author: Stephens, J. Stephens, J.

text:
    17975.
    ÆTNA INSURANCE CO. v. FORMAN, for use, etc.
    The plaintiff having complied with the contract sued on, and his conduct not authorizing the jury to infer that he had released the defendant from performance, and it appearing conclusively and without dispute that the plaintiff’s damage was equal to the amount sued for, the trial judge did not err in directing a verdict for the plaintiff in that amount.
    ON MOTION FOB BEHEABING.
    The amendment to the plea filed by the defendant, which was allowed over the objection that it did not set out a legal defense, when properly construed as alleging that the plaintiff’s claim had been satisfied by payment made for and in behalf of the debtor, is not supported by the evidence to the effect that the plaintiff’s claim has been transferred to a third person and that the indebtedness is still unpaid and unsatisfied.
    Fire Insurance, 26 O. J. p. 432, n. 61.
    Decided February 18, 1928.
    Rehearing denied March 1, 1928.
    Complaint on fire policy; from city court of Amerieus—-Judge I-Iarper. January 13, 1927.
    Application for certiorari was made to the Supreme Court.
    The petition in this case is substantially copied in 35 Ga. App. 779 (134 S. E. 838). Paragraph 10 of the petition contains a copy of the contract sued upon, which is substantially to the effect that it was agreed between the plaintiff, Forman, and the defendant, ¿Etna Insurance Company, that certain land to which Forman held a deed to secure a debt which had been reduced to judgment and execution should, on the first Tuesday in December, 1919, be sold by the sheriff under a levy of the execution, and that the defendant would pay to Forman the difference between the price brought by the land at the sale and the amount of Forman’s execution, not exceeding the face value, $2500, of a certain fire-insurance policy which had been issued to Forman’s debtor, a Mrs. Harris, upon a house upon the land, which house had been destroyed by fire. It is further alleged in the petition that upon the 29th day of November, 1919 (which was during the pendency of the advertisement of the property for sale and before the date of the sale on the first Tuesday in December, 1919, which was December 2), Forman transferred and assigned all of his interest in the land, the judgment, the execution, and the insurance policy to C. C. Griffin, and that thereby Griffin obtained all the equitable right and title of Forman in and to the contract sued on between For-man and iEtna Insurance Company; but that, as was held by this court in Harris v. AEtna Insurance Co., 32 Ga. App. 48 (123 S. E. 27), where the contract sued on was under review, the legal title thereto remained in Forman. The present suit, by Forman, for the use of Griffin, against the insurance company is based upon this latter contract.
    Upon the trial there was introduced a mass of documentary evidence tending to establish the allegations of the petition, including the correspondence alleged in paragraph 10 of the petition as constituting the contract sued on. It appears in evidence that Mr. W. H. McKenzie, of the law firm of Whipple & McKenzie, the attorneys who executed and negotiated for Forman, with the agent of the iEtna Insurance Company, the contract sued on, notified Mr. Harris, of Harris & Ballenger, agents of iEtna Insurance Company in the City of Cordele at the time the cause of action sued on arose, that the sale referred to in the agreement sued on, which had been advertised to take place on the first Tuesday in December, 1919, would not take place, and that he, as attorney for For-man, had transferred the papers to C. C. Griffin, and had instructed the sheriff to call off the sale, and had sent the sheriff a check for his costs. It appears that the sale did in fact take place upon the date advertised, and that the land was bid in and bought by C, C. Griffin for $2,500, which was credited on the execution, leaving a balance due thereon in excess of $2,500, the face value of the insurance policy. It appears that other people attended the sale and bid upon the property, but it does not appear that the defendant was not represented at the sale; nor does it appear that the defendant was, before the sale, ignorant that the sale would take place as advertised.
    The trial judge directed a verdict for the plaintiff for $2,500, the full amount of the insurance policy.

      James W. Smith, Spalding, MacDougald & Sibley, H. II. Rargreit, for plaintiff in error.

      B. L. Maynard, contra.
   Stephens, J.

(After stating the foregoing facts.) The plaintiff Forman, through his attorneys who negotiated in his behalf the contract sued on, was under an obligation to the defendant to bring the land to a sale by the sheriff upon the first Tuesday in December, 1919. The defendant, as appears from the correspondence establishing the contract as copied in paragraph 10 of the petition, had information as to the date of the sale, and of course, could have taken the necessary steps to protect itself by making the property bring what the defendant considered it was worth. Since the sale actually took place on the date mentioned in the contract, the plaintiff, although he had notified the defendant that the sale would not take place, did not violate his obligation to bring the property to a sale. If, however, the plaintiff, prior to the date of the sale, notified the defendant that the sale would not take place, and the defendant, acting upon such information and believing that the sale would not take place, was lulled into security and had no knowledge that the sale would actually take place as advertised, or that it did take place, and had no one representing it at the sale to bid upon the property, if necessary to the defendant’s interest, or to cause it to bring what it was worth, the defendant, by the act of the plaintiff, would be released from its obligation under the contract to pay to the plaintiff the insurance money or any part thereof. Although it appears that the defendant received notice from the plaintiff, through his attorneys, that the sale would not take place, the defendant was at the same time informed that “the papers” had been “transferred” to Griffin. The defendant, through its agent, knew that Mrs. Harris, and not Griffin, was the debtor; and therefore it knew that when Forman’s “papers” were “transferred” to Griffin, Mrs. Harris’s debt to For-man had not been paid, but 'that Griffin was the transferee acquiring Forman’s right, title and interest in the execution. The defendant knew that the execution had been levied upon the land, and that the sale was advertised to take place within three days following. The defendant knew that Griffin, being the.transferee of the rights of Forman, had the-same control oyer the execution that Forman had prior to the transfer to Griffin. The defendant knew that after Forman transferred the execution to Griffin, neither Forman nor his attorneys had any control over it, and that they had no authority, by instructions to the sheriff, to call off the sale. It therefore appears that the defendant, with knowledge from the plaintiff’s lawyers that “the papers” of Forman had been “transferred” to Griffin, although Forman’s lawyers stated that they had called off the sale, was not deceived into believing that For-man had been settled with and his debt paid, and that no sale could legally take place. This appears conclusively from the evidence.

It appears conclusively, from the evidence, that Forman did not violate the agreement sued upon, and that the legal title to recover thereon is in him, and that the equitable interest is in Griffin. The trial judge therefore did not err, under the undisputed facts as outlined above, in directing a verdict for the plaintiff in the sum of $3,500, the face value of the insurance policy.

Judgment affirmed.

JenTcms, P. J., and Bell, J., concur.

ON MOTION FOR REHEARING.

Stephens, J.

The plaintiff in error has made a motion for a rehearing, upon the ground that certain defensive matter set up by it in an amendment to its plea, the allowance of which amendment was objected to upon the ground that the amendment failed to set out a valid legal defense, has, by the allowance of the amendment over this objection, been adjudicated as a valid and legal defense, and since, as the plaintiff in error contends, the evidence without dispute supports the allegations in the amendment, the defense is established as a matter of law, and that therefore the judgment of affirmance heretofore rendered should be set aside, and the judgment of the court below should be reversed upon the ground that the evidence under the pleadings is insufficient to support the verdict found for the plaintiff.

The amendment offered by the defendant and allowed over the plaintiffs objection, as above indicated, reads as follows: “For further plea and answer the defendant says that the plaintiff, George M. Forman, should not recover of this defendant the amount sued for or any other amount; for that the said plaintiff, George M. Forman, before the filing of his petition herein, collected and received, without liability to repay, the entire amount of its claim against the said Mrs. Harris, so that the said George M. Forman has suffered no damage by reason of any alleged breach of the contract sued upon.”. This amendment, if construed as alleging that the plaintiff Forman had had his debt satisfied in full by a payment from Mrs. Harris or by some one in her behalf, set out a valid defense; but if construed as alleging that Mrs. Harris’s indebtedness to Forman had not been paid or satisfied, but that Mrs. Harris’s indebtedness was still unpaid, and that Forman had only transferred his right, title, and interest in the execution, against Mrs. Harris to another person, it does not set out a valid defense.

Since the trial judge has held that the amendment set up a valid and legal defense, the amendment will be given that construction, if the language is permissible, which set up a defense which in fact is a legal defense, rather than given a construction which sets up matters which do not in fact constitute a legal defense. Applying this rule, therefore, to the amendment, it is construed as alleging that, Forman having “collected and received, without liability to repay, the entire amount of his claim against the said Mrs. Harris,” the claim of Mrs. Harris has been paid in full and has been absolutely discharged. This construction is aided by the fact that nowhere in the amendment is any reference whatsoever made to the fact that Griffin was a transferee of Forman. The evidence clearly shows, without dispute, that the indebtedness of Mrs. Harris to Forman was not paid or discharged, but that For-man’s right, title, and interest therein was transferred to Griffin, thus leaving her indebtedness still unpaid. The evidence does not support the defense alleged in the amendment to the defendant’s plea, and the judgment of the trial court will not be reversed upon the ground that the defense set out in the amendment has been established as a matter of law. A rehearing therefore is denied.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17350.
    PENN MUTUAL LIFE INSURANCE COMPANY v. BLOUNT et al., trustees.
    1. The unauthorized act of a. local agent of a life-insurance company in «delivering to an applicant for insurance a policy without collecting from the applicant payment for the initial premium, but extending credit therefor, can not be ratified by the insurance company without actual knowledge of the agent’s act. It follows that in a suit against the company in behalf of the beneficiaries named in the policy, to recover under the policy, a charge, with reference to knowledge by the defendant of its agent’s act in delivering the policy to the applicant without collecting the initial premium, that the knowledge of facts by the defendant which would put a reasonable person on inquiry is notice of facts to which such inquiry might have led, is an incorrect statement as to the law applicable to the case, and necessitates the grant of a new trial to the defendant.
    2. While in such a ease the defendant insurance company must have actual knowledge of the unauthorized act of its agent, actual knowledge on the part of the defendant of the unauthorized act of the agent, as well as ratification by the defendant of such unauthorized act, may each be established by circumstantial evidence. A charge of the court that such ratification may be established by circumstances is a correct and complete statement of a legal proposition, and the charge is not subject to the objection that the court in connection therewith failed to instruct the jury that it is essential to a ratification by the defendant of the agent’s act that the defendant had actual knowledge of the act. Whether such charge is applicable to the evidence it is not necessary to decide, as the case is to be retried.
    3. In certifying a question to the Supreme Court, the Court of Appeals can propound any question of law which in its opinion is presented by the record, and an answer to which might be necessary to a proper disposition of the case. In so doing the court may limit its inquiry to questions the answers to which would not be exhaustive of all questions presented by the record, and which might be necessary to a proper disposition of the case. It may base the question upon only so much of the evidence taken from the record as in the opinion of the Court of Appeals is necessary to propound a question of law presented in the case, and necessary to its proper determination.
    Agency, 2 C. J. p. 954, n. 82.
    Appeal and Error, 4 C. J. p. 651, n. 40; p. 1031, n. 31.
    Courts, 15 C. J. p. 1040, n. 64.
    Insurance, 32 C. J. p. 1060, n. 50; 33 C. J. p. 139, n. 20.
    Decided February 28, 1928.
    Complaint on life policy; from city court of Waynesboro— Judge Dates. April 8, 1926.

      Callaway & Howard,, Fullbright & Burney, for plaintiff in error.

      William H. Fleming, contra.
   Stephens, J.

This is a suit to recover on a life-insurance policy, brought against the insurance company in behalf of the beneficiaries named in the policy; the allegations,being that the defendant, by receiving the policy back from the person named therein as the insured, and changing the beneficiaries named in the policy after the defendant’s local agent had delivered the policy to the alleged insured without exacting payment of the initial premium, ratified the act of the local agent in so delivering the policy. See report of this case in 33 Ga. App. 642. The defendant denied ratification. A verdict was found for the plaintiffs, and the defendant moved for a new trial, which was denied.

Iieadnotes 1 and 2 need no elaboration. In support of headnote 1 see answer of the Supreme Court to certified questions in this case in 165 Ga. 193 (140 S. E. 496).

The writer of this opinion prepared the certified questions propounded to the Supreme Court in this case. The answer to one of the questions is the basis for the ruling announced in headnote 1. The answer to the other question, being in the negative, is not essential to the decision of the case under the record as now presented. Had this latter question been answered in the affirmative, the answer would have been controlling, and an affirmance of the judgment finding for the plaintiffs would have been necessitated. The question propounded in effect inquired whether, under the evidence taken most strongly in favor of the defendant, i. e., where knowledge of delivery of the policy without payment of premium was in the local agent only, having the limited powers indicated, the verdict for the plaintiff was demanded as a matter of law.

Counsel for the defendants in error, who were the plaintiffs in the trial court, in their supplemental brief, object to the form of this latter question, because the question does not contain a recital of various portions of the evidence which counsel claim show ratification by the defendant of the agent’s act in delivering the policy without collecting the premium; and counsel intimate in their - brief that, by virtue of such omissions, the question is not fair to the plaintiffs. Counsel have in their brief prepared an elaborate question which is captioned a “fair certified question,” and suggest “that in fairness to the defendants in error the certified question should have read substantially as followsThen follows the proposed certified question, which concludes as follows: “Should the verdict of a jury, finding the disputed facts in favor of the plaintiff, and that verdict approved by the trial judge, be set aside?” Had we propounded the question suggested by counsel, we would not have elicited an answer as to whether the verdict found for the plaintiffs was as a matter of law demanded, but would have inquired only as to whether the verdict found for the plaintiffs was, under the disputed issues of fact, authorized. The two propositions are entirely different. We desired an answer as to one, and did not desire an answer as to the other. An answer either way to the question suggested by counsel would not have removed the necessity of a reversal of the judgment, while an answer in the affirmative to the question actually propounded would have necessitated an affirmance of the judgment. The question as propounded was really in the interest of the defendants in error.

In certifying a question to the Supreme Court the Court of Appeals can propound any question of law which in its opinion is presented by the record, and an answer to which might be necessary to a proper disposition of the case. In so doing the court may limit its inquiry to questions the answers to which would not be exhaustive of all questions presented by the record, and which might be necessary to the proper disposition of the case. Penn Mutual Life Insurance Co. v. Blount, supra; Georgian Co. v. Jones, 154 Ga. 762 (115 S. E. 490); Knight v. Herring, 161 Ga. 58 (129 S. E. 526). It may base a question hypothetically upon only so much of the evidence taken from the record as in the opinion of the Court of Appeals is necessary to propound a question of law presented by the record. The court can, in stating the evidence as the basis for the questions propounded, give its effect, and.may eliminate from the statement of facts portions of the evidence immaterial to- an answer to the question propounded, as was done in the certified question in Knight v. Herring, supra. The Court of Appeals therefore, in certifying a question to the Supreme Court, may limit its application to inferences drawn from the evidence which is most favorable to one of the parties to the case, and the opposite party has no right to complain that the question propounded is not presented by the record because it is not based upon inferences of fact favorable to him.

When the certified question in this case was propounded, this court was confronted with the possibility of an error in .the charge which was prejudicial to the plaintiff in error and which demanded a reversal unless the verdict rendered for the defendants in error (the plaintiffs in the court» below) wa? as a matter of law demanded, irrespective of any error in the instructions to the jury. An instruction ■ from the Supreme Court, therefore, was invoked upon the question whether or not the verdict rendered for the plaintiffs in the trial court was as a matter of law demanded; and in order to do so, it was necessary to submit the question only upon the evidence as construed most favorably to the defendant, which we did.

Judgment reversed.

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


text:
    17869.
    Employers Liability Assurance Corporation et al. v. Treadwell.
    Liability Insurance, 36 O. J. p. 1082, n. 62.
    Workmen’s Compensation Acts, ..C. J. p. 50, n. 63; p. 115, n. 37; p. 122, n. 40.
   Stephens, J.

1. This is a claim against an employer and the insurance carrier for compensation under the workmen’s compensation act, because of the death of the claimant’s husband from injuries alleged to have been received by him, arising out of and the course of his employment. The evidence authorizes the inference that the claimant’s husband was employed by the alleged employer to operate a sawmill; that for his services he was paid a certain sum per 1,000 feet for all lumber cut, the help being paid by the employer; that the employer retained the right to direct the time and the manner of the execution of the work; and that therefore the claimant’s husband was not an independent contractor, but was a servant of the employer, and one for whose death compensation is collectible under the workmen’s compensation act. Ætna Life Insurance Co. v. Palmer, 33 Ga. App. 522 (126 S. E. 862); Davis v. Menefee, 34 Ga. App. 813 (131 S. E. 527); Zurich General Accident &c. Insurance Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173).

2. Where an insurance policy issued to an employer, assuring against liability under the workmen’s compensation act, provides that it “is written to cover a portable sawmill, an American outfit using a case tractor,” and further provides that “it is hereby agreed and understood that this policy covers only the mills specifically described above, and all other work or operations of the assured are excluded from this policy coverage,” the words “an American outfit using a case tractor” are words of description and identification, and are not words of limitation or warranty; and where, at the time of the injury received by an employee covered by the policy, the mill had been changed and there had been substituted, therefor another mill with a longer carriage, but where there had been no further change or substitution of any other part of the outfit, but the engine, the tractor, the saw, the belting, and all other equipment except the mill, had remained the same, the identity of the mill outfit covered by the policy was the same, and there is a liability .under the policy for an accident to an employee received from a log falling upon him as he was loading it upon a log-cart to be transported to the mill, where the accident arose out of and in the course of his employment.

Decided February 28, 1928.

Appeal; from Greene superior court—Judge Park. November .18, 1926.

Bryan & Middlebroolcs, John A. Bunaway, for plaintiffs in error.

E. E. Lambert, Miles W. Lewis, contra.

3. The evidence authorized the inference that the claimant’s husband died from traumatic pneumonia which resulted directly from an injury received in the chest when handling logs in the discharge of his duty as an employee in the operation of the sawmill.

4. It therefore appears that the injury to the plaintiff’s husband arose out of and in the course of the employment, and that the commissioner was authorized, under the law and the evidence, in awarding to the claimant compensation against the employer and the insurance carrier; and the judge of the superior court did not err in affirming the award.

Judgment affirmed.

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


text:
    17877.
    Terrell v. Brandt.
    Attorney and Client, 6 C. J. p. 760, n. 82.
    Certiorari, 11 C. J. p. 212, n. 63; p. 222, n. 45 New.
    Courts, 15 C. J. p. 1040, n. 66.
   Stephens, J.

1. The provision in the act approved July 31, 1925 (Ga. L. 1925, p. 370, 386), relative to the manner of taking cases by certorari from the municipal court of Atlanta to the superior court of Eulton county, to the effect that the writ of certiorari shall lie only to a final judgment of the appellate division of that court, and not to a judgment or order of an individual judge of that court; applies only to the jurisdiction of the superior court to issue the writ, and does not apply to its jurisdiction to pass upon the writ after it has been lawfully issued. See, in this connection, Conyers v. Luther Williams Banking Co., 36 Ga. App. 52 (135 S. E. 515).

2. Where a petition for certiorari, excepting to a judgment rendered by an individual judge of the municipal court of Atlanta, was sanctioned upon the 25th day of July, 1925, and the writ of certiorari issued on the 27th day of July, 1925, both of which dates were prior to the approval of the act abolishing the issuance of the writ of certiorari to a judgment or order of the individual judge of the municipal court of Atlanta, the superior court, at all times after the date of the approval of the act, had jurisdiction to entertain and pass upon the petition for certiorari. The judge of the superior court did not err in overruling the motion of the defendant in certiorari to dismiss the petition upon the ground that by virtue of the provision of the act referred to, approved July 31, 1925, the court had no jurisdiction to entertain the writ.

3. This being a suit in three counts, two for the value of services alleged to have been rendered to the defendant by the plaintiff as an attorney at law in conducting certain litigation for the defendant, and the other for a certain sum representing an amount alleged to have been contracted to be paid to the plaintiff by the defendant for such services, and there being no evidence whatsoever that the value of the services rendered by the plaintiff to the defendant was of any greater value than a certain sum of money which the undisputed evidence showed had already been paid to the plaintiff by a third person on account of such services, and credited by the plaintiff on his claim for fees against the defendant, and there being no evidence whatsoever tending to establish any contract by the defendant to pay the plaintiff any sum of money for the services rendered, except a contract entered into upon the employment of the plaintiff as attorney, and prior to the rendition by him of the services rendered, by the terms of which the plaintiff as attorney would be entitled to retain as a fee a certain per cent, of the amount recovered by the plaintiff as attorney, whether by settlement of the suit or otherwise, and it appearing that the suit had been settled and the plaintiff had been paid a fee in excess of the amount which he, by the terms of his contract, was entitled to receive upon the basis of the settlement, and that the plaintiff had been paid an amount in excess of what the defendant had contracted to pay, a verdict for the plaintiff on any of the counts of the petition was unauthorized.

4. The trial judge in the municipal court of Atlanta having, in passing on the facts, found for the plaintiff in an amount representing the plaintiff’s contingent fee based upon the amount of the settlement of the suit which the plaintiff was prosecuting for the defendant, the judge of the superior court did not err in sustaining the certiorari brought by the defendant.

5. Since it does not appear conclusively from the evidence that the money which the plaintiff received from a third person on account of the plaintiff’s services rendered was in full settlement of the plaintiff’s claim against the defendant, and since the evidence adduced in support of the plaintiff’s quantum valebat counts failed to authorize an inference that the alleged services rendered by the plaintiff were of a value in excess of the a-mount which the plaintiff had received for such services, an error in law which must finally govern the ease is not presented, and it was error for the judge of the superior court, in sustaining the defendant’s petition for certiorari, to render a final judgment for the plaintiff in certiorari.

6. The judge of the superior court properly sustained the certiorari, but erred in rendering final judgment for the petitioner in certiorari who was the defendant in the trial court. The judgment sustaining the eertorari therefore is affirmed; but the final judgment for the plaintiff in certiorari, who was the defendant in the trial court, is reversed.

Decided February 28, 1928.

Certiorari; from Fulton superior court. Judge Pomeroy. November 12, 1926.

TV. F. Slaton, for plaintiff. George P. Whitman, for defendant.

Judgment affirmed in part and reversed in part.

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


text:
    17987.
    Davis v. City of Rome.
    Municipal Corporations, 43 C. J. p. 987, n. 97; p. 1036, n. 6; p. 1049, n. 5; p. 1206, n. 5; p. 1218, n. 86.
    Pleading, 31 Cyc. p. .120, n. 84.
   Stephens, J.

1. Where in a city street there is a strip of land about five feet in width, separated from that part of the street which is used for vehicular traffic by a small ditch used to convey surface water, and which is between the ditch and a private abutting lot, which strip of land is, with knowledge on the part of the city, used by pedestrians as a pathway, the strip of land, being a part of a public street of the city, is necessarily dedicated to public use as a pathway for pedestrians; and, irrespective of whether the pathway can properly be designated as a sidewalk which the city is under a duty to keep in repair and render safe for travel thereon by pedestrians, the city is nevertheless under a duty, when creating or maintaining any condition in the pathway, to exercise, in so doing, due care for the safety of pedestrians using the pathway.

2 The maintenance by the city, upon that part of such a sidewalk or pathway which is used by pedestrians in traveling over the sidewalk or pathway, of a meter-box, as a part of the city’s waterworks system, in such a condition that the top of the meter-box, because of the height of the meter, will not rest down securely upon the rim of the box, and, because of such insecure condition of the top of the meter-box, the top does not stay in position but is continually knocked off by passing pedestrians, thus leaving the meter-box open and exposed, and leaving an unprotected opening in the sidewalk which is about eight inches wide, about twenty inches long, and about fifteen inches deep, which condition in the construction of the meter-box has been in existence for several years, will authorize an inference that, as against a pedestrian traveling along the sidewalk or pathway, the city knew of this condition of the sidewalk or pathway and was negligent in maintaining the sidewalk or pathway in such condition. A pedestrian who, without fault, steps into the opening and is injured as a result of the city’s negligence in maintaining such condition may recover for injuries thus sustained.

3. Where in a suit by a pedestrian to recover for injuries received as a result of stepping into the opening containing such» a meter, it was alleged in one count of tne petition that the meter and the hole were in the sidewalk, and in another count of the petition that they were in a pathway used for travel by pedestrians as described in paragraph 1 above, the allegations relate to the same transaction, and the petition is good against demurrer based upon the ground that it is duplicitous and contains a misjoinder of actions. Gainesville & Dahlonega Electric Railway Co. v. Austin, 122 Ga. 823 (3) (50 S. E. 983); Gainesville & Dahlonega Electric Railway Co. v. Austin, 127 Ga. 120 (3) (56 S. E. 254).

Decided February 28, 1928.

Action for damages; from Floyd superior court. Judge Maddox. January 24, 1927.

Harris & Harris, for plaintiff. Paul H. Doyal, for defendant.

4. Where a statute provides for the presentation of written communication to a collective body, as a board or commission, the filing of the communication with the custodian of the records of the body is a compliance with the statute’s provisions as to service upon the body. Where, under § 910 of the Civil Code of 1910, notice of intention to bring suit against a city is required to be made by a presentation of the claim in writing to the governing authority of the city, the filing of the required notice in writing in the office of, and the leaving of it with, the officer who is the secretary or.the clerk of the city commission, which is the governing authority of the city, and is the officer who is the custodian of the records of the city, is a presentation of the claim to the governing authority of the city as required by the statute.

5. The petition in both counts set out a cause of action, and was good against the general and special demurrers interposed. The court erred in sustaining the demurrers and in dismissing the petition.

Jtodgment reversed.

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


text:
    18023.
    CENTRAL OF GEORGIA RAILWAY CO. v. JONES COUNTY et al.

    Counties, 15 C. J. p. 636, n. 90; p. 639, n. 16, 19, 20; p. 641, n. 52.
   Stephens, J.

1. Under section 507 of the Political Code of 1910, the proper county authorities may, without a recommendation of the grand jury, levy a tax upon the taxable property of the county, in an amount equal to 100 per cent, of the State tax for the current year. Wright v. Central of Georgia Ry. Co., 36 Ga. App. 382 (137 S. E. 93) and cit. It follows therefore that a tax levy of $2.75 per thousand made by the county authorities, without a recommendation of a. grand jury, for the purpose of paying the accumulated indebtedness of the county, is legal, being within 100 per cent, of the State tax for the current year, which is $5 per thousand.

2. Under the Political Code of 1910, §§ 508, 510, the proper county authorities, may, in addition to the levy authorized under § 507, levy upon the taxable property of the county a tax “for county purposes” (which includes the current expenses of the county, as held' in S. A. L. R. Co. v. Wright, 157 Ga. 722, 122 S. E. 35), in an amount not hin excess of 50 per cent, of the State tax for the current year, without a recommendation of the grand jury, where the grand jury of the spring term lias adjourned before the adjournment of court, and without having made a r-eeommendation. It follows therefore that a tax levy made by the county authorities in the sum of $2.50 per $1,000 is equal to 50 per cent, of the State tax for the current year where the State tax for that year is $5 per $1,000, and, when made for the purpose of paying the current expenses of the county, is a legal levy, where the grand jury for the spring term of court had adjourned before the adjournment of court without making a recommendation.

Decided February 28, 1928.

3. Where, as indicated above, the levies were lawful when made without a recommendation of the grand jury, it was not essential to the validity of any of the levies so made that a statement of the financial condition of the county, and of the amount of tax required to discharge the county liabilities for the current year, was presented to the foreman of the grand jury, as prescribed in section 509 of the Political Code of 1910.

4 A tax levy made by a county under the authority of § 696 of the Political Code of 1910, for the purpose of obtaining revenue to pay “the salaries and wages, and for working, improving, and repairing the public roads,” as in this section set forth, is a special tax authorized by a special statutory enactment of the year 1891 (Acts 1890-91, vol. 1, p. 135), and since the adoption of sections 507, 508, and 510 of the Political Code of 1910, and is by the terms of the act of 1S91 authorized as “a tax additional to any now authorized by law,” and is therefore a tax additional to the tax authorized under these latter named code sections. It therefore follows that the tax authorized under Code section 696 may be levied over and above and, in addition to the tax levies authorized under sections 507, 508, and 510 of the Political Code of 1910, and is nqt limited by the provisions of these latter sections. Central of Ga. Ry. Co. v. Wright, 165 Ga. 1 (139 S. E. 890).

5. A tax levy by a county of “$2.00 per thousand . . for county purposes, as provided in section 696 of the Civil Code of 1910,” is, by reference to the code section, sufficiently specific, even assuming that the provisions of section 514 of the Political Code of 1910, which provides for specificalness in county tax levies, applies to the levy of the special tax provided for under section 696 of the Political Code of 1910.

6. Upon the trial of an issue made by an affidavit of illegality filed by a taxpayer to a levy of an execution issued against affiant for the collection of county taxes, the court,' under the above rulings, did not err in finding against the' affiant under the agreed statement of facts.

7. See further, in this connection, Central of Ga. Ry. Co. v. Wright, 165 Ga. 631 (141 S. E. .. .).

Judgment affirmed.

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

Affidavit of illegality of execution; from Jones superior court. Judge Park. February 7, 1927.

Statement of facts by Stephens, J.

An execution in the sum of $1,384.07 was issued by W. A. Wright,. comptroller-general of Georgia, against the Central of Georgia Kailway Company for taxes due the County of Jones for the year 1925, and was levied upon certain property of the railroad company situated in the town of Gray in that county, upon which was the depot of the company. The company filed its affidavit of illegality to the execution and levy, upon various grounds, as indicated in the various paragraphs of the above syllabus. The Honorable James B. Park, judge of the superior court presiding, passed upon all questions of law and fact, 'and rendered a judgment sustaining only one of the grounds of illegality, wherein it was contended that the levy of $2.60 per $1,000 for current expenses of the county was excessive by 10 cents per $1,000, and overruled the other grounds of illegality, and sustained the levy and held the property subject to the execution in the amount of the execution, less the amount representing a levy of 10 cents upon $1,000. To this judgment overruling the illegality and sustaining the execution in part, the defendant excepted.

It is not necessary to recite the various grounds of the affidavit of illegality and the undisputed evidence introduced, as, in so far as the same and any part thereof is relevant, it is indicated in the syllabus. The item in the levy, to which reference is made in paragraph 1 of the syllabus; and which in the affidavit of illegality is by affiant conceded to be “a levy to pay the accumulated indebtedness” of the county, is as follows: 8. “To pay the legal indebtedness of said county, due and to become due during the present year, or past due, the sum of $2.75 per $1,000.00, making $7,293.68.”

The items in the lev}', to which reference is made in paragraph 2 of the syllabus, wherein levies are made to obtain revenue to pay the current expenses of the county, are as follows:

2. “To pay the salaries of Board of County Commissioners, clerk of the same, the pay of County Tax-Collector and receiver in commissions, as well as the pay of County Treasurer, the sum of $1.15 per $1,000.00, making $3,050.09.

9. “To pay jurors their per diem; the pay of courts, superior and city, exclusive of item 10, or above, the sum of $0.75 per $1,000.00 making $1,989.18.

10. “To pay for coroner’s expenses; of Bailiffs, Sheriffs, and Jailer; non-resident witnesses; fuel, hire, stationery, and the like, the sum of $0.40 per $1,000.00, making $1,060.89. ■

11. “To pay other lawful expenses of the County, or charges thereof, as provided in section 513 of the Civil Code, the sum of $0.30 per $1,000.00, making $795.67.”

This makes a total of $2.60 per $1,000.

'As the judge of the superior court sustained the affiant’s objection to the levies for current expenses, in a sum representing $2.60 per $1,000, upon the ground that .said levies were illegal as being in excess of $2.50 per $1,000, and rendered a judgment for the affiant accordingly, such levies are treated to all intents and purposes as if they aggregate the sum of $2.50 per $1,000. The item in the levy to which reference is made in paragragh 4 of the syllabus is as follows: “And it is further ordered by the Board of County Commissioners of Jones County that a tax of $2.00 per $1,000.00 be levied for county purposes, as provided in sec. 696 of Civil Code 1910, making $5,304.49.”

Harris, Harris & Popper, for plaintiff in error.

J. O. Barron, contra.


text:
    18190.
    Central of Georgia Railway Co. v. Effingham County et al.

    Counties, 15 C. J. p. 637, n. 98.
    Decided February 28, 1928.
   Stephens, J.

1. A county in levying a tax for current expenses is not limited to 50 per cent, of the State tax, but may levy a tax for such purpose in an amount equal to the State tax. Central of Georgia Ry. Co. v. Wright, 165 Ga. 631 (141 S. E. ..), which affirmed the judgment of the Court of Appeals in Central of Georgia Ry. Co. v. Wright, 36 Ga. App. 386 (137 S. E. 95). Political Code (1910), §§ 507, 508.

2. Where the State tax is $5 per thousand, a levy by a county of $3.50 per- thousand for the purpose of paying the current expenses of the county is not illegal as being in excess of 50 per cent, of the State tax. The court therefore properly struck the defendant's affidavit of illegality.

Judgment affirmed.

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

Affidavit of illegality of execution; from Effingham superior court—Judge Strange. April 18, 1927.

A, R. Lawion Jr., for plaintiff in error.

Travis & Travis, contra.


text:
    18043.
    Jones Motor Co. v. Macon Savings Bank, administrator.
    Apppal and Error, 3 O. J. p. 1381, n. 13.
    Executions, 23 C. J. p. 474, n. 79; p. 695, n. 33.
    Sales, 35 Cyc. p. 697, n. 20 New; p. 708, n. 18.
   Stephens, J.

1. In a bill of exceptions to a judgment for the defendant, rendered by the trial judge in passing upon questions both of law and of fact, under an agreed statement of facts, the assignments of error are sufficient where the judgment thus rendered is excepted to on the grounds that the court erred in the finding of fact, and also erred in the conclusions of law; that “the court erred in entering up judgment for the defendant in said case, and that he should have found for the plaintiff in the sum sued for;” that “as a matter of law, under the agreed statement of facts, the only legal verdict which could have been rendered was in favor of the plaintiff in the sum” sued for; and that the “verdict and judgment is contrary to law.” The motion to dismiss the bill of exceptions, upon the ground that the assignments of error are insufficient, is denied. Pace v. Pace, 154 Ga. 712 (115 S. E. 65).

2. An act approved August 15, 1921 (Ga. L. 1921, p. 114), amending the Civil Code of 1910, § 3298, by providing that “the owner of any . . written contract where title is retained to personal property to secure a debt may foreclose the same in the same manner as mortgages on personal property are now foreclosed under the laws of this State,” has reference to contracts retaining title in the seller of personal property sold to secure the purchase money. It is not essential to the validity of a levy upon personal property, made pursuant to this code section, that the holder of the legal title as security for the debt shall convey the title to the debtor for the purpose of levy and sale. A levy upon personal property in a proceeding to foreclose a retention-of-title contract, made pursuant to this code section, was a legal levy although the title was not put into the debtor for the purpose of levy and sale.

3. In a contract for the sale of personal property, where the purchaser agrees that upon default in any payment due under the contract he will voluntarily surrender the property to the seller, to be sold and the proceeds applied upon the indebtedness, or agrees that upon such default the seller may institute trover proceedings to recover the property, etc., these remedies are cumulative of the seller’s right to collect the indebtedness in any other manner as provided by law; and the seller’s failure to pursue, for the collection of the indebtedness, any method prescribed in the contract for that purpose, can not be a defense against the seller’s, right to foreclose as provided, by law under the Civil Code of 1910, § 3298.

Decided February 28, 1928.

Complaint; from city court of Macon—Judge Hall. January 26, 1927.

Application for certiorari was made to the Supreme Court.

Herring & Lewis, for plaintiff.

Ryals, Anderson & Anderson, for defendant.

4. Whore the property levied on is not taken by the levying officer, but is immediately left by him in the possession of the defendant in execution, and no forthcoming bond is given; and where later, under instructions from the levying officer, an agent of the plaintiff: in execution demands and receives the property of the defendant in execution, the delivery of the property by the defendant in execution in response to such demand does not authorize the inference that the contract of sale was rescinded and the indebtedness of the defendant in execution to the plaintiff in execution was thereby canceled. On the contrary, the inference is demanded that the delivery of the property was to the levying officer, and not to the plaintiff in execution.

5. Where the personal property levied upon is afterwards regularly sold by virtue of a so-called short-order sale, obtained after due advertisement and after the required notice to the defendant in execution, as provided in sections 6068-6069 of the Civil Code of 1910, the proceeds of the sale, less the costs, should be credited upon the indebtedness due by the defendant in execution.

6. Where the above-stated facts were established by undisputed evidence in a suit brought by the plaintiff in execution against the defendant in execution, to recover the balance due upon promissory notes representing the indebtedness, less the amount realized upon, the short-order sale, a verdict for the plaintiff was demanded. The judgment of the judge of the city court of Macon, finding for the defendant upon both questions of law and fact, was contrary to law and without evidence to support it.

Judgment reversed.

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


text:
    18081.
    Watson v. Bryant.
    Municipal Corporations, 28 Cyc. p. 993, n. 97; p. 1002, n. 99; p. 1224, n. 54.
   Stephens, J.

1. Where the charter of a city governed by a commission (charter of the City of Rome, Ga. L. 1918, p. 813, sections 76-78) provides that “whenever said commission shall deem it proper to macadamize, pave or otherwise improve any of the streets, . . they shall have a survey made of the streets, . . and plans, specifications, and estimates of the cost of the improvements contemplated, they shall establish and fix a grade of the streets to be improved,” and that “thereupon said commission, by and through the city manager, may then proceed to make the said improvements as hereinafter provided,” and where it is nowhere provided in the charter that the city manager has authority to determine what streets shall be paved, or the character and quality of the pavements, or to order or establish and fix the grade of any street to be paved, and where it is provided in the charter that the cost of such street pavement shall be assessed against the abutting property holders, it is essential to the validity of an assessment against an abutting property holder for the cost of paving the street in front of his property that the pavement of the street be ordered by ordinance or resolution of the commission, ordering the pavement laid and designating the specifications therefor, which should include specifications as to the character and quality of the material to be used in the pavement.

Decided February 28, 1928.

Illegality of execution; from Floyd superior court—Judge Maddox. March 19,1927.

Paul H. Dogal, Graham Wright, for plaintiff.

Porter & Melane, Willingham, Wright & Covington, for defendant.

2. Where the commission, by resolution, provides that a designated portion of a street within the city “be paved at once, as under the charter of said city provided,” without more specific reference to the character of the pavement ordered, and where by a subsequent resolution of the commission, reciting that “it is deemed proper by the . . commission to pave the street” designated, “that the city manager have made a survey of” the street referred to, and “prepare and to submit to the commission plans, specifications, and estimates of the cost of paving said street, that the city manager is hereby directed to locate the grades and widths of the said above-designated street, and report the same to the commission,” and where it nowhere appears that, prior to the paving of the street, plans, specifications, or estimates for the cost of paving the street, made by the city manager or by any one else, were approved by the commission, or that any specifications as to the character of the material to be used in the pavement were approved by the commission, there appears to be no valid ordinance of the commission ordering a pavement thereon, containing the specifications therefor as required by the charter and which is a condition precedent to the liability of an abutting property holder to an assessment for the cost of the pavement of the street in front of his property.

3. Under the undisputed evidence, the judge of the superior court, in pass- . ing upon questions both of law and of fact, properly sustained the affidavit of illegality filed by a property holder in defense to an execution to recover the costs of street pavement assessed against him, where the ordinance of the commission was attacked as invalid, in that the character and quality of the materials to be used in paving the street were not determined by the ordinance.

Judgment affirmed.

Jenlcvns, P. J., amd Bell, J., concur.


text:
    18256.
    Anderson & Jones v. Garnett.
    Appeal and Error, 4 C. J. p. 852, n. 56.
    Attorney and Client, 6 C. J. p. 760, n. 79.
    Bills and Notes, 8 C. J. p. 597, n. 56.
    Decided February 28, 1928.
    Complaint; from city court of Statesboro—Judge Proctor. April 29, 1927.

      Howell Gone, for plaintiffs. F. B. Hunter, for defendant.
   Stephens, J.

1. In a suit on a promissory note, by the payees named therein, who are owners of the note, where the defendant pleaded payment to an agent of the plaintiffs having authority to collect, evidence that the alleged agent recommended to the defendant the employment of the plaintiffs as attorneys at law to represent the defendant’s brother-in-law in litigation, that the alleged agent, who was not an attorney at law, was also employed by the defendant to assist the plaintiffs in the preparation of the case, that the alleged agent employed the plaintiffs to act as attorneys at law in such litigation and went with the defendant to the plaintiffs’ office where the note sued on, which was made payable to the plaintiffs, was executed by the defendant in payment for such services, that after the plaintiffs had performed the services contracted for, they, without delivering the note to the alleged agent, but retaining it in their own possession, urged the agent to “get after” the defendant and “make” him pay the note, to “see if he could not push those boys [meaning’the defendant and another] up and get something on that paper,” the evidence was sufficient to authorize the inference that the alleged agent had authority to receive payment, in behalf of the plaintiffs, of the note sued on.

2. The grounds of the motion for a new trial which object to certain rulings upon the ground that no evidence of agency appears are without merit.

3. It was not error to admit evidence as to conversations between the defendant and the alleged agent which were part of the negotiations respecting the contract of employment of the plaintiffs by the defendant.

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

Judgment affirmed.

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


text:
    17951.
    Western & Atlantic Railroad v. Hughes, administratrix.
    Appeal and Error, 44 O. J. p. 852, n. 56; p. 990, n. 25.
    Death, 17 O. J. p. 1314, n. 73; p. 1328, n. 9; p. 1359, n. 96.
    Evidence, 22 C. J. p. 920, n. 85.
    Master and Servant, 39 0. J. p. 1073, n. 67; p. 1220, n. 67; p. 1223, n. 99, 2; p. 1261, n. 17.
   Stephens, J.

1. This was a suit against a railroad company, by which an administratrix sought to recover, under the Federal employer’s liability act, damages for the homicide of her husband, which it was alleged was caused by his having been hit by an upright structure of a bridge by the side of the railroad-track and knocked from the running-board on the side of a moving locomotive, upon which he had gone in the discharge of his duties as a traveling fireman in the employ of the railroad company, and where it was alleged that as a result of a rocking from side to side and a swaying of the engine, caused by a low place or depression in first one rail and then the other in the track approaching the bridge he was thrown into the bridge and knocked off the engine, and that the condition of the track was negligence on the part of the railroad company, proximately contributing to the injury. It appears that the deceased was employed in interstate commerce; and while the evidence as to negligence by the defendant was conflicting, there was evidence from which the jury were authorized to infer that upon the approach to the bridge the track contained the depressions as alleged, and that this was negligence on the part of the railroad company, and as a proximate result thereof the engine, as it approached and entered upon the bridge, was caused to rock and sway laterally, and thereby caused the plaintiff’s husband, who was out upon the running-board of the locomotive with the consent of the defendant- and in the discharge of his duties as traveling fireman in the employ of the defendant, to come in contact with an upright on the bridge and be knocked off the engine and killed; and that the pecuniary loss suffered by the plaintiff as the result of her husband’s death was in the amount found in the verdict. The evidence authorized the verdict.

2. Where upon the trial of such a suit the judge instructed the jury that the plaintiff’s husband, who was a servant of the defendant, had, in going upon the running-board of the engine in the discharge of his duty, assumed the risk incident to the existence of the bridge in proximity to the defendant’s track and its passing locomotive, and withdrew from the jury any consideration as to negligence upon the part of the defendant in respect to the maintenance of the bridge, the overruling of the defendant’s demurrers to the petition, objecting to, as insufficient, the allegations of negligence upon the part of the defendant as respects the maintenance of the bridge in close proximity to the track and passing locomotive, was harmless.

3. While the damages recoverable under the Federal employer’s liability act by the plaintiff for the homicide of her husband are compensation solely for the financial and pecuniary loss suffered by her and his minor child as a result of the homicide, the services of a pecuniary and financial value which the husband in his lifetime performed for the benefit of the plaintiff and the minor child, such as domestic services around the home, including repairing the house and premises, working the garden, milking the cow, looking after the poultry, and personal Services in waiting upon the plaintiff while she was sick, and personal services to the child, such as assisting him in his lessons, all of a certain alleged value, are items of damages, and tend to illustrate the pecuniary loss suffered by the plaintiff and the minor child. An amendment to the plaintiff’s petition, alleging such services, was good as against the general and special demurrers interposed, and the demurrers were properly overruled. Evidence as to such services was properly admitted; and the court did not err in instructing the jury that in arriving at the pecuniary loss of the wife and child, evidence of such services could be considered. Western & Atlantic R. v. Townsend, 36 Ga. App. 70 (135 S. E. 439).

4. Where in such a suit it appeared from the evidence that the husband, for whose homicide the suit was brought, was .at the time of his death in the employ of the defendant and was in line for promotion as an engineer in its employ, it was not error to admit evidence as to the compensation paid by the defendant to engineers.

5. Where certain evidence as to the installation of guard-rails in the track at the place of the accident a short while after its occurrence, which was offered'by the plaintiff and admitted over the objection of the defendant, was later during the progress of the trial voluntarily withdrawn by the plaintiff without objection from the defendant, and where the court instructed the jury that this evidence was withdrawn from their consideration, the admission of such evidence was harmless, since from its nature it can not be said that, after the jury were instructed to disregard it, it was prejudicial to the defendant. Robinson v. Gray, 22 Ga. App. 25 (95 S. E. 324).

6. There was no error in admitting in evidence photographs of the locality of the homicide, including the bridge and the track and the defendant’s locomotive approaching it, taken some years after the date of the homicide, where the witnesses identified the photographs and testified that they contained true representations of conditions as they existed a few days after the occurrence, and where it was inferable from the evidence that these conditions existed at the time of the occurrence, and where the trial judge specifically instructed the jury (City of Thomasville v. Crowell, 22 Ga. App. 383, 96 S. E. 335; Waller v. Dawson National Bank, 22 Ga. App. 477, 96 S. E. 333; Smith v. State, 23 Ga. App. 76, 97 S. E. 454; Rome Railway & Light Co. v. Spratling, 28 Ga. App. 438, 111 S. E. 702) that the photographs should be considered only for the purpose of throwing light on the conditions at the time of the occurrence complained of.

7. A charge stating a correct principle of law is not error because it fails in the same connection to state another correct principle of law. A charge that if both the decedent and the defendant were negligent, and if the negligence of the defendant in particular was the cause of the death, the negligence of the decedent would not prevent a recovery, but would only diminish the amount of damages recoverable, was not error in that the court did not in the same connection ins’truet the jury that there could be no recovery upon the defendant’s negligence if the decedent assumed the risk of the conditions surrounding the accident.

8. Although under the Federal employer’s liability act the amount of damages recoverable, when the negligence of both the decedent and the defendant proximately contributed to the injury, is an amount in the proportion which the defendant’s negligence appears to have been to its negligence and that of the decedent combined, a charge which instructed the jury that the damages recoverable should be diminished in proportion to the amount of negligence attributable to the decedent was not more unfavorable to the defendant than the rule as to the measure of damages applicable under the Federal employer’s liability act; and a refusal to charge, upon request, the rule under the Federal employer’s liability act was not error. Southern Ry. Co. v. Wessinger, 32 Ga. App. 551 (2), 556 (124 S. E. 100).

9. A charge to the jury, that the defendant railroad company is under a duty to exercise ordinary care to keep its, tracks and road-bed in “proper condition,” and that if, because of any defect or insufficiency due to the defendant’s negligence in this respect, an employee is killed, there may, under proper proof, be a recovery in- damages, is not error in that it fails to state that the defendant is under a duty to exercise ordinary care to keep its track and road-bed in a reasonably safe condition for such work as a servant is called on by his duty as a servant to do, “under such conditions as the railroad company should have reasonably anticipated would be in existence in the method of the employee in discharging his duties as its servant.” This charge is almost in the language of the statute which provides that a railroad company shall be liable for any injury or death resulting in whole or in part “by reason of any defect or insufficiency, due to its negligence, its cars, engines, appliances, machinery, tracks, road-bed,” etc. If this charge was error for the reason stated, the objection was removed by an elaboration in the language set out in the objection, in a subsequent portion of the charge, where the jury were instructed that a railroad’s duty as to providing a servant a safe place to work “would be discharged by the exercise of ordinary care on its part to provide a reasonably safe place for such work as he was called upon, by his duty as a servant, to do, under such conditions as it should have reasonably anticipated would exist in the method of his discharging his duties as its servant.”

10. Where, in the trial of a ease under the Federal employer’s liability act, the court charged the jury, with reference to reducing to a present cash valuation a sum representing damages for loss of future benefits, that in making such reduction the jury should make an “adequate allowance, according to the circumstances, for the earning power of money,” and that it should “be reduced to its present cash value upon a rate of interest which you may fix as reasonable, just, and right under all the circumstances,” the charge stated a correct rule of law; and in the absence of a special request for a more specific charge, a failure of the court to charge that the jury, in making such reduction, should take into consideration the earning power of money when invested with ordinary care, was not error.

Decided February 29, 1928.

Damages; from Fulton superior court—Judge Pomeroy. December 18, 1926.

Application for certiorari was made to the Supreme Court.

Tye, Peeples & Tye, for plaintiff in error.

Reuben R. & Lowry Arnold, B. P. Gambrell, contra.

11. No error of law appears; and the evidence supports the verdict found for the plaintiff ia the sum of $10,000.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., concur.


text:
    18030.
    Thomson Spot Welder Co. v. Fairbanks Co.
    Appeal and Error, 4 C. J. p. 1164, n. 31.
    Patents, 30 Cyc. p. 956, n. 77; p. 966, n. 64.
   Stephens, J.

1. Where an agreement, executed after a representation made by the party of the first part to the party of the second part that the former has acquired, owns, and controls certain patent rights referred to in the agreement, provides that the party of the first part licenses to the party of the- second part all, right of the party of the first part in and to a certain patent right described as a “Harmatta Patent, . . the validity of which for its remaining term is hereby acknowledged” by the licensee, the party of the second part, and all other patents for a certain process, the royalty thereon being payable in a certain sum per quarter for an indefinite term, which is terminable upon three months notice by the licensee, and further provides that the party of the first part, the licensor, waives all claims of it and other companies for an infringement by the party of the second part of all rights of the party of the first part, the licensor, in the patents described, the agreement constitutes not only an agreement by the party of the second part to pay royalties under the patent to the party of the first part, but constitutes an accord and satisfaction of the claim by the party of the first part against the party of the second part for an infringement by the latter of the former’s patent rights.

2. In a suit by the party of the first part against the party of the second part, to recover royalties thereon, it is no defense thereto that by the judgment of a court of competent jurisdiction (namely, the district court of the United States for the eastern district of Michigan), affirmed by the United States Circuit Court of Appeals and by the Supreme Court of the United States, in a suit by the plaintiff against another, the patents referred to in the contract had been declared void. See, in this connection, Thomson Spot Welder Co. n. Oldberg Mfg. Co., 234 Mich. 317 (207 N. W. 828); Patterson’s Appeal, 99 Pa. 521; Brown v. Lapham, 27 Fed. 77; Ball & Socket Fastener Co. v. Ball Glove Fastening Co., 58 Fed. 818 (7 C. C. A. 498); Jones v. Burnham, 67 Me. 93 (24 Am. R. 10; Marston v. Swett, 66 N. Y. 206 (23 Am. R. 431); Ross v. Fuller & Warren Co., 105 Fed. 510.

Decided March 1, 1928.

Complaint; from Floyd superior court—Judge Maddox. January 29, 1927.

Willingham, Wright & Covington, Lyne, Woodworth & Eva/rts, for plaintiff.

Maddox, Matthews & Owens, for defendant.

3. The judge of the trial court, in passing upon questions of law and fact under the agreed statement of facts, erred in rendering judgment for the defendant. Judgment reversed.

Jenltins, P. J., cmd Bell, J., eoneur.


text:
    18068.
    Whitehead v. Southern Bell Telephone and Telegraph Company et al.

    Negligence, 29 Cyc. p. 470, n. 85 New; p. 565, n. 75.
    Decided March 1, 1928.
    Action for damages; from Fulton superior court—Judge Pomeroy. February 23, 1927.
    Application for certiorari was made to the Supreme Court.

      II. W. McLarty, for plaintiff.

      McDaniel & Neely, Bembert Marshall, for defendants.
   Stephens, J.

1. A telephone booth in a public place in a store frequented by customers going in and out, which has a swinging door attached thereto, and which, when the booth is being entered and left by people entering it to use a telephone therein, opens to and fro, is not, by reason of the door opening to and fro in the frequented store, an instrumentality essentially dangerous, and from which it can be reasonably foreseen, either by the telephone company placing the booth in the store or by the proprietor of the store in consenting to the presence of the booth therein, that customers sitting in chairs or upon stools at a soda fount in close proximity to the booth will be knocked over and injured by the opening and shutting of the door when in use by members of the public frequenting the store and entering and leaving the booth. There is therefore no negligence as respects a customer of the store occupying a stool at the soda fount in close proximity to the telephone booth, on the part either of the telephone company or of the proprietor of the store, in locating and maintaining the booth in the store in such close proximity to chairs' or stools occupied by customers of the store that the stool occupied by the customer is knocked over and the customer is injured as a result of the opening of the door of the telephone booth by a customer of the telephone company entering or leaving the booth.

2. In a suit against the telephone company and the proprietor of the store, by a person injured as above indicated, the petition failed to set out a cause of action as against either defendant, and was, on demurrers, properly dismissed as to both defendants.

Judgment affirmed.

Jenltins, P. J., and Bell, J., concur.


text:
    17893.
    Morrison v. Beckwith et al.

    Brokers, 9 O. J. p. 517, n. 76; p. 552, n. 66 New.
    Decided March 3, 1928.
    Breach of contract; from Chatham superior court—Judge Meldrim. December 37, 1936.

      Lewis A. Mills, for plaintiff.

      William M. Farr, Henry McAleer, for defendants.
   Stephens, J.

1. In a petition in which the plaintiff confessedly brings an action ex contractu, where it is alleged that the contract sued upon is one by the terms of which the defendants undertook and agreed with him to act as agents in purchasing for and in behalf of the plaintiff described real estate from its owner at the lowest price at which the property could be purchased, and that the consideration “moving towards said contract” was the commission which the 'defendants would receive from the seller as compensation for the negotiation of the sale and the purchase by the plaintiff of the land, and where there is not alleged any promise by the plaintiff to the defendants to purchase the land, and where there is not alleged any act performed by the plaintiff as a consideration for the defendants’ alleged promise to obtain the land for him at the lowest price at which it could be purchased, the alleged contract is void as lacking in consideration. An offer after-wards made by the plaintiff through the defendants to the owner to purchase the land, or an agreement to this effect-made by the plaintiff through the defendants, is not an act or promise on the part of the plaintiff constituting a consideration for the defendants’ alleged promise.

2. The petition, wherein the plaintiff sought to recover damages from the defendants for an alleged breach of the contract in failing to comply with their promise to obtain the land for him at the lowest price at which the property could be purchased, failed to set out a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

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


text:
    17914.
    Edwards v. Ward et al.

    Appeal and Error, 4 C. J. p. 267, n. 8.
    Motions and Orders, 42 O. J. p. 532, n. 75.
    Witnesses, 40 Oye. p. 2307, n. 58; p. 2318, n. 42.
   Stephens, J.

1. Under the authority of § 5858 (3, 5) of the Civil Code (1910) a party defendant is incompetent to testify as to transactions between himself and a deceased agent of the plaintiff. In a suit upon promissory notes where the defense offered and filed by both the defendant and the sureties was based upon the alleged fact that the notes were given as part of an usurious transaction, the defendant who negotiated the transaction with the plaintiff’s agent, since deceased, was incompetent to testify as to such transaction with the deceased agent. Johnson v. Hart, 82 Ga. 767 (9 S. E. 1110). The court therefore erred in admitting such testimony, over the plaintiff’s objection.

Decided March 3, 1928.

Complaint; from Banks superior court—Judge Stark. December 28, 1926.

J. G. & E. E. Edwards, for plaintiff.

A. J. Griffin, J. B. G. Logan, P. Cooley, for defendants.

2. Where, upon the trial, the court orally allowed the defendants to file an amendment to the pleas already filed, the court did not err, upon a hearing of the plaintiff’s motion for a new trial, in passing an order nunc pro tunc allowing the amendment. The amendment having been orally allowed upon the trial, the assignment of error contained in the bill of exceptions excepting to the allowance of the amendment came too late, as the bill of exceptions was presented for certification more than sixty days after the date of the order excepted to.

Judgment reversed.

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


text:
    17935.
    Maryland Casualty Company et al. v. Bartlett.
    Workmen’s Compensation Acts, ..C. J. p. 55, n. 21; p. 56, n. 28 New; p. 106, n. 50; p. 125, n. 68; p. 126, n. 75 New.
   Stephens, J.

1. The compensation payable under the workmen’s compensation act is in the nature of compensation for pecuniary loss sustained by the claimant resulting from the death of a person who in a pecuniary way applies his labor and services to the support of the claimant; and since such pecuniary loss results from the death of the person upon whom the claimant is dependent for pecuniary contributions, there is no substantial difference, under the compensation act, between a claim for “compensation” and one for damages for “lost services.” One is ‘tweedledum and the other is tweedledee. A claim filed with the industrial commission, praying for a sum of money for “lost services,” is a claim for compensation under 'the act.

2. Where it0 appears that the father, who is the head of the family, is in fact dependent upon his minor child, an award of compensation to the father for the death of the child is not invalid as being for the father and the use of himself and his wife and another minor child. Ga. L. 1920, p. 188, see. 39.

3. Section 59 of the workmen’s compensation act provides that a judge of the superior court may, on the hearing of an appeal from an award made by the industrial commission, recommit the case to the commission for “further hearing on proceedings in conformity with the judgment and opinion of the court.” A judgment so recommitting the case sufficiently indicates the question for determination on another hearing before the industrial commission where it recites that “the evidence is insufficient to establish dependency for a period of three months prior to the injury,” and that “the evidence is not sufficiently definite and .clear as to expense of last illness and funeral bills, and the commission shall also receive testimony as to these amounts.” Austin Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 S. E. 345); Maryland Casualty Co. v. Campbell, 34 Ga. App. 311 (129 S. E. 447).

Decided March 3, 1928.

Appeal; from Fulton superior court—Judge-Pomeroy. December 13, 1926.

Underwood & Haas, E. Smyth Gambrell, for plaintiffs in error.

H. W. McLarty, Hendrix & Buchanan, contra.

4. Where an appeal from an award is sustained on account of insufficiency of the evidence to sustain the award, and the case is recommitted to the industrial commission under an order pointing out an insufficiency in the evidence and affording the claimant an opportunity to present additional evidence to supply sufficient evidence, the order of recommittal will be affirmed, where it does not appear that the facts essential to support the award, which are lacking in evidence to support them, are affirmatively disproved. Where the evidence shows, without dispute, that the employee for whose injury or death compensation is sought had been employed for a period less than thre» -months prior to the accident, the evidence does not affirmatively disprove the fact of dependency for three months, as required under § 39 of the workmen’s compensation act as a condition to the allowance of compensation. Dependency, as contemplated in the act, does not arise solely by reason of the employment of the employee and the contribution by him from his wages to the support of the claimant, but may arise otherwise, as out of services rendered to the claimant by the employee, who is his child, in work about the home. Lumbermen’s Reciprocal Association v. Warren (Texas), 245 S. W. 604.

5. It does not affirmatively appear that dependency or expenses incurred ■ on account of the sickness of the employee or the amount of funeral expenses can not be established. The judgment recommitting the case for a new hearing by the industrial commission upon the questions indicated in the judgment must be affirmed.

Judgment affirmed.

Jenkins, P. J., and Beil, J., eoneur.


author: Bell, J.

text:
    17944.
    Cassini v. Highlands Hotel Company.
    Appeal and Error, 4 C. J. p. 688, n. 67 New.
    Corporations, 14 C. J. p. 657, n. 46.
   Bell, J.

1. In this suit to recover on a stock subscription the petition affirmatively disclosed such a state of facts as rendered the subscription voidable under the securities act (Ga. L. 1920, p. 250), and thus subject to general demurrer. On this question the case is controlled by the decision of the Supreme Court in Felton v. Highlands Hotel Co., 165 Ga. 598 (141 S. E.). Eor the reason stated the court erred in not sustaining the general demurrer and dismissing' the action. Whether the petition was bad in that it disclosed other defenses need not be decided and is not decided.

Decided March 3, 1928.

Complaint; from Bibb superior court—Judge Malcolm D. Jones. January 3, 1927.

John B. L. Smith, Joseph LeOonte Smith, M. G. Bennet, for plaintiff in error.

Harry S. Strozier, Brock, Sparks & Bussell, contra.

2. “Where there has been no final judgment, a defendant can not, in a bill of exceptions to a judgment overruling his general demurrer to the plaintiff’s petition, properly except also to an order striking his answer.” Brown v. Marbut-Williams Lumber Co., 34 Ga. App. 348 (2) (129 S. E. 575); Chatham Motor Co. v. Lincoln Motor Co., 31 Ga. App. 229 (2) (120 S. E. 444).

Judgment reversed.

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


text:
    17982.
    Nesmith v Nesmith, administratrix.
    Appeal and Error, 4 C. J. p. 1068, n. 16. Executions, 23 C. j. p. 601, n. 5; p. 609, n. 58.
    Trial, 38 Cyc. p. 1598, n. 26 New.
   Stephens, J.

1. An extrajudicial statement respecting the title to the property levied on, made by the defendant in fi. fa. in a claim case, is not inadmissible under the Civil Code (1910), § 5776, as being an admission, when it is offered and admitted in evidence solely for the purpose of impeaching the testimony of the defendant in fi. fa. The decision in Otis v. Brown, 59 Ga. 711 (4), seems to be controlling, in respect to the ruling in Luke v. Cannon, 4 Ga. App. 538 (2) (62 S. E. 110). Where the defendant in fi. fa. had testified that the title to the property levied on was in the claimant, the admission in evidence by the court, solely for the purpose of impeachment, of the schedule in bankruptcy filed by the witness, in which he had scheduled the property as belonging to him, was not error upon the ground that the statement therein as to title was an admission by the defendant in fi. fa. and was therefore inadmissible.

2. A charge in a claim case, that if the jury believed that the claim was interposed for delay only, they should award damages to the plaintiff against the claimant, is a correct statement of the law. Civil Code (1910), § 5169. The charge is not subject to the exception that it was incorrect and tended to confuse the jury, to the prejudice of the claimant’s case, and that the court in so charging erred in ignoring other phases of the case than that of delay.

3. The remaining assignments of error, not being insisted upon, are treated as abandoned.

Decided March 3, 1928.

Claim; from city court of Bambridge—Judge Spooner. February 7, 1927.

M. JE. O’Neal, for plaintiff in error.

J). B. Bryan, B. Q. Hwrtsfield, contra.

4. The judgment overruling the claimant’s .motion for a new trial is affirmed. Judgment affirmed.

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


text:
    17992.
    Fulton Bakery Incorporated v. Williams.
    Damages, 17 O. J. p. 1075, n. 8.
    Master and Servant, 39 O. J. p. 1227, n. 46; p. 1228, n. 53; p. 1230, n. 55.
    Trial, 38 Oye. p. 1598, n. 26 New.
   Stephens, J.

1. • In a suit by a servant against a master to recover damages for personal injuries, alleged to have been received, either as a result of a defect in the machinery which the plaintiff was operating or in obeying a negligent order of the defendant as respects the plaintiff’s operation of the machine, it is error, prejudicial to the defendant, to charge that “the law requires employers to furnish employees machinery that is reasonably suited and adapted to the use intended.” The duty here resting upon the master is to furnish machinery reasonably safe for all persons who operate it with ordinary care and diligence. Civil Code (1910), § 3130.

2. This being a case to which section 16 of the workmen’s compensation act (Ga. L. 1920, p. 177) is applicable, a charge of the court that if the defendant instructed the plaintiff in the manner in which the plaintiff should operate the machine, and that if the plaintiff, in attempting to comply with the order of the defendant, fell and was injured by a moving blade attached to the machine, and that if the injury was a result of a defect in the machinery and of a negligent command of the defendant, the plaintiff could recover for the injuries thus received, was an instruction that the plaintiff could recover if the command of the defendant was a negligent one. It is a complete and correct statement of the law, and the charge is not error because the court did not in connection therewith instruct the jury as to what would constitute a negligent command.

3. Where there is a physical deformity, such as loss of lingers, mental pain and suffering may result therefrom. In a suit for damages, where the plaintiff alleges mental pain and suffering resulting from such loss, a charge submitting such an issue to the jury is not objectionable upon the ground that it is not authorized by the evidence.

4. The court erred in not giving the following charge, which was timely requested in writing by the defendant: “There is no negligence in the construction of machinery which, when properly used in the ordinary manner, is safe under all conditions which will probably arise in any and every instance of such use. Hence, although it may have a defect, yet, if that defect be one which does not interfere with its safe and proper use with reference to the purpose for which it was constructed, an injury to the employee’s hand while accidentally in contact with the defective part of the machinery, but which was very unlikely to occur, can not be attributed to negligence on the part of the company in the construction of the machinery.”

Decided March 3, 1928.

Damages; from Fulton superior court—Judge Humphries. January 15, 1927.

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

W. C. Mtmday, Q. H. Cornwell, contra.

Judgment reversed,.

Jenhms, P. J., and Bell, J., concur.


author: Per Curiam.

text:
    18026.
    Hawkins v. Smith.
    Appeal and Error, 4 O. J. p. 1036, n. 67.
    Trover and Conversion, 38 Oye. p. 2107, n. 49.
    Decided March 3, 1928.
   Per Curiam.

1. In the instant case, giving the evidence a reasonable acceptation, it indisputably appears that the ring, which was the subject-matter of the suit in trover, was originally given by the plaintiff to the defendant in contemplation of and under a promise of marriage; that the engagement to marry was broken, and that the defendant thereupon offered to return the ring, but that the plaintiff did not actually take possession of it. There is a conflict as to the terms on which the defendant continued to keep the ring, the plaintiff testifying that after breaking the engagement the defendant was to keep the ring until called for by the plaintiff, the defendant testifying that it was regiven to her unconditionally after the engagement was broken: Field: It thus appearing that the only issue for determination under the evidence was whether, after the engagement was broken, there was an absolute reaffirmance of the previous gift by the plaintiff, or merely a permission to the defendant to retain the ring until called for by the plaintiff, a charge by the court “that the defendant maintains and contends that the ring in question was given to her by tile plaintiff not as an engagement ring, but simply as a ring during engagement, . . [and] I charge you that if you should find from the evidence . . that the plaintiff gave the ring to the defendant not as an engagement ring, but during an engagement, and the same was accepted by the defendant, then the plaintiff would not be entitled to recover, and you should find for the defendant,” was inapplicable to the single issue involved, and might reasonably have been prejudicial to the plaintiff.

2. No error otherwise appears.

Judgment reversed.

Jenlcms, P. J., amd Stephens and Bell, JJ., concur.

Trover; from city court of Albany—Judge Clayton Jones. March 1, 1927.

TF. E. Burt, for plaintiff. S. B. Lippitt, for defendant.


text:
    18041.
    McDaniel et al., executors, v. Farmers & Merchants Bank.
    Appeal and Error, 4 C. J. p. 905, n. 30.
    Banks and Banking, 7 O. J. p. 645, n. 27 New.
    Certiorari, 11 C. J. p. 192, jj, 28 New.
    Executors and Administrators, 24 C. J. p. 1185, n. 66 New; p. 1187, n. 5.
    Pleadings, 31 Cyc. p. 619, n. 64.
   Stephens, J.

1. Notice of sanction and of the time and place of hearing of a petition for certiorari may be established otherwise than by an acknowledgment of service or other proof of notice appearing upon the petition itself. McAlister v. State, 77 Ga. 599 (3 S. E. 163); Jones v. Gill, 121 Ga. 93 (48 S. E. 688). Such notice may, upon the hearing of the certiorari, be established otherwise by proper proof, such as a written acknowledgment of service, signed by one of the attorneys for the defendant in certiorari, reciting that the written notice required under section 5190 of the Civil Code of 1910 has been made as required by law. The court therefore did not err in overruling the motion to dismiss the certiorari upon the ground that proof of notice of its sanction and of the time and place of hearing did not appear upon the petition.

2. Where one of two executors of a will who have qualified abandons the management of the estate and leaves it entirely to the coexecutor, the former is not by such abandonment estopped from asserting a mismanagement of the estate and a misappropriation of the funds thereof • by the coexecutor. In a suit against a bank by an executor of an estate, to recover of the bank money belonging to the estate which had been placed upon deposit in the bank by the coexecutor, and which was represented by a certificate of deposit issued to the plaintiff and the coexecutor as executors of the estate, where the bank .defended upon the ground that it held title to the certificate of deposit as security for an advancement made to the coexecutor, the court did not err in striking an amendment by the defendant which alleged that the plaintiff was, by reason of the abandonment of the management of the estate entirely to the coexecutor, estopped from asserting that the bank, when making the advancement to the coexecutor upon the security of the certificate, made him a personal loan with knowledge that the money was to be used, and was afterwards used by the eoexecutor for his own use, and thus became a party to the conversion.

3. Where funds belonging to an estate have been deposited in a bank and a certificate of deposit therefor has been issued to the qualified executors as executors of the estate, and the certificate has been transferred by indorsement by these executors and delivery to another person who has subsequently qualified as a coexecutor, the latter has authority as executor to control, for the benefit of the estate, the funds represented by the certificate of deposit, and may, in so doing, still have control over the funds after having deposited the certificate of deposit in another bank and taken therefor a second certificate of deposit from that bank, issued to him and one of the other executors, who at the time is his sole eoexecutor. The executor making the deposit in the second bank is, notwithstanding that the certificate of deposit is issued in his name and in the name of the other executor jointly as executors of the estate, entitled to control the funds. This is particularly true where his eoexecutor, although standing legally qualified as a coexecutor, has turned over to him and abandoned the entire management and control of the estate.

Decided March 3, 1928.

Certiorari; from Grady superior court—Judge Custer. . December 4, 1926.

Application for 'certiorari was made to the Supreme Court.

Statement oe eacts ¡by Stephens, J.

Mrs. A. H. Willie, as sole executor of the will of W. A. Willie, instituted suit against the Farmers and Merchants Bank of Cairo, to recover $4,436.22 represented by a certificate of deposit issued in the names of the plaintiff and W. J. Willie as “executors,” W. J. Willie, who died after it was issued, being a coexecutor. In addition the plaintiff sought a recovery of $972.79 deposited in the defendant bank, which it was alleged represented the proceeds of the sale of property belonging to the estate of W. A. Willie. The defendant in its plea as amended denied liability, alleging that it had title to the certificate of deposit by virtue of a pledge of it by W. J. Willie as security for certain advancements made to him by the defendant; and it also denied liability to the plaintiff for $972.79 on deposit. The defendant alleged also that the plaintiff consented to the entire management of the estate by her coexecutor W. J. Willie, and that by reason of such consent the plaintiff was estopped from objecting to any of the acts and doings of the coexecutor W. J. Willie respecting the management of the estate. The defendant further alleged in making the advances to W. J. Willie and taking his individual note therefor, secured by the certificate of deposit, it acted in good faith, and that the sums so loaned to W. J. Willie were afterwards paid by him to other legatees of the estate in consideration of their conveying to him their interests in the estate; that the defendant did not know at the time of making advancements upon the certificate of deposit that W. J. Willie intended to use the funds in purchasing for himself the interests of other legatees, and that the defendant was no party to any such disposition of the funds. The defendant further alleged, that, since the sums obtained from it by W. J. Willie upon the pledge of the certificate of deposit had been expended by him in purchasing the interests of other legatees, and thus acquiring seven tenths of the estate, it would be inequitable for the plaintiff to recover the entire amount represented by the certificate of deposit; but that the defendant should be allowed to set off, against the amount due on the certificate of deposit, W. J. Willie’s indebtedness to it. The defendant further set up, as a defense to the suit, an alleged contract between the plaintiff and W. J. Willie, whereby the plaintiff, in consideration of W. J. Willie’s agreeing to pay to her $22 per month for and during her lifetime, agreed that he should handle and control the funds of the estate as he saw fit.

4. In a suit instituted by the sole surviving executor against the second bank, to recover from the bank, for and in behalf of the estate and as the property of the estate, the funds deposited with the bank and represented by the last certificate of deposit, a recovery can be had only upon the theory that, notwithstanding the defendant may have had knowledge that the funds represented by the certificate of deposit belonged to the estate, the defendant bank, with such knowledge, when advancing funds to the coexecutor upon the certificate and taking his individual note therefor, had or was charged with knowledge that the coexecutor intended to misappropriate such funds and apply them to his own use, and that the eoexecutor afterwards did in fact misappropriate the funds, and that the bank, in making the advancements with such knowledge of • intended misappropriation, participated with the coexecutor in such misappropriation. Carter n. Manufacturers’ National Bank, 71 Me. 448 (36 Am. R. 338; Smith v. Ayer, 101 U. S. 320 (25 L. ed. 955); 11 Am. & Eng. Enc. L. 1032.

5. In the absence of other facts demanding such a conclusion, the bank would not necessarily and as a matter of law be charged with knowledge of an intended or actual -misappropriation by the executor, merely by the fact of the making of the note under the circumstances indicated above and the depositing of the proceeds to the individual credit of the person making the note, where the proceeds were nevertheless paid to legatees of the estate on cheeks drawn upon such fund by him.

0. The verdict in favor of the plaintiff not being demanded, this the first grant of a new trial can not be disturbed.

Judgment affirmed.

Broyles, C. J., and JenJcins, P. J., concur.

The plaintiff demurred to that part of the defendant’s plea which set up an estoppel as indicated above, and- the demurrer was sustained. To that order the defendant excepted. After the introduction of evidence and the charge of the court, the jury found for the plaintiff in the full amount sued for. The defendant moved for a new trial upon various grounds, excepting to the admission of testimony and to the charge of the court. The plaintiff wrote off from the verdict a part of the amount found as representing the money on deposit in the bank. The defendant, by petition for certiorari, excepted to the rulings on demurrer and to the overruling of its motion for a new trial. The defendant in certiorari moved to dismiss the certiorari, on the ground that notice of sanction and of time and place of hearing did not appear upon the petition. Upon a showing of acknowledgment of legal service timely made, although evidence of such did not appear on the petition, the judge overruled the motion to dismiss. Upon the hearing the judge of the superior court passed an order overruling the certiorari upon condition that certain amounts representing seven tenths of the recovery be written off by the defendant in certiorari within thirty days, and upon a failure of the defendant in certiorari to do so, the certiorari would be sustained and a new trial granted. The defendant in certiorari refused to write off these amounts from the verdict, and the order of the judge has therefore operated to sustain the certiorari and award a new trial to the plaintiff in certiorari. To this order the defendant in certiorari excepted.

Upon the trial of the case in the city court of Cairo the following material facts appeared from the evidence: W. A. Willie left a will which generally provided, exclusive of certain special provisions,. that his estate should be kept together, and that his wife, Mrs. Annie H. Willie, should receive the income therefrom for and during her natural life, and that after her death the estate should be divided between his ten children. The wife and several of the children were designated therein as executors. The wife, Mrs. Annie H. Willie, and one of the sons, E. N. Willie, qualified as executors, and afterwards, on or about January 10, 1917, deposited in a bank in Louisville, Georgia, the sum of $4,436.22, representing funds belonging to the estate of W. A. Willie, and received therefor a certificate of deposit, dated January 10, 1917, payable to “Mrs. Annie H. & E. N. Willie, exrs. est. W. A. Willie,” in that amount, and due twelve months after date, with interest at the rate of 4 per cent, per annum. This certificate of deposit was afterwards indorsed by one of the executors named therein, Mrs. Annie H. Willie, the indorsement reading “Mrs. Annie H. Willie, extrix,” and it may have had after it an expression indicating that she was executrix of the estate of W. A. Willie, but the record is not clear as to this. Thus indorsed, the certificate of deposit was transmitted to W. J. Willie at Cairo, Georgia, who on August 9, 1917 (after he had, in July, 1919, qualified as coexecutor of the estate of W. A. Willie) transferred it by an indorsement reading, “Annie H. Willie & W. J.' Willie, ex’s estate of W. A. Willie,” to the Farmers and Merchants Bank of Cairo, it being pledged by him to the bank as security for a loan of $800 made to him by the bank to cover some overdrafts on checks made by him in the amount of $800, payable to certain legatees of the will of W. A. Willie, for which loan of $800 W. J. Willie gave to the bank his individual note, depositing the $800 with the bank to his personal account. Later the indebtedness of W. J. Willie to the bank was- twice increased, he each time giving to the bank his individual note in a larger sum, for the security of which the certificate of deposit was each time repledged by him. Of the $2,000 received by W. J. Willie, as an addition to his loan at the last renewal, $1,600 was deposited by him in the defendant bank to his individual account.

After the certificate of deposit fell due, which was on January 10, 1918, it was indorsed by the defendant bank to W. J. Willie individually and delivered to him for the purpose of collection. The indorsement of “E. N. Willie, executor,” was after this placed upon the certificate of deposit, and the certificate of deposit was honored by the Bank of Louisville by its giving to W. J. Willie its cashier’s check in the sum of $4,613.66, payable to W. J. Willie individually, and not as executor. This check was deposited with the Farmers and Merchants Bank of Cairo, the defendant, and a certificate of deposit in the sum of $4,436.22 was issued therefor by the defendant bank to “Mrs. A. H. Willie and W. J. Willie, executors.” Contemporaneously therewith this certificate of deposit, which appeared to be indorsed by “Mrs. A. H. and W. J. Willie, executors,” was left with the defendant bank as security for the accrued indebtedness of W. J. Willie to the defendant bank in the sum of $3,309, which had been secured to the defendant bank by the certificate of deposit issued by the Bank of Louisville, and for which indebtedness the defendant bank had taken the individual note of W. J. Willie in the sum of $3,309. The record shows that interest upon the sum represented by these certificates of deposit and various other amounts had been paid to Mrs. Annie EL Willie, the life-tenant.

It appears from the evidence that during the period from the receipt by the defendant bank of the certificate of deposit from the Bank of Louisville and the making of the last advancement of funds by the defendant to W. J. Willie, the only knowledge that the defendant had of the disposition by W. J. Willie of the funds thus received was from checks to different legatees of the estate, drawn by W. J. Willie on his account with the bank, to which account W. J. Willie had deposited some of the funds received by advancement from the defendant. From the funds thus received from the defendant bank W. J. Willie, it is inferable, purchased from some of the legatees their interests in the estate and took deeds thereto to himself in his individual name.

After the death of W. J. Willie his widow deposited with the defendant bank in her name, for herself and her minor child, $973.79, derived from the sale- of the property belonging to the estate of W. A. Willie, which property had been bought by W. J. Willie from legatees under the will of W. A. Willie, with funds obtained from the defendant bank as indicated. The defendant bank in receiving this deposit entered into a contract with the depositor, Mrs. A. J. Willie, which provided that the funds should lie in the bank and draw interest to the benefit of Mrs. A. H. Willie, the life-tenant of the estate of W. A. Willie, and at her death or before, upon her written release, the funds would be payable to Mrs. W. J. Willie individually and as guardian of the minor child. It does not appear that the bank took any part in the sale of the property from which these funds were derived, or even had any knowledge of such sale. It does appear that the person who was cashier of the defendant bank when W. J. Willie obtained the advancements from the bank upon his individual notes was an administrator of the estate of W. J. Willie.

Ira Carlisle, M. C. Bairwich, for plaintiffs.

8. P. Cam, Jeff A. Pope, for defendant.