text:
    16956.
    FISHER, next friend, v. GEORGIA NORTHERN RAILWAY CO.
    1. In a suit for personal injuries by a servant against liis master liability can not be predicated upon the worn and defective condition of an instrument with which the servant was working when it appears that such a condition in no way proximately contributed to the injury.
    2. A petition, when considered on demurrer, is to be construed most strongly against the pleader. In this action by an employee against a railroad company for a personal injury which the plaintiff claims to have received as a result of an act of a fellow servant the act was not shown to be negligent, sand there was no reason for holding the master liable therefor.
    3. The court did not err in sustaining the general demurrer to the petition.
    Decided September 18, 1926.
    Rehearing denied October 2, 1926.
    Action for damages; from Colquitt superior court—Judge W. E. Thomas. October 13, 1925.

      Titus & Dekle, DeLoache & McDonald, James L. Dowling, for plaintiff.

      J. J. Hill, for defendant.
   Bell, J.

This was a suit for damages for a personal injury. General and special demurrers to the petition were sustained, and the plaintiff excepted. The suit was-by one as next friend for the person injured, but hereinafter the latter will be referred to as the plaintiff. The petition alleged: The plaintiff, Fisher, was employed by the defendant as a helper to its boiler-maker, Johnson. The plaintiff was injured while Johnson, with the plaintiff’s help, was engaged in reaming holes in a boiler. The work was being done by means of a reamer attached to and propelled by an air-motor. The socket of the air-motor which retained the reamer was so worn that the reamer jumped out of it when subjected to the strain of the work in hand. Johnson replaced the reamer in the socket retainer and attempted to tighten or steady “the same by pressing it into said retainer with his hand, which is the usual method of placing said reamer into said socket,” but, “being unable to make said reamer tight with his hand, the said Johnson struck the same with a machine hammer made of case hardened steel, said reamer being made of hard-tempered steel. When said hammer hit said reamer a small piece of steel chipped off of said reamer and flew into Fisher’s left eye, completely destroying the sight thereof.” The negligence complained of is the worn condition of the socket retainer of the air-motor and the act of Johnson, the boiler-maker, in striking the reamer with the hammer. On the latter point the petition alleged, “Said Johnson was negligent in hitting said steel reamer with said steel hammer, both of said tools being made of highly tempered steel; that said Johnson is a railroad machinist of long experience and knew or should have known that the sharp contact of said steel surfaces was likely to cause said small piece of steel to chip off and fly into the eye of said Fisher, only about two feet away.” The following further allegations were made by amendment: í¿that at the time of said injury said Fisher was engaged in holding said air-motor as a helper to said Johnson, was under the instructions and control of said Johnson at said time and subject to his command as to the work he was doing and the manner in which it was to be done by said Fisher; and said Fisher had no discretion as to the manner of the performance of his duties;” and “that said Fisher had had little experience in connection with such work, having been ■ employed by said defendant only a short time, approximately three months; that said Fisher had no knowledge of the manner of construction of said air-motor, had no knowledge of its defective condition, did not, and could not have anticipated the force with which said Johnson was about to hit said reamer with said hammer, nor that said small piece of steel would chip off and fly into the eye of said Fisher as a result thereof, the said Fisher not knowing and having no means of anticipating the force with which said reamer would be struck with said hammer by said Johnson.”

It is clear that the plaintiff can not recover because of the worn condition of the socket retainer. The petition fails to show that this condition was the proximate cause of the injury. Indeed, the contrary affirmatively appears.

The injury occurred when the boiler-maker struck the reamer with the hammer, and the question is, does the petition show negligence in this act? It is not alleged that the hammer was defective, nor that there was any defect in the constituent material of the reamer. It is merely averred that they were both made of hard steel and that Johnson struck them together, when, from his experience, he knew or ought to have known that the “sharp contact of said steel surfaces” was likely to cause a piece of steel to chip off and fly into the eye of the plaintiff, about two feet away. Under the second specification the only negligence complained of is an act—the act of another employee. The defendant being a railroad company, the fellow-servant doctrine is inapplicable, and the plaintiff is not to be denied a recovery merely because he is complaining of an act of his fellow servant. See Civil Code (1910), §§ 3129, 4413. But it is necessary, of course, that he should allege negligence. If, after the futile attempt to remedy the situation with his hand, it was proper for Johnson to use the hammer in the manner shown, then certainly there was no negligence in his doing so. It is not alleged that the blow was accompanied with any considerable force, except that the contact was sharp; and while it is averred that the usual method of placing the reamer into the socket was by pressure with the hand, there is nothing to show that the stroke with the hammer was not a proper resort after the usual method 'had failed. The petition does charge in general terms that Johnson’s act was negligent, but it is claimed to have been so only because the tools were both of highly tempered steel and because Johnson, as a machinist of long experience, knew or should have known that the sharp contact of the steel surfaces was likely to cause a piece of steel to chip off and fly into the plaintiff’s eye. If the act was proper under the circumstances, it could not be negligent merely for the reasons stated. An act is not necessarily negligent because it may be attended with danger. Work performed by a person in a machine shop may be dangerous to others standing near even though it is performed in a proper manner and with due care. The petition, when considered on demurrer, is to be construed most strongly against the pleader, and, in the absence of allegations to the contrary, it is to be assumed that Johnson’s act was proper under the circumstances. In this view his act was not. negligent, and whatever injury the plaintiff may have suffered in consequence was an ordinary risk of his employment which he assumed. Civil Code (1910), § 3131. The petition alleges that the plaintiff was inexperienced and did not know of the risks incident to such employment, but there is no allegation that either the defendant or its servant Johnson knew of this fact, or that there was any dereliction on the part of any one in failing to warn him of the danger.

Johnson was not the alter ego of the company although Fisher was only his helper. TJnder the allegations, especially those contained in the amendment, it appears that the two were engaged in the joint act of adjusting the appliance. The plaintiff was holding the air-motor and knew that Johnson was about to strike it with the hammer. Such knowledge is to be inferred, since there is no allegation to the contrary and since the petition avers merely that the plaintiff had no means of knowing or anticipating the force with which the reamer would be struck. The allegations of the amendment would seem to strengthen the conclusion that the plaintiff never intended to allege that the stroke with the hammer was in itself an improper act on the part of Johnson, and, as we have already pointed out, it is not alleged that the blow was attended with undue or unnecessary force. „

Johnson’s act not appearing to be negligent, the defendant could not be held liable for the injury resulting therefrom. But even assuming that the petition sufficiently alleges that the blow with the hammer was improper, it has been seen that the amendment discloses that the plaintiff was a party thereto and he could not recover from the master for an injury resulting from an unexpected and unintended use of the appliance to which he was a party equally with his fellow servant. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438). There is no similarity between the present case and Maloy v. Port Royal R. Co., 97 Ga. 295 (22 S. E. 588), nor does it appear that there had ever been any chipping off before, as in Harvey v. Rome Scale &c. Co., 13 Ga. App. 571 (79 S. E. 487). Moreover, the latter case was one in which the only complaint was on account of a faulty instrumentality.

See further, in this connection, Reid v. Central R. Co., 81 Ga. 694 (8 S. E. 629); Ga. R. Co. v. Nelms, 83 Ga. 70 (9 S. E. 1049, 20 Am. St. R. 308); East Tenn. Ry. Co. v. Perkins, 88 Ga. 1 (13 S. E. 952); McCain v. Seaboard Ry. Co., 34 Ga. App. 86 (121 S. E. 876). Since the court was correct in sustaining the general demurrer, it is not necessary to examine the special demurrers.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beil, J.

license: Public Domain

text:
    17025.
    MACON COUNTY ASSOCIATION OF THE FARMERS MUTUAL FIRE INSURANCE COMPANY OF GEORGIA v. SLAPPEY.
    1. In this action upon a fire-insurance policy the evidence authorized the inference that the house for the loss of which the plaintiff sued was one of the houses covered by the policy.
    2. The evidence failed, as a matter of law, to show any violation of the terms of the policy, either express or implied. Any errors of the charge of the court upon this subject were therefore harmless to the insurer.
    3. Under all the facts appearing in the record it can not be said that the trial court erred in refusing a temporary postponement of the ease as requested by the leading counsel. There was no error in overruling the motion for a new trial.
    Decided September 18, 1926.
    Complaint; from city court of Oglethorpe—Judge Greer. November 2, 1925.

      M. Felton Hatcher, John M. Greer, for plaintiff in error.

      John B. Gu,erry, contra.
   Beil, J.

George A. Slappey brought suit against the Macon County Association of the Farmers Mutual Fire Insurance of Georgia, a corporation, upon a policy of fire insurance. The policy and the attached application described as the subject-matter of the contract three houses as follows: “IF house, located 2 miles N. Marshallville, used as tenant, made of wood, cover of wood, with three rooms, good condition. . . 2 F house, located 150 yards W. No. 1, used as tenant house, made of wood, cover of wood, with three rooms, good condition. . . 3 F house, located 150 yards W. No. 2, used as tenant house, made of wood, cover of wood, with three rooms, good condition.” Each house was insured for $400. The suit was for the loss by fire of house No. 2. The defendant in its answer denied “that any of the property covered by said policy was or has ever been destroyed, and states here and now that the building which the petitioner claims was destroyed was not and has never been covered by the policy of insurance mentioned.” The remainder of the answer' was a mere general denial of the material allegations of the plaintiff’s petition.

The company, by its name and by the form of the particular contract, appears to have been organized as a mutual company mainly for the purpose of insuring farm property or the property of farmers. The policy provided that the company and the insured should be governed by the by-laws. A copy of the by-laws was attached to the petition and contained the following provisions : “4. No building shall be taken into this company within any town or city, unless said building is made of metal, stone, or brick, and covered with metal, and is at least 100 feet from the property of a neighbor, and if made of wood and covered with metal, it shall be 150 feet, and if both made of wood and covered with wood it shall not-be less than 200 feet from the building of a neighbor. 5. The agent may take into this company dwellings, barns, and contents (except seed and lint cotton), and outbuildings, household goods of all descriptions, farming utensils, including pleasure carriages, harness, and implements usually kept in barns. The agent can insure live stock; also churches and schoolhouses. 6. Should any member desire to take out insurance on cotton, or any goods stored in buildings insured in this company, said goods being such as this company does not insure, then shall said member at once notify the agent or director, who shall suspend both the insurance and the liability to assessment to the same on such building until said policy expires, when the building shall again be reckoned on the association as before without additional charge to the owner.” “Debarred From Insurance.— Ginhouses, sawmills, any house that has steam power in it, stores, contents of stores, houses with stick and dirt chimneys, houses in town as per section 4, no cotton in the seed or bale.” No other provisions either of the policy itself or of the by-laws are here material. At the trial the jury found a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and it excepted.

The contention that the policy did not cover the particular house seems to be based upon the theory that the house was a storage house and not a tenant house, or that the description of the property in the policy did not include the house destroyed. The evidence shows that at the time the policy was issued the plaintiff had on his farm only three houses of three rooms each, located generally but not exactly as stated in the policy. There were at that time only four houses in all on the place, the fourth being “a small house about half a mile up toward Ft. Valley.” The plaintiff testified that the house for the loss of which he sued “was not built like the other two” mentioned in the policy; “it was built without a chimney and was divided into two compartments,” and he used it both as a tenant house and as a storage house. He would have peach pickers sleeping in the house during peach season. He used it “for storage sometimes and for tenants sometimes.” A contractor, introduced as a witness for the plaintiff, testified that he built the house in question, and that it was known as a “shotgun house, being about 20 by 36 feet,” and that it had “two partitions in it, making three separate compartments. It had a window in each end and some windows in the back. It could be used as a tenant house and as a storage house.” It had no front porch and was not ceiled. “The door was a large one and could be slided back. The steps were movable.” The secretary of the insurance company, introduced as a witness for the defendant, testified that he looked at the “burned house” and that it was “not either of the houses described in the insurance policy.” Another witness testified for the defendant as follows: “A building which is 22 by 36 feet, with a large sliding door, no front porch, with three compartments with no door between them, and with no chimney, is not a tenant house. I am familiar with tenant houses as they are usually built.” .There is nothing in the evidence to show whether or not the house was occupied 'by tenants at the time the policy was written. There was evidence to the effect, however, that the agent who wrote the policy did so after viewing the particular house with the others described in the policy and himself filled out the application.

We think the above evidence was sufficient to authorize, if not to demand, the inference that the house in question was covered by the policy. The thing insured was not a tenant house, but an “F house,” described in part as being used as a tenant house. The insurer does not suggest that any other house was meant. Even if that part of the description referring to the use may have been false or incorrect, enough remained to identify the property, and where this is true the false part of the description will not be considered. 13 Am. & Eng. Ene. L. (2d ed.) 118; 26 C. J. 87.

Although the defendant did not plead it, a further contention made under the evidence was that the plaintiff had violated the terms of the policy by putting the property to a prohibited use. The court, in the charge to the jury, submitted this contention as a defense, and several portions of the charge dealing with this subject are assigned as error. Since the defendant filed no plea raising such issue, the court was not required to notice this contention in charging the jury, but, the evidence having gone in without objection and the court having charged the jury thereon, absence of a proper plea will not matter in this court, where the answer could have been amended to allow the evidence. Under the record, however, we think that there was no evidence to sustain the defense claimed, and that if the court committed errors in the instructions with reference thereto, the defendant was not harmed. In this view it is unnecessary to pass upon the correctness of the various excerpts assigned as error.

The plaintiff testified that he had stored in the house farm produce, including cotton, at various times during the life of the policy. He did not know whether any of such produce was in the house at the time of the fire or not, but did not “think there was.” One or more witnesses for the defendant testified to having seen the ashes soon after the fire, and that some were “in the shape of cottonseed.” This is the evidence upon which the defendant bases the contention that the terms of the policy were violated. The provisions of the by-laws quoted above only prohibit the insurance of cotton and the insurance of a building in which insured cotton is stored. The statement in the application that the house was being used as a tenant house was merely descriptive and referred to present use, It did not constitute a warranty against a different use. 26 0. J. 194, 203. There is no express provision either in the by-laws or in the policy against the mere storing of cotton in any building insured. But § 2482 of the Civil Code (1910) provides that “Any change in the property, or the use to which it is applied, without the consent of the insurer, whereby the risk is increased, voids the policy;” and it would seem that the provisions of this section should be considered as impliedly written into the policy, and that if they were violated the company would not be liable. It therefore becomes necessary to determine from all the surrounding facts and circumstances what character of use was contemplated by the policy. As is indicated above, the company did not insure a tenant house but an “F house.” From the various provisions of the policy and the character of the contracts usually written by the company and the extraneous evidence, we should say that an “F house” is prima facie a farm house. This court will take judicial cognizance of the custom of farmers to store cotton and other farm produce in any outhouse on the plantation having space that may be needed for such purpose and that houses which are at times used as tenant houses may at other times be employed as storage houses. Insurers are bound to know the customs of a place where they-transact business and will be held to have made their contracts in reference thereto. Todd v. German American Insurance Co., 2 Ga. App. 789 (5) (59 S. E. 94). The contract of insurance must be construed so as to carry out the true intention of the parties and will be interpreted liberally in favor of the object to be accomplished. If it is fairly susceptible of two different constructions the one most favorable to the insured will be adopted. Civil Code, 1910, § 2475; Johnson v. Mutual Life Ins. Co., 154 Ga. 653 (1, 2) (115 S. E. 14). It could not be said that the parties did not contemplate that cotton would be stored in the particular-building. Moreover, by-law 6 would indicate that they actually intended that cotton might be stored therein, because it is provided in this by-law that “Should any member desire to take out insurance on cotton or any goods stored in buildings insured in this company, said goods being such that this company does not insure,” then the company’s insurance on,such buildings shall be suspended until the expiration of the policy on the contents. This, so far as material to this case, can mean nothing except that the company would insure a building in which cotton was stored but would not insure a building in which insured cotton was stored.

Even aside from this by-law, we think it was permissible for the insured to put the house to any use which was a customary and usual incident to the business of farming and that no other use was shown by the evidence. See Maril v. Conn. Fire Ins. Co., 95 Ga. 604 (23 S. E. 463, 30 L. R. A. 835, 51 Am. St. R. 102). The present case is entirely different in its facts from the case of Alston v. Greenwich Ins. Co., 100 Ga. 282 (29 S. E. 266), relied on by counsel for plaintiff in error. We conclude that the evidence failed as a matter of law to show the violation of any express or implied provision of the policy and that the defendant was never entitled to a submission of the case to the jury upon any such theory. All of the assignments of error on the charge of the court relate to this point and were therefore without merit.

One ground of the motion for a new trial complained that the court erred in not postponing the case from Monday until Wednesday because Mr. Hatcher, leading counsel for the defendant was engaged in the trial of another and very important case in the superior court of Bibb county and for this reason was unable to attend the trial of the instant case on Monday, the day on which it was set for trial and on which it was tried. In an affidavit attached to this ground of the motion it was shown that Mr. Hatcher was the defendant’s leading counsel and that a request for the postponement was made and refused. It seems to be undisputed in the record that Mr. Hatcher was the leading counsel, but it is certified by the trial judge that this fact was not made known to him at the time the postponement was requested, and that he did not know the fact until it was developed in the motion for a new trial. The record makes no issue between the judge and the attorney on this point. A continuance “will not be granted for the absence of counsel attending cases pending in another court except in the Court of Appeals or the Supreme Court.” Austin v. State, 160 Ga. 509 (128 S. E. 791). The case had been tried twice already. One trial resulted in a mistrial and the other in a verdict for the defendant. The court set aside this verdict on a motion by the plaintiff and later granted the defendant a continuance. At this grant the case was put upon terms and set for trial on Monday morning, September 38, 1935. The motion to check the case, not to continue it, was made by telephone on September 26 or 27. Under all the facts appearing in the record this court can not hold that the judge erred in refusing the request to postpone.

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bell, J.

text:
    16326.
    American Surety Company of New York v. County of Bibb, for use, etc.
    Decided September 20, 1926.
    Complaint on bond; from Bibb superior court—Judge Malcolm D. Jones. December 17, 1924.

      Robert ~W. Barnes, for plaintiff in error.
    Jones, Park & Johnston, contra.
   Bell, J.

This case is controlled by instructions to this court from the Supreme Court in response to questions certified herein. The superior court erred in allowing the petition to be amended and in not sustaining the general demurrer thereto. See 162 &a. 388 (134 S. E. 100).

Judgment reversed.

Jenkins, P. J., and Stephens, J., eoneur.


author: Stephens, J.

text:
    16858.
    Roberts v. Phillips.
   Stephens, J.

1. Where a motor-ear traveling along a public highway has been brought to a stop in the highway, and another car is approaching it from the front, both ears, notwithstanding one is stationary, are meeting each other in the sense of section 3 of the .act of 1921 (Ga. L. 1921, p. 255, Park’s Code Supp. 1922, § 828 uu-7), regulating motor-vehicles, which provides that “Whenever any operator bf a motor vehicle . . shall meet on a public . . highway . . any other vehicle, approaching in the opposite direction, the operator shall turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference.”

2. In a suit for personal injuries, where there is evidence to the effect that the plaintiff, while operating a motor-ear along a public highway on a dark, rainy night, had brought the car to a stop upon the left side of the road and had alighted and placed himself in front of the car, leaving the car standing thus with headlights burning and with a blinding light shining ahead in the highway, and while in this situation the plaintiff and his car were run into by an approaching car and injured, it was error for the trial judge to fail to give to the jury the following charge, requested in writing, which was not covered by the charge given: “It is the duty of the operator of a motor-vehicle to operate the same in such a manner as to give all other operators of vehicles the right to one half of the traveled roadway, if practicable, and also a fair opportunity to the other operator of the vehicle to pass without any unnecessary interference.”

Decided September 20, 1926.

Damages; from Muscogee superior court—William deL. Worsley, judge pro liae vice. September 1, 1925.

Application for certiorari was made to the Supreme Court.

McCutchen, Bowden & Gaggstatter, for plaintiff in error.

Foley & Chappell, contra.

3. It w'as also error to fail to give the following charge requested in writing, which was not covered by the charge given: “If a person operating a motor-vehicle chooses on a dark, rainy night to use the left-hand side of the road, it is his duty to be on the alert, use his eyes, his ears, and all of his senses to exercise care and caution to prevent injury either to himself or to other persons lawfully entitled to use the road.”

4. Since the law does not require all motor-vehicles to be equipped with dimmers, the court properly refused the request to charge that it was the duty of the plaintiff to have his automobile equipped with dimmers. See Ga. L. 1918, p. 200, sec. 2 (Park's Code Supp. 1922, § 828 (cc)).

5. Extracts from law books and opinions of courts which state correct principles of law are not always pertinent and apt for a charge to the jury. The refused requests to charge which are set out in grounds 8 and 9 of the motion for a new trial, while containing correct principles of law, are not couched in language calculated to enlighten the jury. The requested instructions read as follows: “The driver of a car using the wrong side of the road is not' entitled to rely on a machine coming from the opposite direction not exceeding the legal rate of speed.” “The driver of a car using the wrong side of the road is not entitled to rely on the driver of an approaching ear antipipating that he is on the wrong side of the road.”

6. The general and special demurrers to the petition were properly overruled.

7. No other error appears.

Judgment reversed.

Jenlvms, P. J., and Bell, J., eoneur.


text:
    16958.
    FIDELITY AND DEPOSIT COMPANY OF MARYLAND v. SMITH.
    1. A tax-collector, having no authority of law whatever to make levies and sales under tax fi. fas., issued a fi. fa. purporting to be for taxes due, and placed it in the hands of another as his deputy, who, “armed” with the fi. fa. and acting under the instructions of the tax-collector, seized property of the alleged taxpayer and sold it, to the owner’s damage. Held: Such acts constituted no breach of the tax-collector’s bond and the surety on the bond was not liable therefor.
    2. In this action on a tax-collector’s bond, where the facts alleged and relied on to show liability were as above indicated, the petition failed to state a cause of action", and the court erred in not sustaining the general demurrer thereto.
    Decided September 20, 1926.
    Action upon bond; from city court of Nashville—E. D. Rivers, judge pro hae vice. October 20, 1925.

      Little, Powell, Smith & Goldstein, for plaintiff in error.

      Jeff S. Story, B. PL. Griner, contra.
   Bell, J.

J. C. Smith brought suit against the surety on the bond of S. B. Griner as tax-collector of Berrien county. Griner was not a party to the suit, the petition alleging that he had removed to another State. A general demurrer to the action was overruled and the defendant excepted. The petition made the following case: Griner was’tax-collector of Berrien county in the early part of 1922, and the Fidelity & Deposit Company of Maryland was surety on his bond. The tax-collector issued a fi. fa., purporting to be for taxes due by J. C. Smith, and delivered it to his deputy, J. H.' Giddens. No taxes were due by Smith, and at his instance the enforcement of the fi. fa. was enjoined by the superior court. Notwithstanding the injunction, Giddens proceeded to the plaintiff’s office, and “armed with said fi. fa. . . and without advertising, and without bringing said property to the court-house door, and in direct disobedience to said injunction heretofore referred to, and under the instructions of S. B. Griner and contrary to law, . . sold to the highest bidder for cash (there being only two or three present at the sale) all of the property located in the office [of] your petitioner.” The plaintiff’s property which was thus made way with was itemized and alleged to be of the value of $1152.80. Included in the sale was the plaintiff’s filing cabinets, containing valuable papers belonging to the plaintiff and various clients, and “said J. Howell Giddens, as deputy tax-collector, acting under the advice and instructions of S. B. Griner, tax-collector, took all of said property and scattered them to the four winds of the world,” to plaintiff’s damage in the further sum of $1,000. The acts on the part of Griner “personally and by and through his deputy,” Giddens, constituted a breach of the bond and entitled the plaintiff to recover the full sum of $2152.80, besides interest, etc.

In counties having a population of 125,000 or more the tax-collectors are ex officio sheriffs to the extent of having authority to make levies and sales under tax fi. fas. Civil Code (1910); § 1225, as amended August 14, 1915, p. 11. Where an act of the legislature is effective only in counties of a certain population, the courts will take judicial cognizance that a given county has or has not the required population, as the case may be, for the purpose of determining whether the act is applicable therein. Leadbetter v. Price, 102 Ore. 159 (199 Pac. 633, 17 A. L. R. 218); Standard Oil Co. v. City of Kearney, 106 Neb. 558 (18 A. L. R. 95, 184 N. W. 109); 15 R. C. L. 1129. Berrien county has a population of less than 125,000. The tax-collector, then, had no authority to levy the fi. fa. Hill v. Ga. State Building Asso., 120 Ga. 472 (47 S. E. 897); Laurens County v. Citizens Bank of Valdosta, 9 Ga. App. 662 (72 S. E. 67). The plaintiff in error says, furthermore, that the tax-collector of Berrien county had no authority to appoint a deputy. Civil Code (1910), §§ 294, 225, 1227. We think it is unnecessary to decide this question. In our view of the case we may assume that Giddens was a duly and lawfully appointed deputy. Under this assumption, the action on the principal officer’s bond will stand as if the acts complained of had been committed by that officer himself. Civil Code (1910), § 295. Giddens, therefore, may be eliminated. We now have the following case: The tax-collector had in hand a fi. fa. issued by him purporting to be for taxes due; however, the taxes were not due, and the enforcement of the fi. fa. had been enjoined. The tax-collector, nevertheless, armed himself with the fi. fa. and proceeded thereunder to seize and sell the property of the alleged taxpayer, without advertising the sale and without carrying the property to the court-house door or otherwise complying with the forms of the law, to the owner’s damage. Do such acts constitute a breach of the bond?

To render sureties on official bonds liable for misconduct of the principal, the acts complained of must be done either by virtue of his office or under color of his office. In some jurisdictions the courts draw a distinction between acts virtute officii and those done colore officii, and hold the sureties liable for acts of the former class only. It is a broader rule whieh fixes liability for acts of the latter class, since it is cumulative and adds a liability to that whieh exists under the other doctrine. Where sureties are liable for wrongful acts of the latter class, they are liable for wrongful acts of both classes. They can not be held liable anywhere if the acts complained of belong to neither class.

The rule of liability for wrongful acts committed by virtue of office is of common-law origin and does not embrace acts doné merely under color of office. Coleman v. Roberts, 113 Ala. 323 (36 L. R. A. 84, 21 So. 449, 59 Am. St. R. 111). But the common law has been changed in some way in Georgia so as to render sureties on official bonds liable for (a) “any wrongful act committed [by the principal] under color of his office,” as well as for (6) “his failure to perform or . . the improper or neglectful performance of those duties imposed by law.” Civil Code (1910), § 291 (4). The portion of this section which w'e have designated as (5) indicates the causes for which sureties would have been liable at common law, while that which is quoted as (a) represents the extent by which the rule has been enlarged in this State.

Undoubtedly, the acts complained of in this case could not have been done by virtue of office, because the tax-collector had no power to make a levy and sale under the fi. fa. So it is necessary to determine whether such acts were committed under color of office. What is the meaning of the phrase, “color of office?” Black’s Law Dictionary gives the following definition: “A claim or assumption to do an act by virtue of an office, made by a person who is legally destitute of any such right.” In State of Maryland v. Fowler, 88 Md. 601 (42 L. R. A. 849, 42 Atl. 201, 71 Am. St. R. 452), the court, in discussing the difference between wrongful acts of an officer done virtute officii and those done colore officii, follows the distinction drawn by Lord Kenyon in the ancient case of Alcock v. Andrews, 2 Esp. 542, and restates the rule as follows: “The former are where a man doing an act within the limits of his official authority exercises that authority improperly, or abuses the discretion placed in him. The latter are where the act committed is of such a nature that the office gives him no authority to do it.’; In Feller v. Gates, 40 Ore. 543 (56 L. R. A. 631, 67 Pac. 416, 91 Am. St. R. 492), the court adopts the following ■ definitions as stated in Mr. Justice Pratt’s ■ dissent in Kellogg v. Schuyler, 4 N. Y. 173 : “Acts done virtute officii are where they are within the authority of the officer, but in doing it he exercises that authority improperly, or abuses the ■ confidence which the law reposes in him, whilst acts done colore officii are where they are of such nature that his office gives him no authority to do them.” In Luther v. Banks, 111 Ga. 374 (36 S. E. 826), the Supreme Court of this State approved the definition by Bouvier, that color of office is “a pretense of official right to do an act, made by one who has no such right.” While the tax-collector in the present ease was an officer and had in his hands a tax 11. fa., and proceeded to execute it as though authorized, we ■ think there was nothing upon which he could hoist even a pretense • of official authority in doing so. His conduct was a mere usurpation, where he had no authority to act at all in the matter. Where 'an officer commits a wrong under circumstances in which the law • imposes no duty upon him to act at all, the wrong is personal and not a breach of the official bond. State ex rel. Brennan v. Dierker, 101 Mo. App. 636 (74 S. W. 153); Chandler v. Rutherford, 101 Fed. 774 (43 C. C. A. 218); Hawkins v. Thomas, 3 Ind. App. 399 (29 N. E. 157); State v. Mankin, 68 W. Va. 772 (70 S. E. 764). In the Dierker case, supra, it was said that “It is only such acts of a sheriff as are done under color of office, involving 1 an abuse, as distinguished from a usurpation, of authority, that ' render his bondsmen liable.” As to levying tax fi. fas. under any circumstances, the power of the tax-collector of Berrien county ■ registers at zero. There can be no color of authority without some semblance of authority. Even color is more than nothing, and a .mere blank or vacuum is not a pretense. In Robertson v. Smith, 16 Ga. App. 760 (85 S. E. 988), this court held-: “Suit can not be maintained upon a sheriff’s bond for an unlawful homicide committed by a deputy sheriff, unless the wrongful act was done in the prosecution of some official duty.” The defendant in error relies on the decision rendered in the same case when -it was here a second time (Robertson v. Smith, 16 Ga. App. 767, 85 S. E. 991), and when this court approved the following language of the trial court: “An officer’s acts are done colore officii when they are of such nature that his official position does not authorize the doing of such acts though they are done in a form that purports they are done by reason of official duty and by virtue of his office. The test of liability in all cases of this character is found in the answer to the query: Did the principal act in an individual capacity? If he did, the surety is not liable, aliter, if he did not so act.” But in that case the officer did have authority to make arrests, and the circumstances gave ground at least for a pretense of authority to do the act complained of. This is true also of the case of Mitchell v. Malone, 71 Ga. 301. The acts described and set forth in the present case could not be said to have been done under color of office. The petition, therefore, failed to set forth a cause of action and the court erred in overruling the general demurrer. See further, in this connection, Board of Education of Miller County v. Fudge, 4 Ga. App. 637 (62 S. E. 154).

Judgment reversed.

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


text:
    16992.
    Benton v. Roberts.
   Bell, J.

1. While it is true that an agent for hire must exercise ordinary care generally about the business of his principal, it is also the rule that if he exceeds or violates his instructions and if his principal suffers damage as a consequence, the agent will be liable. Instructions must be followed, and in a suit for damages by the principal against the agent for a breach of the contract of agency, where it is shown that the instructions were materially violated, it is unnecessary to allege’ in terms that the agent was negligent. Civil Code (1910), §§ 3576, 3581; Cave v. Lougee, 134 Ga. 135 (67 S. E. 667) ; First National Bank v. Dickerson, 24 Ga. App. 465 (101 S. E. 194) ; Render v. Hartford Fire Ins. Co., 33 Ga. App. 716 (4) (127 S. E. 902).

2. Where in such a case the petition alleges expressly or by implication that the defendant became the agent of the plaintiff for the purpose of lending the plaintiff’s money only to good and solvent persons, upon good, sufficient, and solvent security, and to collect and faithfully account for the same, and that the agent violated the terms and conditions of his agency by lending the money to persons “who were then and there insolvent and are now insolvent, and without taking good, ample, and solvent security for said loan,” and where it is further shown that, as a result of such violation of the instructions so embodied in the contract of agency, the principal was damaged, the petition sets forth a cause of action. 1 Meehem on Agency, 939; Samoset v. Mesnager, 108 Cal. 354 (41 Pac. 337) ; Marshall v. Ferguson, 94 Mo. App. 175 (67 S. W. 935) ; Robinson Machine Works v. Vorse, 52 Iowa, 207 (2 N. W. 1108). An amendment to such petition, alleging that the money was loaned upon a note to mature on January 22, 1921, and that the defendant refused to collect the note in compliance with his agreement, was not objectionable as setting forth a new and distinct cause of action, and the court did not err in allowing it.

3. Under the petition and the -amendment thereto, the agreement between the parties being oral, the plaintiff’s cause of action would not have been barred by the statute of limitations until the lapse of four years from the time the defendant breached the agreement to collect, without an election by the plaintiff to accept an intermediate breach of the contract of agency. Nothing having been done by the plaintiff to mature the cause of action earlier, the suit was not barred, it being filed on January 13, 1925, within less than four years of the maturity of the note. Civil Code (1910), § 4389; Byrd Printing Co. v. Whitaker Paper Co., 135 Ga. 865 (3) (70 S. E. 798, Ann. Cas. 1912A, 182); Smith v. Ga. Loan &c. Co., 113 Ga. 975 (39 S. E. 410) ; 37 C. J. 813-815.

4. Neither the agent’s promise to collect the loan as alleged in the petition nor the agreement, as a part of the contract of agency, to “guarantee” it, as shown in the plaintiff’s evidence, constituted a promise to answer for the debt, default, or miscarriage of another, and the statute of frauds was not applicable either to the petition or to the evidence. Such undertaking on the part of the agent would merely relate to the terms and conditions of the agent’s original obligations under the contract between him and the principal, at the execution of which no loan to another was in existence.

5. An agent to lend and collect money is not an insurer that the loan will be paid, in the absence of an express agreement on his part to that effect. 1 Mechem on Agency, 939; 2 C. J. 722; Simmons v. Martin, 54 Ga. 48. The allegations in the instant petition, which were as indicated above, did not show such special or express agreement on the part of the agent. While the court did not err in admitting testimony that the defendant agreed to “guarantee” the loan, over the sole objection that such agreement would be invalid under the statute of frauds, it was error, under the pleadings, to submit to the jury the question whether the defendant became a guarantor of the loan, and in effect to instruct them that, if so, the defendant would be liable irrespective of whether the borrowers were insolvent at the making of the loan.

6. The defendant can not claim that his agreement was without consideration, and that for this reason he should be liable only for gross neglect; The act of the plaintiff in placing the money in his hands constituted a sufficient consideration for such promise as he made to her with respect to the terms upon which he would handle it. “A consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise.” Civil Code (1910), § 4242.

7. Where the instructions to an agent are general and he is expected to merely obtain a result, he is only required to act according to his best judgment to that end, within the rule of ordinary care. An instruction to lend only to good and solvent persons and upon good and ample security is a general instruction as to the character of the persons and of the security, but is a specific instruction not to lend to any person without security. An agreement to collect is also general in nature; and where, in a case like the present, the agent exercises proper care in lending to persons who are good and solvent, and also in taking ample and sufficient security, and thereafter uses ordinary diligence in making collection, he discharges the duties assumed by him, and should not be held liable, although the plaintiff may suffer loss. Lending without security would be a clear violation of tlie instructions, and would rendej tlie agent liable for any resulting loss sustained by liis principal. Lovejoy v. Lamar, 20 Ga. App. 499 (93 S. E. 153) ; 2 C. J. 717.

Decided September 20, 1926.

Complaint; from Jasper superior court—Judge Park. November 7, 1925.

M. F. Adams, W. H. Key, for plaintiff in error.

Olement & Gampbellj contra.

8. If in a case of this sort the agent has otherwise performed the duties devolving upon him, and if it turns out that the loan made by him for his principal is not collectible, he would not be liable merely for a failure to collect. If the agent is guilty of no other default except in not exercising diligence to collect, he should be liable only for the loss resulting to the plaintiff from that default, and not liable at all, except perhaps for nominal damages, in case proper diligence to collect would have been unavailing. Central Ga. Bank v. Cleveland National Bank, 59 Ga. 668; McCalla v. McCalla, 48 Ga. 502 (2) ; Cox v. Sullivan, 7 Ga. 144 (4) (50 Am. D. 386). It follows that the court erred in charging the jury that if the defendant promised the plaintiff that he would lend the plaintiff’s money and collect it and account to her for it, and failed to collect it, the verdict “ought to be in favor of the plaintiff in this, provided there is due her anything at the present time upon that loan.”

9. If the plaintiff, as a reasonable person, at any time saw that she was about to sustain a loss as a result of the defendant’s negligence, she can not recover for such loss, if she could have avoided it by the exercise of ordinary care. Civil Code (1910), § 4398; 2 C. J. 734. If after the loan matured the agent obtained further security in part, as by a security deed to lands, and the plaintiff was acquainted with this fact, the plaintiff could not arbitrarily refuse to accept such security and hold the defendant liable for her entire loss without deducting whatever amount she might in proper diligence have realized from such security. The question whether the defendant’s liability should be reduced by this amount would depend not upon the plaintiff’s ratification of the defendant’s act in taking the security, but upon whether the plaintiff exercised ordinary care and diligence to lessen her damage. This is not a case where an agent to collect money accepted in payment property other than money, and cases like Holmes v. Langston, 110 Ga. 861 (6) (36 S. E. 251), are inapplicable.

10. The court did not err in overruling any of the demurrers to the petition. Without referring in detail fo the various excerpts from the charge of the court which have been assigned as error, it may be said that some of them were erroneous under the principles above laid down. For this reason the court.erred, after a verdict in favor of the plaintiff, in refusing the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    17035.
    EMORY UNIVERSITY v. BLISS.
    in a suit for damages alleged to have been sustained as a residt of the defendant’s negligence, where the inference of negligence, if existing, depends entirely upon circumstantial evidence, and where there is direct testimony consistent therewith which shows that the defendant was without negligence and which is not subject to discredit upon any ground, a verdict in the plaintiff’s favor is unauthorized. Applying this rule to the evidence in this case, the verdict was contrary to the evidence and to law, and the court erred in refusing the defendant’s motion for a new trial, based upon the general grounds only.
    Decided September 20, 1926.
    Rehearing denied October 2, 1926.
    Damages; from DeKalb superior court—Judge Hutcheson. November 14, 1925.
    Application for certiorari was made to the Supreme Court.

      Gandler, Thomson & Ilvrsch, for plaintiff in error.

      Terrell & Terrell, Branch & Howard, and A. B. Dorsey, contra.
   Bell, J.

Dr. A. R. Bliss, while employed as professor of pharmacology in Emory University, a corporation, was injured by a gas explosion in the stock-room of his department. He sued the university for damages and recovered. The defendant’s motion for a new trial, containing the general grounds only, was overruled, and it excepted. The following is a general description of the surroundings as gleaned from the petition and the undisputed evidence: The plaintiff’s injuries were received in the stock-room. This room was situated a few feet from the laboratory room, in which the students made experiments and received instructions. The stock-room and the laboratory room, with a hall or corridor between, were both constructed with two floors, about four inches apart, the upper floor being of wood and the lower of concrete. The upper floor rested upon sills which were laid upon the concrete. In the space between the floors were pipes through which gas was supplied to the laboratory. These pipes extended through small iron boxes set upon the concrete at various places in the laboratory, and in each of these boxes was a pet-cock to control the outlet of gas. The pipes were not airtight in the holes through which they went into the boxes, and it was physically possible for some air to pass from the boxes into the open space between the floors and vice versa, carrying gas if any should be released from the pipes in either place. The holes were 15/16 of an inch in diameter, while the diameter of the pipes was only 11/16 of an inch. Bach box had a movable lid, the top of which was flush with the wooden floor. When a student found it necessary to use gas he would remove the lid from the box and connect a rubber tube with the pipe at the cock, then turn on the gas which would be conveyed through the tube to the student’s table. The gas was thus supplied to lamps and burned as needed. When the students were “through using the lamps, they.were supposed to turn off the gas cock, detach the hose, and put the iron cover back” on the box. The gas was subject to use by the classes in the above-described manner several times weekly.. The explosion which caused the plaintiff’s injuries was between the double floors, apparently beginning in the laboratory room and extending into the stock-room. The plaintiff alleged, and sought to prove, that, as a result of a defect or defects in the pipes, gas escaped and . accumulated between the floors and in some way became ignited, and that the defendant was negligent in failing to maintain the pipes in a proper condition and in failing to inspect the same and to warn the plaintiff of the defective condition. The plaintiff testified that “at the time the explosion took place that morning, the students, under [his] instructions, had opened these iron plates [or boxes], put the gas tubes on, and connected them up to the burners and were actually engaged in lighting up lamps. They lit these lamps by striking a match.” The plaintiff, however, undertook to exclude the theory that the explosion resulted from any negligence on the part of the students. This involved proof to the effect that there was no gas in any of the iron boxes containing the pet-cocks at the time of the occurrence, but that the explosion was from gas confined somewhere else between the floors. The plaintiff’s proof of negligence depended entirely upon circumstantial evidence, including an application of the maxim res ipsa loquitur. The defendant contended that the explosion was attributable to some other cause as probable as the fact of its negligence, and sought to sustain the contention by evidence. The defendant submitted also direct evidence to show that it was not negligent. It will be seen from the above statement that if an inference of the defendant’s negligence was legally authorized under the circumstantial evidence and was not conclusively rebutted by the direct testimony, the verdict should stand, but that if either of these propositions should be decided in favor of the defendant, the verdict must be set aside.

In our view of the case it is unnecessary to discuss the evidence by which the plaintiff claims to have shown the defendant’s negligence. At most it was only circumstantial and subject to rebuttal, and in our opinion, if a prima facie case was ever made out, it was rebutted as a matter of law. “When the plaintiff’s right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.” Frazier v. Ga. R. Co., 108 Ga. 807 (33 S. E. 993). “A fact can not be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist.” Neill v. Hill, 32 Ga. App. 381 (2 5) (123 S. E. 30). If the direct evidence established, without dispute, that the defendant was not negligent, the verdict in the plaintiff’s, favor is unlawful although the defendant has not satisfactorily accounted for the occurrence. Palmer Bride Co. v. Chenall, 119 Ga. 837 (4) (47 S. E. 329). The defendant proved by Professor Peebles that soon after the explosion the wooden floors in both rooms were entirely removed, so that the pipes could be tested and examined in every part; that they were tested and were found to be everywhere free from defects, except inside three of the iron boxes described above, in the area of the explosion, “right in the center” of it. Prom all the testimony it appears ■that these defects did not exist before the explosion but were caused by it. It will not do to say that these three defects probably existed before the explosion. If the plaintiff ever excluded the theory of negligence on the part of the students or others than the defendant in allowing gas to escape through the pet-cocks in these boxes, he at the same time showed that there were no defects in the pipes or cocks within the boxes before the explosion. Tinder the situation and all the circumstances, the exclusion of one of these facts equally excluded the other. The plaintiff’s contention was that the gas was confined between the floors somewhere outside the boxes, and that no gas was in the boxes. If none was ever in them before the explosion, then the defects found after the explosion can be explained upon no other theory than that they were caused by the explosion. See, in this connection, Ga. R. Co. v. Roberts, 114 Ga. 387 (40 S. E. 264); Carroll v. Atlanta Paper Co., 7 Ga. App. 584 (67 S. E. 680); Ga. Ry. &c. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076).

The explosion occurred in March, 1921. The trial was in September, 1925. Immediately after the explosion and the tearing up of the old floors new floors were laid, and from that date until the trial the pipes had been constantly used without having been repaired, except at the three places mentioned, and nothing had occurred in the meantime to show that the tests and examinations, as made by Professor Peebles, were not thorough and exhaustive. The testimony of this witness was consistent with the circumstantial evidence, and, not being subject to discredit on any ground, was a cpmplete refutation of any possible inference that might have been deducible from the circumstantial evidence. It follows that the verdict of the jury is illegal and that the court erred in refusing a new trial.

Judgment reversed.

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

ON MOTION TOR REHEARING.

We agree that the evidence set forth in the record shows, without dispute, that the explosion was brought about by gas collected between the floors. The only pipes alleged to have been defective were those between these floors. In relying upon the doctrine of res ipsa loquitur, the plaintiff undertakes to show that the gas did not accumulate between the floors by reason of a pet-cock having been left open, thus allowing the gas to escape from the box and thence into the space between the floors, with which space there was open communication. There seems to be no ground upon which to dispute the proposition that if the gas did escape from the pet-cock while the box was closed, it would permeate the space between the floors, the evidence being undisputed that there was open communication between the boxes and the floor spaces, the diameter of the pipes being four sixteenths of an inch less than that of the holes through which they entered the boxes. And, as previously stated, the evidence to the effect that, when the boxes containing the petcocks were open, no odor of gas was detected, and that consequently the gas between the floors did not originate from a leaking pet-cock, does not afford any stronger proof that the boxes did not contain gas than that the floors did not contain gas, especially since the plaintiff himself testified that the gas was lighter than air, would go through a pin hole, and would expand and diffuse in all directions. And the plaintiff’s case is based upon the contention that the floor space communicating with the boxes did contain gas. Since we know as a matter of fact that gas was concentrated between the floors, it must necessarily be true that the box containing the pet-cock likewise contained gas,, and consequently the evidence offered as to the failure to detect any odor from the boxes could not afford proof against that proposition. The case was decided primarily upon the undisputed evidence that after the explosion the floors were taken up and the pipes alleged to have been defective were thoroughly tested and found not to be so. The only defect alleged being in the pipes between the floors, and their condition having been proven by plain and undisputed testimony to be without defect, the doctrine of res ipsa loquitur could not prove that to be the fact which the evidence demonstrates not to be the fact, especially since the evidence for the plaintiff seeking to disprove the other natural and reasonable theory by which the 'explosion might have been brought about does not appear to be compatible with what must have been the actual fact. On the other hand, the direct testimony introduced by the defendant, showing that the defendant was not negligent as alleged, is entirely consistent with the circumstantial evidence by which the plaintiff proved the accumulation of gas between the floors. The defendant’s evidence does not deny this fact, but, in showing the absence of any defects in the pipes, would explain that the gas collected between the floors by escaping from an open petcock somewhere in a closed box, as to which the defendant was not negligent. We still think the rule is here applicable that where an inference is drawn solely from circumstances and is not demanded thereby, it may be overcome as a matter of law by the positive and uncontradicted testimony of an unimpeached witness, consistent with the circumstantial evidence relied on by the other party.

The rule was not applicable in Haas v. Godby, 33 Ga. App. 218 (125 S. E. 897), for reasons pointed out in the decision in that case,—reasons that do not obtain in the present case.

The principle just referred to could haye no application, of course, where the direct testimony is not consistent with the circumstantial evidence. See Atlantic &c. R B. Co. v. Clute, 3 Ga. App. 508 (60 S. E. 277). In such a case there is a conflict in the evidence, to be determined by the jury. It is our opinion that there was no inconsistency between the two classes of evidence in this case.

We realize fully that this court should never set aside a verdict on mere general grounds, where there is any evidence to sustain it, and if we have any “leaning” in a case involving such a question it is in favor of the verdict. We have most cautiously considered the motion for rehearing, and notwithstanding our great respect for the opinion and the good faith of the able counsel who have presented it, and our reluctance always to enter reversals in •cases of this character, we can not do otherwise in this case than to hold that the verdict is unauthorized.

Motion for rehearing denied.

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


text:
    17053.
    LEATHERS v. WATERS.
    1. In a bill of exceptions to review a judgment dismissing a petition for certiorari, an assignment tliat the judgment is contrary to law and contrary to the evidence is the equivalent of saying that the court erred in rendering the judgment. Where an assignment in the bill of exceptions charges that the judgment was error, it is unnecessary that the bill of exceptions should expressly except to and complain of the judgment. The decision of this court in Rogers v. Culver, 21 Ga. App. 95 (3) (94 S. E. 266), in so far as it lays down a contrary rule, is in conflict with the decision of the Supreme Court in DuBose v. Bank of Sparta, 139 Qa. 115 (76 S. E. 864), and will not be followed. There is no merit in the motion to dismiss the bill of exceptions. See further Pace v. Pace, 154 Ga. 712 (115 S. E. 65) ; Mathews v. Parker, 124 Ga. 144 (52 S. E. 322).
    2. In an action on a statutory bond to obtain the process of garnishment in a pending suit, there can not ordinarily be a recovery for attorney’s fees or for loss of time incurred by the defendant in defending the main suit upon its merits. Civil Code (1910), §§ 4392, 5268; Wilcox v. McKenzie, 75 Ga. 73; Porter v. Johnson, 96 Ga. 145 (23 S. E. 123) ; Dent v. Dent, 11S Ga. 853 (45 S. B. 680) ; Mass. Bonding Co. v. U. S.

      Conservation Co., 31 Ga. App. 716 (122 S. E. 728); 28 0. J. 536. Under tlie facts appearing, tlie plaintiff’s recovery should have been limited to the damages sustained in dissolving the garnishment. Mumford v. Solomon, 8 Ga. App.o286 (5) (68 S. E. 1075); Collins v. Myers, 30 Ga. App. 151 (117 S. E. 265).
    Decided September 20, 1926.
    Certiorari; from Fulton superior court—Judge Humphries. November 6, 1925.

      Lambert & Lambert, for plaintiff in error.

      Smith & Watson, contra.
   Bell, J.

Leathers brought suit against Mrs. Waters to recover commissions alleged to be due him as a real-estate agent. Pending this action the plaintiff executed and filed the statutory affidavit and bond to obtain the process of garnishment, and garnished the defendant’s wages, and the defendant dissolved the garnishment. The trial of the main suit resulted in favor of the defendant. Mrs. Waters then brought an action in the municipal court of Atlanta against Leathers and the surety on the garnishment bond, to recover damages as follows: $50 paid to attorneys to represent her in the previous suit by Leathers against her to recover the commissions; $10 for time lost by her in attending court in that case; $5 for the time lost by her in making the bond to dissolve the garnishment. The second suit resulted in a judgment in favor of Mrs. Waters for $60. Leathers then sued out certiorari to the superior court, the certiorari was overruled, and he excepted. The plaintiff in error, in his bill of exceptions, “avers that the overruling of said certiorari and the refusal to grant a new trial was and is contrary to the law, contrary to the evidence, and contrary to the answer of the trial judge to said certiorari, and was manifestly an abuse of the discretion of the judge of the superior court in not. granting a new trial and in not sustaining said certiorari, and further, that the order of the judge of the superior court in overruling said certiorari and refusing to grant a new trial was an abuse of his discretion, and was without law or evidence to support it.” The defendant in error moved to dismiss the bill of exceptions, upon the ground that the judgment overruling the certiorari is not assigned as error and is not excepted to.

There is no merit in the motion to dismiss the bill of exceptions. The assignment of error was sufficient to bring to this court all questions raised in the petition for certiorari. Meeks v. Carter, 5 Ga. App. 421 (63 S. E. 517); Chandler v. Reeves, 26 Ga. App. 167 (105 S. E. 724).

The judgment of the municipal court was erroneous, so far as it included a recovery for the plaintiff’s loss of time and for attorney’s fees incurred in defending the main suit upon its merits. It is unnecessary to further elaborate the headnotes. The court erred in not sustaining the certiorari.

Judgment reversed,.

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


text:
    16677.
    Maryland Casualty Company et al. v. Wells.
    Decided September 23, 1926.
    Appeal; from Meriwether superior court—Judge Eoop. June 13, 1925.
   Stephens, J.

1. Although a city policeman may not be an “employee” within the meaning of that term as used in the Georgia workmen’s compensation act (Ga. L. 1920, p. 167; Marlow v. Savannah, 28 Ga. App. 368, 110 S. E. 923), yet where an insurance company insures a city under the workmen’s compensation act and the policy expressly covers policemen employed by the city and the salaries of the policemen are taken into consideration in fixing the premium, the policemen, in so far as the insurance company is concerned, a,re employees of the city and entitled to compensation under the policy. Frankfort General Ins. Co. v. Conduitt, 74 Ind. App. 584 (127 N. E. 212) ; Kennedy v. Kennedy Mfg. Co., 177 App. Div. 56 (163 N. Y. Supp. 944).

2. Without deciding, as against the insurance company, that a city policeman, who is covered by a compensation policy issued by the insurance company to the city, must elect to come under the workmen’s compensation act in order to take under the policy, it is held that where such an election is once made, it holds good throughout the term of the officer’s employment, and also holds good under a similar policy subsequently issued by the insurance company to the city, covering the policeman, until the election is withdrawn or revoked.

3. An exception in an appeal from an award by the industrial commission, “that there is not sufficient competent evidence in the record to warrant the commission making the order or decree complained of,” is, in that it does not point out the particular evidence objected to or the ground of objection, insufficient to present for consideration an objection to the admission in evidence of parol testimony to prove the contents of a written election to come under the workmen’s compensation act.

4. The evidence sustained the award of the ■ industrial commission awarding compensation to the claimant against the insurance company, and no error of law appears.

Judgment a;ffirm'ed.

Jenkins, P. J., am,d Bell, J., concur.

W. J. Welsh, N. F. Culpepper, for plaintiff in error.

J. F. Hatchett, contra.


text:
    16695.
    JACKSON v. SERVICE LAUNDRY COMPANY.
    This being a suit to recover for damage alleged to have been sustained by the plaintiff by reason of having been negligently run over at a street-crossing by an automobile operated by a servant of the defendant, and it being clearly inferable from the evidence that the driver of the automobile negligently ran over the plaintiff, and that the driver was the agent or servant of the defendant, acting within the scope of his authority and within the line of his duty, the trial judge erred in directing a verdict for the defendant.
    Decided September 23, 1926.
    Action for damages; from city court of Atlanta—Judge Reid. June 13, 1925.

      Hewlett & Dennis, for plaintiff.

      McDaniel S Neely, for defendant.
   Stephens, J.

Mrs. Annie Jackson brought suit against the Service Laundry Company, for injuries alleged to have been received by her as a result of being run over, at the corner of Washington Street and Capitol Square in the City of Atlanta, by an automobile truck belonging to the defendant. The evidence clearly authorizes an.inference that the driver of the truck negligently ran over the plaintiff and injured her. The trial judge directed a verdict for the defendant, upon the sole ground that the evidence failed to show that the driver of the truck at the time of the injury was, in operating the truck, acting within the scope of his authority as the servant of the defendant.

There was evidence for the defendant that the truck at the time was being operated by a negro in its employ by the name of Frank McDonald; that the truck was regularly operated by a man in its employ by the name of Adams, but that Frank, without authority from the defendant, had taken Mr. Adams home and was going back with the truck when the truck ran over the plaintiff. Frank testified that he was the driver of the truck at the time of the injury, but his testimony was impeached by a witness who testified that Frank had stated to him that he was not at the time the driver of the truck. Adams testified that he was at home, which was in the neighborhood of the accident at the time of its occurrence, and that he came up to the place of the accident at the request of Frank McDonald, who had come down to Adams5 house after the accident and reported the accident to Adams. A witness by the name of Morris testified that he saw the accident and came up immediately afterwards and saw Adams there, that he knew Adams because he had seen him deliver laundry around that neighborhood, that he came up just a minute or two after the accident happened, that he never saw Frank McDonald before in his life. The husband of the plaintiff, who was with her at the time of the accident, testified that the driver of the truck was one Mr. Adams. The witness does not testify that he saw Mr. Adams driving the truck, but he testifies that Adams stopped him when he, the witness, was trying to get the number of the truck and requested witness not to call the police and not to have a case made, that Adams drove the truck away after the accident, “put the key in55 and started the automobile, and drove it to the hospital with the witness and the plaintiff. The conductor of a passing street-ear testified that as soon as the accident happened he jumped off of his car and ran to the place of the accident, and that Adams was there when the witness got there; the witness never saw the negro Frank McDonald there at all.

Another witness, named Bennett, testified that he saw the truck hit the plaintiff, that he did not see any one get out of the truck after the accident and run, that he could have seen it if it had happened, that besides the plaintiff and her husband he saw another man standing back of the truck when witness got there, that this man was a white man and was not Frank McDonald, that no man ran from the truck from the time the accident happened until the witness got there, and that the witness got there in jus't a second.

From this evidence it is clearly inferable that Adams, and not Frank McDonald, was the driver of the truck at the time it ran over the plaintiff and injured her. There is evidence to the effect that Adams was in the employ of the defendant company as a driver of this truck, that, his duties were to collect and deliver laundry, and his territory for collecting and delivering laundry was 'in the neighborhood in which the accident occurred; and while the accident occurred about 7:30 at night after Adams had, according to- a witness for the defendant, “checked in,” there was evidence from the same witness to the effect that laundry drivers came in at any time from the time they got out until two o’clock at night, and that there were “no regulations on that line at all.” Morris, a witness for the plaintiff, who testified that he saw the accident'and came up to the scene of the accident immediately afterwards, testified that the truck contained “laundry,” that he saw in the truck packages wrapped like laundry packages, that some of them had laundry marks upon them, that it was light around there so that he could see, and that “there was an arc light right up in front.”

From the evidence we think it is clearly inferable that Adams was the driver of the car, and that he was driving it in the line of his duty as agent for the defendant to collect and deliver laundry. It being clearly inferable, from the evidence, that the driver of the car negligently ran over the plaintiff, and that the driver of the car was the agent or servant of the plaintiff acting within the scope of his authority and within his line of duty, the trial judge erred in directing a verdict for the defendant.

Judgment reversed.

Bell, J., concurs. Jenldns, P. J., disqualified.


text:
    16708.
    VIDETTO v. HATCHER et al.

    The verdict was authorized by evidence, and the court did not err for any reason assigned.
    Decided September 23, 1926.
    Complaint; from city court of Richmond county—Judge Black. .June 30, 1925.

      Peebles & Bowden, for plaintiff in error.

      Hammond & Kennedy, contra.
   Stephens, J.

Videtto was sued on a promissory note, and by his plea contended that he was not indebted, for the reason that at the time he executed the note he delivered to the plaintiffs two second-hand automobiles which they were to sell and credit on the note, ■ and that they did actually sell the automobiles for a sum in excess of the amount due thereon, and he prayed judgment for the excess. The evidence was in sharp conflict as to the agreement with reference to the sale of the two second-hand automobiles. The jury, as they had a right to do, accepted the plaintiff’s version and returned a verdict in favor of the plaintiff. The defendant assigns error upon the court’s failure to charge as requested, and upon several excerpts from the charge given. The charge of the court when read in its entirety is full, fair, and submits the issues, without confusion, to the jury. The defendant has had a legal trial of his case, and for no reason shown by the record did the court, after having approved the verdict upon the findings of fact, err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16741.
    Adkins v. Salmon.
    Decided September 23, 1926.
    Trover; from Floyd superior court—Judge Wright. July 21, 1925.

      Denny & Wright, for plaintiff in error. F. W. Copeland, contra.
   Stephens, J.

1. This being a suit in trover to recover certain farming tools, implements, etc., and the evidence authorizing the inference that certain of the property, the value of which is represented by the amount-found in the verdict, belonged to the plaintiff and was converted by the defendant, the verdict found for the plaintiff was authorized.

2. The motion for a new trial being based only upon the general grounds, the court did not err in overruling the motion.

Judgment affirmed.

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


text:
    16746, 16747.
    Hirsch v. Plowden (two cases).
   Stephens, J.

1. An ordinance of the City of College Park which provides that “it shall be unlawful to operate an automobile past any street-car or any portion thereof while such street-car is standing still for the purpose of receiving or discharging passengers” applies to the driver of an automobile approaching a standing street-car which is on his right, although it discharges its passengers upon the far side of the car and although the car may be headed in the direction from which the motorist is coming.

2. Where in the City of College Park there was a street-car track upon the side of the highway, and all the vehicular traffic going in both directions was on one side of the street-ear track, and where a street-ear operating along the track had stopped to discharge passengers upon the far side of the car from that upon which the-vehicular traffic passed, and where one of the passengers so discharged went to the rear of the street-car and crossed over the track on to the traveled part of the street and was run into and injured by an automobile approaching on the side of the highway contiguous to the track, and in a suit by the injured person against the owner of the automobile to recover for the injuries thus sustained, the evidence authorized the inference that the driver of the car passed a portion of the street-car while the latter was standing still, it was proper for the court to admit in evidence and give in charge to the jury the ordinance mentioned above.

3. Since the evidence authorized the inference that the driver of the automobile deviated from a straight course and turned in on to the plaintiff, it can not be said as a matter of law that the plaintiff was the cause of her own injuries because she heard the automobile approaching before she stepped from behind the street-car upon the traveled roadway.

4. It being clearly inferable from the evidence as delivered by the plaintiff that the. automobile was close upon her, about eight or ten feet, before she was aware of its approach, and it being also inferable that the street-crossing at which she was attempting to cross was a dangerous place, the court properly gave in charge to the jury the statute requiring the operator of an automobile upon a public highway or street to give timely warning by the use of a signal apparatus and to reduce his speed upon approaching a dangerous place upon the street or highway.

5. In a suit for personal injuries, based upon negligence alone, it is inapt to give in charge section 4422 of the Civil Code (1910) as follows: “A physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law. The intention should be considered in the assessment of damages.”

6. The evidence being susceptible of conflicting inferences as to whether the plaintiff was totally or permanently disabled, the court erred, as set out in grounds 6 and 9 of the motion for a new trial, in expressing an opinion that the plaintiff’s injuries were total and permanent. Such errors require, a new trial. The excerpts from the charge excepted to are as follows: “Eor illustration, if she was earning $150 a month at the time of the injury, find for what period of time she would have been able to earn that amount, how long that would continue, and see what the gross amount would be. After you find the gross amount, then it would be your duty to reduce that amount to its present cash value, inasmuch as it would all have to be paid at one time, and the present cash value would be very much less than the gross sum, and you would reduce it to its present cash value by any proper method of calculation you may adopt, using the 7% per annum basis for your calculation.” “The only rule for your guidance in that regard, in finding what amount, if any, you shall give her on account of the physical injuries and the pain and suffering resulting therefrom, as well as the permanent character of those injuries, is your enlightened consciences as impartial jurors.”

7. The exception to the court’s refusal of a written request to charge section 5751 of the Civil Code (1910), relative to weighing negative and positive testimony, will not be passed upon, as a new trial is granted and the evidence may be different upon another trial.

Decided September 23, 1926.

Damages; from city court of Decatur—Judge Daley. July 13, 1925.

Garitón TF. Binns, Dorsey, Shelton & Dorsey, Colquitt & Conyers, for plaintiff in error.

Heivlett & Dennis, contra.

8. The court did not err in refusing certain other written requests to charge, as the same, so far as they stated correct principles of law applicable to the ease, were covered by the general charge.

9. The court, except as indicated above, did not err in the charge to the jury.

Judgments reversed.

Bell, J., concurs. Jenldns, P. J., disqualified.


text:
    16866.
    Georgia Railway & Power Company v. Ogletree.
   Stephens, J.

1. It is not negligence per se for a passenger upon a streetcar to sit with his arm protruding not more than two or three inches out of the window upon the side next to a car approaching upon a parallel track where both cars are meeting and passing each other upon a curve. Although there may be horizontal bars in the window and their presence there may suggest to the passenger the danger of allowing his arm to protrude through the .window, it is not negligence per se for a passenger to rest his arm upon one of the bars and allow his arm to protrude out of the window as above indicated. Whether such conduct is, under the circumstances, negligence, is a question of fact for the jury.

2. In a suit by a passenger against a street-ear company to recover damages for injuries sustained by him by reason of his arm being broken as a result of the alleged negligence of the defendant in .allowing cars to pass too close together when meeting upon a curve while the passenger was sitting in one of the cars with his arm protruding out of the window on the side adjacent to the approaching car, a charge that if the plaintiff in the “exercise of ordinary care should have reasonably anticipated” that the protrusion of his arm out of the window might have resulted in his arm being struck by the approaching car, he would have been guilty of contributory negligence, is equivalent to an instruction that the standard of care chargeable to the plaintiff is that which would be exercised by an ordinary prudent man under the same circumstances, and is not an instruction that the standard of care is what the plaintiff himself might have regarded as prudent.

3. The charge is not subject to the objection that it contained an expression of opinion upon the facts, was argumentative, inaccurate, or unfairly stated the contentions of the parties.

4. The evidence authorized the inference that the cars in meeting each other and in passing upon parallel tracks upon the curve came so close together that they collided; that the approaching car struck the plaintiff’s arm and broke it; that the defendant company was negligent in so operating its cars, and that such negligence was the proximate cause of the plaintiff’s injury.

Decided September 23, 1926.

Damages; from Fulton superior court—Judge Bell. July 31, 1925.

Colquitt & Conyers, Sidney Smith, for plaintiff in error.

Slaton & Hoplcins, contra.

5. The evidence authorized the verdict found for the plaintiff, and no error of law appears.

Judgment affirmed.

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


text:
    16990.
    Ætna Insurance Company v. Spillers.
    Decided September 23, 1926.
    Complaint; from Taylor superior court—Judge McLaughlin. October 17, 1925.

      Homer Beeland, for plaintiff. John B. Guerry, for defendant. .
   Stephens, J.

Where an insurance company issued and delivered a policy of insurance and accepted in payment of the premium a promissory note of the insured showing that its consideration was the identical policy, the insurance company will be held to have waived the provision of the policy that it should be valid only when signed by the local agent, and a plea of failure of consideration was no defense to a suit upon the note. See, in this connection, Rogers v. American National Ins. Co., 145 Ga. 570 (89 S. E. 700) ; Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256 (4) (30 S. E. 918, 42 L. R. A. 261) ; Darsey v. Insurance Co. of North America, 32 Ga. App. 458 (123 S. E. 622). The defendant having recovered a verdict, the court erred in overruling plaintiff’s motion for a new trial.

Judgment reversed.

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


text:
    17034.
    Utt v. Harris et al.

   Stephens, J.

TJtt instituted suit against Harris and others, alleging that he (Utt) and the others were stockholders in a corporation; that Harris and the other stockholders named as defendants entered into a conspiracy to obtain a majority of the stock, and that when they failed to do so the corporation was adjudicated a bankrupt; that the plaintiff and the defendants contributed a sum of money each for the purpose of composition with creditors, and that subsequently the corporation, by order of the court, was placed in the hands of a receiver and the property was sold under receivership proceedings at less than its value, and that by reason of such unlawful conspiracy the defendants injured and damaged him in the sum of $80,000. The petition was demurred to generally and specially. The court sustained the demurrer upon each ground urged. Held: The court did not err in sustaining the demurrer and dismissing the suit. The petition set forth no legal cause of action. It failed to show any breach of duty upon the part of the defendants toward the plaintiff. Indeed, the petition itself discloses that the plaintiff was the majority stockholder and actually had management and control of the business at the time of the bankruptcy proceedings.

Decided September 23, 1926.

Action for damages; from Fulton superior court—Judge Humphries. November 9, 1925.

W. H. Uttfor plaintiff.

Troutman & Troutman, for defendants.

Judgment affirmed.

Jenkins, P. J., cmd Bell, J., eoneur.


text:
    16696.
    Waynesboro Planing Mill v. Perkins Manufacturing Company.
   Stephens, J.

1. A parol contract unenforceable by reason of the statute of frauds is nevertheless a valid, subsisting contract as between persons other than the contracting parties, for purposes other than a recovery upon it. Cowan v. Adams, 10 Me. 374 (25 Am. D. 242) ; Draper v. Wilson, 143 Wis. 510 (128 N. W. 66, 21 Ann. Cas. 1387) ; 25 K. C. L. 732, § 380, and cases cited.

2. Where a deed to realty contains a provision making the deed subject to an existing timber lease, and where one claiming through the lessee the title to timber institutes a suit in trover against a strangePto recover the timber, the defendant can not defend upon the ground that the timber lease referred to in the deed was in parol and unenforceable under the statute of frauds, that there was no valid timber lease in existence at the time of the execution of the deed, and that therefore the lessee from whom the plaintiff bought could convey no title.

3. Contentions of a party to a suit are not always contained in the pleadings, but may be found in*the evidence as well. Applying this rule, the charge of the court in this case is not subject to the exception that it misstated the contention of a party, where it stated the contention of the party as made by the evidence and not by the pleadings.

4. The fact that a contract may be required by the statute of frauds to be in writing will not preclude the establishment of its contents by parol, where it has not in fact been reduced to writing.

5. Testimony that a written contract was executed on a date different from the date of execution recited in the instrument is not testimony as to the contents of a written instrument, but is testimony as to the happening of an event, namely, the time of the actual execution of the instrument. Such testimony is not inadmissible on the ground that it is parol testimony as to the contents of a writing.

Decided September 23, 1926.

Trover; from city court of Waynesboro—Judge W. I-I. Davis. July 1, 1925.

H. G. Hatcher, 6r. G. Anderson, for plaintiff in error.

E. M. Price, E. V. Heath, contra.

6. Although documentary evidence may have been admitted, it was not prejudicial to the plaintiff in error for the court to charge the jury as follows: “You have seen the parties and the witnesses on the stand, and you know their interest or want of interest, and it is for you to determine from the testimony what the truth of this transaction is.”

7. The evidence authorized the inference that the timber-lease contract was in existence when the deed to realty was made, and a hypothetical charge adjusted to this evidence was not error.

8. This being a trover suit, and there being an issue of fact as to whether tlie property sued for had been converted by the defendant, the following-charge of the court amounted to an expression of an opinion that there had been a conversion, and is error requiring the grant of a new trial: “If you find that Powell had contracted for this timber at the time that Mrs. Wood obtained her deed, and that she had notice of the lease to Powell, and that plaintiff bought and paid Powell for these logs, and that Powell was not in arrears in paying for them under his contract with Carlton at the time plaintiff bought, then I charge you it would be your duty to find for the plaintiff the highest proven value of said logs described in the petition from the time of the conversion to the time of the trial.”

9. No other error appears.

Judgment reversed.

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


text:
    16715.
    Gay v. Carpenter.
   Stephens, J.

1.- The failure of the seller of personal property to record the written contract which reserves in the seller an interest in the property sold as security for the balance of the purchase money does not result in a discharge of the surety on the contract where it appears that the surety was not damaged. Seymour v. Bank of Thomasville, 157 Ga. 99 (4) (124 S. E. 578).

2. Protest of a promissory note is not required as against a surety thereon. Hunnicutt v. Perot, 100 Ga. 312 (27 S. E. 787) ; Connor v. Hodges, 7 Ga. App. 153 (3 a) (66 S. E. 546) ; James v. Calder, 7 Ga. App. 707 (67 S. E. 1125).

3. An indulgence in payment of a promissory note, granted by the payee to the maker, which is without consideration, does not constitute an agreement that will release a surety. Civil Code (1910), § 3544; Baumgartner v. McKinnon, 10 Ga. App. 219 (73 S. E. 519).

4. A retaking of property by the seller, for the purpose of holding it until the purchaser, who is the maker of a note for it, has paid part of the purchase money, and a release of the property then to the purchaser, does not constitute a rescission of the contract. Where such retaking in no -wise increases the surety’s risk, the surety is not released.

Decided September 23, 1926.

Complaint; from city court of Waynesboro—Judge Davis. July 1, 1925.

H. G. Hatcher, G. G. Anderson, for plaintiff in error.

E. M. Pricecontra.

5. This being a suit by tile seller of personalty against the signers of a purchase-money note in which title to the property was retained in the seller as security for the debt, and the defense interposed by one of the defendants, who signed ostensibly as a maker of the note, being that he was a surety only, and that he was released from his obligation as such by certain acts and conduct of the plaintiff, it follows, from an application of the above rulings to the undisputed evidence, that none of the acts injured the surety or increased his risk, and a verdict for the plaintiff was properly directed.

Judgment affirmed.

Jenjoins, P. J., and Bell, J., concur.


text:
    16828.
    Broadwell v. Maxwell.
   Stephens, J.

1. It being absolutely essential to the establishment of the defendant’s contention that he was not a tenant, but was in possession of the property as a debtor, with the right to redeem, that he establish as a fact an alleged parol agreement entered into between him and one Smith, his former creditor, on November 7, 1916, when the property was sold by the sheriff under foreclosure proceedings and bought in by Smith, by the terms of which agreement the defendant, who had been in possession of the property, was given the right to redeem the property by paying the indebtedness thereon, it was prejudicial error, requiring a new trial, for the judge to charge as follows: “This contract of November 21, 1916, purporting to create the relation of landlord and tenant between Smith and Broadwell, should be construed according to its own specific provisions, unless you find that Broadwell has by evidence clearly, definitely, and unequivocally shown a contract of the nature set up by him in his pleadings as having been made at the time of the sheriff’s sale.” The court, in instructing the jury that it was incumbent upon the defendant, “by evidence, clearly, definitely, and unequivocally,” to establish the alleged parol agreement, placed a greater burden upon the defendant than the law requires.

2. Since it is a vital issue as to whether the defendant is a tenant or one in possession with the right to redeem upon the payment of a debt, a statement to the effect that the defendant “seems very anxious to repurchase” the premises in question, contained in a letter written to the plaintiff by one who claimed to have written the letter at the defendant’s request, on February 2, 1918, in so far as it tended to establish an admission 'by the defendant that, by desiring to “repurchase” the property, lie was a tenant, was hearsay and prejudicial, and improperly admitted in evidence.

Decided September 23, 1926.

Eviction; from Cobb superior court—Judge Tarver presiding. September 5, 1925.

Application for certiorari was made to the Supreme Court.

This was a statutory proceeding under section 5389 of the Civil Code (1910) by Maxwell to dispossess Broadwell as a tenant holding over. Broadwell defended upon the ground that he was not a tenant, but stood in the relationship of a mortgagor in possession with the right to redeem the property on payment of the indebtedness secured by the mortgage. A verdict was found for the plaintiff. The exceptions are to the overruling of the defendant’s motion for a new trial and to the overruling of his demurrer to the amendment referred to in paragraph 4 of the foregoing decision.

George F. Gober, H. B. Moss, for plaintiff in error.

Anderson & Roberts, L. M. BlawyFfZ. Foster, contra.

3. It was not error for the trial judge to refuse to read, in the charge to the jury, extracts from the opinion rendered by this court upon a previous consideration of this ease.

4. Since, under the statutory proceedings to evict a tenant holding over, the plaintiff can, in addition to ejecting the defendant, recover a money judgment only for double rent for the premises, it was error to allow an amendment which sought to recover for taxes and insurance upon the property paid by the plaintiff.

5. As set out in ground 11 of the motion for a new trial, the charge of the court inaccurately stated the defendant’s contention in his pleadings.

6. The law of this ease having been fully laid down in Broadwell v. Maxwell, 30 Ga. App. 738 (119 S. E. 344), upon review of a former trial of this case, it is unnecessary to pass upon any of the other assignments ef error.

Judgment reversed.

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


text:
    16993.
    Freeman v. Metropolitan Life Insurance Company.
   Stephens, J.

1. A provision in a life-insurance policy which limits liability in the following terms has reference to death by suicide only, and not to an accidental death without suicidal intent, although death may have been caused by the insured’s own hand or act: “Suicide. If the insured within one year from the date of issue hereof die by his own hand or act, whether sane or insane, the liability of the company hereunder shall be limited to an amount equal to the premiums which have been received, without interest.”

Decided September 23, 1926.

Complaint; from Floyd superior court—Judge Maddox. October 30, 1925.

Denny & Wright, for plaintiff.

Maddox, Maddox & Mitchell, for defendant.

2. In a suit by the beneficiary upon a policy where liability was denied by the defendant solely upon the ground that the death of the deceased was caused by his own hand or act, a charge by the court to the effect that if the insured committed suicide or caused his death by his own act or hand, the plaintiff could not recover the amount of the policy, tended to leave upon the jury the impression that the plaintiff could not recover if the insured had accidentally, and not with suicidal intent, caused his death by “his own act or hand.” The charge was error andi requires a new trial.

3. The verdict of the coroner’s jury which found that the deceased came to his death by his own hand was not an adjudication against the plaintiff in a suit upon the policy. The verdict amounted to no more than hearsay, and was not competent to establish the cause of the death of the insured. Since the insurance company admitted the death of the insured and defended against the suit upon the ground that he came to his death by his own hand or act, the written proof of death filed with the company by the plaintiff, which was relevant only to establish the fact of death, which was undisputed, was irrelevant and immaterial to establish any issue. Since the proof of death, which was admitted in evidence when offered by the defendant, contained as a part thereof the verdict of the coroner’s jury to the effect that the death of the deceased was caused by his own hand, and also contained as a part thereof the evidence adduced before the coroner’s jury, all .of which was hearsay, it was prejudicial to the plaintiff, and its admission in evidence over the plaintiff’s objection on the ground of irrelevancy was error.

4. Whether the death of the insured, if caused by his own hand, was inflicted with suicidal intent, involved an inquiry into the insured’s state of mind at the time of death. Any statement or declaration made by the insured prior thereto that he intended to kill himself was not hearsay, and when made three or four days before death was a substantial fact tending to establish a mental condition, and was therefore relevant and properly admitted for the purpose of showing suicidal intent.

5. The court having properly charged the jury that the fact of the insured’s committing suicide could be established by circumstantial evidence, it was not error, in the absence of a timely written request, to fail to further instruct the jury upon the nature and character of circumstantial evidence.

6. No other error appears.

7. A verdict having been rendered for the' defendant, under the above rulings the court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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