author: Bell, J. Luke, J.,

text:
    18808.
    WESTERN & ATLANTIC RAILROAD v. LOCHRIDGE.

      Decided February 7, 1929.

      Tye & Tye, Neel & Neel, Seth M. Wallcer, Fitzgerald, for plaintiff in error.

      Hewlett & Dennis, W. O. Martin, Whitaker & Whitaker, contra.
   Jenkins, P. J., being disqualified, Judge Luke, of the first division of this court, participated in his stead.

Bell, J.

Mrs. Josephine Loehridge, as administratrix, brought suit against Western & Atlantic Railroad, under the Federal employer’s liability act, to recover damages for the use of herself and two minor children for the alleged wrongful death of her husband and their father, John Loehridge, in a collision between two of the defendant’s trains, upon the engine of one of which Loch-ridge was employed as fireman. The defendant demurred generally and specially, the court overruled the demurrer, and exceptions were taken. The trial resulted in a verdict for the plaintiff for $20,000. The defendant moved for a new trial, and, this being refused, the case was brought to this court.

The defendant pleaded two .defenses: (1) that the decedent’s death was caused solely by his own negligence; (2) assumption of risk.

While the bill of exceptions contains assignments upon the overruling of the demurrer, and the proceedings in regard thereto were sent up in the record, these assignments are not insisted upon in this court, so that the only questions raised for decision are those presented in the motion for a new trial, or in such of the grounds thereof as have not been abandoned.

It is insisted that each of the defenses was sustained by the evidence as a matter of law, so that a verdict should have been directed for the defendant or a new trial granted upon the general grounds. It is also contended that the judge committed a number of material errors in his instructions to the jury, and that-the verdict is excessive.

The train upon which Lochridge was firing was a work train, and was known as No. 383. Besides Lochridge, its crew consisted of L. E. Payne, conductor, H. J. Eobinson, engineer, Tomlinson, ' a watchman, one or two brakemen, and a flagman. This train, with its crew, spent the night of June 18, 1924, at Kingston, Georgia, where in the early hours of June 19 it received orders to leave for Dalton, a station further north, which it did under clearance from the operator at Kingston at 4:50 a. m. of the latter date. The next station north was Hall’s, after which was Adairsville. The distance between Kingston and Adairsville was about 10 miles, and Hall’s was about half way.. The collision, which occurred at 5 :06 a. m. about a mile and a half south of Adairsville, was with a regular south-bound passenger-train known as No. 3, which was due to leave Adairsville at 5 a. m., and which did leave at 5:02. Each train was moving at a speed of approximately 35 miles an hour, as though it had a clear track. No fault was attributable to those in charge of No. 3. The only passing point between Kingston and Adairsville was at Hall’s, where there was a sidetrack nearly a mile long, with switches at each end. The orders which had been received by the conductor and the engineer of No. 383 did not mention No. 3, which, without mention, was a superior train and ought to have been given right of way. To this end, No. 383 should have taken the siding at Hall’s, but it failed to do so, and was thus running on the time of the,other train. It had gone about two miles beyond the north switch of the side-track when the collision occurred.

The petition alleged that the defendant was negligent in failing, through its conductor and engineer, to stop No. 383 at Hall’s station and to cause it to take the side-track, so as to permit No. 3 to pass, and in failing to give any warning to the decedent of an intention to go on to Adairsville, and not to stop at Hall’s. It was also averred that the conductor was in charge of the train, and that he and the engineer, under the defendant’s regulations, were responsible for its movements.

There were introduced in evidence certain rules with which Lochridge was presumably acquainted, and among which were the following: Rule 105. '"Conductor has charge of train and of all persons employed thereon, except when his instructions conflict with the rules or involve risk, in either of which case the engineman will be held alike responsible.” Rule 106. “Run no risks; in case of doubt take the safe side.” Rule 211 (a). “Operators must furnish conductors and enginemen a clearance card, Form A, with all train orders. On passenger trains, conductors must show all train orders to flagmen, and enginemen must show to firemen. On other trains, conductors must show to rear brakemen and enginemen must show to firemen and front brakemen.” Rule 522. “Closely observe train signals; read train orders, keep them in mind, and should there be occasion to do so, remind engine-man.” Rule 523. Fireman shall “Call to engineman the indication of fixed signals as they come into view. Notice especially switch targets and lights which may not be visible to him.” Rule 524. Firemen shall familiarize themselves “with the train rules, special instructions, signals and train orders, and assist engineman in their observance. Understand the rule for the protection of trains and be prepared to execute them when required.” Rule 526. Fireman shall “So regulate fire as to be able to keep a lookout while passing through stations and approaching road crossings.”

The evidence showed that to a point a short distance north of Hall’s the engine would have needed firing in the usual manner, the track being mostly up-grade; thence to the place of the wreck the incline was downward, and firing would have been unnecessary. As the train passed a house between Kingston and Halls, certain women came out and waved, apparently in response to the continued blowing of the whistle in that vicinity. This was south of the south switch of the side-track, and there was no evidence that Lochridge participated in any greetings that may thus have been exchanged. A witness who lived north of Hall’s station testified to having seen Lochridge “laying” out of the window looking ahead. The train was then about even with the north switch of the side-track. Except as above stated, the evidence was silent as to what Lochridge may or may not have done after leaving Kingston.

There was testimony as to the receipt at Kingston by the conductor and the engineer of the orders with respect to the movement of No. 383, but there was no positive evidence that any of these orders ever came into the hands of Lochridge or were read to him by the engineer or any one else. However, for the purposes of this case it will be assumed that he knew or should have known that'train No. 3 had right of way and that it was the duty of No. 383 to take the siding. There was no evidence to show why it was driven on in violation of the rules and orders. R. A. Reagin, flagman, and the only member of the crew of that train who testified, could upon that question merely say that No. 3 was overlooked or forgotten and this appears to have been a bare conclusion. Five orders were received by the conductor and the engineer, during the night and early morning, prior to their departure, and there is some room for conjecture that these orders might have been misinterpreted, although for the purposes of this case it will be taken for granted that they should not have been, the defendant so contending.

Riding upon the engine with Lochridge and Robinson, the engineer, was Tomlinson, the watchman, and all of them were instantly killed. All other members of the crew except flagman Reagin were either inaccessible or unaccounted for at the trial.

There was no other evidence so material here as to require mention in this statement.

It can not be said as a matter of law that Loehridge’s death was brought about solely by his own negligence, even assuming that he was negligent as claimed by the railroad company. It is undisputed that the conductor and the engineer were both negligent, and they were the ones primarily responsible for the movement of the train. To put the case most strongly for the railroad company, the negligence of Lochridge was only contributory and could not be considered the sole cause. If his death resulted in whole or in part from the negligence of the other employees, the defendant is liable under the specific provisions of the statute.

In Illinois Central R. Co. v. Skaggs, 240 U. S. 66 (36 Sup. Ct. 249, 60 L. ed. 528), it was held that a recovery under the Federal employer’s liability act was supported by evidence by which it could be found that a fellow servant was negligent, and that thereby the injury complained of resulted, although the injured employee may himself have participated in the act which caused the injury. In such a case the fact that the injured employee was himself guilty of negligence contributing to the injury does not bar a recovery, but the damages are to be reduced by the jury in proportion to the amount of negligence attributable to him. See also Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114 (33 Sup. Ct. 654, 57 L. ed. 1096).

It is claimed for the railroad company that if Lochridge had been in the discharge of his duty, he would have called the attention of the engineer to the switch targets and would have “reminded him” of the necessity of taking the siding, and that the company “was entitled to expect that self-protection from its employees.” Language similar to this was used by the United States Supreme Court in Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218 (46 Sup. Ct. 495, 70 L. ed. 914), and that case is cited as authority. However, in that case the only person negligent was the employee for whose death the action was brought.

In at le'ast .two cases the Supreme Court has held that no recovery could be had for the death of an engineer who was killed under circumstances similar to those of the present case. Davis v. Kennedy, 266 U. S. 147 (45 Sup. Ct. 33, 69 L. ed. 212); Frese v. Chicago, Burlington & Quincy R. Co., 263 U. S. 1 (41 Sup. Ct. 1, 68 L. ed. 131). In each of those cases the negligence of the engineer was regarded as the sole cause of his death, despite the fact that the fireman or other employee may have been negligent also, and it would seem to follow that in such a case the negligence of the fireman, a subordinate employee, should not be considered as more than a contributing cause.

Certainly the evidence in this case did not demand the inference that the death of fireman Lochridge was caused solely by his own negligence. Therefore the first of the defenses can not be held established as a matter of law. Compare Union Pacific R. Co. v. Hadley, 246 U. S. 330 (38 Sup. Ct. 318, 62 L. ed. 751); Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139 (49 Sup. Ct. 91).

Under the facts appearing, the question-as to assumption of risk is more difficult. Did Lochridge assume the risk arising from the negligence of the conductor and the engineer ? If so, this was a complete defense, and the court should have directed a verdict for the defendant, or, after verdict for the plaintiff, should have granted a new trial on the general grounds.

Such negligence on the part of the decedent’s fellow servants was not a risk which he assumed, unless he became aware of it and of the dangers arising therefrom, or unless such negligence and its probable consequences were so obvious that an ordinarily prudent person, under the circumstances, would have observed and appreciated them, and the decedent failed to take proper steps to avoid acquiescence therein. Gila Valley &c. Ry. Co. v. Hall, 232 U. S. 94 (4) (34 Sup. Ct. 229, 58 L. ed. 521). Any participation by the decedent in the violation of the company’s rules and orders would be referable to the question of negligence, and not to that of assumption of risk, unless as a circumstance upon the latter question. In the absence of special contract the company could not say, by rule or otherwise, just what should be done by an employee to discover the negligence of a fellow servant, or to avoid assuming the consequences thereof if and when discovered. As to this the law would control, having in view all the circumstances. Georgia Pacific Ry. Co. v. Dooley, 86 Ga. 294 (12 S. E. 923, 12 L. R. A. 342); Oberlin v. Oregon, W. R. & N. Co., 71 Ore. 177 (4) (142 Pac. 554).

That the negligence of the conductor and the engineer, with its probable or certain consequences, was known or should have been known to Lochridge, the fireman, can hardly admit of question. What, then, was he to do? In Seaboard Air-Line Ry. v. Horton, 233 U. S. 492, 504 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1), the Supreme Court said: “When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise.” See, in this connection, 3 Labatt’s Master & Servant (2d ed.), §§ 1201 (e), 1216.

In the present case, complaint or objection with an “assurance” of safety could not reasonably have been satisfying, because the danger was so imminent that no person of ordinary prudence could have felt safe in relying upon such assurance, On the other hand,; if Lochridge made complaint and it proved ineffectual, he still could not have been expected necessarily to leave the company’s service, certainly not the train, for that probably would have meant instant death, and the alternative of remaining upon it, in the hope that by some chance the danger would be averted, could in common prudence have been thought to be the wiser course. In Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 (13 Sup. Ct. 914, 37 L. ed. 772), an engine known as a “helper,” after helping a freight-train to the top of a grade about 20 miles 'from its station, was returning-against rules, and in a collision with another train Baugh, the fireman, was injured. He sued the railroad company for damages and recovered. The case was carried to the Hnited States Supreme Court, where it was held that the plaintiff, in voluntarily riding upon the engine with full knowledge of his peril, assumed the risk. Baugh, however, lived to tell the story; while in the present case the fact was that all of those who were riding upon the engine, including Lochridge, were killed, and there was no conclusive evidence as to his conduct after his departure from Kingston. There was no evidence to demand the inference that he did not call the attention of the engineer to the fixed signals such as switch targets and lights, and otherwise assist and remind the engineer as required by the rules. He may have endeavored to have the train take the siding and wait, with the result that he was overruled. Nor can it be said absolutely, from the evidence, that he did not then and thereafter protest or complain against the danger of going ahead.

True, it may be supposed that if this had been done the engineer would have responded and acted differently. The fact that the engineer continued to drive his locomotive on until it collided with the other train is the strongest circumstance in favor of the proposition that Lochridge failed to do or say anything to cause a reversal of the engineer’s conduct. 'The engineer, however, was grossly culpable in failing to take the siding upon his own initiative, and it could have been inf erred, that he further violated the rules in failing to read.the train orders to his fireman. In these circumstances might it not have been inferred that he either misconstrued the rules and arbitrarily refused suggestion from another, or that for some reason he calculated that he could reach the next station in safety and was determined to do so ?

In Virginian Ry. Co. v. Linkous (C. C. A), 230 Fed. 88, the facts were almost identical with those of the case at bar, except that in that case the suit was to recover for the death of the engineer. The trial judge submitted to the jury the question of whether there was negligence on the part of the other employees, contributing to the decedent’s death, that is, of whether the death of the engineer resulted in part from the negligence of other employees within the meaning of the employer’s liability act. After verdict for the plaintiff, the defendant carried the case to the Circuit Court of Appeals, assigning error upon the charge of the court and upon the refusal of the court to direct a verdict in its favor. In reviewing the case as thus made and in reversing the judgment of the court below, the Court of Appeals said: '“Save the fact that they were on the engine at the time plaintiff’s decedent was killed, there is not a word of testimony as to what was said or done by the other employees prior to or at the time of the accident. Therefore it could only be by inference, if at all, that the jury might form any opinion as to what actually transpired in so far as the conduct of the other employees is concerned. Under these circumstances, what is the reasonable inference to be drawn therefrom? Could it be reasonably inferred that the conductor or any other employee on the engine approved of or assented to the action of the engineer in running his engine past the station in utter disregard of the orders under which he was operating? Would it not be more reasonable to infer that the conductor and other employees did not consent to the train being carried by the station, but rather protested against the action of the engineer for the purpose of saving their own lives, if for no other cause. When last seen, the engineer and the other employees were in the full possession of their mental faculties in so far as the record shows, and therefore the presumption is that they were still in a normal condition at the time the collision occurred, and if this be true it would be repugnant to reason to say that they acquiesced in a course of conduct by the engineer which they must have known would necessarily result in disaster. Therefore, if this be the correct inference to be drawn from the testimony, the plaintiff’s decedent did not lose his life on account of the negligence of the officers, agents, or employees of the defendant, and therefore the plaintiff would not be entitled to recover,”

In Looney v. Metropolitan R. Co., 200 U. S. 480 (26 Sup. Ct. 303, 50 L. ed. 564), it was said by the United States Supreme Court: '“If there is no evidence which speaks one way or the other with reference to contributory negligence of the person killed, then it is presumed that there was no such negligence.” While in each of the two cases last cited the court, in the language quoted, was speaking of the sufficiency of evidence to show negligence on the part of employees, the reasoning of both of these cases would apply equally in determining the question of assumption of risk, where the record fails to show any “evidence which speaks one way or the other” upon the subject.

Assumption of risk is a matter involving choice (Brown v. Rome Machine Co., 5 Ga. App. 142 (5), 62 S. E. 720; Emanuel v. Georgia & Florida Ry. Co., 142 Ga. 543, 83 S. E. 230), and in the instant case the evidence did not demand the inference that Loch-ridge voluntarily elected to ride upon the engine with knowledge of the danger, as was true in the Baugh case, supra. The burden of establishing assumption of risk as a defense rested upon the railway company (Central Vermont Ry. Co. v. White, 238 U. S. 507 (3) (35 Sup. Ct. 865, 59 L. ed. 1433, Ann. Cas. 1916 B, 252), and before this defense may be held proved as a matter of law, the evidence “to show such assumption must be clear and uncontradicted.” Chesapeake & Ohio Ry. Co. v. Winder, 23 E. (2d) 794;. Kanawha & Michigan Ry. Co. v. Kerse, 239 U. S. 576 (2) (36 Sup. Ct. 174, 60 L. ed. 448). Compare Western & Atlantic R. v. Hetzel, 38 Ga. App. 556 (6) (144 S. E. 506). The evidence in the present case did not measure up to this standard, and the question was one for the jury. The record does not make it necessary to determine whether there was absolutely no sufficient evidence to have authorized a verdict in favor of such defense, and we do not rule upon that question. What we hold is that there was no conclusive evidence upon the subject, and thus that the defendant did not carry the defense beyond the jury as a matter of law. It follows from what has been said above that the court did not err in overruling the motion to direct a verdict in favor of the defendant, nor in thereafter refusing to grant a new trial upon the general grounds.

The court charged the jury as follows: “In order for the plaintiff to recover in this case, she must establish her contentions to your satisfaction by a preponderance of the evidence. By a preponderance of the evidence is meant that superior weight of the evidence upon the issues involved, which while not sufficient to wholly free the mind from a reasonable doubt, is yet sufficient to incline the mind of a reasonable and impartial person to one side of the issue rather than to the other.” It is complained that this charge was error because, to instruct the jury that evidence would be sufficient although it might merely have inclined the mind to one side of the issue rather than to the other, violated the Federal rule as to the quantum of proof necessary, and recognized instead the scintilla evidence rule, which has been repudiated by the United State Supreme Court. A. B. Small Co. v. Lamborn, 267 U. S. 248 (45 Sup. Ct. 300, 69 L. ed. 597); Chicago &c. Ry. Co. v. Coogan, 271 U. S. 472 (46 Sup. Ct. 564, 70 L. ed. 1041). This charge, however, spoke of the “superior weight” of the evidence, and the portion excepted to was in the language of our Civil Code, § 5731. The definition of preponderance of evidence as there given is in accord with the common acceptation. 23 C. J. 12. The instruction did not authorize a recovery in the absence of evidence to establish the issues in favor of the plaintiff beyond the realm of speculation and conjecture. It may be remarked in this connection that the scintilla evidence rule has no more recognition in this jurisdiction than in the Federal courts. Georgia &c. Ry. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Smith v. Atlantic Coast Line R. Co., 5 Ga. App. 319 (2) (62 S. E. 1020); Southern Ry. Co. v. Wessinger, 32 Ga. App. 551 (7) (124 S. E. 100).

In one ground of the motion for a new trial error is assigned upon the following charge of the court: “I charge you that the plaintiffs petition, as amended, alleges that between Kingston, Georgia, and the point of the wreck, that the deceased Lochridge was constantly engaged in firing the engine of work train 383, immediately in front of the fire-box upon said engine, and from which position he was unable to keep a lookout, and could not see.” It is contended that the allegations referred to were not supported by the evidence, and for that reason should not have been stated in charge to the jury, the judge having further told the jury that he had not undertaken to state the contentions of the parties in full, but that they would have the pleadings out with them and might refer to these as often as they saw fit, “to ascertain exactly what those ’contentions are.” There is no merit in this ground of the motion. The judge was merely stating contentions, and this must have been obvious to the jury. He further instructed them that pleadings were not evidence, and that in order for the plaintiff to recover she must establish her contentions by a preponderance. of the evidence. The petition was properly in the hands of the jury during their deliberations; and since the jury thus had the right and privilege of reading it, there could not have been very serious error in the fact that the judge had read it to them; the more especially is this true since the averments in question were not in regard to a vital issue in the case. So, even assuming that the allegations were not proved and that it was for that reason improper to state them in charge, the error in so doing was not such as to require a new trial. White v. Knapp, 31 Ga. App. 344 (7-a) (120 S. E. 796).

Complaint is also made of the following charge of the court: “I charge you that where an engineer, fireman, conductor and other members of the train crew are shown to have been operating a train, and a wreck occurs, there is no presumption that either of them is without fault. I charge you that the law presumes that every man, in his private and official character, does his duty until the contrary is shown.” The error assigned is that this charge was incorrect, contradictory, and confusing, and without evidence to support it, such grounds of error being more fully specified in the motion for a new trial. Irrespective of whether fault on the part of the employees might be inferred from the happening of a wreck (Parrish v. Central of Georgia Ry. Co., 36 Ga. App. 133 (3), 135 S. E. 762), in such a case there would be no presumption that the company’s servants were “without fault.” Upon that proposition the charge appeared to state a truism, and it applied equally and interchangeably to the conduct of the decedent and to that of the other employees.

But even assuming that the first statement in the above excerpt contained an implication or negative pregnant to the effect that in the circumstances referred to there would arise a presumption that the employees were negligent, which is not the law applicable in a case under the Federal employer’s liability act, the statement was still without error as against the railway company. If this be the proper construction, the company was benefitted rather than harmed, because its chief contention both in the trial court and in this court has been that not only the fireman, but the conductor and the engineer as well, were each guilty of negligence of the grossest character, and that for this reason the plaintiff was not entitled to recover. Hence, if the charge may be interpreted as intimating that the law would raise a presumption of negligence against the company upon proof of certain facts, to that extent it tended to help the defendant in the establishment of the defenses asserted, and eould not have been prejudicial to that party. The latter portion of the charge wherein the jury were told that the law presumes that every man in his private and official character does his duty until the contrary appears, was a correct statement of the law, and was not subject to any of the exceptions taken. Akin v. Alatoona Iron Works, 43 Ga. 464 (2) ; Nicholson v. Spencer, 11 Ga. 607, 611; English v. Poole, 31 Ga. App. 581 (4) (121 S. E. 589). The rule as thus declared in no sense runs counter to the provisions of the liability act, and in the present case it could properly have been considered by the jury in determining several issues of fact as to the conduct of Lochridge and also of the engineer. In Terry v. Rodahan, 79 Ga. 279 (3) (5 S. E. 38, 11 Am. St. R. 420), cited for the plaintiff in error, there was no evidence to warrant such a charge. The way in which the different propositions of the above charge were brought together may have tended to obscurity or even to self-contradiction, but, this granted, neither of such imperfections afforded cause for a new trial under the facts and issues in this case.

Error is also assigned upon the following charge: You are instructed that the present cash value of the future benefits [of] which the beneficiaries were deprived by the death of the decedent, making adequate allowance according to the circumstances for the earning power of money, is the proper measure of damages in an action of this character. It is a question for the jury to decide, under all the circumstances of the ease, and under all the conditions which might be present, as to what rate of interest you would use in making a discount of the future value of the decedent’s life to his wife and children to its present cash value. Local conditions are not to be disregarded, nor should the discount necessarily be at the legal rate of interest. It is a matter for the jury to decide as to what the earning power of money is, and the rate to be fixed is a matter for yon to determine. The plaintiff would be chargeable with such a rate of interest as she could secure by ordinary diligence. In reducing these sums to their present cash value, you may use any proper mathematical method for determining that question.” The exception is that there was no evidence of the “local conditions not to be disregarded,” nor as to the capacity of the plaintiff for investing and caring for money, nor as to its earning power in the vicinity where it might be invested. Except for the fact that the plaintiff was made accountable for ordinary diligence in investing the funds, the instructions complained of were in substantial accord with the decision of the United States Supreme Court in Chesapeake & Ohio Ry. Co. v. Kelley, 241 U. S. 485 (36 Sup. Ct. 630, 60 L. ed. 1117, L. R. A. 1917F, 367), a case which has beeh followed by this court in Central of Georgia Ry. Co. v. Goens, 30 Ga. App. 770 (7) (119 S. E. 669), and in Western & Atlantic R. v. Townsend, 36 Ga. App. 70 (7) (135 S. E. 439); and we do not think the charge- was erroneous upon the grounds stated.

Although in the later case of Gulf &c. Ry. Co. v. Mosler, 275 U. S. 133 (48 Sup. Ct. 49, 72 L. ed. 200), the Supreme Court held that in awarding damages under the Federal employer’s liability act the jury must determine the present value of the pecuniary loss calculated as bearing interest at the highest net rate that can be had on money safely invested, this ruling was merely to reverse the refusal of a requested instruction which implied that the testimony had shown something as to the earning power of money, and there was in that case no adjudication that evidence upon the subject was necessary. It would seem that if the jury could not ascertain the proper reduced result without the aid of evidence upon the question, the production of such evidence should be the burden of the defendant, since its right to the reduction would partake of the nature of a partial defense which the plaintiff ought not to be" called upon to make out. See, in this connection, Walker v. Jenkins, 32 Ga. App. 238 (4) (123 S. E. 161), and cit. The Hosier case, supra, cited and followed the Kelley case and did not purport to change the rule as therein laid down. It simply sustained the right of the railroad company to obtain by request a specific application of the general rule announced in the Kelley case. The jury were instructed that the plaintiff “would be chargeable with such a rate of interest as she could secure by ordinary diligence.” The railroad company certainly could not expect the adoption of a higher standard than that of a person of ordinary prudence, and upon that point the rule which the court stated was as favorable to the defendant as it should have been, even if it did not actually amount to error against the plaintiff. Interest rates and other forms of returns on money safely invested are matters of such common knowledge that intelligent jurors may be presumed to be able to make proper allowance therefor in estimating the present value of a sum of money payable in the future, though no evidence upon that subject is introduced. The instructions complained of gave the proper measure of recovery in a case of this sort, and were not erroneous either as being unsupported by the evidence or as not stating correctly the rule to be followed in arriving at the proper result. See further, in this connection, Standard Oil Co. v. Reagan, 15 Ga. App. 571 (5) (84 S. E. 69); Davis v. Whitcomb, 30 Ga. App. 497 (16) (118 S. E. 488); Southern Ry. Co. v. Woodward, 39 Ga. App. 173 (3).

We can not say as a matter of law that the verdict was excessive. The decedent was earning $250 per month and appeared to be in line for promotion. He was 44 years of age, in good health, and had the ordinary expectancy. His wife was younger and had at least an equal expectancy. The evidence shows that he contributed $200 per month to the benefit of the family, and while this was in part for the use of himself as a member of the household, his personal expenses were mostly paid out of the remaining portion of his salary. Besides this, there was some evidence that the decedent rendered to the two children, aged 12 and 16, respectively, services of a stated monthly value, and this fact could have been considered in determining the amount of the verdict. See Western & Atlantic R. v. Townsend, 36 Ga. App. 70 (supra). Even if the jury could have concluded that the decedent’s own negligence contributed to his death, it was still their province, under the evidence, to determine the extent.of such contribution. They could have found that at least three other employees were negligent also, two of whom were primarily responsible for the train’s movements. Again, the death occurred more than three years before the trial under review, and the jury were authorized to add something for the earning power of money in the meantime.

The above will dispose of all grounds of the motion for a new trial that have not been abandoned, except ground 8, which is controlled adversely to the plaintiff in error by Western & Atlantic R. v. Helzel, 38 Ga. App. 556 (3) (144 S. E. 506). See also Norfolk & Western Ry. Co. v. Earnest, supra. The court did not err in refusing a new trial.

Judgment affirmed.

Stephens, J., concurs. Lulce J., dissents.

Luke, J.,

dissenting. Under the facts presented by the record in this case I can not agree to the judgment of affirmance. The husband of the plaintiff, along with his superior officer, the engineer, was under a duty to protect himself and his fellow servants. Both he and the engineer disobeyed the rules of the company and disregarded the rules of self protection. The danger to his own life was obvious, and his death was the result of his own lack of ordinary care. The railroad company, as a matter of right, should not be required to compensate for the death of this man, of which he, by reason of his negligence, was the author.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18844.
    Board of Trustees of Bessie Tift College v. Barrow County Cotton Mills.
    Decided February 7, 1929.
   Stephens, J.

1. Where a certificate issued by a corporation and denominated “preferred stock,” in a certain amount, provides for the payment of dividends out of the net profits of the corporation at a rate not exceeding a certain per cent, when the corporation has earned this amount, and provides that this stock shall be redeemable at the option of the corporation, after a certain period of time, at its par value with accrued dividends, and where the resolution of the corporation under the authority of which the certificate was issued contains substantially the same provisions, the certificate is nof an evidence of indebtedness from the corporation to the holder of the certificate, but is only a certificate of preferred stock. Savannah Loan & Building Co. v. Silverberg, 108 Ga. 281 (33 S. E. 908) ; Jefferson Banking Co. v. Trustees of Martin Institute, 146 Ga. 383 (91 S. E. 463) ; Coggeshall v. Georgia Land & Investment Co., 14 Ga. App. 637 (82 S. E. 156).

2. Dividends on the certificate a.re not payable as a matter of right to the holder of the certificate; and therefore, in a suit by the holder of such a certificate against the corporation to recover for alleged unpaid dividends, the petition failed to set out a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

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

B. L. Maynard, for plaintiff. J. O. Pratt, for defendant.


author: Bell, J.

text:
    19001.
    Suddath v. Blanchard & Calhoun.
   Bell, J.

1. In a suit upon a promissory note wMcIl contains an unconditional and unequivocal promise to pay, but which, also contains a statement that it is given in accordance with the provisions of a certain subscription to stock in the payee corporation and represents a remainder of the purchase-price of the stock, it is not necessary that a copy of the stock subscription should be attached to the petition, or that its contents should otherwise be shown, where a copy of the note itself is attached and it does not appear from the face of that instrument that, the subscription contract embodied any agreement varying or affecting the terms thereof. In the instant case, if there was anything in the subscription contract of which the defendant desired to take . advantage, he should have done so by proper plea, and not by demurrer to the petition. Chatham Motor Co. v. Commercial Credit Co., 28 Ga. App. 428 (111 S. E. 688); Reed v. Colonial Rill Co., 34 Ga. App. 48 (128 S. E. 201); Razlehurst v. Stahl Florida Properties Co., 39 Ga. App. 209.

2. In such a case, if the transaction between the payee corporation and the subscriber who executed the pote was one which the corporation should not have entered into without first complying with the “Georgia Securities law” (Ga. L. 1920, p. 250), it will be presumed, in the absence of anything to show the contrary, that this law was complied with. The law presumes that every man in his private and official character does his duty, until the contrary is shown, and where a person is required by law to do a certain act, the omission of which would malee him guilty of crime or culpable neglect of duty, it will be assumed that he has performed it, if there is nothing to show his nonperformance. English v. Poole, 31 Ga. App. 581 (4) (121 S. E. 589) ; Bartow Guano Co. v. Adair, 29 Ga. App. 644 (3) (116 S. E. 342); Brantley Co. v. Ocean Steamship Co., 5 Ga. App. 844 (63 S. E. 1129) ; Morgan v. Interstate Building & Loan Asso., 108 Ga. 185 (4) (33 S. E. 964) ; Steed v. American National Bank, 136 Ga. 693 (71 S. E. 1116). The petition was not subject to demurrer upon the ground that it failed to allege a compliance by the payee with the provisions of the securities act.

Decided February 7, 1929.

Oliver & Oliver, for plaintilf in error.

Conner at & Hunter, contra.

3. The petition set forth a cause of action, and the demurrer was properly overruled.

Judgment affirmed.

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


text:
    19013.
    Middlebrooks et al. v. Phillips.
   Bell, J.

1. Where in a suit by the holder of a joint and several promissory note against three persons as makers, two of the makers pleaded and proved that the holder had accepted from the third maker a sum of money “in full settlement of his liability personally” on the note, as evidenced by a written agreement between them, it was error to direct a verdict in favor of the plaintilf and against the defendants who interposed this defense. The release of one of the persons so jointly liable operated, prima facie, as a release of the others, and the obligation was apparently no longer enforceable against them. Civil Code (1910), § 4309; Powell v. Davis, 60 Ga. 70 (1) ; Warthen v. Melton, 132 Ga. 113 (4) (63 S. E. 832, 131 Am. St. Rep. 184); Redpath Chautauquas Inc. v. Parks, 33 Ga. App. 415 (1) (126 S. E. 551) ; Ward v. Fleming, 18 Ga. App. 128 (1) (88 S. E. 899).

2. The case is not different because the amount paid by the person so released was more than his proper share of the indebtedness. Though the plaintiff might have brought several suits against the makers, he, was entitled to but a single satisfaction, and, having received this as to one of the parties liable, the instrument was discharged. Moreover, the act of the plaintiff in giving such release worked a material change in the legal relation of tlie parties, destroying the joint character of the liability, and thus constituting a breach or repudiation of the contract. Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450 (120 S. E. 789) ; McLendon Bros. v. Finch, 2 Ga. App. 421 (3) (58 S. E. 690) ; Hale v. Spaulding, 145 Mass. 482 (14 N. E. 534, 1 Am. St. R. 475) ; Pettigrew Mach. Co. v. Harmon, 45 Ark. 290; Benjamin v. McConnell, 9 Ill. 536 (46 Am. D. 474) ; Tuckerman v. Newhall, 17 Mass. 581; Collier v. Field, 1 Mont. 612; Wiggins v. Tudor, 23 Pick. (Mass.) 434; Milliken v. Brown, 1 Rawle (Pa.), 391; Carroll v. Corbitt, 57 Ala. 579; Clark v. Mallory, 185 Ill. 227 (56 N. E. 1099); Evans v. Pigg, 3 Coldw. (Tenn.) 395.

Decided February 7, 1929.

Claude Christopher, for plaintiffs in error. E. O. Dobbs, contra.

3. If the parties so asserting the release of their co-obligor as a defense consented to such release or if there were other facts in explanation or avoidance, the onus of showing the same was upon the plaintiff. Donaldson v. Carmichael, 102 Ga. 40 (2) (29 S. E. 624) ; Denton v. Butler, 99 Ga. 264 (2) (25 S. E. 624) ; Bank of Omega v. Ford, 20 Ga. App. 496 (93 S. E. 106) ; Warthen v. Melton, supra, and cases cited in the preceding paragraph.

4. The law as stated above is not altered by anything contained in the negotiable-instruments act. Ga. L. 1924, p. 126, §§ 119 (4), 122; North Pacific Mtg. Co. v. Krewson, 129 Wash. 239 (224 Pac. 566, 53 A. L. R. 1416, and cit.).

5. The court erred in refusing a new trial.

Judgment reversed.

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


author: Bell, J. Beel, J.

text:
    19020.
    ALLEN v. LANDERS.
   Bell, J.

1. “That since the commencement of the pending suit the same plaintiff has brought suit for the same cause of action against another defendant, is not good ground for a plea in abatement nor for compelling the plaintiff to elect which action he will pursue.” Augusta & Summerville R. Co. v. Dorsey, 68 Ga. 228 (2). Nor will the prosecution of such second suit to a judgment in favor of the plaintiff estop him from proceeding with the first, where the judgment remains unsatisfied (Civil Code of 1910, § 5522; Booth v. Huff, 116 Ga. 8 (2), 42 S. E. 381, 94 Am. St. R. 98; Garrick v. Tidwell, 151 Ga. 294 (2), 106 S. E. 551; McLendon v. Finch, 2 Ga. App. 421 (3), 58 S. E. 690; Hulsey v. Forrester, 36 Ga. App. 729, 137 S. E. 904) , although there can be but one satisfaction of the same damage or injury, and when this has been received the cause of action becomes extinguished. Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450 (120 S. E. 789).

2. The court erred in overruling the plaintiff’s demurrer to the defendant’s special plea, and in thereafter sustaining the plea and dismissing the action. Judgment reversed.

Decided February 7, 1929.

Rehearing denied Eebruary 21, 1929.

' T. J. Lewis, for plaintiffs. T. Elton Drake, for defendant.

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

ON MOTION 3?OR REHEARING.

Beel, J.

In each of the actions the plaintiff alleged that the person whose negligence caused the injury was the servant and employee of the party sued. It was legally possible for such person to be the joint servant of each and both of the parties so named and designated as his master, and in such a case both or either of such masters could be held liable, the other facts so warranting, and the plaintiff could proceed against 'them jointly or severally, and could pursue either until he obtained a satisfaction. Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (2) (124 S. E. 92); Finley v. Southern Ry. Co., 5 Ga. App. 722 (3) (64 S. E. 312); Stevens v. Wood, 17 Ga. App. 756 (2-a) (88 S. E. 413). A judgment may not be a satisfaction. Here it was superseded by a motion for a new trial, which was still pending. See Garrick v. Tidwell, supra. It is unnecessary to suppose other circumstances under which the plaintiff might have proceeded as he did, in the two suits in question. We agree with counsel for movant that the case of Augusta & Summerville R. Co. v. Dorsey, 68 Ga. 228 (2), is hardly identical in its facts with the case at bar, but we think it states the general rule which should determine the present inquiry. We did not overlook the decision in Board of Education v. Day, 128 Ga. 156 (57 S. E. 359), but were, and are still, of the opinion that the principles there enunciated are inapplicable in the solution of the question here presented.

Beheai'ing denied.

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


author: Bell, J. Bell, J.

text:
    19023.
    YARBROUGH v. STUCKEY et al.

   Bell, J.

1. Acquiescence for seven years, by acts or declarations of ad-joining landowners, shall establish a dividing line. Civil Code (1910), § 3821. A line may be so established irrespective of whether its true location was theretofore actually unascertained or disputed. “Acquiescence for the period required by the statute would be conclusive evidence of a previous agreement, though there may in fact have been none.” Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230) ; Christian v. Weaver, 79 Ga. 406 (2) (7 S. E. 261) ; Henderson v. Walker, 157 Ga. 856 (2) (122 S. E. 613) ; Thompson v. Simmons, 143 Ga. 95 (84 S. E. 370) ; Sapp v. Odom, 165 Ga. 437 (6) (141 S. E. 201).

Decided February 7, 1929.

Rehearing denied March 2, 1929.

Victor Davidson, George H. Carswell, Sibley S' Sibley, for plaintiff. J. S. Davis, for defendants.

(a) The decision in the case of Farr v. Woolfolk, supra, having been repeatedly followed, and having never been questioned or criticised, the decisions in the later cases of Osteen v. Wynn, 131 Ga. 209 (3) (62 S. E. 37, 127 Am. St. R. 212), Gornto v. Wilson, 141 Ga. 597 (2) (81 S. E. 860), and O’Neal v. Ward, 148 Ga. 62 (95 S. E. 709), will not be construed as intending to alter the rule quoted from that case, even assuming that implications may be found in the latter cases at variance therewith.

2. Moreover, “where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession.” Civil Code (1910), § 3822.

3. Where a line, by either .of the above-mentioned methods, has become fixed as between coterminous owners, it will be binding upon their respective grantees. Booker v. Booker, 36 Ga. App. 738 (138 S. E. 251).

4. Applying the above rulings, the evidence authorized the verdict found for the protestants, irrespective of the sufficiency or validity of any alleged agreement between prior owners as to the location of the line.

5. There was no merit in any of the special grounds of the motion for a new trial. The court did not err in refusing the motion.

Judgment affirmed.

Jenkms, P. J., and Stephens, J., concur.

ON MOTION ROE REHEARING.

Bell, J.

A joint motion for a rehearing applicable both to this case and to the companion case (No. 19024) has been made by Messrs. Sibley & Sibley, of counsel for the plaintiff in error. As indicated in the syllabus, the cases arose out of a dispute as to the location of a land line. The line in dispute was between lots 243 and 244 on the one side and lots 261 and 262 on the other. W. J. Yarbrough, the plaintiff in error in both cases, was the owner of lots 243 and 244. J. A. Stuckey and G. O. Stuckey, the defendants in error in case No. 19024, were the owners of lot 261, and J. A. Stuckey and J. E. Stuckey, the defendants in error in case No. 19023, were the owners of lot 262. The line was processioned on the application of Yarbrough, and the proeessioners marked the line according to his contentions. The other parties filed protests, respectively; and the cases thus made were by agreeement tried together. The trial resulted in verdicts in favor of the protestants, after which Yarbrough filed motions for a new trial, which the court overruled, and he excepted.

In the court below the defendants in error relied in part upon an oral agreement alleged to have been made some 20 years before the litigation and to have been acquiesced in continuously thereafter by the coterminous owners, locating the line as they now seek to maintain it. One of the main contentions of the plaintiff in error in this court is that the verdicts in favor of the protestants were contrary to the evidence and to law, because it did not appear that the old or original line was indefinite, unascertained, or in dispute, or that the agreement was so executed as to make it binding upon the parties. The evidence was sufficient to authorize the inference of the making of such agreement by the coterminous owners at or about the time claimed by the protestants, and to warrant the further conclusion that the line as thus agreed to was acquiesced in by acts or declarations of the adjoining owners continuously thereafter, or at least for more than 1 years. If this evidence was true (and the jury settled that issue), the line as thus agreed upon became by acquiescence the legal divisional line, irrespective of whether the alleged agreement was attended with and followed by such circumstances as to make it effectual in the absence of such acquiescence. In other words, where coterminous owners enter into a parol agreement purporting to establish the line between their respective tracts, and the line as thus designated is acquiesced in for more than .seven years by acts or declarations of the owners, such facts will raise a conclusive presumption that all the necessary concomitants of a valid agreement were present, and it will thereafter be too late to abandon or attack such agreement, because the line was not previously unsettled or the agreement was not accompanied by possession in accordance therewith or otherwise duly executed. This seems to be the meaning of the decision in Farr v. Woolfolk, 118 Ga. 277 (supra), which is the leading case upon the subject, and from which we quoted in the syllabus. We were thus of the opinion that the verdicts in favor of the protestants were authorized, irrespective of whether under the evidence the line could have been found established solely by virtue of the agreement, and in the absence of such acquiescence. We adhere to such opinion. We have therefore considered it unnecessary to pass' upon certain questions which were argued in the briefs of counsel for the plaintiff in error, under the general grounds, or to certify such questions to the Supreme Court, as suggested in the briefs and in the motion for rehearing. We think that what we have said both in our original opinion and in this supplement should appty equally to both cases.

We said in our original decision that all grounds of the motion for a new trial were expressly abandoned, except the general grounds with amplifications thereof. In the motion for a rehearing it is contended that we overlooked the fact that in the briefs filed by Messrs. Sibley & Sibley all grounds of the motions for a new trial were expressly insisted upon. We did not overlook this fact, but acted upon a waiver made in a supplemental brief filed, after the arguments, by Mr. Victor Davidson, who also represented the plaintiff in error. This was the last brief filed in behalf of the plaintiff in error, and, in the absence of any information to the contrary, we supposed that the waiver made by Mr. Davidson was concurred in by all the attorneys for the plaintiff in error. But assuming, without deciding, that in these circumstances we were incorrect in stating that the special grounds of the motions for a new trial were abandoned, we have amended our previous decision by withdrawing such statement, and have considered all grounds of the motions as if nothing had been said by any of the attorneys indicating a waiver or abandonment. Besides mere amplifications of the general grounds, the amendments to the motions contained only the following exceptions and assignments of error:

“8. Movant contends that the court erred in failing to charge the difference in law between the establishment of a land line by acquiescence and by a parol agreement.
“9. Movant contends that the court erred in failing to charge the law of adverse possession for twenty years by the protestants, with the attributes thereof, as required by law, to wit: actual adverse notorious possession of the alleged wire fence, in order for the establishment of title to said land beyond the old line where the rail fence had been located, and as contended for by the protestants.
“10. Movant contends that the court erred in failing to charge, that, after a prima facie case had been made by applicant, the burden of proof was on the protestants to show by a preponderance of evidence the truth of their contentions and of the location of the land line claimed by them.
“11. Movant contends that the court erred in failing to charge the law applicable to parol agreement in the establishment of land line, and that in order for a parol agreement to be effective in law it must appear that the line was indefinite, unascertained, and in dispute, and also that the agreement must have been executed.
“ 13. Movant contends that the court erred in failing to charge the law relating to the establishment of the land line by acquiescence, and where acquiescence is the basis for the establishment of such a line such acquiescence must have been for seven years and manifested by acts or declarations of the owners of the adjoining land [as] provided in Civil Code, § 3831.
“13. Movant contends that the court erred in failing to instruct the jury that if the applicant had purchased said land by lots and by lot lines and had taken the deed thereto with no description except the original lot lines, and it appeared from the evidence that the alleged agreement of protestants was not to settle a disputed line, then such agreed line would not be binding on the applicant.
(a) Movant contends that the court erred in failing to charge the quantum of proof on the part of protestants necessary to rebut the prima facie case made by applicant, referred to in said charge.
'“ 14. Movant contends that the charge of the court did not fully, completely, and clearly as required by law cover the issues made under the evidence on the trial of said case.”

A ground of a motion for a new trial must be self-complete, without reference to other parts of the record. Daniel v. Schwarzweiss, 144 Ga. 81 (86 S. E. 239); Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32); Bennett v. Brown, 164 Ga. 51 (137 S. E. 756). A ground of a motion for new trial complaining that the court erred in failing or omitting to charge the jury ripon some specified principle of law is incomplete, where it fails to indicate within itself wherein the omitted principle would have been applicable to some material contention of the movant as made by the pleadings and the evidence. See, in this connection, Partee v. State, 19 Ga. App. 752 (6) (92 S. E. 306); Hill v. West, 25 Ga. App. 24 (102 S. E. 358); Killabrew v. State, 26 Ga. App. 231 (2) (105 S. E. 711); Caswell v. State, 27 Ga. App. 76 (7) (107 S. E. 560) ; Flake v. Bowman, 28 Ga. App. 443 (3) (111 S. E. 747); Savannah & Southern Railway v. Davis, 28 Ga. App. 654 (2) (112 S. E. 907); Monroe v. Warten Cotton Co., 29 Ga. App. 358 (115 S. E. 279). “The burden is on the losing party to show error, and this can only be done by a specific assignment, wherein it is made to appear that some error oi law has been committed.” Spence v. Morrow, 128 Ga. 722, 723 (58 S. E. 356). It is not error to fail to charge upon the burden of proof, in the absence of a timely and proper request. Hickman v. Bell, 10 Ga. App. 319 (73 S. E. 596); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (7) (64 S. E. 703); Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5). “The exception to the charge ‘as a whole,’ and the assignments of error in connection therewith as to the ‘failure’ of the court to charge so- and-so, are too vague and indefinite to present any distinct question for determination by this court.” Austell v. James, 97 Ga. 334 (22 S. E. 953) ; Hill v. Harris, 11 Ga. App. 358 (11) (75 S. E. 518). An exception that the court erred in failing to charge the law relating to a named subject is too general to present any question for decision, without a more definite statement of the principle upon which it is claimed the jury should have been instructed. Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (5) (71 S. E. 887); Spence v. Morrow, supra; Wilson v. State, 156 Ga. 42 (118 S. E. 427); Paulk v. Speer, 143 Ga. 621 (2) (85 S. E. 867); Davidson v. Waxelbaum, 2 Ga. App. 432 (3) (58 S. E. 687).

An assignment of error in a motion for a new trial, that the charge of the court did not fully, completely, and clearly, as required by law, cover the issues as made under the evidence on the trial of the case, is fatally defective, where it contains no statement or specifications as to what issues are referred to. Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440).

Applying these well-established rules of practice, none of the special grounds of the motions for a new trial are sufficient to require a reversal of the judgments.

Rehearing denied.

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


text:
    19034.
    Yarbrough v. Stuckey et al.

    Decided February 7, 1929.
    Rehearing denied March 2, 1929.
   Bell, J.

This ease is controlled by the decision in the companion case of Ya/rbrough v. Stuckey, ante, 265.

Judgment affirmed.

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


text:
    19084.
    Sheffield v. Sheffield.
    Decided February 7, 1929.

      W. I. Geer, for plaintiff in error. P. D. Rich, contra.
   Bell, J.

In a suit on notes executed by a married woman, to which she pleaded that the notes were given for a debt of her husband and were without other consideration, where the evidence authorized the inference that the notes were given to cover an account for supplies sold by the plaintiff to the defendant’s husband upon his own credit and responsibility, notwithstanding the supplies may have been used by the husband in the operation of a farm on land of the wife, it was error to instruct the jury in such language as to imply that if the notes were given for supplies obtained by the husband for the wife’s benefit, and if the consideration thereof reached the wife in her separate estate, the notes would be binding upon her, although given for an obligation of the husband. While it is true that, where the consideration of a contract made with a husband reaches the wife as an accession to her estate and she retains and enjoys it, slight evidence may be sufficient to establish the husband’s agency in contracting the debt, yet if the debt was in fact the debt of the husband, the wife would not be liable, although the consideration may have gone as a benefit to the wife and may have added to her separate estate. Pinkston v. Cedar Hill Co., 123 Ga. 302 (51 S. E. 387) ; Herrington v. Garlick, 27 Ga. App. 368 (1) (108 S. E. 304) ; Smith v. Marbut-Williams Lumber Co., 37 Ga. App. 239 (2) (139 S. E. 590) ; Brazell v. Hearn, 33 Ga. App. 490 (4) (127 S. E. 479). Grounds 2 and 3 of the motion for a new trial were well taken, and the motion should have been granted.

Judgment reversed.

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


text:
    19078.
    Sheffield v. Sheffield.
    Decided February 7, 1929.
   Bell, J.

This case is controlled by the decision this day rendered in the companion case of Sheffield v. Sheffield, ante.

Judgment reversed.

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

W. I. Geer, for plaintiff in error. P. B. Rich, contra.


author: Jenkins, P. J.

text:
    19079.
    SIMMONS v. BENNETT; superintendent of banks.
    Decided February 7, 1929.

      G. G. Croclcett, for plaintiff in error. M. II. Blaclcshear, contra.
   Jenkins, P. J.

1. In the former adjudication in this case (Bennett v. Simmons, 30 Ga. App. 529 (2), 118 S. E. 493) it was held by this court that where, in an action by the superintendent of banks against a surety on a promissory note payable to a bank whose assets and business have been taken possession of by the superintendent under the act of August 16, 1919, the surety pleads that he is discharged by a refusal of a tender and demand allowable under the Civil Code, § 3545, made during such possession of the bank by the superintendent, the burden is upon the surety to prove that the tender and demand were made either to the superintendent of banks or to one duly authorized by him, as provided in the act, to make collections for the bank. In that decision it was held that the evidence submitted on the trial then under review did not demand or even authorize the verdict directed in favor of the defendant, for the reason that the person to whom the tender was alleged to have been made had not been shown to be a person authorized by the superintendent of banks to make collections for the bank. On the second trial, a verdict was directed in favor of the plaintiff, and the defendant excepted. The evidence is substantially the same as on the former trial, except that on the last trial the defendant did testify that at the time he made the tender, a liquidating agent had been appointed for the bank by the superintendent, but he testified that he did not know whether the person with whom he dealt at the time of the tender was such liquidating agent. The defendant testified, as on the previous trial, that the unknown person with whom he dealt, though apparently in charge of the banking office, disclaimed any authority to collect notes for the bank. The evidence not being materially strengthened by any testimony tending to show the identity of the person with whom the defendant dealt at the time of the tender, the former adjudication must be applied as the law of the case.

2. Subsequently to the former adjudication by this court, the defendant amended his plea, and in the amendment claimed a set-off for the amount of the value of a certain mule which he alleged the principal on the note had mortgaged to secure the obligation upon which the defendant had become surety, and alleged that the mortgage had been '“disposed of or is otherwise beyond the power of the plaintiff to produce.” The only effort to sustain the contention made in the amendment to the plea was by evidence of the attorney representing the plaintiff in the suit on the note, that he did not have the mortgage, never had had it, and did not know anything about it. No testimony was offered for the purpose of showing that the plaintiff‘had been called upon to account for the mortgage, or that the attorney had been called upon before he became a witness on the trial, or otherwise, to show that the plaintiff would be unable to produce the mortgage as charged by the plea.

3. In accordance with the foregoing rulings, the judge of the trial court did not err in directing a verdict for the plaintiff; and ■ the defendant’s petition for certiorari was properly overruled.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    19091.
    Travelers Insurance Company et al. v. Lay.
   Jenkins, P. J.

I. Section 28 of the workmen’s compensation act provides that “the employer, or the industrial commission, shall have the right in any ease of death to require an autopsy at the expense of the party requesting the same.” It is unnecessary in the instant case to decide whether the refusal by the claimant wife to permit such an autopsy would, ipso facto and in all cases, preclude the right to compensation and authorize the dismissal of a claim therefor, and, if not, whether the quoted provision of the statute would have such effect in a case where the demand for the autopsy had not been made until about a 'month after the decedent had been buried, since it appears in this case that the employer, on making such demand under the quoted provision, was enjoined from proceeding with the autopsy, which judgment of the superior court, adjudicating that the employer was not entitled, under the statute, to such autopsy, remains unexcepted to.

Decided February 7, 1929.

Rehearing denied February 20, 1929.

Maddox, Matthews & Owens, McDaniel & Neely, Harry L. Greene, for plaintiffs in error.

Porter & Mehane, contra.

2. The industrial commission failed to enter any finding of fact upon the question whether the death was caused by an injury arising out of and in the course of the decedent’s employment, the commission basing its judgment partly, but not exclusively, upon the refusal of the claimant to permit the autopsy required by the employer. The judge of the superior court, in reversing the award denying compensation, sought to adjudicate that the evidence was such as would demand a finding that the death was occasioned by an injury arising out of and in the course of the employment, and remanded the ease to the industrial commission for further proceedings in accordance with his opinion. Held: Under the ruling made in paragraph 1 above, and under the facts disclosed by the record, the judge of the superior court was correct in holding that the claimant wife did not, as a matter of law, on account of having refused to permit the autopsy required by the employer, forfeit her right to compensation; but the evidence, though authorizing,. does not demand a finding that the death was occasioned by an injury arising out of and in the course of the employment. Accordingly, the judgment of the superior court remanding the ease to the industrial commission is affirmed, but with direction that the commission ascertain and adjudicate, from the evidence which may be adduced before it, whether the death was in fact occasioned by an injury arising out of a.nd in the course of the employment. See, in this connection, Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1) (119 S. E. 39) ; U. S. Fidelity & Guaranty Co. v. Washington, 37 Ga. App. 140 (3) (139 S. E. 359).

Judgment affirmed, with direction.

Stephens and Bell, JJ., concur.


text:
    19097.
    WATTERS v. ARRINGTON, administrator.
    Decided February 7, 1929.

      M. B. Eubanks, for plaintiff.

      Maddox, Matthews & Owens, for defendant.
   Bell, J.

Hilliard Watters, a minor, brought suit by another as next friend against II. II. Arrington, as administrator, doing business as Arrington Buick Company, to recover money, which he had paid to the defendant on the purchase of an automobile, under a contract which, because of his minority, he sought to disaffirm. On the trial the jury found for the defendant, and, the plaintiff’s motion for a new trial having been overruled, he excepted. The motion contained only the usual general grounds, and the sole question for determination is whether the verdict was authorized by the evidence.

The evidence showed without dispute that the plaintiff was born on January 21, 1908, and that the contract for the purchase of the automobile was made on September 11, 1926, when the plaintiff was under nineteen years of age. On the latter date the plaintiff was living with his mother and father in Rome, Georgia, where the defendant also resided and where the contract was entered into. The plaintiff, however, had for some time been working for Southern Co-operative Foundry Company as a nickel plater, where he drew a wage of from $40 to $50 weekly, which he spent as he pleased, with the exception of a small portion delivered by him regularly to his parents. When he and the defendant first agreed on the purchase and sale of the automobile, he paid down $25; thereafter he paid $175 and executed with the seller a contract by which the title was reserved in the seller until the remainder of tbe purchase-price should be paid, in 12 monthly installments of approximately $45 each. This contract contained a number of stipulations with respect to the rights of the parties, including this: “It is further expressly understood and agreed that this writing contains the entire contract between the Arrington Buick Company and the undersigned, the Arrington Buick Company warranting the title only to said property and no other representations, conditions or warranties not herein contained are binding on either party.” The plaintiff, after obtaining possession of the car, made several other payments, which, with the cash down, amounted to about $400. He kept and used the car from September 11, 1926, until some time in April, 1927, when it was destroyed by fire while in his possession. The automobile was insured for the benefit of the purchaser and the seller, and a check by the insurance company, payable jointly to them, for $433.34 was collected and applied, as follows: $360 was retained by the defendant in satisfaction of the remainder of the purchase-price; $28.83 was paid to another creditor of the plaintiff, and the remainder, $44.51, was received by the plaintiff in cash. The plaintiff testified that at the time of the filing of the suit he did not have that amount of money and could not have restored it.

A. B. Arrington testified: “I am manager of the Arrington Buick Company. My salesman sold this car to Hilliard Watters, I closed the deal up. I closed up the deal. . . At the time Watters came in and closed up this trade my salesman dealt with him and agreed on a price; I handled that matter myself. The car was on the second floor. I took him up and showed it to him. . . After looking over the car and agreeing on the price I closed it up. Watters’ appearance at that time, it was late Saturday afternoon, he had evidently gotten off the job; he had on kind of accommodation working clothes; he needed a shave, had the appearance of a hard-working man. I asked him something about his age. He said he was twenty-one, did his own trading, own man. He worked for the Southern Co-operative Foundry, nickel plater. I asked him how he was going to be able to pay this, questioned him; he said he made $50 a week, approximately $200 a month. It was on these representations of his that I made this sale. . . I got $200 cash and four notes paid off. I got $380.”

W. C. Smith testified: “In August and September, 1926, I was salesman for the Arrington Buick Company. I sold this car to Hilliard Watters. In the course of the transactions and negotiations leading up to that sale he did make representations to you [me?] or Mr. Arrington, either as to what his age was. I asked him if he was a man of his own; that’s the question I asked him; and he said he was a man of his own, and done all his own trading, his own trading. I did'not ask specifically how old he was or twenty-one, I did not ask him. I heard Mr. Arrington ask him. We came around to the office door, and Mr. Arrington said, ‘Smith, is that boy twenty-one years of age.’ I said, ‘He told me he was a man of his own, done his own trading;’ and he said, ‘You are twenty-one,’; and he said, ‘Yes.’”

The plaintiff denied having made any misrepresentations with respect to his age as testified to by the other witnesses.

We think the case is controlled by the decision of this court' in Hood v. Duren, 33 Ga. App. 203 (3) (125 S. E. 787). In that case it was held that a defendant, though a minor, will be “estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has received, enjoyed, and consumed its irrestorable benefits, and where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent misrepresentation of the defendant with respect to his apparent majority, and that, in view of all the surrounding facts and circumstances, the plaintiff was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant’s apparent majority.”

It can not be said as a matter of law that the defendant was negligent in failing to ascertain the truth as to the plaintiff’s age, and, thus, was not justified in relying upon the plaintiff’s representations as to his age, although as above stated the plaintiff denied having made such misrepresentations. But his testimony upon this point merely made'a jury question, and can not be taken by this court as cause- for setting aside the verdict.

Counsel for the plaintiff requests that the decision in Hood v. Duren, supra, be reviewed and overruled, contending that it is not supported by the authorities cited, and is unsound. It is insisted that, while in some of the decisions relied on as authority in that case there may have been language which would appear to support the conclusion there reached, such language was, in each instance, a mere dictum, and hence should not have been followed as controlling. However this may be, we think that that decision is in accord with the trend of the Supreme Court decisions, and states the rule correctly. Hence, the request 'to review and overrule it is denied.

The provision in the contract, that the writing contained the entire agreement, and that representations, conditions, and warranties not embodied therein were not binding upon either party, had reference only to negotiations relating to the subject-matter of the contract, and did not prevent the introduction of testimony touching the plaintiff’s alleged representations as to his majority.

We think the evidence supported the verdict, and we will not disturb the judgment refusing a new trial.

Judgment affirmed.

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


text:
    18736.
    PALMER v. BRADSHAW.
    Decided February 9, 1929.

      M. B. Peacock, Bennet & Peacock, for plaintiff.

      Cowart & Burden, for defendant.
   Stephens, J.

The reason underlying the rule which requires that in a plea of payment the time, the place, and the amount paid must be specifically alleged is to prevent the defendant from obtaining an advantage over the plaintiff by disclosing this information for the first time by evidence upon the trial when thé plaintiff, by reason of a lack of notice beforehand of the specific contentions of the defendant, is not afforded an opportunity to produce evidence specifically replying to these contentions. Epstein v. Thomas, 15 Ga. App. 741, 744 (84 S. E. 201). If, however, the defendant for any reason is unable to show specifically the times, the places, and the amounts of payments made by him, the plaintiff manifestly could not be put to such disadvantage. It is well settled that a defendant when pleading payment will not be required to specifically allege the time, place, and amount of payment if he can show a satisfactory excuse for his failure to so allege. Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga. App. 88 (58 S. E. 316); Dania Cash Stores v. Zaring, 38 Ga. App. 427 (144 S. E. 132). Since, where the defendant, as in the case now before the court for consideration, alleges generally that payment in full of the indebtedness sued on has been made to the plaintiff, and that payment was made in various weekly installments “in amounts from $5.00 to $20.00, that defendant was buying groceries from the plaintiff during the greater part of the time these payments were being made, and the payments . . were made when the defendant would pay her grocery bills, which was usually weekly,” that the defendant “keeps no set of books, and that all said payments were made in cash to the plaintiff, and on account of the fact that she keeps no books she is unable to set forth the dates of the payments,” the defendant discloses all the information which she possesses as respects when, how, and in what amounts the alleged payments were made, and therefore, upon the introduction by the defendant of evidence in support of this plea, the plaintiff would not b.e put to the disadvantage of an inability to reply to evidence as to the specific facts of which he had no notice. The defendant’s plea of payment therefore was not subject to the special demurrer upon the ground that the allegations were not sufficiently definite as to the payments.

Whether or not, as intimated in the opinion in Epstein v. Thomas, supra, the sufficiency of the excuse alleged for the failure to make these specific allegations in the plea of payment is a matter addressed to the discretion of the court, this question is not here presented for determination, since the trial court in the case under consideration held that the plea of payment, which set out the pleader’s inability to give more specific information respecting the alleged payments, was good as against a special demurrer based upon the ground that the plea failed to give such information, and we áre of the opinion that, if the judge had the discretion referred to, he did not abuse it.

The court did not err in overruling the demurrer to the defendant’s plea. Since no other assignment of error than the one here dealt with is insisted upon by the plaintiff, the judgments overruling the demurrer and the plaintiff’s motion for a new trial are affirmed.

Judgment affirmed.

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


text:
    18743.
    Johnson v. King Lumber Company et al.

   Stephens, J.

1. Where, in a deed to land made for the purpose of securing a debt, executed May 1, 1920, there appears, after the description of the land, the provision that “it is hereby agreed and understood between the parties hereto that the first party reserved the right to cut and remove at any time a part or all of the timber now on the lands hereinabove described, and that it shall not be necessary for him to notify the second party of such facts,” this provision is not a mere license reserved to the grantor, to cut the timber, but it is a provision reserving to the grantor all the timber on the land at the time of the conveyance. Grant v. Haymes, 164 Ga. 371 (138 S. E. 892).

2. The clause in the security deed reserving to the grantor the title to the timber upon the lands conveyed as security is not repugnant to the habendum clause preceding it, which reads as follows: “to have and to hold the said bargained premises, together,” etc., “in fee simple;” and therefore is not void for repugnancy.

3. Where the grantor in the above-described security deed conveyed by a subsequent deed (August 14, 1920) to a third person “all of the saw timber of every kind and character, whether of pine, oak, hickory, ash, poplar, and of every other kind and character suitable to be sawed and capable of being made into lumber for commercial purposes, which is located” on the lands described in the first-mentioned . deed, and the second deed recited that “this'conveyance is intended to convey all of the timber on the lands aforesaid,” the latter deed conveyed to the grantee named therein all the timber then on the described lands which the grantor in the first deed had reserved to himself.

4. Where any one having an interest in land, — as the grantee in a security deed, — redeems the property by paying the amount of the taxes, etc., from one who purchased it at a sale made by virtue of a levy of an execution against the property for taxes, and takes from that person a quitclaim deed to the property, the person so redeeming the property acquires no title to it. Civil Code (1910), § 1170; Ivey v. Griffin, 94 Ga. 689 (21 S. E. 709) ; Elrod v. Owensboro Wagon Co., 128 Ga. 361 (4) (57 S. E. 712). This is true notwithstanding the person so redeeming the land by the payment of the taxes did not redeem it within tlie period allowed by law in which to redeem land after it has been sold for taxes. Although the land was not redeemed within this statutory period, it was nevertheless redeemed by the payment of the taxes, and the person so redeeming the land acquired no title thereto. It follows that where executions against a part of the lands described herein for taxes due by the predecessors in title to the grantor named in the security deed were levied upon the lands as the property of these predecessors in title, and where the levy included not' only the lands, but all the timber growing thereon, and where the person buying the lands, when they were offered for sale in satisfaction of tax-executions, acquired title to the lands, including the timber thereon, and where the grantee in the security deed, as one having an interest in the lands, redeemed them, by paying the taxes, etc., to the person who had bought the lands at the tax sales, and by taking from this person quitclaim deeds to the lands, including the timber, the grantee in the security deed, who upon the redemption of the lands took the quitclaim deeds unto himself, acquired no right, title or interest whatsoever, except a lien for the security of the money expended by him upon the land and timbers growing thereon.

5. The security deed referred to in paragraph 1 above, not having passed title to the timber on the lands, no title to the timber passed in the sale of the lands under a foreclosure proceeding instituted by the grantee for the collection of the debt secured by the deed. The grantee, in buying the land at the foreclosure sale, therefore acquired no title to the timber.

6. In a controversy between a person who acquired title to the growing timber, consisting of about three million feet, upon certain lands in the year 1920, and a person who, six years later, cut from the same lands timber amounting to something over a million feet, even assuming that new timber, in some indefinite amount, had grown upon the lands in the meantime, to which the first party had no title, the inference is not demanded that the party cutting the timber did not cut some of the original timber to which the other party had title, and that therefore some of the original timber was not mingled with the million feet or more which was cut. The inference therefore is authorized that the party, in cutting the timber, cut some of the original timber along with the new timber; and since, where a person who without authority mingles personal property belonging to another with property of his own must distinguish his own property or lose it, the burden rests upon the person cutting the timber to distinguish what portion of the timber cut belongs to him. Civil Code (1910), § 4587.

7. Assuming, but not holding, that where in a security deed title to timber is reserved to the grantor, who retains possession of the land upon which the timber is situated, the person who has acquired title to the timber from the grantor named in the security deed must remove the ' timber within a reasonable time, yet where, as in this ease, the person who holds title to the timber failed to remove the timber from the land within the period of time extending from the year 1920 until the year 1926, after which the timber was removed by the defendants, it can not be held as a matter of law that, in failing to remove it from the land within this period of six years, the person holding title to the timber failed to remove it within a reasonable time. North Georgia Co. v. Bebee, 128 Ga. 563 (57 S. E. 873) ; Shippen Lumber Co. v. Gates, 136 Ga. 37 (1-d) (70 S. E. 672); Grant v. Haymes, supra. The evidence in the record as respects what constitutes a reasonable time has reference only to what constitutes a reasonable time within which to perform the work of removing the timber and has no reference to what constitutes a reasonable time within which the grantee would have the right to remove the timber.

Decided February 9, 1929.

Rehearing denied March 2, 1929.

E. L. Smith, for plaintiff.

H. A. Wilkinson, J. W. Harris, for defendants.

8. In a suit by the person who purchased the timber from the grantor in the security deed and acquired title thereto by virtue of the deed of August 14, 1920, referred to in paragraph 3 above, against the defendants who, it is alleged, had cut timber from the lands, where the evidence authorized the inference that in the year 1926 the timber was cut from the lands by the defendants under a claim of title derived from the grantee in the security deed, who had purchased the lands at the foreclosure sale, and where it appeared from the evidence that the deed under which the plaintiff claimed was duly recorded on August 14, 1920, prior to the foreclosure proceedings by the grantee in the security deed, and where there was evidence as to the value of the timber cut, a verdict for the plaintiff would have been authorized, and the trial judge erred in directing a verdict for the defendant.

9. The court erred in admitting in evidence, over objection by the defendant on the ground of irrelevancy, the records of the foreclosure proceedings had under the security deed, and the tax fl. fas. and the sheriff’s deeds, as excepted to in the motion for a new trial.

Judgment reversed.

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


text:
    18917.
    CITY OF ATLANTA v. JOLLY.

      Decided February 9, 1929.

      J. L. Mayson, C. S. Winn, for plaintiff in error.

      Hewlett & Dennis, C. L. Padgett, contra.
   Stephens, J.

While a person injured may, as compensation for damage in the nature of pain and suffering, without any proof of pecuniary loss, recover damages for impaired ability to work due to a physical injury, as was held in City Council of Augusta v. Owens, 111 Ga. 464 (36 S. E. 830), yet where a recovery is sought for pecuniary loss resulting from an impaired capacity to earn money, resulting from a physical injury, there must appear.some data from which the jury can arrive at the pecuniary value of the injured person’s earning capacity both before and after the injury. Rome Railway & Light Co. v. Duke, 26 Ga. App. 52 (105 S. E. 386); Atlantic Coast Line Railroad Co. v. Anderson, 35 Ga. App. 292 (4) (133 S. E. 63). While proof of the plaintiff’s actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff’s decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. The mere fact that the plaintiff has suffered ,a physical injury, such as a sprained or fractured ankle, which might permanently impair her ability to walk or to enjoy the normal use of both feet, and that she is thereby prevented from performing the duties of her employment at the time of the injury, in the absence of any evidence either direct or circumstantial tending to show what the plaintiff earned in her business, or other evidence from which the jury could estimate the pecuniary value of the plaintiff’s earning capacity, either before or after the injury, even if sufficient to establish a diminished earning capacity as a result of the injury, is insufficient to establish its pecuniary value.

Where the only evidence tending to show a diminution of the plaintiff’s capacity to earn money as a result of a physical injury is that at the time of the injury the plaintiff was a woman fifty years of age and conducted a boarding house in which there were about fifteen or eighteen boarders, in the conduct of which she personally did all the cooking and the housework, that because of the injury, which consisted of a sprained or broken ankle, she was confined to her bed for a time and was unable to stand upon her lame leg with a shoe on its foot, or to do any kind of work, that she was unable to perform her accustomed duties at the boarding house and was compelled to hire another person to do these duties for her, that during her disability the number of boarders was reduced to about three, and that she had to give up the business on account of her inability to do the work required, and where it appears that prior to the injury the number of boarders fluctuated from time to time, and where there was no evidence whatsoever as to what she earned as a result of her work in conducting the boarding house, and no data from which the jury could infer this fact, there does not appear sufficient evidence from which the jury could arrive at the pecuniary value of the plaintiff’s earning capacity at the time or after the injury, and therefore no evidence appears from which the jury could infer the amount of pecuniary loss, if any, suffered by the plaintiff as a result of a diminished earning capacity. The judge therefore erred in instructing the jury that they would be authorized to find as an element of damage an amount representing the damage sustained by the plaintiff as a result of diminished earning capacity.

An assignment of error which excepts to the admission of testimony “as to how long plaintiff was disabled from using her foot” is insufficient in that it fails to state what the witness testified to.

The jury having found a verdict for the plaintiff, and the court on the trial having erred as indicated above, it was error not to grant to the defendant a new trial.

Judgment reversed.

Bell, J., eoneurs, Jenhins, P, J., disqualified.


text:
    18945.
    Maryland Casualty Company et al. v. Grant.
   Stephens, J.

1. Where a corporation engaged in the business of canning sea-food and owning fishing boats pursued the policy of equipping the boats with fishing nets, ice, gas, and oil, and turning the boats over to persons called “captains,»” and where the captains, under contract with that corporation, went out on fishing expeditions in navigable waters near the shore, each with the assistance of another person called a helper, employed and paid by the captain, and caught shrimp and prawn which were brought back in the boat to the plant of the canning company and were there delivered to the employees of the company, and where the company retained a third of the catch as payment by the captains for the use of the boats, and paid them in money for the other two thirds of the catch at the market value at the time of bringing it in, and paid a part of the cost of the gas and oil furnished to each captain for the operation of his boat, and where, when a boat was not in use, it was required to be kept at the dock of the canning company, and the captain was required to look after the rigging and the lights, and the captain could sell the catch only to the canning company, and was not required at any particular time to take the- boat out upon a fishing expedition, but the canning company could refuse to let a boat go out, that the boa'ts would come back when the canning company directed, that the canning company had the right to terminate a contract so made and discharge the captain at any time, the inference is authorized that the canning company controlled the time and the manner of the execution of the work of the captains, and that a captain in operating a boat pursuant to the contract was not an independent contractor, but the relationship existing between the canning company and the captain was that of employer and employee. See, in this connection, Souter v. Cravy, 29 Ga. App. 357 (116 S. E. 231) ; Travelers Insurance Co. v. Bacon, 30 Ga. App. 728 (119 S. E. 458) ; Edward v. Franklin, 32 Ga. App. 737 (124 S. E. 554) ; Zurich General Accident & Liability Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173) ; Irving v. Home Accident Insurance Co., 36 Ga. App. 551 (137 S. E. 105).

2. Although a part of the contract was to be performed in navigable waters, an injury received by the employee while out on a fishing expedition in navigable waters, where the injury arose out of and in the course of the employment, is compensable under the workmen’s compensation act. Travelers Insurance Co. v. Bacon, supra.

3. This being a suit by the wife of the employee against the canning company, to recover compensation for the death of the employee resulting from an injury arising out of and in the course of his employment as captain of one of the defendant’s boats, and there being evidence to authorize the inference that under the contract between the husband and the defendant the husband was an employee, and that the death was compensable under the workmen’s compensation act, and there being evidence to authorize the inference that the death of the employee resulted from an injury arising out of and in the course of the employment, and no error appearing, the judge of the superior court did not err in affirming the award made to the plaintiff by the industrial commission.

Decided February 9, 1929.

J. T. Colson, for plaintiffs in error. J. T. Powell, Levi O’Steen, contra.

Judgment affirmed.

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


text:
    18990.
    Becker v. Truitt.
    Decided February 9, 1929.

      Oharles G. Bruce, for plaintiff. T. O. Battle, for. defendant.
   Bell, J.

1. “A claim is not an available remedy to test the validity of an execution, except where property is claimed by a third person not a party to such execution.” Goolsby v. Drainage Commissioners, 156 Ga. 213 (6 a) (119 S. E. 644). “Only a third person, not a party to the execution, could interpose a claim.” Wynn v. Irvine’s Georgia Music House, 109 Ga. 287, 288 (34 S. E. 582) ; Civil Code (1910), § 5157.

2. Where a judgment is obtained against a person in an assumed or trade name, he is a party to the judgment and is not entitled to file a claim to property levied upon to satisfy the judgment. Eslinger v. Herndon, 158 Ga. 823 (4) (124 S. E. 169, 900).

3. The general rule, that in a claim case the claimant may attack the execution upon any ground which could then be urged by the defendant in fi. fa., and so may resist the levy upon the ground that the judgment on which the fi. fa. was issued was void (Ansley Co. v. O'Byrne, 120 Ga. 618, 48 S. E. 228); Wheeler v. Martin, 145 Ga. 164 (88 S. E. 951), can not apply where the claim was filed not by a third person, but by one who was the real party defendant in the execution, though designated by a trade name. Since in the present case the claimant was in reality the defendant in fi. fa. and was for that reason precluded from making any sort of claim to the property, the purported claim which he filed was a mere nullity and could not be employed as the basis for an attack upon the judgment upon any ground. Compare Bullock v. Butts, 33 Ga. App. 7 (4) (124 S. E. 905).

4. Applying the above rulings, the instant petition for certiorari showed affirmatively that the claim was not maintainable, and was properly dismissed by the municipal court. The appellate division rightly affirmed the judgment, and the superior court erred in sustaining the certiorari.

Judgment reversed.

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


text:
    18997.
    Hengstler v. Huguley-Scott Auto Company.
    Decided February 9, 1929.

      W. Sowell Morrow, L. B. Wyatt, for plaintiff in error.

      L. L. Meadors, contra.
   Bell, J.

1. “Knowledge of the consideration of a negotiable note, by a bona fide purchaser for value before maturity, does not carry with it any notice of failure of consideration, nor is the purchaser bound to make inquiry as to whether the consideration has failed or will fail.” Florence v. Commercial Bank, 34 Ca. App. 329 (1) (129 S. E. 560); Bank of Commerce v. Knowles, 32 Ga. App. 800 (2) (124 S. E. 910).

2. The fact that the purchaser of a promissory note knew at the time of taking it that it was executed by the maker in consideration of an executory contract, to be performed by the payee for the benefit of the maker, would not alone constitute notice of a subsequent failure of consideration, resulting from the payee’s breach of the executory contract. State Banking Co. v. Morgan, 30 Ga. App. 430, 432 (118 S. E. 415).

3. Nor, in a suit by the purchaser upon such note would the defendant be let in to his defenses merely upon proof that the plaintiff had been offered the same kind of contract by the payee, the same being for advertising service, and that because it “didn’t look good to him” he “turned it down,” this having reference not to any improbability of performance by the other party, but to the value or desirability to the plaintiff of the service proffered.

4. Where it appeared that a number of such executory contracts had been entered into by the payee with various business men of a certain community, who had executed notes to the payee similar to the one sued on, testimony by one of the makers of such notes that at the time he executed the note the contract and the note were so placed together that he did not observe the note or know of its existence, and believed that he was signing only the contract, was inadmissible in support of a plea of fraud by the defendant, where there was no evidence tending to show that the plaintiff had knowledge of any such artifice or device, or that he was otherwise charged with notice that any fraud was practiced on the defendant by the payee in obtaining the note sued on.

5. An indorsement of a promissory note, when sued on by the indorsee, need not be proved unless denied on oath. Civil Code (1910), § 4299; Ga. L. 1924, p. 126, §§ 16, 59; Massell v. Fourth National Bank, 38 Ga. App. 601 (1) (144 S. E. 806).

6. The maker of a negotiable instrument admits the existence of the payee and his then capacity to indorse. Ga. L. 1924, p. 126, § 61.

7. Applying the above rulings, the evidence demanded the verdict for the plaintiff, and the court did not err in directing it.

Judgment affirmed.

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