text:
    753.
    MERCHANTS AND MINERS TRANSPORTATION COMPANY v. CORCORAN.
    1. It is prima facie to he presumed that a trial judge has exercised his discretion, when he grants or refuses a motion for new trial; and he who asserts to the contrary must plainly show the failure of the judge to exercise the legal discretion with which he is clothed. The judgment of a court upon a motion for new trial can not be impeached' by statements of the presiding judge, not contained in the order overruling or granting the motion. If the trial judge has really exercised his discretion upon a motion for new trial, the reasons which influence him in giving direction to the ease are unimportant to the court of review.

      (a) In no event can a reviewing court look beyond the order disposing of the motion for new trial, or the recitals in a bill of exceptions affirmatively showing that his discretion was not exercised, to inquire whether the judge has failed to exercise his discretion.
    (b) Even when the judge gives expression orally to disapproval of a verdict, and does not incorporate it in his final judgment, it is not to be held that this indicated that there was not finality and exercise of discretion; it will be treated merely as indicating that the final decision was not reached without difficulty.

      2. A second verdict, found with no evidence to sustain it, should be set aside as readily as a first, but a second verdict can not be set aside, as a first verdict might be, merely because upon the second trial the judge may think that the preponderance of the evidence is in favor of the losing party.
    3. The evidence authorized the verdict; and though the evidence were weak, the judge would not be authorized to grant a second new trial because his personal opinion as to the weight of the evidence differs from that of the jury, unless for errors of law a new trial should be granted.
    4. Evidence of the ineompetency of a servant as to a particular business requiring skill may be deduced from a circumstance disconnected with the cause of action, where the service to be performed is of the same nature or requires like skill as that from the absence of which it was claimed the plaintiff was injured.
    5. The court may present a defense of the defendant most strongly by excluding from the consideration of the jury all liability under the plaintiff’s claim of right of recovery as to that matter.
    6. (a) In the absence of a written request it is not error for the court, after giving general instructions upon the subject of the measure of damages, to omit to instruct them that they should take into consideration the plaintiff’s diminishing capacity for labor, due to old age. If general instructions are given on the subject of the ascertainment of damages, more specific instructions, if desired, should be duly requested.

      (b) The jury are presumed to be as cognizant of the common phenomena of human experience as the judge, and if their attention is especially desired to be directed thereto, a timely written request should be made. It is not essential, in order to form an estimate of the value of the life of a deceased, or to ascertain the diminished capacity of a plaintiff to earn money, which has been caused by an injury, that the jury trying the ease should have before them the standard mortality tables. Such tables may be a useful circumstance, but are not conclusive.
    7. A verdict of a jury can not be held to be excessive unless it be manifestly the result of prejudice or bias, or other' corrupt motive.
    Action for damages, from city court of Savannah — Judge Norwood. August 20, 1907.
    Argued December 11, 1907.
    Decided August 4, 1908.

      O’Connor, O’Byrne & Hartridge, Lawton & Cunningham, for plaintiff in error. Robert L. Colding, contra.
   Russell, J.

This ease was heretofore brought to this court upon error assigned upon the award of a nonsuit, and it is reported in 1 Ga. App. 743 (57 S. E. 962). Upon the return of the case to the lower court, it was again tried, and the trial resulted in a verdict for $12,250 in favor of the plaintiff. Exception is now taken to the judgment refusing a new trial, and it is further insisted, in the bill of exceptions, that the trial judge-did not in fact exercise Iris discretion in passing upon the motion for a new trial.

We shall first determine what merit, if any, is in the contention that the discretion of the trial judge, with reference to-the grant of a new trial, was not exercised. In the grant or refusal of a motion for new trial, it is of course to be presumed, prima facie, that such discretion was exercised; and it devolves upon him who asserts the contrary to show that there was a failure on the part of the trial judge to exercise that broad, and yet legal, discretion with which he is clothed. We do not think that the circumstances which are relied upon by the plaintiff in error are sufficient to rebut the general presumption, or can be properly considered by this court, in the face of the judgment overruling the motion for new trial. It appears from the record that in open court, on August 20, the court passed the following order : “After hearing argument upon the within motion for new trial, it is considered and ordered that said motion be and the same is hereby overruled.” This judgment was a finality, so far as the motion for new trial is concerned. The power of the judge of the city court of Savannah, so far as that motion is concerned,, was then exhausted, and the case was at an end. Any further rights of the parties depended upon a writ of error by proper bill of exceptions, unless the judge, upon the ground that the order had been inadvertently or improvidently signed, had seen proper to set it aside or modify it. The plaintiff in error seeks to show that the judge had not exercised his discretion; because, upon the succeeding day, he filed an opinion explaining the reasons for his previous judgment. The opinion was as follows (after stating the case) : “Decision of court on motion for new trial. I have not had time to reduce my opinion to writing, and, in fact, the view I take of it, there would be nothing to say that I think would require a written opinion. This case came up here two or three years ago and was tried by a jury, and the jury rendered a verdict-I think it was for $6,000. It came up again, and I was of the opinion that the plaintiff had no case, — that is to say, not sufficient to submit to a jury, — and I nonsuited the plaintiff. He took the case to the Court of Appeals, and the court said I was in error, that there was enough to go to a jury. It was then submitted to another jury, and that jury found a verdict for the plaintiff. It was found upon about the same testimony that was submitted when I nonsuited the case. A motion is made for a new trial, but the case stands on about the same footing that it did before, and the view I take of it, the duty of this court -is this: The law in the'case is about the same, — that is to say, on this last trial, — as it was before, when it went to the Court of Appeals. The facts are about the same, and I think that I should allow the Court of Appeals to review the whole case again. They reviewed it once on motion for nonsuit; now they can review it as a case completed, and decide whether the court here was in error, or the jury was in error, or both. My opinion is, therefore, that it is better to overrule the motion for a new trial, without any reference to what I think about the case. I have nonsuited it once, and then let this court of revision, whichever counsel sees fit to go before, say whether I am right or wrong.”

If the judgment overruling the motion for new trial was passed in open court and was not a finality, so far as the city court of Savannah is concerned, it does not appear from the record whether the opinion in Avhich the judge explained the reasons why he exercised his discretion as he did was delivered in term time or in vacation, — whether the city court was still in session or had adjourned. If the term of court had ended, without an order continuing the hearing of the motion until vacation, the judge would be without jurisdiction or authority to pass any order; and, in the absence of any evidence upon that subject, this court can not consider the subsequent order which we have quoted above. Beyond that, however, we are satisfied that it would never do to hold that the solemn judgment of a court can be impeached by the oral statements of the presiding judge, in which he may give utterance to the views which influenced him, sometimes for the satisfaction and sometimes to the dissatisfaction of the counsel in the case, even though these remarks be stenographically reported and the judge afterwards consents to verify them by his signature. The reviewing court is not concerned with the extrajudicial reasons which impelled the judge to decide; the only question is, did the judge decide and thereby exercise his discretion, which is nothing more or less than the exercise of his right to legally determine between two or more courses of action. If he exercises his right of choice, after full consideration, the judicial discretion has been exercised, whether it has been exercised wisely or. not. This point was express^ ruled in City of Atlanta v. Brown, 73 Ga. 630. In delivering his judgment refusing a new trial in the Brown case, Judge Dorsey stated that “in his judgment the alleged injury was, or should not be an actionable defect; as to require the city to remedy such slight imperfections would be to impose upon it an extraordinary degree of diligence; but as he had fully and fairly charged the jury as to the defect being actionable, and they having found in favor of the plaintiff on that question, he felt that he should not disturb their verdict.” It was insisted before the Supreme Court that this evidenced that there was not an untrammelled and free exercise of the judge’s discretion, and that to refuse the motion, with such an impression resting upon his mind, was an abuse of discretion. In passing upon the point, Justice Hall, in a well-considered opinion, says: “To this, however, we do not assent. It seems to us that if does not amount to an abuse, but is rather a reluctant forbearance to exercise his discretion . . in favor of the defendant. Hpon the whole, he concluded to let the verdict stand, and we are to look to this conclusion as the exercise of his discretion, rather than to the reasons that led him to hesitate, before interfering with the finding of the jury.” 'Throughout the opinion the order refusing a new trial is treated as an absolute exercise of discretion, which is not to be affected by the fact that the judge was reluctant to reach the decision he finally rendered.

If the presiding judge were to give frank and full utterance to his thoughts in every case in which he rendered a judgment, it would be found that perhaps in a majority of the judgments rendered both doubt and reluctance prevail. If the doubt of the judge, or even his personal opposition, appears in the order passing upon the motion for new trial, it may then be considered that the court has not exercised its discretion; but the judgment in the present'ease, though brief, makes no reference to any doubt, misgiving, or unwillingness to award the judgment, which is rendered without equivocation. By the form of the order in which the court made a final disposition of the motion, this case is distinguished from those of Central Ry. Co. v. Harden, 113 Ga. 453 (38 S. E. 949), Thompson v. Warren, 118 Ga. 644 (45 S. E. 912), Rogers v. State, 101 Ga. 561 (28 S. E. 978), McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71). While it does not so appear in each case in the decision itself, an examination of the original record in all of these cases shows that the judge in each instance, in his order, gave evidence that his discretion had not been exercised.

We hold the true rule, then, to,be: (a) That in no event can a reviewing court look beyond the order disposing of the motion for new trial, or the bill of exceptions, affirmatively showing that his discretion was not exercised, to inquire whether the judge has failed to exercise his discretion. (b) That even when the judge gives expression orally to disapproval of a verdict, and does not incorporate it in his final judgment, it is not to be held that this indicates that there was not finality and exercise of discretion; it will be treated merely as indicating that the final decision was not reached without difficulty.

The trial judge, in the present instance, may not have been thoroughly satisfied with the verdict in favor of the plaintiff. He had set aside one verdict against the defendant, and, upon its motion, had awarded a nonsuit, which this court reversed. The discretion he had twice exercised upon the facts in the record had been narrowed and limited by these facts and by the salutary requirement that there must be an end of litigation. For, ‘while the decision of this court in Scribner’s Sons v. Mutual Building Co., 1 Ga. App. 528 (58 S. E. 240), and that of the Supreme Court in the case of Dethrage v. Rome, 125 Ga. 806 (54 S. E. 654), do not mean that the discretion of the trial court is exhausted upon a second motion for new trial, they do mean that where there is only a conflict of witnesses, and the- second verdict is the same as the first, and there is evidence sufficient to authorize the verdict, it would be an abuse of legal discretion upon the part of the trial court to grant a second new trial. Of course, a second verdict found with no evidence to sustain it should be set aside as readily as a first, but a second verdict can not be set aside, as a first verdict might be, merely because upon the second trial the judge may think that the preponderance of the evidence is in favor of the losing party. As was well said in the Dethrage case, supra (p. 806), in which the second new trial asked was granted, “the liberality of indulgences by this court in favor of the discretion of the trial court in the first grant of a new trial will not be extended to a second. In the first instance the discretion will be sustained, when questions of evidence are involved, almost as a matter of course; but not so with subsequent trials. There must, be an end to litigation; and after the first grant of a new trial,, if the matter in controversy be one of fact for the jury, and for a second time in passing upon the same facts the verdict upon the question at issue be concurrent with the first, the mere discretion of the court' can play but little part in the second motion for a new trial. It is true that it may sometimes be exercised, but only in cases where it is palpably apparent, from the entire evidence, that the verdict was strongly and decidedly against the weight of the evidence and manifestly wrong." Other authorities are to the same effect. “In the case of Cleveland v. Central R., 73 Ga. 793, where the action was for homicide of plaintiff’s husband, and the defense was contributory negligence, this court held that it was error for the trial judge to set aside a second verdict of a jury on the ground that it was excessive, where there was enough evidence to support it, although the decision of the trial judge in setting aside the first verdict for the same amount, and based upon the same evidence, was upheld by the court. In Cook v. Western & Atlantic R., 72 Ga. 48, in a similar action and defense, where the court on a former writ of error had decided that the 'evidence was sufficient to withstand a motion for nonsuit, it was. held that the ‘ discretion of the presiding judge in granting the first new trial had been exhausted in the case, and the grant of another was error.’ Also in the case of Dempsey v. Rome, 99 Ga. 192 (27 S. E. 668), the court, having previously decided that it was error to grant a nonsuit on the same evidence as was then before it, held that a second grant of a new trial was error where-the case turned upon the credibility of witnesses, and it appeared that if the jury chose to believe those introduced by the plaintiff, their evidence was amply sufficient to warrant a recovery.’’ The-learned trial judge no doubt had these rulings of the Supreme Court in mind when he exercised his discretion according to law, by refusing a fourth trial of the- case; and his opinion is merelj an expression of regret that he was inhibited from a contrary judgment. This court, by a unanimous opinion, having held that evidence practically identical would withstand a nonsuit and authorize a recovery on the part' of the plaintiff, the ease (so far as the evi-, dence was concerned) is practically identical with Dempsey v. Rome, supra.

We come then to consider, first, whether the court erred in overruling the motion for new trial upon the ground that the verdict was without evidence to support it. With this ground we shall consider also the fourth ground of the amended motion, that a new trial should have been granted “because it nowhere appears in and by the evidence adduced in said case that the injury received by the plaintiff was occasioned as a result of lumber falling upon his leg.” The testimony of Corcoran himself on the direct examination was that the lumber fell across his knee. The end he had placed at half cant $as across his leg. The evidence further was that, regardless of any injury which may have been received by his foot or in scraping his leg when the log was rolled off, the bone was so crushed by the fall of the timber that this fall across the leg rendered amputation necessary. It is true that upon cross-examination he testified with less definiteness, but he never did retract his first statement, so that the doctrine laid down in Evans v. Josephine Mills, 119 Ga. 448 (46 S. E. 674), can be applied. On cross-examination he testified that it was the piece of lumber which crushed his leg, and, he supposed, did it all. “The rolling of the piece of lumber off my foot injured my foot, but the piece of timber in general hurt the leg all over.” The jury heard the plaintiff upon the stand, they saw his manner of testifying, and had the right to believe him. The turning point in the ease, so far as the evidence is concerned, is whether Corcoran knew or ought to have known of the incompetency of the men with whom he was set to work. It might appear strange to us that the jury believed that Corcoran was wholly ignorant of the fact that the men put to work with him were green men, but he testified, absolutely and positively, that he did not know but that they were skilled men, and that their method of work up to the time of his accident was such as to lead any one to the conclusion that they were thoroughly competent and skilful in the loading of ships. The jury would have been authorized to believe, because of the prevalence of the strike, and from the fact that Graham knew (as he says everybody else did) that the men were green men, that Corcoran also knew it, or that he had as good an opportunity of knowing it as Graham, the vice-principal of the defendant company. But the jury were not compelled to take this view. The jury may have thought that Graham, having employed the men,necessarily knew more about them than Corcoran knew. It was not proved that Corcoran knew the extent of the strike, and both he and Graham testified that Graham did not tell him his fellow laborers were green and incompetent. The idea that Corcoran could with his own eyes have observed that they were unskilful and incompetent is rebutted by his statement that their work prior to the accident had not developed this fact.

The defendant introduced no testimony at all; and, after a careful review of the testimony in behalf of the plaintiff, we can not say that the trial judge erred in refusftig a new trial upon the ground that the verdict was without evidence to support it, or even because, to his mind, the evidence was unsatisfactory; this being a second verdict in favor of the plaintiff, and this court having adjudged, upon a prior consideration of practically the same evidence, that it. was error to award a nonsuit. As we have already remarked, a verdict unsupported by any evidence should be set aside, no matter how often rendered; but nothing is better settled in the decisions of our Supreme Court than that a second verdict in behalf of the same party stands upon a different footing from the first verdict, where the evidence is merely weak and unsatisfactory, or even where it appears that the mere preponderance is in favor of the losing party. Especially will the appellate court not interfere where two verdicts have been returned for the plaintiff upon sufficient evidence, and the court below has refused a new trial. Holliday v. Anglin, 76 Ga. 107. A second verdict, supported by some evidence, even though the trial judge believed he had no right to set the verdict aside, will not be vacated. Fulton County v. Phillips, 91 Ga. 65 (16 S. E. 260). The judgment granting a nonsuit having been reversed, the discretion of the trial court was exhausted by the first grant of a new trial, and the granting of a second new trial on discretionary grounds would have been error. Cook v. W. & A. Railroad, 72 Ga. 48. Doubt on any question of fact, in the mind of an appellate court, must be resolved in favor of the verdict, and not against it. Brown v. Meador, 83 Ga. 406 (9 S. E. 681). In Christian v. Westbrook, 75 Ga. 852, it was announced that a second concurring verdict will not be disturbed, although the evidence was exceedingly weak. We may safely hold in a ease involving what has always been held to be a question of fact, — -the negligence of a master in employing incompetent servants, without warning a fellow-servant who was to labor with them of their incompetency, — that where the evidence is sharply conflicting, the verdict must stand, unless an error of the court requires a new trial (Freeman v. Bigham, 65 Ga. 580); or, in other words, that it is error to grant a second new trial where two concurring verdicts have been returned on conflicting evidence, and there was no error in the court’s ruling on the trial. Veal v. Robinson, 76 Ga. 838. These decisions seem to be more peculiarly applicable in the present ease, because the defendant introduced no testimony.

We shall therefore consider the errors of law assigned upon the admission of evidence, upon the charge of the court, and upon the omission to charge, insisted upon by the plaintiff in error. The first ground of the amended motion complains that the court permitted the plaintiff, Corcoran, to testify that after he was hurt “that piece of lumber was not lifted up; they rolled it off. In moving a piece of lumber always lift it.” The objection to the testimony was that the defendant was not liable for any ineompetency of its servants in removing the piece 6f lumber from the plaintiff’s leg. The certificate of the judge as to this ground of the motion shows that this'testimony was not offered to show that the damage was caused by the rolling of the lumber, or that the defendant was liable for any injury caused by the rolling. The judge certifies that he permitted the testimony to be intraduced— and so stated at the time — “solely for the purpose of illustrating the competency or incompetency of the fellow-servants of Corcoran, and not for the resultant consequence of any act of negligence' that occurred after the piece of lumber fell upon Corcoran’s leg.” We think this testimony was admissible for the purpose stated. The conduct of a servant in relation to a matter within the scope of his duty, of course, may serve to illustrate his competency or ineompetency, but even if the act in question be not within the scope of his duties, in the particular instance, and yet one requiring skill, it may be proved, by the method of discharging such act, whether the servant be skilful or unskilful, competent or incompetent. In other words, if it be true that there is only one way in which a piece of timber can be skilfully handled, then the 'fact that the person whose character is under investigation handles such lumber unskilfully may be a circumstance tending to show that he did not know how to handle it skilfully, and was therefore incompetent.

The second ground of the amended motion alleges that the court erred in not stating one of the main defenses of the defendant, to wit, that the plaintiff received the injury complained of through the negligence of a fellow-servant, for which negligence the defendant would not be liable. It is strenuously contended that as this contention of the defendant was one of the main issues involved in the trial of the case, the court should have instructed the jury specially upon this subject, even without request. The court approves this ground in the following note: “In reference to this assignment of error, reference is had to the entire charge of the court.” Upon examination of the charge of the court and the record of the pleadings, we are unable to sustain this contention of the plaintiff in error. The court absolutely protected the defendant from even the slightest risk of liability arising from the negligence of the plaintiff’s fellow-servants, by the very forcible instructions in the outset of his charge to the jury, in which he virtually told them that the plaintiff could only recover,” if he could recover at all, upon the incompetency of the defendant company’s servants. The jipy were clearly informed that the plaintiff could derive no benefit from any injury which might have resulted to him from the negligence of his fellow-servants, even if the jury believed that such negligence had been shown. The court began the charge to the jury as follows: “The first fact that I call your attention to is one of exclusion. It is about a matter that is not in this case. I do this because you might get confused on the issue that you are to decide. Except in cases of railroad companies, the master — that is, the defendant here — is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business. At common law a master was never liable for injuries done to a fellow-servant by one of his servants, but our legislature has changed that law as to railroads; so that in the case of a railroad, the railroad is liable for the negligence of a servant that injures another servant in the employ of that railroad in the same business. So that you exclude from your consideration any idea that this is a case of liability for negligence by a fellow-.servant.” Presuming that the jury were composed of men of ■ordinary intelligence, we do not see how the judge could have told them more forcibly and directly that “the defendant here” could not be held liable for any act of negligence, no matter what, on the part of Corcoran’s fellow-servants. This was not only the first thing to which the attention of the jury was directed, and the jury were not only told that they must not confuse a case like this, in which the master is a steamship company, with the rule in regard to railroad companies, but they were next told that the defendant was not liable for the negligence or misconduct of the servants toward a fellow-servant, and, therefore, that it differed from railroads in that respect. Not content with this, the. .judge finally tells the jury that they must exclude from their minds any idea whatever that the defendant can be liable for negligence by a fellow-servant. Having excluded from the jury'the right to award the plaintiff anything for damages arising from negligence of his fellow-servants, the court proceeds, in the next portion of the charge, to state that “the case rests upon the view that the master, the defendant here, is liable because he employed incompetent servants to work along-with the plaintiff;” and the recovery of the plaintiff is expressly limited, not less than three separate times, to the single question whether the defendant employed incompetent servants, and whether Corcoran, by the exercise of ordinary care, could have known that they were incompetent.

As we view it, the assignment of error loses its force by reason •of the fact that the defendant did plead, what it now insists upon, that Corcoran’s injury may have been caused by the negligence of his fellow-servants. If Corcoran’s injury was caused either by his own negligence or that of his fellow-servants, the fact would present a special defense, of which the defendant might have •availed itself. • This the defendant did not do. It is well settled that it is error for the trial judge, even without a request, to fail to charge upon any issue in the case. It is his duty to instruct the jury as to the law applicable to each issue and all issues properly raised by the pleadings, whether requested to do so or not; but the judge must look to the pleadings to ascertain the issues. The pleadings in the present case raise the issue that the plaintiff had been injured by reason of the fact that he was set to work without knowledge and without warning, with incompetent fellow-servants, that the nature of. the work at which he was engaged required skill, and that by reason of the ignorance and lack of skill of his fellow-servants he was injured. The answer contented itself with a general denial of the plaintiffs allegation upon this subject. So that, though the judge perhaps was not required to charge a. defense which the defendant had not urged, still, if he had been so required to instruct the’jury upon the subject of the negligence of fellow-servants as affecting the right of the plaintiff to recover, we think the instructions upon that subject were proper and sufficient.

In the third ground of the amended motion for new trial the plaintiff in error insists that the court erred in the charge as-to the measure of- damages. The portion of the charge to which exception is taken is as follows: “Gentlemen, should you find for plaintiff, you would be authorized to give damages for his impairment by reason of the injuries, the impairment of his physique, his body, to the extent that that impairment incapacitates him from doing the labor that he was capable of doing before the injury. I will illustrate it to you: Suppose he was getting $60' per month before he was injured (I am only giving you figures now, without reference to this case, so you can apply them to the facts of the case as they have been testified to), and that now he can only earn $30 per month. His earning capacity is impaired one half. You would not be justified in giving a verdict of- $60' per month under any circumstances, but you would have $30 per month under the supposition you have submitted to you. Now, to-arrive at your verdict, to ascertain what that $30 would be worth now (because you have got to base your verdict at this time, not-what the amount would be in the.future), you would take $30 per month, multiply that by twelve, and then multiply that by the number of years that have been testified before you, which is his. expectancy for life that is called by insurance companies; it is his expectancy; how long a man of his age will live according to the average of human life; you would take the number of years, therefore, as his expectancy of life, and multiply that by the result of $30 multiplied by twelve, one year, and then you would reduce the amount, using 7% as your calculation, to a cash basis, and whatever that cash basis would be, you would be justified in giving a verdict for. So those are three elements for which yon can give a verdict, — mental suffering, physical pain, and his impairment of capacity to labor.”

(a) A specific objection urged by the plaintiff in error to this charge is that the jury were not instructed that in arriving at its verdict it should take into account the fact that the plaintiff’s capacity for labor would be diminished as he grew older. Counsel for the plaintiff in error cite, in support of their contention that a new trial should be granted for this alleged error, the case of W. & A. R. Co. v. Moore, 94 Ga. 458 (20 S. E. 640), in which it was held, in view of the facts of that particular case and the amount of' the verdict, that there ought to be a new trial, for the reason that the court erred in omitting to call the attention of the jury to the fact that in his declining years the capacity of the deceased to labor and his ability to earn money might have decreased, and that they- should take this into consideration. We do not know that this case is controlling, in view of prior adjudications, but in any event the ruling must be confined, as the Supreme Court confined it, to its particular facts. The verdict in that case was $8,000, and the plaintiff’s husband was thirty-nine years of age. The case of East Tenn. Ry. Co. v. McClure, 94 Ga. 658 (20 S. E. 93), is also cited, but the new trial seems to have been granted in that case because the verdict was contrary to the evidence; and the fact that the court erred in charging the jury in reference to the Carlisle mortality tables is only incidentally referred to as a reason why a new trial should be granted. In Mayor of Griffin v. Johnson, 84 Ga. 279 (10 S. E. 719), it was held that it was proper for the judge to instruct the jury that they should consider the plaintiff’s declining j'uars. and the apparent decrease, year by year, of his capacity to labor, but the Supreme Court would not reverse the judgment of the court below on account of failure to give this principle in charge to the jury; because the jury could.not have rightly arrived at a smaller amount than that of the verdict rendered, even if the charge as desired had been given. In noneof these eases was the question raised whether the charge upon this point should have been requested, or whether the court was required to instruct the jury upon the point without request. However, in the later case of City of Columbus v. Ogletree, 102 Ga. 294 (29 S. E. 749), it was held that a charge upon a mortality table, which in substanee instructs the jury to ascertain the yearly amount of the plaintiff’s diminished capacity to earn money, if any, and to multiply it by the number of years he might be expected to live, and then to reduce the gross amount to present value, was not erroneous, the charge being in other respects appropriate. And if general instructions are given on the subject of the ascertainment of damages, more specific instructions on the subject, if desired, should be duly requested. So. Ry. Co. v. O’Bryan, 119 Ga. 148 (45 S. E. 1000); Macon Ry. & Light Co. v. Mason, 123 Ga. 773 (51 S. E. 569). In the Mason case, supra, Justice Evans, delivering the opinion, says: “The court in general terms instructed the jury that in the event they found in favor of the plaintiff, it would be their duty to estimate ‘the present value of the amount he claims he has lost by reason of his diminution in capacity to labor by reason of the injury,’ and they might determine what would be a present cash equivalent from their own knowledge of arithmetic and mathematics, or from a paper which had been introduced in evidence and which showed the expectancy of one 49 years of age, and other data, taken from the mortality and annuity tables published in the 70th Ga., ‘or from other evidence in the case.’ The instruction given to the jury upon this subject is criticised as being confusing and as laying down an incorrect method to be pursued by the jury, and ‘because it deprived the jury of the right to use their general knowledge upon the computation of damages of this character.’ The general tenor of the charge was right, though the language employed by the court was more or less involved and not altogether accurate. The gross amount which the jury might find the plaintiff would lose because of his diminished capacity to labor, as disclosed by the evidence, and not ‘the amount which he claims he has lost,’ was the sum to be reduced to present value. This and other minor inaccuracies of expression render the charge less clear than it should be. Otherwise it is not open to the criticisms made upon it. If more specific instructions were desired, an appropriate request to charge should have been presented.”

Thus we see in all of these cases that it is held to be incumbent on the counsel to request such a specific principle as the calculation of decreased earnings due to old age. In fact, however, we may say that the expectation of decreased earnings which would benefit a defendant- is in many instances offset by an expectant^ of increased earnings, which, might benefit the plaintiff, and (therefore if’ either increased or decreased earning capacity is desired to be presented to the jury, an instruction should be requested.

(5) It is insisted, however, that the judge’s charge is not warranted, because there was no evidence of the plaintiff’s expectancy. No mortality tables were introduced. We do not think, however, that it is indispensable that such evidence should be before the jury, in order to enable them to ascertain the probable duration of life in a given case. In Central Ry. Co. v. Ray, 129 Ga. 353 (58 S. E. 844), in which it was held, as we now hold, that the judge’s omission to call the attention of the jury to the decreased earning capacity, resulting from advancing age and other causes, should have been brought to his attention and a timely written request upon the subject should have been made, if it was desired to take advantage of the point, the court held, that “in the process, -of reaching a correct result from the evidence, juries may take into consideration such universal experiences in human life, as criteria in weighing the evidence in the particular case. The judge may refer in his charge to such matters as the plaintiff in error complains he omitted in this case.” But “the jury are presumed to be as cognizant of these common phenomena of human experience as the judge; and if their attention is specially desired to be directed thereto, a timely written request should be made.” When there are sufficient facts in the evidence as to the age, health, physical condition, habits, etc., of a given person, the jury may form a reasonable estimate of the value of his life, where death results, or of the diminished value of his services from the circumstances proved in his case, without resorting to the standard mortality tables usually introduced in cases of this kind. In Boswell v. Barnhart, 96 Ga. 524 (23 S. E. 414), Chief Justice Simmons, delivering the unanimous opinion of the court, said: “It was not essential that the jury, in order to form an estimate as to the value of the life of the deceased, should have before them the standard mortality tables usually introduced in evidence in cases of this. kind.” He then quotes with approval the language of Chief Justice Jackson in Savannah, Fla. & Western Ry. v. Stewart, 71 Ga. 446, in which he said: “I do not think that there is any Procrustean rule in the mode of estimating the value of a life. The age of a man, the health he enjoys, the money he is making by his labor, his habits, are data from which the jury may argue how long he will probably live and work, and what his life is worth to his wife in its pecuniary value. I know of no law which requires tables of the probable length of life and its probable worth to be introduced. They maybe a useful circumstance, but are not conclusive or absolutely essential.” • As the factor of expectancy is derived from human experience, supposed to be wellnigh universal, and to be known to the jurjq and as Corcoran’s age at the time of his injury was proved to be 32 years, we apprehend that the jury could make the necessary calculation perhaps as well without the mortality table in evidence as if it had been introduced; and we do not think that the mere fact that the court incorrectly stated that the number of years of his expectancy of life had been testified before them should itself work a new trial.

(c) One reason of the exception to the charge is that the court did not instruct the jury how the reductions to a cash basis should be made. The excerpt from the charge, which we have quoted above, instructed the jury to reduce the amount found by 7 per cent, per annum, the language being 7 per cent, for one year. . If the jury were capable of ‘ making this calculation, as they must be presumed to be, then the basis given them by the court was at least not unfair to the defendant, as 7 per cent, is the highest rate of interest allowed by law in this State, in the absence of a contract.

In the argument considerable stress is laid upon the fact that the verdict is excessive. This court has no right to adjudge a verdict to be excessive, unless it was the result of bias or prejudice. From the record we are unable to say that this verdict was due to either of these causes. To say nothing of the torture due to enforced idleness, which is inflicted upon a man accustomed to work (spoken of in Powell v. Augusta Ry. Co., 77 Ga. 200), the pain and suffering the plaintiff must have endured, and, according to his testimony, still endures, the personal disfigurement due to the loss of his leg, and the feeling of affliction he must carry with him through life, as well as the diminution of liis earning capacity, we do not think it within the power of the court to say that the verdict of the jury was excessive. Perhaps a safe criterion by which we may judge the question is comparison with findings of other juries. While we have been unable to find a case in this State wheije as large an amount was returned for the loss of a leg, similar amounts have been held not to be excessive in other jurisdictions where the exact question was presented. In Akersloot v. Second Ave. R. Co., 59 N. Y. Superior Ct. 555 (15 N. Y. Supp. 864), $12,000 was held to be not excessive for the loss of a leg. In Kalfur v. Broadway Ferry Ry. Co., 34 N. Y. App. Div. 267, $15,000 was held proper. In Chicago Ry. Co. v. Taylor, 68 Ill. App. 613, $15,000 was held to be not excessive for a severe and permanent injury to the leg, and in Chicago Ry. Co. v. Leach, 80 Ill. App. 354, $15,000 was held not excessive for the loss of a leg. In the case of Williamson v. Brooklyn R. Co., 53 N. Y. App. Div. 399, even the sum of $22,500 was held to be not excessive for the loss of one of the plaintiff’s legs. If, by any means, the judge in the court below can be construed to have held that he was not satisfied with a finding in favor of the plaintiff, he at least did not disapprove of the amount awarded to the plaintiff upon the jury’s finding that the defendant was liable. As he was not authorized to say that the finding was excessive, neither can we. After a very critical examination of the entire record in this case, we are confirmed in the opinion that the evidence of the plaintiff’s injury, both as to nature and extent, being undisputed, and the jury having found in favor of the plaintiff on the crucial point that his injury was due to the negligence of the defendant in employing incompetent servants to work with the plaintiff, whose ineompetency was unknown to him, the verdict was .authorized by the evidence, and was not caused by any error of law on the part of the court. Judgment affirmed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    1019.
    Wood, ordinary, for use, etc., v. United States Fidelity and Guaranty Company.
   Hill, C. J.

1. An insufficient verification of a plea in abatement is a mere matter of form, and is an amendable defect; and if the plaintiff does not object to the verification of the plea before issue joined, it will be too late for him to do so thereafter. Civil Code, §5045; Ward v. Frick Company, 95 Ga. 804 (22 S. E. 899).

2. The better practice is to submit the issue of the plea in abatement before trying the merits of the case;, but where both issues are submitted- together, and the verdict of the jury is restricted to the finding in favor of the plea in abatement, no harm is done, and the error is not reversible.

Action on bond, from city court of Dublin — Judge Burch. January 6, 1908.

Submitted April 21,

Decided August 4, 1908.

Ira S. Chappell, for plaintiff.

Williams & Blackshear, J. S. Adams, for defendant.

3. The evidence is sufficient to justify the verdict in favor of the plea in abatement. Judgment affirmed.


text:
    1095.
    SOUTHERN RAILWAY COMPANY v. WEST.
    1. One who is employed by a railroad company in' the work of building and repairing bridges, trestles, and depots, and is furnished with a car in which he and his associates live, and in which they are transported to places along the line of the road where their services are required, the custom being to attach the car to engines and trains of the railroad company and move it from one place to another in the progress of the work, is an emplcwee of the railroad company, not only while he is engaged in the work of building and repairing bridges, trestles, and depots, but also while being so moved in the car from place to place in the work of his regular employment.
    2. A petition brought to recover damages for personal injuries against a railroad company, wherein the facts set forth show liability arising from the relation of employer and employee, is sufficient to submit, to the jury and to let in proof of the allegations going to establish such liability, although the plaintiff claims in the petition that he was a passenger when injured, and, as such, entitled to recover. The legal status of the plaintiff is shown by the facts alleged, and.not by his. conclusion from such facts.
    Action for damages, from city court of Polk county — Judge Irwin. March 3, 1908.
    Argued May 7,
    Decided August 4, 1908.

      McDaniel, Alston & Black, Maddox, McCamy & Shumate, for plaintiff in error.

      J. M. & H. J. McBride, John W. & G. E. Maddox, contra.
   Hill, C. J.

West sued the Southern Railway Company to recover damages for personal injuries. The material portions of his petition are as follows: “(3) That on said 10th day of July, 1905, petitioner was employed and for sometime prior thereto had been, emploj'-ed by defendant as a member of what was known as the ‘bridge gang/ and as snch was engaged in the work of building and repairing bridges, trestles, and depots on its said system of railroads, both in Alabama and in Georgia. (4) That as such employee, petitioner, together with the other members of said bridge gang, was required by defendant to cook, eat, and live in some old passenger coaches furnished them for that purpose by said defendant, which said coaches were moved by the engines and trains of defendant on its said lines of railroad as it became necessary for said bridge gang to move from one place of work to another; and that while going from one place of work to another, it was usual and customary for the members of said bridge gang to be transported by defendant in said cars, no other means being provided them. (5) That your petitioner, along with said bridge gang, had been for some time prior thereto at work painting a bridge on defendant’s line of railroad, about two miles east of "Weems, in Jefferson county, Alabama; the work on said bridge being completed on said 10th day of July, 1905. (G) That in the evening of said 10th day of July, 1905, when the work on said bridge had been completed, petitioner, together with the others of said bridge gang, in accordance with the orders and directions of the foreman of said bridge gang, went aboard said cars, and the same were attached to a freight train, and defendant undertook to transport the same into Birmingham, Ala., a distance of about twenty miles. (7) That while traveling on said train, petitioner was not engaged in any work, had nothing whatever to do with the running or operation of said train, and had no control over any of those engaged in the running or operation of said train; but he was, in effect, a passenger on said train, and defendant owed him the duty of extraordinary diligence for his safety. (8) That the coach so furnished by defendant, as aforesaid, and in which petitioner was riding, the same being called the sleeping car, was an old passenger coach, the wood and wooden draft timbers of which were decayed. The wood in the drawhead used to couple said coach on to others was old, decayed, and not sufficients strong to make it safe to couple and use said coach in running on a railroad. The iron key, and the iron pin in said key, used in holding said drawhead in and to said draft timbers, was old, worn, and defective, and by reason thereof unsafe to use in coupling and ■carrying said coach, with petitioner therein, on said railroad. All -of said defects were unknown to petitioner, hut were known or ■could have been known to defendant, in the exercise of extraordinary diligence due to him as a passenger on said car. (9) That while said coaches were being carried on defendant’s said line of railroad, and at a point about seven miles from Birmingham, they were suddenly, violently, and unnecessarily jerked forward, then and there jerking and breaking and pulling said pin out of said key, tearing and breaking from their places the said pin and key and said draft timbers in the front end of the coach in which petitioner was riding, and jerking and breaking said drawhead and said pin and key by which it was fastened to said draft timbers of said coach, thereby causing said coach to become uncoupled and detached from the car immediately in front of it. The said drawhead immediately dropped from its place to the ground and ties on said track, one end or part of said drawhead standing on the ties, and the other end up to and against the iron axle of the front trucks of said coach, thereby forcing the front end and truck of said coach up and off the track. (10) That at the time .said coach was so derailed, said train was being run at a high and dangerous rate of speed, the same being about thirty miles per hour; and, after said coach was so derailed, it continued to run •on the ground and on the cross-ties along said track for a distance of more than one hundred feet; that after it was derailed and before it stopped, it was running, jumping, and violently tossing, leaning and careening from one side to the other on and across the cross-ties and on the ground, and, as petitioner believed, was in constant and immediate danger of being turned over; that while said coach was thus tossing and careening, your petitioner, with the others in said coach, including the foreman of said bridge gang, were caused thereby to become greatly excited, agitated, and alarmed for his safety, and while so, believing that his life was in danger, without time for reflection or deliberation, in company with said foreman and other persons in said coach, he jumped from said ■coach to the ground.” The injuries received by the petitioner are fully described in the petition.

The defendant demurred to the petition and moved the court to dismiss it, because “the plaintiff sues as a passenger on the defendant’s train, and seeks to hold it to a degree of care required of a common carrier in its relation to a passenger, while the facts alleged by him show that be was not a passenger, but was an employee of the defendant, engaged in his duties as such, and was riot entitled to the same degree of care as a passenger, and, being an employee, that he owed the defendant duties as an employee which, are not owed by a passenger.” The court overruled the demurrer, and the defendant assigns error on this judgment. Two questions are presented to this court for determination: (1) Do the facts as set forth in the petition constitute the plaintiff a passenger? (2) Are the allegations of the petition sufficient to set forth a good cause of action by the servant against the master for the master’s own negligence?

In determining the legal status of the plaintiff at the time he received the injuries complained of, the question must be decided according to the general law, and not under any statutory law of this State, where the suit was brought, or of the State of Alabama, where the injury occurred. No statute of the State of Alabama is pleaded as a basis of recovery, and, of course, no statute of this State would be applicable to the case. We think that the facts set forth in the declaration make a good cause of action, under the common law, to recover damages for personal injuries. If these facts show that the plaintiff was at the time a passenger, he was entitled, under the principles of the common law, to extraordinary care and diligence by the defendant. If the facts show that he was, mot a passenger, but was a servant, and that his injuries were inflicted by the negligence of the master, without any contributory .negligence on his part, he would be entitled to ordinary diligence on the part of the master. In our opinion, under the facts as set forth by the plaintiff, he did not occupy the relation of a passenger to the defendant when he received his injuries.

The status of employees of railroad companies, not connected with the running of the trains, and while being transported upon the trains of the companies, has frequently been before the courts. 'There is some conflict as to whether an employee carried to and from his work on a car, while being so carried, becomes a passenger, or remains as an employee. Elliott, in his work on Railroads, states that “the weight of authority, however, as well as the better reason, is clearly to the effect that where he is so carried he is not a passenger, but is, ordinarily, to be considered as an employee and a fellow-servant of the employees upon the car transporting him. But it may be otherwise if he is being carried in pursuance of his own "business.” He cites numerous authorities to sustain this dictum. 3 Elliott on Railroads, § 1303a, and decisions cited in the note. Judge Lurton of the United States circuit court, in the case of Louisville and Nashville R. Co. v. Stuber, 54 L. R. A. 696 (108 Fed. 936, 48 C. C. A. 149), says: “The rule is now well settled that railway employees, while being carried, as part of their contract of service, to and from their place of work, are fellow-servants, and not passengers.” In support of this general statement we cite several cases very much in point. In Gillshannon v. Railroad Corporation, 10 Cush. 228, it is held that laborers being carried to and from their work upon a gravel train are not passengers, but fellow-servants of those operating the train. In Seaver v. Railroad Co., 14 Gray, 466, a carpenter whose business it was to repair bridges and fences along the line of the railroad was injured while being carried from his place of -work, and he was held to be a fellow-servant, and not a passenger. In Ryan v. Railroad Co., 23 Penn. St. 384, a laborer on a gravel train was injured through the negligence of the conductor or engineer, while being carried from his residence to his place of work; held, that there could be no recovery. In McQueen v. Railroad Co., 30 Kan. 689, a bridge painter, while being transported over the road to discharge his duties, was held not to be a passenger. In Railroad Co. v. Smith, 67 Fed. 524 (31 L. R. A. 321), it was held that a civil engineer charged with the duty of looking after the maintenance of bridges, trestles, and water tanks, was not a passenger, but was 'traveling over the road in discharge of his duties. And in Tomlinson v. Railroad Co., 97 Fed. 252, in an opinion by the circuit court of appeals for the eighth circuit, it was held that a bridge builder and repairer, whose duties called him to various places on the line of the railroad company employing him, was not a passenger when being carried over the road to the place of work, but a fellow-servant with those operating the train to which- his car was attached. There -are many cases to the same effect, all based upon the principles of the general law applicable to the point in question. The conclusion, supported by the great weight of authorities, is comprehensively expressed by Beale and Wyman as follows: “If the carriage is directly in connection with his work, he is really, while being carried, engaged in his employment, and his relation to the carrier is that of- servant and certainly not that of a passenger; as where a workman on a construction or gravel train is taken from place' to place on the road, as his services are needed. If he is not actually working at his employment, but is being carried to and from the place of employment, by agreement of the company, as an assistance to his work, he would seem equally to be engaged in his employment, and not to be a passenger. If, however, he receives as a gratuity or in part compensation for his services the right to travel free in the conveyance of the carrier upon his own business, then, in so traveling, he is to be regarded as in all respects a passenger.” Railroad Rate Regulation, §153.

Applying to the facts in the petition the test here laid down, the conclusion is irresistible that the plaintiff, at the time he was injured, was not a passenger. He was not traveling upon his own business, but was traveling in the car of the railway company, in direct connection with his ordinary duty as an employee. He had finished his work on the bridge of the company at one point of the railroad, and, following the' orders and directions of the foreman of the' bridge gang, went aboard the company’s cars to be transported to Birmingham, Alabama, a distance of twenty miles, presumably for the purpose of continuing his work and employment for the company. He alleges that the bridge gang, of which he was a member, were' required by the railroad company to live in some old passenger coaches, and to be moved, in the execution of their special employment, by the railroad from one place of work to another. It would be illogical to claim that while engaged at the places of work they would be employees of the company, but when transported between such places they would cease to be employees and become passengers. It was the plaintiff’s duty to travel in the cars provided for that purpose by the company, to those places along the line of the companj^’s railroad where his services were required. While thus traveling he continued in the service of the company, and was doubtless paid for his time, and we can perceive no substantial reason for holding that the relation between himself and the master and his fellow-servants was broken while he was being transported from place to place of his work, and that it was re-established when he actually resumed work.

The case of Carswell v. Macon, Dublin and Savannah R. Co., 118 Ga. 826 (45 S. E. 695), relied upon as establishing the contention that the plaintiff was “in effect a passenger and entitled to extraordinary diligence,” is not in conflict with the rule above announced. The Carswell case is based upon the construction of a statute of this State (Civil Code, §2297), which is as follows: “Bailroad companies are common carriers, and liable as such. As such companies necessarily have many employees who can not possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employees as to passengers for injuries arising from the want of such care and diligence.” This statute has no extra-territorial effect, and can not apply to an injury occurring in the State of Alabama. This statute seems to make an exception to the general rule of law in favor of employees who are being injured while being transported, and who have no control of the train upon which they are riding when injured. If, therefore, the facts alleged by the plaintiff limited his right to recover, to his statement that he was a passenger at the time that he was injured, and was therefore entitled to extraordinary diligence on the part of the railroad company, we would be compelled to hold that the court erred in overruling the demurrer and in not dismissing the petition. But we think that the case made by the plaintiff in his petition should not be restricted to his conclusion that he was in effect a passenger, and, as such, entitled to extraordinary diligence; but the facts set out which show that he was injured as an employee by the negligence of the master, and not by his own negligence contributing thereto, or the negligence of his fellow-servants, should also be considered. It can not make any material difference that he is mistaken in designating himself as a passenger, if, notwithstanding such designation, the facts set out in his petition determine this issue, and show that he would be entitled to recover as an employee.

The petition alleges that the railroad company was negligent in that it furnished a defective car in which to transport the plaintiff to his place of work. The defects in the car are specified. It was the duty of the railway company to furnish a safe car for the plaintiff to ride in, and the plaintiff was under no duty to inspect the ear to see that it was in a safe condition. This was the duty of the company. Dennis v. Schofield’s Sons Co., 1 Ga. App. 489 (57 S. E. 925); Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 263 (58 S. E. 249); Southern States Cement Co. v. Helms, 2 Ga. App. 314 (58 S. E. 524). And this would be true whether the plaintiff should be regarded as. a passenger or as an employee.. The duty of inspecting the condition of cars used in its trains, is one of the absolute duties of the railroad company as a master,, in relation to its employees. Lucas v. Southern Ry. Co., 1 Ga. App. 810 (57 S. E. 1041); Moore v. Dublin Cotton Mills, 127 Ga. 610 (56 S. E. 839, 10 L. R. A. (N. S.) 772). It appears from the petition that the ear in which the plaintiff was riding was furnished by the railroad company not only as a place in which the plaintiff and other employees were to live, but in which they were to ride when being transported by the company from place to place. It was therefore the duty of the railroad company to see that this ear was in a safe condition, not only for the employees to-live in, but also for them to be transported in; and the allegation, is that this duty was not discharged by the railroad company,, and that the car was in an unsafe condition to be used as a means of transportation, and that this defective condition was pnknown to the petitioner, but was known, or could have been known, to the defendant. It being well settled that the railroad company-owed to the plaintiff the absolute non-assignable duty of furnishing him a safe car in which to ride, if he is treated as an employee,, and if the facts alleged which show that this duty was not fully discharged by the railroad company are proved, we think that he would be entitled to recover, notwithstanding the error of his. conclusion that he was a passenger when he was injured. It is-true that the allegations of the petition show that the plaintiff’s, injury was caused by the concurring negligence of the railroad company in furnishing an unsafe and defective car for transportation, and in the negligence of the company’s servants in handling the train or the engine which was pulling the car; but it is well settled that if the master’s negligence concurred with that of a. fellow-servant in «producing the injury, the master would be liable as if he only was at fault, in other words, the fellow-servant doctrine would not apply in such a case. Cheeney v. Ocean Steamship Co., 92 Ga. 726 (19 S. E. 33, 44 Am. St. R. 113), and cases cited. “If the negligence of the master contributes to the injury of the servant, it must necessarily become an immediate cause of the injury, and it is no defense that another is likewise guilty of wrong.” McKinney on Fellow Servants, §16.

To conclude, we think that the facts set out in this petition make a case of liability; not the liability of a railroad company to a passenger, but the liability of a master to a servant; and the right of the plaintiff to recover, if he proves these facts, can not be legally affected by his erroneous conclusion that he occupied the relation of a passenger. For this reason we think the judgment overruling the demurrer should be affirmed.

Judgment affirmed.


author: Russell, J.

text:
    1138.
    MONAHAN v. NATIONAL REALTY COMPANY.
    1. A landlord is liable for defects in the original construction of a building, whether he knows of them or not. And where he retains a qualified possession and general supervision of his building, he may also be held liable for injuries arising from failure to maintain the building in proper repair, either if he knew of the defects or if, in the exercise of ordinary care, he should have known of them.
    2. In an action brought to recover for injuries due to the defective construction of a building, evidence as to the condition of the building at the time of the casualty may be admissible for the purpose of illustrating that the construction of the building was originally defective, and to show that the immunity which a landlord may ordinarily claim, upon the ground that he exercised due care in obtaining the advice of experts, has been withdrawn by reason of the facts that he had had ample notice (from actual physical conditions, brought to his attention or to that of his agents) that the construction was improper in the first instance.
    3. The maxim res ipsa loquitur is simply a rule of evidence; and whether, under a given state of facts, the maxim is to be applied is an inference to be reached by the jury, and not by the court. In a case where one, himself in the exercise of due care, sustains an injury which is primarily traceable to the operation of some portion of a building, and the casualty is of a kind which does not ordinarily occur where a building has been properly constructed, a jury may be authorized to infer that the resultant injury was due to original defective construction. The duty of proper construction, devolving upon a landlord," is an absolute duty; he is especially charged with knowledge of the character of a building constructed by him; and where injury caused by an appliance of the building results to one properly invited by a tenant into the building, negligence is prima facie attributable to the landlord.

      4. Where the only objection made to the introduction of evidence is that it is irrelevant to illustrate a certain issue, it is not error to overrule this objection, if the evidence is relevant to any other issue in the case and if no objection is made to the competency of such evidence. Although testimony may be incompetent, it need not be excluded upon that ground, unless that objection be specially raised.
    5. From knowledge of the existence of a present condition, knowledge of the existence of the same condition in the past may sometimes be implied.
    6. One may be liable for the result of a hidden defect, as well as for injurious consequences of a patent defect, unless he did not know or, in the exercise of due care, ought not to have known of such latent defect. A landlord is liable for a defect of construction, latent or otherwise, the existence of which he knew or ought to have known.
    7. Construction which is not strong enough to stand the strain of ordinary use is defective construction.
    8. Where the judge who presided at the trial of the case did not hear the motion for a new trial, but it was heard by his successor, the rule with reference to the weight of the opinion of the trial judge upon the facts has no application; nor has a judge who did not try the cause originally that discretion, in relation to the grant or refusal of a new trial upon the evidence, with which an appellate court is reluctant to interfere.
    Action for damages, from city court of Savannah — Judge Freeman. February 12, 1908.
    Argued June 30,
    Decided August 4, 1908.

      Osborne & Lawrence, Oliver & Oliver, for plaintiff.

      O’Connor, O’Byrne & Hartridge, for defendant.
   Russell, J.

The plaintiff in error, Mrs. Monahan, brought an action against the National Eealty Company, a corporation owning and operating an office building in the city of Savannah, to recover damages for an injury to her hand. The petition alleges, that Mrs. Monahan went to the office of a dentist in the defendant’s building to be treated; that while there, the annual policemen’s parade passed by, and that she raised one of the windows to look at the parade, and, when she raised the window, the chains which supported the sash broke and fell upon her hand, injuring it; that she did not know and could not, by ordinary care, have known of the size and weakness of the chains; that the defendant could, by the exercise of ordinary care, have known of the weakness of the chains, and did, in fact, know of it, and further knew that the occupants and visitors to the office in the defendant’s building went to the windows for the purpose of looking out, and especially when public parades were passing. The allegations which are especially material to be considered are those in paragraphs seven and twelve, which are as follows: 7. “That the window was caused to fall by reason of the fact that the chains which supported the sash in. the lifts were too light to serve the purpose for which they were being used at the time and place aforesaid. Said chains, being too light and small to sustain the weight of the window, broke and caused the window to fall with full force upon petitioner’s said wrist, causing the injury aforesaid.” This paragraph was amended by adding the following: “The defendant knew that said chains were too light, weak, and small for the purpose intended when they were put in the windows in said building. The construction of the building was originally defective, in that the said chains were' light, small, and weak. By the exercise of ordinary care at the-time said chains were put in the building, defendant could have-known that they were too light, small, and weak for the purpose to which they were put. The building was constructed by the National Bealty Company and under its supervision.” 12. “The defendant was negligent as follows: In beeping and maintaining a chain which was too light for the purposes for which it was intended to serve. Said chain was too light to sustain the weight of the window when raised. Said defendant knew that the chains-were too light to bear the strain upon them when the window was-open. Said defendant ought to have known, in the exercise of ordinary care, that said chains were too light to bear the strain upon them when the windows were open. All of these acts of negligence concurred in producing the injury aforesaid.”

From the evidence it appears that Dr. Osborne, a dentist, rented an office from the defendant. The defendant did not part with, possession of its building. It kept a superintendent who looked, after the building and had charge of making repairs to the same. It also furnished the .tenants with ice water and porter service, including the care and cleaning of windows. On the date in question the plaintiff went to Dr. Osborne’s office to be treated. While in the office the policemen’s annual parade passed and Mrs. Monahan went to one of the windows to look out. It appeared that it was. customary for the windows to be so used when parades were passing.. When raised, the chains which supported the window broke, and the sash fell and severely injured her hand. Dr. Osborne testified, that. Mr. Campos, the superintendent of the building, told him that the-window chains had been breaking all over the building, and that he had been repairing them, and had used up a second roll of 500 feet of chain in making the repairs. He stated to Dr. Osborne that the-reason the chains broke was that they were “too light.” Campos,, when put upon the stand, did' not deny this statement. He said: “I told Dr. Osborne that morning that there was a great many of the windows broken by men cleaning them, revolving windows, jerk-ing them up and down; thejr would break the chain, and whenever-we took a sash out we replaced the chains on both sides of the sash,, whether they were broken or not.” The defendant put upon the* stand the architect who designed the building. He testified, that the chains used in the windows were of the kind in ordinary use- and were a good grade of chain, that a Mr. Moxson, who worked under him, had tested the windows after they were put in and after-the building was constructed. He also testified that Mr. Campos, had nothing to do with the construction' of the building, but was employed by the defendant a short time before the building was com-pleted, so as to' familarize himself with the details about the building. Moxson testified, that he was employed in the construction of' the building; that the chains were of a kind in general use and were reasonably suited for the purposes intended; that he inspected the windows after they were put in and found them all right. His. testimony showed, however, that the only inspection was for the. purpose to see if the windows, when moved up and down, worked, all right. He made no test as to the tensile strength of the particular chains.

The jury returned a verdict for the plaintiff, for $250. The case was tried before his honor Thomas M. Norwood, and the rule nisi upon the motion for a new trial was issued by him. This original motion for a new trial was based upon the grounds that the verdict. was contrary to evidence, against the weight of evidence, and contrary to law. Judge Norwood’s term of office having expired, Honorable Davis Freeman, who succeeded him as judge, allowed the amendment to the original motion, and, upon the hearing, sustained the motion and ordered a new trial; and to this judgment the plaintiff in error brings her writ of error.

The questions which are presented for our consideration by the-.record are, whether the evidence, under the pleadings in the case,.. authorized the verdict rendered; whether the court erred in admitting the testimony to which exception is taken in the amended motion for new trial; and whether the court erred in qualifying the request of the defendant’s counsel, by defining to the jury what was meant by defective condition of the window chains, by instructing them that such chains would be defective if they were not strong enough to sustain the strain to which they would be subjected by ordinary use. The court also refused the request preferred by the defendant’s counsel, to the effect that the defendant would not be liable if the chains broke from a hidden defect.

It is unnecessary for us to determine whether the allegations in the 12th paragraph of the petition, which are quoted above, would constitute, with the allegations of the 7th paragraph, also set forth, a cause of action for failure to keep the building in repair, as insisted by counsel for plaintiff in error, or whether the right of action under the petition is restricted (as seems to' have been the opinion of the trial judge) to a right to recover for original defective construction alone; for the reason that we think that, even if the allegations of the petition be construed in a more restricted sense, the plaintiff was entitled to recover.

In the motion for a new trial it is assigned as error that the court admitted evidence of an admission of the defendant’s superintendent that the reason that the chain broke was because it was too light, that windows had been breaking all over the building and he had been repairing the same, and that he was then on the second roll of 500 feet of chain used in making repairs. It is undisputed, in the evidence, that the person who is said to have made this admission was the defendant’s superintendent and in general charge of the building; and when he was placed upon the stand as a witness he practically admitted the entire statement which had been attributed to him, and testified to the truth of the facts therein related. If, therefore, there was any error in the admission of the statement primarily, it. was cured by the introduction later of the higher testimony. Viewing the contents of this evidence, it may be remarked that where it is shown that the owner of a building, constructed presumably with all proper care and under advice supposed to be competent, has brought' to his attention facts' and circumstances which must bring home the conclusion that the building,' in spite of all his care, has been, in some respects at least, defectively constructed, not only is he thereafter charged with knowledge that the building is, in these respects, of defective construction, but, regardless of his original lack of knowledge, physical evidence of defects at the time of the accident may have real probative value in establishing that the building was in fact originally defectively constructed. For instance, if, a year or two after a building has been constructed (where there has been no settling of the walls and no portion of them has veered or cracked), a window sash could not be raised, because the window frame was not plumb, or a door could not be shut, owing to the fact that the door frame would not fit, it might be demonstrative of the fact that either the door or the window, or both, were originally defectively constructed. It would probably be convincing evidence. The substantive facts testified to by Mr. Campos were circumstances tending to show original defective construction. His admission was competent, in our opinion, to charge his principal with knowledge of these facts.

It made no difference, however, whether the defendant knew, when the building was being constructed, that the chains were too light and weak, or not. It was the defendant’s absolute duty to know whether the construction was defective or not. Defective construction is misfeasance, and where there is absolute misfeasance the party guilty thereof is ipso facto chargeable with knowledge. See Mayor of Brunswick v. Braxton, 70 Ga. 193. Under §3118 of the Civil Code, which is a mere codification of the principles laid down in White v. Montgomery, 58 Ga. 204, and Friedenburg v. Jones, 63 Ga. 614, a landlord is responsible to third persons both for damage arising from defective construction and for damage arising from failure to keep the premises in repair. As to positive misfeasance in construction, he is subject to the same rule which is announced in Mayor of Brunswick v. Braxton, supra. As far as keeping up repairs is concerned, the landlord should have notice of the necessity for repairs, where the possession of the premises is exclusively in tenants. _In the present instance, however, the landlord retained a qualified possession of the entire building and exercised a general supervision over each room; and it is for this reason that we heretofore remarked that notice as to the necessity of repairs or alteration of the window chains was unnecessary. We have held that it was immaterial that the action was both for damages resulting from defective construction of the building and for ■damages resulting from failure to keep the premises in repair, be•eause we consider it well settled that a landlord is liable for defects in the original construction of a building, whether he knows of them ■or not.

As to the damages which may be recovered where there is a failure to keep the premises in repair and where the landlord has parted with the possession, notice of the defective condition of the premises must, of course, be brought home to the landlord; and hence it was held in Ocean Steamship Co. v. Hamilton, 112 Ga. 903 (38 S. E. 204), that the landlord was “not liable because of a failure to repair a defect of which he neither knew nor ought, in the exercise of reasonable diligence, to have known.” The case of Stack v. Harris, 111 Ga. 149 (36 S. E. 615), is also a ease where liability was insisted on upon the ground that there was a failure of the landlord to keep the premises in repair, and the point decided was that liability results not only wiiere a landlord has actual notice, but where the circumstances are such as to require him to make an investigation which would result in discovery of the defects.

We are further,of the opinion that the court did not err in the admission of the testimony of which complaint is made, for the reason that if the chains were too light and weak to sustain the weight of the sashes at the time of the casualty, this would be a circumstance from which the jury might infer that they were originally too light and weak. Of course, we do not mean to say that it might not rather be inferred, if there was testimony to that effect, that the weakness or insufficiency of the chains at the time of the accident was not due to wear or usage; but the jury would have the right to say to which cause the insufficiency of the chains at the time of the accident was due; and in a case where the building had only been constructed, as in the present instance, for a short time, we think the jury would be authorized to say that the insufficiency of the window chains was not due to long usage and consequent loss of strength, but rather that they were originally too weak for the purpose intended. It may be asserted, as a general rule, that in an action brought to recover for injuries due to the defective construction of a building, evidence as to the condition of a building at the time of the casualty is admissible for the purpose of illustrating that the construction of the building was originally defective, and to show that the immunity which a landlord may ordinarily claim, upon the ground that he exercised due care in obtaining the advice of experts, has been withdrawn by reason of the fact that he had ample notice (from actual physical conditions brought to his attention or to that of his agents) that the construction was improper in the first instance.

In our opinion, it could not be safely held by the trial judge, nor by this court, that the jury were not authorized to apply the maxim res ipsa loquitur. Of course, as remarked by Justice Cobb in Palmer Brick Co. v. Chenall, 119 Ga. 837 (47 S. E. 329), this rule is to be applied with great caution; and it is, after all, merely a rule of evidence, to be used by the jury for their guidance in arriving at the truth. In the present case, there was a heavy window in a new building, which fell, certainly without any fault of the plaintiff, and, according to some of the testimony, without any apparent cause. In determining whether it was an accident for which no one would be liable, or whether it was due to negligence on the part of the landlord in the original construction of the building, it is to be borne in mind that where injury is shown, and it is also shown that the party injured was free from fault, and there is no proof of any external cause, a prima facie case of negli.gence may be raised, because the party managing or controlling the agency which created the injury is naturally the one responsible, and the burden is thereby placed upon the defendant to show proper original construction. Chenall v. Palmer Brick Co., 117 Ga. 106 (43 S. E. 443). Whether the explanation that the chains used in the windows in the defendant company's building were improved appliances, similar to those used in two other modern buildings in the city of Savannah, was sufficient to rebut the inference of negligence in construction, due to the unaccountable fall of the window in question, which was reinforced by evidence of continual recurrence of similar accidents all over the building and the fact that there was never any test of the tensile strength of the window chains, was a question for the jury.

We can not say that the jury erred, whether they applied the doctrine of res ipsa loquitur or not. The remaining questions presented are so fully dealt with in the headnotes as to require .no further elaboration. Judgment reversed.


text:
    1153.
    McLAURIN v. FIELDS.
    1. Where a defendant files both a general demurrer and a plea in abatement, the trial judge may consider either first, as he deems proper.
    2. A plaintiff who has dismissed a suit must, before bringing a second suit for the same cause of action, either pay the costs of the former suit or file a pauper affidavit stating that he is unable, on account of his poverty, to pay the costs. Where there is a failure to do either, a plea in abatement upon that ground should be sustained.
    3. Defendants, as well as the officers of courts, have a substantial interest in the payment of the costs of the prior suit. That a clerk of a city court agreed to consider as paid the costs in the suit which was-dismissed and to release the plaintiff from all liability for the costs, upon the obligation therefor being assumed by another person, is not. a sufficient compliance with the provisions of the law which require-the payment of the costs as a prerequisite to the filing of a second suit for the same cause of action. Especially is this true where a portion of the costs was due to the sheriff, and it was not shown that the cleric had authority in behalf of the sheriff to accept payment otherwise than in money. The case is not altered by reason of the fact that the plaintiff’s counsel offered to give a cheek in payment of the costs.
    Complaint, from city court of Blakely — Judge Jordan. April 20, 1908.
    Submitted July 2,
    Decided August 4, 1908.

      Pottle & Glessner, for plaintiff in error.

      Park & Collins, contra.
   Russell, J.

Fields brought suit against McLaurin, alleging the breach of a contract. The defendant, in addition to an answer to the plaintiff’s petition, had filed a demurrer and a plea in abatement. When the case was called for trial the defendant invoked, the ruling of the court first upon his demurrer, but the court declined to rule first upon the demurrer, and forced him to trial upon the plea in abatement. After hearing the evidence upon this plea, the court directed the jury to find against the plea in abatement. The court then overruled the defendant’s demurrer- and proceeded with the trial, which resulted in a verdict in favor of the plaintiff. The defendant filed exceptions pendente lite to the ruling of the court in directing the verdict in favor of the plaintiff on the issue raised by the plea in abatement, as well as to the judgment overruling his demurrer, and assigns error thereon, and upon the judgment overruling his motion for new trial.

We find no error in the action of the court in submitting: to the jury, before ruling upon the demurrer, the issue raised by the plea in abatement. A trial judge may either consider a general demurrer first or give precedence to a plea in abatement, at his option. The determination of either may effectuate a complete disposition of the case without a trial upon the merits. In the present case, if the judge had sustained the general demurrer, or if the issue on the plea in abatement had been found in favor of the defendant, either would have prevented the necessity of a trial of the ease by a jury upon its merits.

We think the judge erred in directing the jury to return a verdict in favor of the plaintiff on the issue raised by the plea in abatement. The issue was whether the plaintiff, who had filed a previous suit upon identically the same cause of action, had paid the costs before filing this second suit. The evidence did not authorize a finding that he had done so. While the Civil Code, §5043, provides that where a plaintiff has been nonsuited, or his suit dismissed or discontinued, he may recommence it on payment of costs, that section has been so construed by the Supreme Court as that he must actually pay the costs of the first suit before filing the second, as an indispensable prerequisite to the life of the second suit. It seems at one time to have been the opinion of the Supreme Court, as expressed in City of Atlanta v. Wilson, 70 Ga. 714, and in Stirk v. Central R. Co., 79 Ga. 495, that the code provision requiring the plaintiff to pay the costs was for the benefit of the officers of court, and that payment of the costs might be allowed even at the time of the trial of the second suit brought upon the original cause of action. This doctrine has, however, been expressly disapproved in later decisions; and upon the same line the General Assembly, in the act approved December 18, 1901, providing for the renewal of suits without the payment of costs, enacted that where “the plaintiff desires to recommence his suit, if he will make and file with his petition, summons or other proceedings, an affidavit in writing that he is advised and believes that he has good cause for recommencing his suit, and that owing to his poverty he is unable to pay the costs that have accrued in said ease,” the plaintiff shall have the right to renew said suit without the payment of costs, etc. Thus it is plain that not only the judicial, but the legislative branch of our State government recognizes that, where an affidavit in forma pauperis is not afforded .-as a substitute therefor, the costs must be ’paid before a suit dismissed can be renewed. That the costs have not thus been paid is good ground for timely plea in abatement; and indeed, in one of the earlier decisions, where the costs were allowed to be paid upon the trial of the second suit, it is noted that no plea in abatement had been filed.

There was no conflict in the evidence upon the trial of the issue raised by the plea in abatement. It was without dispute that one of the plaintiff’s counsel, at the time that he carried to the clerk of the court the petition in the suit now under consideration and ascertained the amount of the costs in the prior suit, which he then ordered to be dismissed, offered to give the clerk a check for the costs. It seems that the clerk was about to close his office for the day’s business, and, when the attorney asked him for a blank check, the clerk told him to hand him the cheek in the morning, the clerk’s reason being, as stated, that he did not want to go into the other room, which he had locked up, to find a blank check. The clerk said, “We can attend to that tomorrow.” Whereupon the counsel said, “I want it understood between us that the costs in that case are paid, and that there is a difference between you and me of that amount, — that it is a personal obligation that I owe you.” The plaintiff’s' counsel then handed him the petition to file, and the clerk agreed to enter the case dismissed. It also appeared, from the evidence, that of the $4 costs due, $2 was cost due the clerk, and $2 was due to the sheriff. There was no evidence that the sheriff had authorized the clerk to permit ‘ the plaintiff’s counsel to assume the payment of his costs, in lieu of paying money. Defendants, as well as the officers of courts, have a substantial interest in the -payment of the costs of a prior suit. That a clerk of a city court agreed to consider as paid the costs in a suit which was dismissed, and to release the plaintiff from all liability for the costs, upon the obligation therefor being assumed by another person, is not a sufficient compliance with the provisions of the law which require the payment of the costs as a prerequisite to the filing of a second suit for the same cause of action. Especially is this true where a 'portion of the costs was due to the sheriff, and it was not shown that the clerk had authority in behalf of the sheriff to accept payment otherwise than in money. The case is not altered by reason of the fact that the plaintiffs counsel offered to give a cheek in payment of the costs.

In the present case, no doubt, the clerk was perfectly willing to accept Mr. Collins’ check, but in some instances the postponement of the acceptance of the check might be only a gentle way of declining it. As the costs were not paid, the verdict on the issue formed by the plea in abatement should have been in favor of the defendant. As this would have disposed of the present suit, all that occurred thereafter was nugatory, and it is, for that reason, unnecessary to pass upon the other questions raised by the record. That a plea in abatement should be sustained where the costs have not been actually paid, see Langston v. Marks, 68 Ga. 435; Sweeney v. Malloy, 107 Ga. 83 (32 S. E. 858); Johnson v. Central Ry. Co., 119 Ga. 185 (45 S. E. 988); Wright v. Jett, 120 Ga. 995 (48 S. E. 345), and Board of Education of Tennille v. Kelley, 126 Ga. 479 (55 S. E. 238). Judgment reversed.


text:
    1175.
    Rogers v. The State.
    Indictment for larceny from house, from Warren superior court --Judge Worley. April 14, 1908.
    Submitted June 9,
    Decided August 4, 1908.

      L. R. Massengale, E. P. Davis, for plaintiff in error.

      David W. Meadow, solicitor-general, contra.
   Hill, C. J.

1. The assignment of error based on the ruling of the trial court in admitting incriminating evidence obtained by a search of the defendant’s house without a warrant is controlled by the decisions of this court in the eases of Glover v. State, ante, 455 (61 S. E. 862), Croy v. State, ante, 456 (61 S. E. 862), Tooke v. State, ante, 495 (61 S. E. 917), and the decision of the Supreme Court in Williams v. State, 100 Ga. 511 (28 S. E. 624, 39 L. R. A. 269).

2. The verdict is fully supported by the evidence, and the, judgment refusing a new trial is affirmed. Judgment affirmed.