretended that the Savannah Motor Car Company gave any authority to Lizzie Myers to bind the company. If she acted in a representative capacity, it could only have been as a special agent, and a party dealing with a special agent is bound to inquire into the power of that agent. While it is true that the averment in the amendment to the answer is that Lizzie Myers was authorized by the plaintiff to have said car repaired; yet, in view of the uncontradicted written contract of sale between the parties, Lizzie Myers had no such authority, but on the contrary it was expressly agreed that the repairs should be made at her own expense. This amendment that Lizzie Myers was authorized to have the said car repaired, therefore, was a mere conclusion of the pleader, and was in direct conflict with the uncontradicted and admitted written contract. Hence it follows that no error was committed by the learned judge in striking that amendment.”

Lewis A. Mills, Henry McAleer, for plaintiffs in error.

I. G. Farthing, Joseph T. Hill, contra.


author: Bell, J.

text:
    18186.
    Rowe v. Peoples Credit Clothing Company.
    Garnishment, 28 O. J. p. 21, n. 92; p. 23, n. 5; p. 354, n. 14 New.
    Judgments, 34 C. J. p. 345, n. 70.
   Bell, J.

1. “A garnishment proceeding makes a case separate and distinct from that in aid of which it is instituted. . . The defendant in the main ease is not a party to a garnishment which is undissolved; and in such a case he will not be heard to complain of the judgment rendered in favor of the plaintiff against the garnishee.” Jones v. Maril, 19 Ga. App. 216 (1, 2) (91 S. E. 445); Farmers & Traders Bank v. University Publishing Co., 9 Ga. App. 128 (5) (70 S. E. 602); Warner v. Burkhalter, 22 Ga. App. 71 (2) (95 S. E. 470).

Decided December 16, 1927.

Certiorari; from Fulton superior court—Judge Moore. April 13, 1927.

Douglas & Douglas, D. D. Andrews, for plaintiff in error.

Carl B. Copeland, Q. N. Bynum, contra.

2. “A third person not a party to the record can not go into court and move to set aside a judgment which is not against him.” Merchants &c. Bank v. Haiman, 80 Ga. 624 (2) (5 S. E. 795); Jones v. Smith, 120 Ga. 642 (6) (48 S. E. 134); Bruce v. Neal Bank, 147 Ga. 392 (94 S. E. 241); Chapman v. Taliaferro, 1 Ga. App. 235, 238 (58 S. E. 128).

3. Applying the above principles, the municipal court did not err in refusing the defendant’s motion, based upon his discharge in bankruptcy, to set aside the judgment in favor of the plaintiff against the garnishee. This case should be distinguished from Warthen v. Melton, 132 Ga. 113 (63 S. E. 832, 131 Am. St. R. 184), in which a judgment against the garnishee was set aside on the petition of the defendant on the ground of fraud. Moreover, in that case no question was raised as to whether the judgment against the garnishee could be set aside at the instance of the defendant, who was not a party thereto.

4. The superior court did not err in dismissing the certiorari.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.


text:
    18200.
    Myrick v. Dixon.
    Courts, 15 C. J. p. 987, n.r 83.
    Mechanics’ Liens, 40 C. J. p. 504, n. 84 New.
   Bell, J.

1. An affidavit to foreclose a laborer’s lien may be made before the clerk of a superior court, and this officer may issue the execution thereon. Civil Code (1910), §§ 3366 (4, 5); 4893 (1).

2. Under section 2 of the act of August 18, 1905 (Ga. L. 1905, p. 383), the city court of Thomasville has jurisdiction of a proceeding to foreclose a laborer’s lien (Durden v. Clack, 94 Ga. 278 (2) (21 S. E. 521); Chambliss v. Hawkins, 123 Ga. 361 (51 S. E. 337); Harper v. Tomblin, 127 Ga. 390 (56 S. E. 433); Gunn v. Johnson, 154 Ga. 568 (114 S. E. 709); Park’s Code (1914), § 4831. (b) ) ; and, under sections 15, 18, and 20 of the same act, the clerk of that court has the same power to issue execution in such a proceeding as is conferred by law upon the clerks of the superior courts. Wright v. Davis, 120 Ga. 670 (5) (48 S. E. 170).

3. Where the clerk of the city court of Thomasville, in issuing an execution upon the foreclosure of a laborer’s lien, omitted to make the execution bear test in the name of the judge of that court, the omission, if constituting a defect, was not fatal, but could be corrected by amendment. Ga. L. 1905, p. 383, §§ 27, 29, 30, 39; Winn v. Butts, 127 Ga. 385 (56 S. E. 406); Brewer v. Settle, 144 Ga. 180 (86 S. E. 545, and cit.

Decided December 16, 1927.

Laborer’s lien foreclosure; from city court of Thomas ville— Judge MacIntyre. April 2, 1927.

Tiius & Deicle, for plaintiff in error. J. E. Oraigmiles, contra.

4. The court did not err in permitting an amendment of the execution, nor in refusing to dismiss the proceeding upon any ground taken. This ruling is deemed not to be in conflict with the decision in Woolsey v. Lawshe, 1 Ga. App. 817 (57 S. E. 1039), nor with the decision in any other ease relied on by counsel for plaintiff in error.

Judgment affirmed.

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


text:
    18203.
    Jordan et al. v. Baggett, tax-collector.
    Executions, 23 O. J. p. 587, n. 14.
    Taxation, 37 Oye. p. 798, n. 31 New; p. 1143, n. 27; p. 1230, n. 35 New.
    Trial, 38 Cyc. p. 1565, -n. 84.
   Bell, J.

1. “Taxes shall be paid before any other' debt, lien, or claim-whatsoever, and the property returned or held at the time of giving in, or after, is always subject.” Civil Code (1910), § 1140.

2. As" between the parties to a conditional sale of personalty, the purchaser in possession is the one liable for the taxes; but the public authorities may treat the property as belonging indifferently to either the purchaser or the seller, and may proceed to assess and collect the taxes accordingly. National Bank of Athens v. Danforth, 80 Ga. 55 (7 S. E. 546); Wells v. Mayor &c. of Savannah, 87 Ga. 397 (13 S. E. 442); Morgan v. Burks, 90 Ga. 287 (2) (15 S. E. 821).

3. In the present dase, personal property held by a purchaser under a conditional sale was taxed with other property subject to taxation against him, and was levied on to satisfy an execution against him for the entire amount of the taxes. The sellers filed a claim to such personalty, to which they had retained the title, and tendered a sum which, if the taxes were prorated, would represent the amount due on this property. The other property was sufficient to satisfy the remainder. The person against whom the taxes were assessed was insolvent. Upon proof of these facts, without more, the court directed a verdict in favor of the plaintiff in fi, fa. The claimants excepted to the refusal of their motion for a new trial, in which error was assigned upon this ruling. Held: The State, having proceeded to collect the taxes out of the property liable for their payment, could not be forced to shift to other property and to collect the taxes piecemeal. The verdict in favor of the plaintiff in fi. fa. was demanded as a matter of law, and the court properly gave direction accordingly. Patton v. Camp, 120 Ga. 936 (48 S. E. 361); Brown v. Roach, 31 Ga. App. 476 (120 S. E. 813). Aside from possible intimations, there is nothing in State of Ga. v. Hancock, 79 Ga. 799 (5 S. E. 248), or in Herrington v. Ashford, 157 Ga. 810 (2) (122 S. E. 197), to sustain the present claim, but the case is controlled by the other authorities cited.

Decided December 16, 1927.

Levy and claim; from Laurens superior court—Judge Camp. May 13, 1927.

B. L. Stephens, T. B. Hightower, for plaintiffs in error.

Burch & Daley, contra.

4. The remedy of claim as provided by the Civil Code (1910), § 1159, is not available where the property, as here, is subject to the fl. fa. 'levied thereon. As to whether the claimants are remediless, see Civil Code (1910), § 1145, and cases cited in Clark v. Monroe County Bank, 33 Ga. App. 81 (125 S. E. 603).

Judgment affirmed.

Jenlvins, P. J., and Stephens, J., concur.


text:
    18234.
    Cornelia Bank v. Taylor.
    Executions, 23 C. J. p. 598, n. 44; p. 600, n. 88 New; p. 602, n. 34; p. 604, n. 59.
    Decided December 16, 1927.
   Bell, J.

1. In the trial of a claim case, the fact that the claimant ad-, mitted a prima facie case in favor of the plaintiff in fi. fa. and assumed the burden of proof would not prevent the direction of a verdict in favor of the claimant where, under all the evidence, the prima facie case thus admitted was conclusively rebutted.

2. The circumstance that the automobile,, which was the subject of the levy and claim, had been registered in the office of the secretary of State as the property of the defendant in fl. fa., even with the knowledge. of the claimant, was subject to explanation, and, as explained in" this case, did not constitute a badge of fraud. There was no. material conflict in the testimony, and the evidence established, without dispute and as a matter of law, that the automobile had been furnished by the claimant to the defendant in fl. fa. for the use of the latter in traveling for a certain company, of which the defendant in fl. fa. was an employee and of which the claimant was manager, and that the title to the property was never in the defendant in fl. fa., but was in the ' claimant.

3. The provision of section 5776 (4) of the Civil Code (1910), upon the subject of the admissibility of admissions of defendants in fl. fa. in claim eases, has no reference to the competency of a defendant in fl. fa. as a witness in the trial of such a case, and would be no authority for excluding his testimony on objection of the plaintiff in fl. fa. when offered by the claimant. Compare Civil Code (1910), § 5858.

4. The court did not err in the admission of testimony, nor in directing the verdict in favor of the claimant.

Judgment affirmed.

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

Levy and claim; from Habersham superior court—Judge I. H. Sutton. March 17, 1927.

Hamilton Kimsey, J. C. & H. H. Edwards, for plaintiff.

McMillm & Erwin, McElreath & Scott, for defendant.


text:
    18257.
    SAVANNAH RIVER LUMBER CO. v. BUSH.
    In this case, which arose under the workmen’s compensation act, there being sufficient competent evidence to support the order of the industrial commission denying compensation, the superior court erred in sustaining the claimant’s appeal.
    Workmen’s Compensation Acts, C. J. p. 72, n. 69; p. 73, n. 76; p. 84, n. 60; p. 115, n. 23,' 25, 36, 37; p. 122, n. 40; p. 125, n. 72.
    Decided December 16, 1927.
    Appeal; from Effingham superior court—Judge Strange. May 14, 1927.

      Hitch, Eenmark & Lovett, for plaintiff in error.

      Eon. H. Clark, contra.
   Bell, J.

Clara Bush filed a claim, under the workmen’s compensation act, against Savannah River Lumber Company, as employer, for compensation for the death of her husband, Noble Bush. Her claim having been denied by the industrial commission, and her appeal to the superior court having been sustained, the lumber company excepted.

The decedent had been engaged for a number of years in cutting timber of the lumber company and in drifting the same in rafts upon the Savannah river and its tributaries to the company’s mill at the city of Savannah. He received a compensation of $7 per thousand feet by the company’s measurements at the mill. There is some question as to whether he was an employee of the lumber company or a subcontractor under another, whom the company had engaged to log its mill on the basis of $8 per thousand feet delivered. The industrial commission assumed, without deciding, that the decedent was the company’s employee, and denied the claim, upon a .finding that the decedent’s death did not arise out of and in the course of his employment. • The evidence tended to show the following facts: The timber which the decedent was engaged in cutting was in Bear Creek swamp,- apparently adjacent to the Savannah river. On February 1, 1926, he left home with the intention of going to his work, and in order to get there it was necessary for him to go down Mill creek into Little Abercorn creek and then up Raccoon creek. He failed to return home that night, and the next morning his boat was found in Mill creek and contained his tools, a gun, and some raw food materials. Three weeks and three days later his body was found in Mill creek, about a quarter of a mile from the point where the boat was found. There were no bruises on his body and the circumstances pointed to death by drowning. Certain witnesses supposed that while rowing the boat his body collided with a leaning tree which caused him to fall overboard. His boat had lodged near this tree and his body was further áway. The location of each, however, was more than two miles from Bear Creek swamp, where the decedent worked. The boat was the property of the decedent and there was nothing to show that the lumber company was in any way concerned with his route or with the means of his transportation to and from his place of labor. He was at liberty to work when he pleased, and, so far as appears, would go and come upon his own responsibility.

Granting, as did the industrial commission, that the relation of master and servant was duly established, the evidence authorized the inference that the decedent was not in the course of his employment at the happening of the event which caused his death. Under the facts appearing, he was not in the employment of the company while going to or returning from Bear Creek swamp, the place where he worked, but in doing so he was his own master and was subject to the will and order of no other person. Ga. Ry. & Power Co. v. Clore, 34 Ga. App. 409 (129 S. E. 799). This case is distinguished from the case of New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786), in which it appeared that the decedent was a traveling salesman and that it was not only expected but preferred by his employer that he should travel by automobile. In the present case the industrial commission found that the decedent was returning from his work, whereas it is said by counsel for claimant that the evidence demanded a finding that he was going to his work. The difference of opinion upon this point is not material.

Furthermore, even assuming that the decedent met his death by drowning, it is, under the evidence, the merest conjecture that he was thrown overboard by colliding with a tree, or that his death was in any way caused by his employment. For aught that appears, he may have been engaged in some temporary pursuit entirely disconnected from his employment, or his death may have been caused by some agency unrelated to his employment and not within the purview of the statute. The obligation of the employer under the workmen’s compensation act is not that of an absolute insurer, and the burden is upon the claimant to prove a case to which the statute is applicable. Even though it may be true in this case that the decedent’s death did in fact arise out of his employment, there is no evidence of the fact, and liability can not be imposed merely because the actual circumstances are incapable of proof. It is more consistent with legal justice that a given case should fail for want of evidence than that it should succeed merely because the truth can not be shown. To allow a claimant to prevail under no more evidence than appears in the present record would be either to' act without evidence or to make the employer an absolute insurer, and, to say the least, this, in the words of Judge Bleckley, would be to do that which has not been done before. The burden was upon the claimant to prove that the decedent’s death arose in the course of his employment and also out of. it. In neither particular did the evidence demand a finding in favor of the claimant. The commission’s findings, being supported by evidence, were conclusive, and in such a case an appeal by the losing party is, as a matter of law, without merit. The judge of the superior court can not legally set aside an order of decree of the industrial commission where there is any competent evidence to sustain it. In this kind of case he has not that discretion which he may exercise in passing upon a motion for a first new trial or. a petition for certiorari, where the evidence would have authorized a finding or judgment for either party. The superior court erred in sustaining the appeal. Maryland Casualty Co. v. England, 160 Ca. 810 (129 S. E. 75); U. S. Fidelity & Guar. Co. v. Hall, 34 Ga. App. 307 (129 S. E. 305).

Judgment reversed.

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


text:
    18072.
    GEORGIA RAILROAD & BANKING COMPANY v. DAWSON.
    1.' Ordinarily the only duty which a railway company owes to a trespasser voluntarily exposing himself to injury upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered (Ashworth v. Southern Railway Co., 116 Ga. 635, 43 S. E. 36, 59 L. R. A. 592), but a failure to exercise ordinary care to prevent injury to a trespasser after his presence has in fact become known, may amount to wantonness. Charleston &e. Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064). And where wilful or wanton negligence has been shown, contributory negligence on the part of the trespasser, however gross, will not defeat a recovery. Lowe v. Payne, 156 Ga. 312, 316 (118 S. E. 924) ; Central of Ga. Ry. Co. v. Thompson, 25 Ga. App. 715 (104 S. E. 515); Central of Ga. Ry. Co. v. Pelfrey, 11 Ga. App. 119 (74 S. E. 854). It is the general rule that the company is authorized to act on the presumption that a person apparently of full age and capacity who is discovered standing or walking along or near its tracks will leave it in time to save himself, but in a case where a trespasser has been discovered in such an'exposed position, and he is seen to be in an apparently incapacitated or helpless condition so that he could not reasonably be expected to extricate himself from his peril, a duty devolves upon the company thereafter to take such special measures for his protection as ordinary prudence would suggest, and its failure to do so may be accounted as the equivalent of wilful and wanton negligence. Lowe v. Payne, supra.

      (a) The undisputed testimony in support of the first count of the petition, alleging wilful and wanton negligence, shows that the operators of the locomotive actually discovered the presence of the deceased prior to the homicide, and since there was proof of other facts and circumstances tending to discredit the testimony of such operators as to the eare and diligence exercised by them to avoid the injury, it can not be said, as a matter of law, that the jury were not authorized to find that the servants and employees of the defendant were guilty of such a failure to exercise ordinary care and reasonable diligence to avoid the homicide as would, under the circumstances, amount to wilful and. wanton negligence as charged.
    2. While one who voluntarily exposes himself in a position of peril upon the tracks. of a railway company, even though at a place where and at a time when the agents and servants of the company are under a duty to anticipate his presence, may be guilty of such contributory negligence, amounting to a lack of ordinary care, as will bar a recovery for his homicide, where it appears that the failure of the defendant to anticipate his presence amounts to no more than mere negligence (Lowe v. Payne, supra; Lowe v. Payne, 31 Ga. App. 388, 120 S. E. 691; Ai

      la/ntic Ooast Lime R. Oo. v. Fulford, 159 Ga. 812, 33 Ga. App. 631, 127 S. E. 274, 812), still if the presence of such person in a position of peril is, at the time and place of the injury, explained to have been brought about by reason of facts and circumstances beyond his control, such as would relieve him from the guilt of a lack of ordinary care in thus exposing himself, he can not be said to have been guilty of such contributory negligence as will bar a recovery on account of an injury resulting from a lack of ordinary care on the part of the defendant. Snowball v. Seaboard Air-Line Ry., 130 Ga. 83 (60 8. E. 189) ; Wright v. Southern Ry. Co., 139 Ga. 448 (77 S. E. 161) ; Central of Ga. Ry. Co. v. Thompson, supra; Young v. South Ga. Ry. Co., 34 Ga. App. 537, 539 (130 S. E. 542); Central of Ga. Ry. Co. v. Bridwell, 34 Ga. App. 77 (128 S. E. 238).

      Appeal and Error, 4 O. J. p. 905, n. 41. Railroads, 33 Cyc. p. 769, n. 75; p. 770, n. 77; p. 771, n. 78; p. 800, n. 25; p. 804, n. 46; p. 805, n. 50; p. 823, n. 51, 52; p. 840, n. 78; p. 842, n. 89; p. 857, n. 78; p. 906, n. 48; p. 909, n. 71.

      {a) While the evidence in support of the first count by which the plaintiflf sought to account for and excuse the presence of the deceased in a helpless condition on the track of the defendant at the- time and place of the homicide was entirely circumstantial, it can not be said, as a matter of law, that it was insufficient to account for his predicament, and to negative the defendant’s theory of drunkenness.
    3. Since the verdict is authorized by the evidence on each of the counts of the petition, and no error of law is complained of, it can not be held that the court erred in overruling the motion for a new trial.
    Decided December 17, 1927.
    Damages; from city court of Richmond county—Judge Black. March 11, 1937.
    Ida Dawson brought suit against the Georgia Railroad and Banking Company for the death of her husband, who was alleged to have been killed by the operation of a locomotive of the lessees of the defendant company. The petition is in two counts. By the first count it is alleged that the deceased was near the tracks of the defendant at about 5 o’clock on the morning of December 35, 1934, when, without warning, he was overcome by unconsciousness and staggered and fell upon the track of the defendant, and was run over and killed by a locomotive of the lessees, running “rear end foremost” and unmanned by an engineer. It is allegedthat the track of the defendant was used by persons living in the vicinity as a walk-way, continuously during the day and at night, and that the track was being used for that purpose by the deceased at the time of the' homicide; that this condition was known to the lessees of the defendant, their servants and agents, and that it thereby became their duty to anticipate the presence of the deceased; that the servants of the lessees operating the locomotive discovered the presence of the deceased a sufficient distance away to have stopped the train and avoided killing him; that Ire was' in the exercise of all ordinary care and diligence, and that the lessees were negligent in that the engineer abandoned his post of duty and did not maintain his lookout ahead; in not using every means available, after the discovery of the deceased upon the tracks, to avoid running down and killing him; in not having the locomotive under proper control; and that the lessees and their agents were guilty of wilful and wanton negligence in not stopping the locomotive after the discovery of the presence of the deceased upon the track. By the second count of the petition it is alleged: that the lessees were negligent in not anticipating the presence of the deceased upon the track at the point where and at the time when he was killed; in not keeping a lookout at the time ■ and place of the homicide;'in not discovering the presence of the deceased in time to avoid running over and killing him, and that, “by reason of the unconscious condition of the deceased, he could not, by the exercise of the degree of care of which he was capable at the time, have avoided the consequences to himself of the negligence of the lessees, their agents and servants.”
    The proof shows that the deceased was subject to fainting spells or fits, at which times he would fall unconscious. On the night of the homicide he left his home to work at a barber shop, where he remained until near midnight. His co-worker in the barber shop testified that the deceased did not seem to be well; also that the deceased was not under the influence of liquor. It appeared from the evidence for the defendant that later in the night the deceased was at the home of a woman witness, who testified that he was under the influence of liquor, and that she requested another witness to take him away; that he left there about 3 o’clock in the morning. The .homicide took place between 4 and 5 o’clock. The undertaker who embalmed the body and a policeman who went to the scene of the accident and examined, the corpse testified that they discovered no odor of liquor upon the person of the deceased, and found no bottle about his person. The engine crew consisted of the engine foreman, two switchmen, the fireman, and the engineer. At the time of the homicide the foreman was operating the locomotive, the engineer having requested him to do so while he (the engineer) made some adjustment about the injector. The foreman testified that the engine was running at a speed of between ten and fifteen miles per hour; that he could not see very far -ahead, on account of a heavy mist which was falling, but that the light on the tender was sufficient; that he suddenly discovered what seemed to be a bundle of clothing-on the track about ten or fifteen feet ahead of the locomotive; that he immediately applied the emergency brakes, and stopped the engine and tender almost within their own length; that the body of the deceased was found immediately in the rear of the locomotive,. a distance of about five or six feet back, and that one of the deceased’s feet had been severed, and was lying a very short distance from the body. The other members of the engine crew corroborate the foreman as to the speed of the locomotive and the use of the emergency brakes, and the distance the body of the deceased was lying behind the locomotive. It appears from the evidence that the foreman had considerable experience in the operation of locomotives; that, at the time, the engine and tender were “backing up,” and that he was seated on the engineer’s box looking ahead, that is, in the direction in which the locomotive and tender were proceeding. Two policemen who went to the scene of the homicide immediately after the 'homicide testified that the body of the deceased had been dragged a distance of sixty-five yards; that the severed foot was lying near the track a distance ’of sixty-five yards from the body, and that they found bits of flesh and clothing scattered along the track over the intervening distance, and that the condition of the track indicated that the body had been dragged to where it was found. The jury returned a verdict in favor of the plaintiff for $1,000. A motion for a new trial was filed by the defendant, which contained the usual general grounds only, and exception is here taken to the overruling of that motion.

      Gumming & Harper, W. Inman Gurry, for plaintiff in error.

      Hammond & Kennedy, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Counsel for the plaintiff in error contend that the proof offered by the plaintiff under the second count of the petition, seeking to explain and excuse the presence of the deceased prone and helpless upon the track, merely raises a reasonable suspicion or conjecture that the explanation offered might possibly be true, but can not be taken to constitute evidence of probative value establishing such theory as actually true,-citing Gainesville &c. R. Co. v. Edmond- son, 101 Ga. 747, 751 (29 S. E. 213). While the contention is not without force, we are of the opinion that the jury were authorized to find that the explanation offered, as supported by the proved facts and circumstances, amounted to more than the setting up of a mere possibility, and that the jury were authorized to find as a matter of fact that the explanation thus presented constituted the most reasonable and most probable solution which could be rationally drawn in explanation of the unusual and extraordinary situation. See, in this connection, Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 S. E. 542). The plaintiff, in seeking to account for the presence of the deceased lying prone and helpless upon the track, introduced evidence in support of its exculpatory theory of sudden illness, while the defendant submitted testimony in support of its defensive theory of drunkenness. Upon the issue of drunkenness the evidence was in conflict, but the jury were authorized to find against the contention of the defendant and in favor of that of the plaintiff. The predicament of the deceased being most extraordinary in character, the jury were authorized to find as a matter of fact that if it was not occasioned by drunkenness, it would reasonably have to be taken as due to an attack of the sudden illness to which deceased was shown to have been subject, and which, tliere was some slight evidence going to show, might have been then impending. When a situation is proved to exist of such peculiar, unusual, and extraordinary character that it can properly be said that only certain given explanations are reasonably possible, and that no other is reasonably probable, the true explanation can be logically and legally established by eliminating the alternative theories of causation. In the instant case the jury were authorized to believe that the extraordinary condition and situation of the deceased was due either to sudden illness or to drunkenness on his part. Having rejected the evidence supporting the theory of drunkenness and accepted the evidence disproving it, they were authorized to find that the explanation offered by the plaintiff, as supported by the proved facts and circumstances, was true, and constituted the only rational and probable explanation of the undisputed peculiar situation.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18163.
    Wheeler v. Mote.
    Appeal and Error, 3 O. J. p. 969, n. 46.
    Landlord and Tenant, 36 C. J. p. 539, n. 13; p. 540, n. 14, 15; p. 586, n. 2 New.
   Jenkins, P. J.

1. Where it appears that on the first trial of a distress warrant the court granted a nonsuit, and that upon the hearing of the plaintiff’s motion for a new trial the defendant moved to dismiss the motion on the ground that the movant had failed to present an approved brief of the' evidence, and where it appears that the judge passed an order overruling the motion to dismiss, to which ruling exceptions pendente lite were taken by the defendant, and that thereafter the trial judge, without any brief of the evidence having been presented, proceeded to grant the motion for a new trial, to which action in granting a new trial the defendant failed to except, but proceeded to enter upon the second trial of the cause which terminated in favor of the plaintiff, the defendant, in reviewing the judgment rendered at the second trial, can not be heard to complain of the alleged previous error of the judge in refusing to dismiss the plaintiff’s previous motion for a new trial. This is true for the reason that when the defendant failed to except to the previous final judgment of the court in granting plaintiff a new trial, the questions raised by the exceptions pendente lite became moot and immaterial.

2. If, without the consent of the landlord, the tenant is seeking to remove his goods from the rented premises, the landlord is authorized to dis-train for rent, even before it becomes due. Civil Code (1910), § 3700. The intent and purpose of an agricultural tenant in removing crops grown on the rented premises is immaterial. Daniel v. Harris, 84 Ga. 479, 480 (10 S. E. 1013); Jones v. Eubanks, 86 Ga. 616, 621 (12 S. E. 1065); Little v. Lary, 12 Ga. App. 754 (78 S. E. 470). Where, however, the rent of an agricultural tenant is payable in specifics, and where, under the terms of the rent agreement, the produce is to'bé delivered by the tenant by a certain date and at a warehouse beyond the limits of the rented premises, the tenant is authorized, in compliance with the terms of the rent agreement, to remove the produce called for by the contract to the place designated by the agreement, and to hold the same for the landlord in the place thus specified pending the maturity of the rent obligation. In such a case it is not a question of intent in violating the statute, it is not a question of whether the tenant has innocently violated the rights of the landlord under the statute, but the question to be determined is whether he has violated them at all in thus removing the produce in order to conform with his obligation under the contract. Under the law the right- of possession of the produce remains in the tenant until the rent becomes due, but under the statute he must maintain such possession upon the rented premises until the rent has been paid, except that when delivery is required at a storage place beyond the limits of the rented premises, he may accumulate the produce at the place specified for delivery and hold it until the time fixed for performance.

3. In accordance with the rule stated in the foregoing division of the syllabus, irrespective of whether or not there existed any issue of fact as to whether portions of the crop were removed from the premises other than the bale of cotton which it was admitted had been taken to the warehouse specified by the rent contract, the court erred in charging the jury to the effect that any removal of the produce from the rented premises, irrespective of the rights and duties of the tenant under the rent contract, would authorize the issuance of a distress warrant prior to the maturity of the rent obligation.

Decided December 17, 1927.

Distraint; from Barrow superior court—Judge Stark. April 26, 1927.

Richard B. Russell Jr., for plaintiff in error.

J. G. Pratt, G. A. Johns, contra.

Judgment reversed.

Stephens cmd Bell, JJ., concur.


text:
    18168.
    Citizens Bank of Moultrie v. Moultrie Banking Company.
    Executions, 23 O. J. p. 604, n. 59, 61.
    Decided December 17, 1927.
    Levy and claim; from Colquitt superior court—Judge W. E. Thomas. April 15, 1927.
    Statement of facts by Jenkins, P. J.
    The Citizens Bank of Moultrie levied its execution against Mrs. N. B. Marchant and J. J. Marchant upon certain live stock, farming implements, and crops, and the Moultrie Banking Company interposed a claim. On the trial of the claim case the judge directed a verdict in favor of the claimant. The only proof offered by the plaintiff in fi. fa. was its execution, with the entry of the levying officer showing that the property levied upon was found in the possession of the defendants in fi. fa. The only evidence offered by the claimant, besides a deed to it from the defendants in fi. fa. to the land on which they resided, dated December 31, 1924, and antedating the execution, which issued upon a judgment dated April 9, 1925, was the testimony of James Benenson, who described himself as a director and field agent in charge of the land owned by the claimant. He was examined at great length, both by the claimant and by the plaintiff in fi. fa. The effect of this witness’s testimony was that the claimant had paid off a long loan against the land, and had taken title thereto, and had also paid off or taken up a number of mortgages against the personal property, and had taken over the personalty. He testified that he had personally seen these mortgages, and that they aggregated a sum much in excess of the value of the property taken over. He further testified that all the live stock and personal property on the premises was owned by the claimant bank, and that the defendants in fi. fa. had turned over all of the same, including that levied upon, to him as the representative of the bank, except that a portion had been bought for the farm by the witness; that whenever any of the personal property was sold, the claimant bank obtained the proceeds therefrom, and that all of the property was returned for taxation by the bank, although he refused, on cross-examination, to say positively that the bank paid taxes on any hogs or cattle. The purport of the claimant’s evidence is that it had taken over the land and all the personal property, and that the defendants in fi. fa. continued to live on the place and cultivate it; that after turning over all the property they did not owe the claimant anything; that they were paying no rent and received no wages, but that they derived their living from the place, including rations furnished by the claimant, and that on one occasion the claimant had given specific permission for the defendants in fi. fa. to kill one of the hogs for consumption; that the claimant bank did not want the property, and was willing, if the defendants in fi. fa. ever got in position to redeem it, to let them have it back.
   Jenkins, P. J.

While the evidence of the claimant bank’s official, the only witness in the ease, was not altogether clear and comprehensive concerning all the matters testified to, yet since it was altogether undisputed, and since it was distinct and positive upon the salient issue of title, and since every reasonable deduction which could be drawn from his entire testimony went to establish the claimant’s ownership of the property, the court did not err in directing a verdict accordingly.

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.

Waldo DeLoachs, for plaintiff.

P. Q. Bryan, W. G. Martin, for defendants.


text:
    18187.
    Reed v. Southern Railway Company.
    Negligence, 29 Oye. p. 635, n. 68; p. 640, n. 13, 16; p. 641, n. 23.
    Railroads, 33 Cye. p. 968, n. 8; p. 969, n. 10; p. 985, n. 3, 4; p. 1003, n. 96; p. 1038, n. 4; p. 1040, n. 9, 10; p. 1084, n. 3; p. 1097, n. 88; p. 1099, n. 98; p. 1117, n. 91; p. 1121, n. 19; p. 1122, n. 23; p. 1128, n. 64.
   Jenkins, P. J.

1. “When those in charge of a railway-train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are, that the injury was done by the consent of the person injured; or that by the observance of ordinary care he could have avoided the injury; or, in mitigation of damages, that his negligence contributed to it.” Bryson v. Southern Ry. Co., 3 Ga. App. 407, 408 (59 S. E. 1124); Harden v. Ga. R. Co., 3 Ga. App. 344 (59 S. E. 1122).

2. Where a person injured by the running of a railroad-train could, “by the.exercise of ordinary care for his own safety, have avoided the consequences to himself of the defendant’s negligence after it came into existence and was known to him, or could have been discovered by the exercise of ordinary care, an action for damages against the railroad company on account of negligence will not lie.” Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (5) (89 S. E. 841); Civil Code (1910), §§ 2781, 4426.

3. “In this State it is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening.” Bryson v. Southern Ry. Co., supra; Tennessee &c. Ry. Co. v. Neely, 27 Ga. App. 491 (2), 494 (108 S. E. 629); Davis v. Whitcomb, 30 Ga. App. 497 (5), 498 (118 S. E. 488). Accordingly, such an attempt to cross the track by one not aware of the approach of a train can not, as a matter of law, be said to constitute such contributory negligence as will bar a recovery. If, however, such a person, before attempting to cross the track, actually did stop, look, and listen, and if upon doing so he must necessarily have discovered the approaching train, it would be immaterial whether the railroad company was negligent in that those in charge of the train did not comply with the statutory requirement to give warning of its rapid approach, by blowing the whistle, since such warning could have done no more than apprise him of something he must necessarily have already known. Murphy v. Ga. Ry. &c. Co., 146 Ga. 297 (4), 299 (91 S. E. 108).

4. It can not be said, with any degree of moral or reasonable certainty, that if the plaintiff in the instant ease had stopped, looked, and listened, as he swore he did, before entering ■ upon the crossing, he must necessarily have seen or heard the approaching train. The evidence with reference to the growth of cane and other vegetation along the right of ■way is somewhat vague. It is not clear how close to the cane the plaintiff was at the time he claims to have stopped to- look and listen for the train, but, from the evidence as adduced, if he was then close enough to such obstruction, it could have prevented his seeing the headlight of the rapidly approaching train; and if the train was then coasting down grade, as the evidence in the record might seem to indicate, such might constitute a special reason why he might not have been able to hear its approach. Under the general rule that questions of negligence, including contributory negligence, questions as to what negligence constitutes the proximate cause of the injury, and questions as to whether the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence after. it had’ or should have become known, are such as lie peculiarly within the province of the jury to determine (L. & N. R. Co. v. Stafford, 146 Ca. 206 (91 S. E. 29); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413 (91 S. E. 517); Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528, 530 (134 S. E. 126)), this court will not hold, as a matter of law, that the injury to the plaintiff was proximately caused by reason of his lack of ordinary care in entering upon the track as he did.

Decided December 17, 1927.

Action for damages; from Whitfield superior court—Judge Pittman. April 5, 1927.

Statement oe eacts by Jenkins, P. J.’

Seed brought two damage suits against the Southern Eailway Company, one for personal injuries, and the other for the value of two mules alleged to have been killed and a wagon and harness alleged to have been damaged by the defendant company. By order of court the two cases were consolidated - and tried as one, the allegations of negligence on the part of the defendant and the facts in each case being the same.

The plaintiff alleges that while he was driving his team across the defendant’s track at a public crossing during the nighttime, the team was struck by a passenger-train of the defendant, running at a speed of about fifty miles an hour, both of the mules being killed, the wagon and harness»damaged, and the plaintiff severely injured. ■ It is charged that the defendant was negligent in operating its train at an excessive rate of speed, in not sounding an alarm, bell or whistle when approaching the crossing, in not using due care in approaching the' crossing so as to avoid injury to the property of the plaintiff, and in that the engineer operating the locomotive failed to keep and maintain a vigilant and constant lookout ahead and along the track, and failed to have the engine under control and to stop it before striking the plaintiff’s team. It is alleged that the plaintiff was in the exercise of due care, that he stopped and listened for a train before going upon the crossing, but that, on account of its excessive rate of speed and the failure to give any warning of its approach, he did not ascertain its approach -until the mules had reached the track just prior to the collision. The proof for the plaintiff showed that he was traveling in his wagon, drawn by the mules, along the public road running parallel to the track of the defendant and going north, that the train was traveling south, that the public road bends sharply to the west to cross the railroad track, that the public road which the plaintiff had been traveling was parallel to the railroad for a distance of more than half a mile, that the railroad-track is perfectly straight for a mile or a mile and a half north of the crossing, and for a half mile south of the crossing, that there was a patch of cane from seven to ten feet high growing along the railroad right of way on the side on which the plaintiff was traveling and beyond the bend in the road referred to, and.that the public-road bed along which he approached the crossing is three or four feet lower than the tracks of the railroad. There was evidence from a witness offered by the plaintiff that he was familiar with the locality, and that there was no obstruction such as would prevent a person traveling north along the public road from seeing a train approaching from the north for a distance of a mile or more up to the station of Yarnell, but “if it was grown up in cane there, and the right of way in weeds, that would make a difference.” This witness further testified that “if the headlight was above the cane, and went over the cane, the cane would not have had anything to do with it.” There was other evidence for .the plaintiff that the growing cane and some uncut weeds along the right of way would obstruct the view of such a person -traveling along the public road in the direction in which the plaintiff was traveling. There was further evidence for the plaintiff that the train sounded its whistle at the station of Yarnell, about a mile and a half north of the crossing, but that it was not sounded on approaching the crossing at the time of tlie accident. The evidence is not very clear as to whether the train was coming up grade or down grade when it reached the crossing. It would seem from the testimony of one witness that it climbed up grade for a major portion of the distance from' Yarnell to the crossing, and then.began a down grade some distance from the crossing, and that at the time it approached the crossing it was running down grade. The plaintiff testified that a short distance below the crossing a passing freight-train frightened his mules, causing them to shy, and breaking a part of the harness, and that he stopped his team and repaired the harness, and then listened for another approaching train, that he then heard nothing, and proceeded to the crossing, that after rounding the bend in the public road approaching the crossing he again stopped his team and looked and listened for an approaching train, that he heard nothing and saw nothing and proceeded onto the crossing, that just as his mules got on the track he heard the approaching train and saw the headlight of the locomotive, which “looked to be very dim on that night,” that he heard no bell or whistle, and that he tried to pull the mules back off the track, but was unable to do so, and the locomotive struck them, inflicting the injuries to him and the damage to his property sued for. Another witness for the plaintiff testified that when the train passed through Yarnell the headlight was bright. The plaintiff offered to prove by another witness that the train was running sixty miles an hour when it passed Yarnell, a mile or a mile and a half north of the crossing, but on objection of the defendant this testimony was excluded as irrelevant and immaterial, and exception is taken to that ruling. Another witness for the plaintiff testified, apparently without objection, that in his best judgment the train was running forty-five to fifty miles an hour when it passed Yarnell. At the conclusion of the evidence for the plaintiff, on motion of the defendant, the court granted a nonsuit, to which the plaintiff excepted.

5. The evidence offered as to the speed of the train a distance of one mile or one mile and a half before reaching the crossing at which the accident occurred was not irrelevant, since the intervening distance might have been traversed in a very short time, not more than two minutes, at the speed at which it was stated the witness would testify the train was traveling. The exclusion of this testimony, therefore, was error. Savannah &c. Ry. Co. v. Flammagan, 82 Ga. 579 (2), 588 (9 S. E. 471, 14 Am. St. R. 183).

6. Under the foregoing rulings, the court erred in granting a nonsuit.

Judgment reversed.

Stephens and Bell, JJ., concur.

William B. & Gordon Mann, for plaintiff.

Maddox, Maddox & Mitchell, W. M. Sapp, for defendant.


text:
    18191, 18214.
    RAWLEIGH COMPANY v. ETHERIDGE.
    1. In a suit on a contract of guaranty not under seal, by the terms of which the defendant “guaranteed” the full and complete payment to the plaintiff of any and all indebtedness incurred by the principal debtor under a contract between the principal debtor and the plaintiff, and “agreed” that the written acknowledgment of the account by the prin-^ cipal debtor or any judgment against him should be conclusive against the guarantor, where it appeared from the petition that the suit was begun more than six years after the principal’s default, the cause of action was apparently barred by the statute of limitations. The procuring of judgment against the principal was not a condition precedent to suit against the guarantor.
    2. If a cause of action is apparently barred by the statute of limitations, ■ but if, because of certain facts, the plaintiff’s case may fall within an exception to the statute, it is incumbent on him to allege them in his petition, in order to avoid the operation of the statute should it be invoked by demurrer.

      (a) Assuming that in this case it was necessary for the plaintiff to establish the insolvency of the principal debtor in order to fix liability upon the guarantor, and that he was entitled to a suspension of the statute for such reasonable time as may have been necessary to ascertain the truth as to the solvency of the principal, the onus was upon him to plead the facts if by them he would show that the suit was not barred.
    3. “In passing upon the merits of a petition on the hearing of a demurrer, it is erroneous for the court to take into consideration facts- that are not shown by the petition.” Pollard v. Blalock, 147 Ga. 406 ( 2) (94 S. E. 226).

      (a) But even assuming that this rule is inapplicable in the present ease and that the facts set forth in the defendant’s plea in abatement could have been considered in passing upon the question of whether the petition should have been dismissed in response to a demurrer invoking the statute of limitations, the plea fails to show any facts to justify the application of an exception to the statute. '
    4. Even from the entire record it appears that the cause of action sued on was barred by the statute of limitations, which was duly invoked by demurrer, and the court properly sustained the demurrer and dismissed the petition.
    Guaranty, 28 O. J. p. 972, n. 44.
    Limitations of Actions, 37 O. J. p. 837, n. 5; p. 1201, n. 18, 19; p. 1205, n. 65; p. 1206, n. 66; p. 12-11, n. 8.
    Pleading, 31 Cyc. p. 322, n. 24.
    Decided December 17, 1927.
    Action on guaranty; from Barrow superior court—Judge Stark. April 20, 1927.

      N. L. Hutchins, for plaintiff. J. D. Quillian, for defendant.
   Bell, J.

Tbe contract involved in this case has been the subject of previous litigation between the parties and is fully set forth in the statement accompanying the decision in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (116 S. E. 903). In that case the Eawleigh Company sued Hudgins and Etheridge together as principal and surety, and this court held 'that the undertaking of Etheridge was one of guaranty and that the demurrer by Etheridge upon the ground of misjoinder should have been sustained and the petition as to him dismissed. The plaintiff then brought a separate suit against Hudgins, the principal, in which the plaintiff obtained judgment on July 22, 1924. Hudgins having failed to pay this judgment, the plaintiff filed the present suit against Etheridge as guarantor on September 27, 1924. The contract between the plaintiff and Hudgins, the principal, expired by its own terms on December 31, 1914, on which date the entire balance of indebtedness matured. The agreement of the guarantor was to “guarantee” the full and complete payment to the company of any and all indebtedness incurred by Hudgins under the terms of the contract between him and the plaintiff, and stipulated that the written acknowledgment of the account by Hudgins or any judgment against him should in every respect be binding and conclusive against the guarantor. The petition in the instant suit against Etheridge ■ set forth the agreements between the parties; the furnishing of the goods on the faith of the guaranty; the amount of the indebtedness of Hudgins, the principal; his written acknowledgment of the account under date of August 5, 1914; the fact of the suit and judgment against him; his insolvency and inability to pay the judgment, and the failure and refusal of the defendant, his guarantor, to pay the same. Wherefore the plaintiff prayed to recover of the guarantor the amount of the indebtedness. The defendant .filed a plea in abatement, upon the ground that at the time of the filing of the present suit “the plaintiff was prosecuting, and is still prosecuting an action in said court, the superior court of Barrow county, Georgia, for the same claim and cause of action, and between the same parties,” and that “the allegations of said former suit substantially set forth a good cause of action against this defendant, which will authorize a recovery against him if the plaintiff therein shall make out its case.” The defendant filed also a demurrer specifically invoking the statute of limitations. This demurrer was sustained and the petition dismissed, and the plaintiff excepted.

“Against one who, before goods were sold and delivered, guaranteed in writing payment therefor, on the faith of which guaranty the sale was made, a recovery may be had upon a petition setting forth the account, a copy of the contract of guaranty, a refusal to pay the account by the principal debtor, notice by the creditor to the maker of the guaranty, before the goods were sold and delivered, that the same was accepted, and alleging that on the faith of said guaranty the goods represented by the account sued on were sold and delivered as requested in said guaranty.” Small Co. v. Claxton, 1 Ga. App. 83 (57 S. E. 977).

The cause of action against the guarantor apparently accrued at the expiration of the contract between his principal and the company on December 31, 1914. It was not necessary that the plaintiff procure a judgment against the principal debtor in order to mature the cause of action against the guarantor. The stipulation in the contract of guaranty, that the written acknowledgment of the principal or any judgment against him should be binding and conclusive against the guarantor, had reference only to. the method of establishing the correctness of the account, and was not a statement of a condition or conditions precedent to a suit against the guarantor. Counsel for the plaintiff contends that it was necessary to show the insolvency of the principal in order to establish the liability of the guarantor, and that the plaintiff was entitled to a suspension of the statute of limitations for a reasonable time for the purpose of ascertaining whether the principal was insolvent or not. See Mobile &c. R. Co. v. Jones, 57 Ga. 199 (2); Hines v. Johnston, 95 Ga. 629, 642 (23 S. E. 470). Whether in a suit on a contract of guaranty of the terms of the one now in controversy it is necessary for the plaintiff to allege and prove the insolvency of the principal in order to recover of the guarantor is a question which it is not necessary to decide in this case. But on the negative of this question see: Fouche v. Cherokee National Bank, 18 Ga. App. 569 (3) (90 S. E. 102); Adams v. Georgian Co., 19 Ga. App. 654 (91 S. E. 1005); Hagedorn v. Zemurray, 28 Ga. App. 807 (3) (113 S. E. 244); Rawleigh Co. v. Watson, 33 Ga. App. 344 (2, a) (126 S. E. 301); Sims v. Clark, 91 Ga. 302 (2) (18 S. E. 158); Penn Tobacco Co. v. Leman, 109 Ga. 428 (2) (34 S. E. 679); apparently contra: Manry v. Waxelbaum, 108 Ga. 14 (33 S. E. 701); Musgrove v. Publishing Co., 5 Ga. App. 279 (63 S. E. 52); Fields v. Shores-Mueller Co., 25 Ga. App. 395 (103 S. E. 473). Assuming that the question to which we have just adverted should be answered in the affirmative and that the statute of limitations did not begin to run until the expiration of such reasonable time as was necessary for the plaintiff to ascertain the truth as to the solvency of the principal debtor, the plaintiff would be entitled to this period only under an exception to the statute, and it is the rule that if: the plaintiff desires to show that he is within such an exception, it is incumbent on him to set forth in his petition the facts rendering the exception operative. Bryant v. A. C. L. R. Co., 119 Ga. 607 (4, 5) (46 S. E. 829); Pendley v. Powers, 129 Ga. 69 (1, 2) (58 S. E. 653); Thornton v. Jackson, 129 Ga. 700 (3) (59 S. E. 905); Crawford v. Crawford, 134 Ga. 114 (3) (67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932); Bailey v. Freeman, 140 Ga. 71 (78 S. E. 423); James v. Hill, 140 Ga. 739 (79 S. E. 782); Phipps v. Wright, 28 Ga. App. 164 (5) (110 S. E. 511).

Counsel for the plaintiff further contends that the defendant’s plea in abatement, based upon the pendency of another suit, shows ’ that the cause of action could not be barred. It is insisted that the suit referred to in the plea could be none other than the original case in which the plaintiff brought the joint suit against the principal and the guarantor, as reviewed in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (supra), and that if it be true that the original case is still pending, the statute of limitations has been suspended thereby. We can not concur in this contention. “In passing upon the merits of a petition on the hearing of a demurrer, it is erroneous for the court to take into consideration facts that are not shown by the petition.” Pollard v. Blalock, 147 Ga. 406 (2) (94 S. E. 226); Hoffman v. Franklin Car Co., 32 Ga. App. 229 (2), 237 (122 S. E. 896). But even assuming that this rule should not be applied under the facts of this case, we could not, without additional or more specific facts, identify the suit referred to in the plea as any particular suit between the parties. For aught that appears the reference is to some other suit on the same cause of action which the plaintiff may have brought after this court in Etheridge v. Rawleigh Co., supra, reversed the judgment of the lower court overruling the defendant’s demurrer to the petition. There is nothing to show when the other suit thus indefinitely referred to was itself filed, or whether it was not also barred by the statute. If the statute of limitations was suspended by the pendency of a prior suit, this would constitute an exception to the operation of the statute, and the rule is again applicable that the plaintiff has the burden of pleading the facts by which he seeks to avoid the statute, by bringing his case within an exception, .where, as here, facts sufficient to raise the exception do not otherwise appear.

The contract sued on was not under seal, and the cause of action based thereon was barred after the lapse of six years from the date when it accrued, or when the plaintiff might legally have brought suit thereon. In any view, that date was more than six years prior to the filing of the present suit on September 27, 1924. The court properly sustained the ground of the demurrer invoking the statute of limitations.

The exceptions in the cross-bill brought by the defendant are to the judgment overruling certain other grounds of the defendant’s demurrer. Since our judgment on the main bill finally disposes of the case, it is unnecessary to pass upon the assignments in the cross-bill.

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

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


text:
    18192.
    Smith et al. v. Vaughn.
    Evidence, 22 O. J. p. 367, n. 99; p. 369, n. 1; p. 370, n. 2; p. 372, n. 3; p. 375, n. 6.
    Sales, 35 Cyc. p. 378, n. 78, -80; p. 482, n. 87.
   Jenkins, P. J.

1. In a suit for the purchase-price of a commodity sold under a contract expressly specifying the grade and quality, amounting to an express warranty, the purchaser is under no duty, before accepting the same and giving his note therefor, to 'exercise care in discovering defects such as would amount to a breach of the express terms of the warranty; but, in the absence of actual prior knowledge that the goods were not of the quality specified, or in the absence of an actual inspection such as would have disclosed patent defects subsequently complained of, the purchaser is entitled to accept the goods and give his note therefor, relying upon the seller to comply with his obligation with respect to the terms of his express warranty. North Ga. Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. (N. S.) 235); Means v. Subers, 115 Ga. 371 (41 S. E. 633). Thus, where lumber of a certain kind and character was sold under a contract specifying a certain grade and quality such as would ordinarily have excluded lumber containing “pin holes,” except that it was specifically provided that “pin holes” were not to be accounted as defects, and where, in a suit on the purchase-money note given after acceptance, the defendant sought by his evidence to establish that the lumber when delivered contained worm holes larger than “pin holes,” such as amounted to a breach of the warranty, of which defects the defendant contended he did not have actual knowledge at the time the lumber was accepted and the note given, and where, under the evidence, it was an issue of fact whether the defects complained of amounted to a breach of the warranty, and, if so, whether such defects were in existence at the time the lumber was received and stacked, and, if then existent, whether they were of such patent character as must have been discovered by such examination as was actually made when the lumber was received in its undressed condition and stacked, it was error for the court to direct a verdict for the plaintiff. Miller v. Moore, 83 Co. 684 (10 S. E. 360, 6 L. R. A. 374, 20 Am. St. R. 329); Mound City Hoofing Tile Co. v. Walker, 33 Ga. App. 207 (125 S. E. 863).

Decided December 17, 1927.

Complaint; from Barrow superior court—Judge Stark. October 2, 1926.

H. H. Chandler, J. D. Quillian, G. A. Johns, for plaintiffs in error.

Dorsey, Shelton & Dorsey, B. II. Kimball, contra.

2. Although the admissions of an agent, made during the existence and in pursuance of his power, are evidence against the principal (Civil Code of 1910, § 5779), the court erred in admitting the declarations of the defendant’s bookkeeper with reference to the quality of the commodity furnished, where it appeared that the declarations were not made during the existence of any power delegated to the bookkeeper to act for the defendant in accepting the goods sued for, but were in fact made long after the time when the goods were received and accepted, and where it further was not made to appear that the bookkeeper was at any time clothed with authority to act for the defendant in accepting or rejecting the commodity furnished and sued for.

Judgment reversed.

Stephens and Bell,- JJ., concur.