author: Jenkins, P. J.

text:
    13320.
    LOWE v. PAYNE, director-general.
    Under tire evidence in this ease the plaintiff was not entitled to recover for the homicide of her husband, who was killed by a train when he was sitting or lying on or near the railroad-track; and the court did not err in directing a verdict for the defendant.
    Decided December 10, 1923.
    Action for damages; from Talbot superior court—Judge Munro. December 19, 1921.
    The only eye-witness of the homicide was the locomotive engi-. neer on the defendant’s train, who testified as follows: “I am a locomotive engineer on the Central, and have served as such for twenty-five years. At present I am running the ‘Dixie Flyer’ between Macon and Albany. Dp to November, 1920, I was on Nos. 1, 2, 3, and 4 between Macon and Columbus. No 3 is the train that leaves Macon at 2:45 in the morning and Columbus at 6 :10. No. 2 leaves Columbus at 1:10, and due in Macon at 4:45; leaves there at 9 :20 at night, and due at Macon at 1. No. 1 is the train that leaves Macon at 12:25, and due in Columbus at 4:15. The even-numbered trains on the Central Eailroad go towards Savannah, and the odd-numbered ones west. I have been operating trains between Macon and Columbus on passenger schedule for five years and four months prior to August, 1919. I am familiar with the territory between Columbus and Macon as observed from the engine, and I am familiar with the territory between Juniper and Box Springs. In August, 1919, trains were operating on what we call fast time. The train was scheduled to arrive at Juniper on the date of the Jim Lowe accident at 5 :15 o’clock, which would be equivalent to 4:15 under the old time. It was not bright daylight when we arrived at Juniper, and the headlights on the engine were burning, because it was dark. The train stopped at Juniper that day. Mr. Claude 6iger was the fireman, and Mr. Walter Little was the conductor. My seat was on the right side in the cab of the engine as we left Juniper going west towards Columbus. The fireman was firing when we left Juniper. The train struck a man on the fill west of Juniper. As to whether or not I was on the lookout ahead of my engine as I left Juniper, I am always looking ahead. There ain’t nobody in the world that keeps his eyes on one place, but you have an opportunity to look ahead. You can look off because you have seen the station that you would cover while you are looking, you understand, but still you might say you seen it all the way. After I left Juniper and took the curve and passed on to the straight line, I was looking ahead. I did not see a man on the track. There was no man on the track. I remember the point where Jim Lowe was struck. I saw a dog as I approached that point. I was within 150 feet of the point when I saw the dog. I was looking through the forward window when I saw the dog. The dog was on the track, and jumped off to my right. I followed the dog with my eye. He did not jump back on the track again. After I saw the dog and saw him jump off the track, I just raised up and cast my head to the side and watched him to see if he come back. During this time there was no man within my vision. There was nothing to excite my suspicion other than the dog which jumped off the track, and I never did see him any more.
    “I saw Jim Lowe that night. The first time I saw him was when the front of my engine aroused him and he raised up. He was lying off from the ballast on the track, head towards Columbus. The ballast is at least a foot or a foot and a half off the end of the cross-ties. Just as the front of the engine passed him he raised up. I suppose the fuss aroused him, right at him, and he raised up. He was on his all-fours. Looked like a man trying to scramble up. The step on the tank right behind me struck him, the step that we go upon engine on. At the time it hit him he was just trjdng to get—like this, on the track, and hit him. The tank step hit him right in there and just knocked him right back where he came from. I stopped the train. I didn’t blow any signal when I saw him, didn’t have no time to blow no signal. I saw him and hit him all at the same time. The front of the engine had already passed him when I saw him. I put the brakes in emergency and stopped. The train ran about a car and a half further than the train before it stopped. We had five cars and an engine. that would be six car-lengths, the tank and engine. I went back to where he was. I had a light, a flambeau. I used the flambeau because it was dark. In going back to the point where this party was lying I walked over one of the roughest pieces, I ever had. I had to hold on to the bars underneath the train and pull myself along over that ballast to get back to him. Conductor Little was with me. When we got back to where he was, he was lying down. He was lying on his back, I suppose six feet from the track. If it had not been for the weeds and bushes, it would have knocked him down the embankment. I smelled whisky. As to whether it was very pronounced or not, it was pretty good, pretty good scent of it. In trying to arouse him, I called him three or four times, and the dog tried to bite me, and I got Walter Little to arouse him. As I had an excuse to go back to the engine, I let them handle him when the dog got mad. I went to the back of the train, and pulled the cord, and backed the train up to the baggage-car, and picked him up and carried him on. The fireman backed the train for me. The fireman is really an engineer, but was firing for me during dull business. I don’t know who helped put him on the baggage-car. I didn’t do that myself.
    “This territory going towards Columbus is down grade. The train was dead on time. I had been running the schedule, arriving at Juniper at 5:12 a. m. ever since I had been on it. It would vary sometimes two or three minutes, five or ten up to fifteen, along in there, but not later than fifteen or earlier than ten since I had been on it. I have been on this run for five years and four months, and it had been running a schedule of arriving at Juniper at 5:12 all of this time. This train was not running over or beyond the schedule time after leaving Juniper. I did not blow the whistle as I approached the place where Jim Lowe was struck, because I saw nothing to give me any indication that there was trouble ahead. During the time that I have been on trains Nos. 1, 2, 3, and 4,1 never saw any one on the track at or near this place between Juniper and Box Springs. I stated earlier in my testimony that in going back to where this party was struck, it was a bad walkway, and that I hung on to the truss-rods to give myself a good footing. I did not want to slip and fall down that hill on that slag, and I just held on to the truss-rods so that I would not go down hill. The slag went out to the side, and I had to walk over it. I could hold on to the truss-rods and step on a tie here and there, and I didn’t have to bother with the slag. That slag is liable to roll with you. I was holding to the rods and stepped fr.om cross-tie to cross-tie. That enabled me to keep off the slag. As to whether this picture, marked No. 1 at the bottom in ink, represents the locality'where the accident occurred, it is just a straightaway piece of track. You haven’t got any curve or station or anything. At the point where the accident occurred it was on a straightaway. I don’t think it would be possible for a man to swear to that piece of track when you haven’t got anything in the world to identify that piece of track. That is the appearance of the track at that place—the slag and rails and embankment. I cannot say whether that is the particular place. That morning the train stopped at Juniper. As the train approached the station I blowed the whistle and the conductor pulled the line, and I answered three short blasts. The station signal is a long blast of the whistle. I got a signal from the. conductor to stop, and answered by three short blasts, and following that the train came to a stop. On leaving Juniper, the conductor pulled the line and the fireman rang the bell, or I rang it. That is designed merely to give notice that we are moving off. Don’t ring it for any considerable extent of time, just ring it to let them know we are starting. The train I was running has regular steel and iron wheels and rails to run on like any other train. The fireman rang the bell that morning. I did not state a moment ago that the fireman was firing the engine. When the accident occurred he was firing. I said it was a white fireman.

      “I couldn’t say how far my engine was at the time I stopped after the accident, in reference to the bridge down there. I was six cars from the negro. I counted the cars back of what I had, and I had five. He was about one car-length back of that. We had gone pretty close to the culvert. I didn’t say we were right on it —pretty close to it. I would say it was about three-quarters of a mile from the station down to the culvert. I said I was looking forward through the front and saw the dog. The headlight is put on there for the purpose of letting me see down the track. The dog ran across the track 150 yards from the place where Jim Lowe was struck by my engine. [A correction of this statement and of similar statements as to the distance—“150 yards”—was made by the witness at the close of his testimony, it being then stated that the distance was 150 feet.] I was 150 yards from the dog when he ran across the track. He was towards Columbus and I was towards Macon. It was 150 yards from where the dog went across the track to the point where Jim Lowe was lying. Talking about where I was and not about where the dog was, the dog went across right where I saw the man, right at the same place. I saw this dog by my light 150 yards. I don’t know as we have got any particular instructions when we see an animal on the track. We have a danger signal. We are not instructed to blow that. We do blow it when we see they are on the track and ain’t going to get off. I did not blow at this dog. My fireman had plenty of time to quit ringing the bell and start shoveling coal before we got to this man. We were sailing down on the straightaway there. I said that when Jim Lowe got up there he scrambled upon his all-fours trying to get on the track, coming that way. I said he raised up just as the head of the engine passed him—explaining how he tried to get on .the track when the head of the engine had passed him—and the space was so narrow there that I had to hold on to the side to keep from rolling down the hill. Anybody, if he is lying down, can get up like this, and let it hit him in the side. I had to hold to the train to get across the cross-ties. The slag was over on the brow of the hill. He scrambled up from the edge of the slag like this. Like this is the track and this is the slag and this is the rail (indicating). Here is your slag, here is your cross-ties, and here is your rail. I couldn’t walk on the place where he was. lying, because there were weeds and bushes. There was no level place of any sort along there, nothing only what was covered with bushes and weeds.
    “In answer to how I could look over the side of my engine and see a man lying in that position when there was no place for a man to walk, I did not say I saw him lying. I saw him getting up. When he raised up he was as high as the cross-ties, and I can see the cross-ties. You can look ahead down and take in the whole vision from your side window. You can’t see the end of the cross-ties when the head of your engine has passed the cross-ties, but you can see right there. I said he got up when the head of my engine had passed. I could see him because he was up at the end of the cross-ties. I was looking out of the window like this (indieating). I could see him out there. From where I was sitting to the head of my engine it is between 38 and 40 feet. I followed him. He began to scramble up just as the head of the engine got with him. My light were amply strong to see the dog. I saw the dog cross all right. When the train hit the man, I could see him just as good as I can see right down there. I saw him clearly. Between the time I saw him and the time the train hit him I just looked at him, that was all. Applied my brake and emergency and watched him. Between the time I saw the dog and the time I saw the man, I was just watching the place where the dog went off the track.
    “I never have seen a man pass along there yet. I wouldn’t say there was never anybody passed there. I say I have never seen them. I never have seen a person on the track there to get off. I did not see the path there. I don’t see much in the path line. . . When I went back to Jim Lowe with my light, I really could not say how he was dressed. I know his clothes were dark clothes. There wasn’t nothing light about them. I didn’t stay there until they got him out of the bushes, you understand. The first I saw of him was when he raised up. In stating to Mr. Bradley that I saw. his as plain as I dan see down there, I did not mean by that that it was as light then as it is now. The only reason that I could see him was from my light overhead, showed down there. I think we have got four lights' in my cab. There is one at the steam-gauge and one at the water gauge, and one up over the engineer’s box. There are windows both to the front and the side.
    “My attention having been called to the fact that during my cross-examination I stated—not once, but several times—the distance that I saw the dog in front of the engine was 150 yards, I made a mistake. It was 150 feet instead of yards. I just had the yards crossed on my mind, and if you don’t believe I am fair in it —my statement—I can show you where I made it in there to the railroad company, 150 feet.” There was other testimony indicating that the deceased must have been drinking intoxicating liquors prior to the accident.

      F. U. Garrard, ~W. R. Flournoy, A. 8. Bradley, for plaintiff.

      Battle & Arnold, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) It indisputably appears from the record in this case that the deceased, at the time he was struck and killed by the train, was sitting or lying in an exposed position on or near the railroad track, and that this conduct on his part was unexcused and unexplained, save that it appears that he had been drinking intoxicating liquors. The Supreme Court, in answer to questions propounded to it in this case, has ruled that under such circumstances a deceased person would be lacking in ordinary care to prevent the consequences to himself of the defendant’s negligence; that under such circumstances the defendant could not be held liable for the homicide, except on the theory that it was guilty of wilful and wanton negligence; and that, in the absence of any special facts and circumstances such as might vary the general rule, the failure of the defendant to anticipate and discover the presence of the deceased on the track, so that the defendant could thereafter use all ordinary and reasonable means to protect him, could not amount to wilful and wanton negligence, even though the homicide may have occurred at a time when and at a place where the defendant was under the duty of anticipating the presence of trespassers on the track. Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). Since a failure on the part of a railroad company to anticipate and discover the presence of trespassers on its track at a time and place when it was under a duty to anticipate them cannot of itself amount to wilful and wanton negligence, it follows that the action of the trial judge in directing a verdict in favor of the defendant must be affirmed; for the reason that it appears, without dispute, that the operatives of the train were unaware of the presence of the deceased on or near the track until after it was too late to avoid the injury, and since the degree of blame chargeable from its neglect of duty in failing to discover his presence is not augmented by reason of any proved fact or circumstance, beyond the one disputed contention that it was the duty of the company to anticipate the presence of trespassers at the time and place of the homicide, and since no other fact or circumstance appears which could possibly indicate wilful or wanton negligence.

The homicide did not occur at a public crossing, or even at a private crossing, but the record shows that the deceased had undertaken to walk down the defendant’s track from one small station to another, about three miles distant, and that the homicide occurred on the private right of way. The allegation, supported by evidence, that pedestrians were accustomed thus to make use of the defendant’s right of way between the two named stations would not render the defendant company guilty of wilful and wanton negligence in failing to continuously blow the whistle or ring the bell while running trains from one of these stations to the other. The petition alleged that the train was traveling at an excessive speed of forty miles per hour. This, under the facts of the ease, could not constitute wilful and wanton negligence; and besides, the only evidence as to speed was the testimony of the engineer, who swore that the train was on schedule time and running at a speed neither above nor below the usual schedule speed. If the presence of the deceased on the track in an apparently incapacitated condition had become known to the operators of the defendant’s train, so that by the exercise of ordinary and reasonable diligence they could have thereafter prevented the injury, the rule would be different, since in such a case wilful and wanton negligence might be chargeable against the company. Charleston & Western Carolina Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064).

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Bebe, J.

license: Public Domain

text:
    14251.
    Hicks v. Walker Brothers Company.
   Bebe, J.

1. In providing tnat a mortgage shall specify the property on which it is to taice effect, the law does not require such a description as will ’serve to identify the property without the aid of parol evidence. Thomas Furniture Co. v. T. & C. Co., 120 Ga. 879 (48 S. E. 333); Nussbaum v. Waterman, 9 Ga. App. 56 (2) (70 S. E. 259).

2. Where a fi. fa. is issued upon the foreclosure of a duly attested and properly recorded mortgage on a motor-veliicre, described as “One 1 y2 ton Kissel truck,” and a claim to the property is interposed by one who has subsequently purchased direotly [rom the mortgagor, and especially where it is inferable from the evidence that the mortgagor had but one such truck, it is error in the trial of the claim case to exclude the mortgage from evidence, upon the ground that the record, by reason of the indefinite description of the property, is insufficient to put the purchaser upon notice or inquiry. Lamar v. Coleman, 88 Ga. 417 (2) (14 S. E. 608); Beaty v. Sears, 132 Ga. 516 (1) (64 S. E. 321); Nichols v. Hampton, 46 Ga. 253 (3); Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267); Kiser v. Carrollton Co., 96 Ga. 760 (22 S. E. 303); Thomas Furniture Co. v. T. & C. Co., supra; Reeves v. Allgood, 133 Ga. 835 (3) (67 S. E. 82); Reynolds v. Jones, 7 Ga. App. 123 (66 S. E. 395) Nussbaum v. Waterman, supra; First National Bank v. Spicer, 10 Ga. App. 503 (1) (73 S. E. 753).

(a) This decision, if in conflict with anything ruled in Milner Banking Co. v. Adair, 18 Ga. App. 575 (90 S. E. 170), is controlled by the Supreme Court decisions and the earlier decisions of this court above cited. It is clearly distinguishable from Ellis v. Lynch, 28 Ga. App. 529 (1) (112 S. E. 151), in which it is disclosed by the record that the defendant did not purchase from the vendee in the conditional sale, but acquired the property after two other transfers.

Decided December 10, 1923.

Certiorari; from Fulton superior court—Judge Humphries. November 7, 1922.

B. B. Jackson, John F. Fchols, for plaintiff.

D. E. Johnston, contra.

(6) In the case at bar there were four major descriptive elements: (1) a motor-vehicle, (2) a truck, (3) Kissel make, (4) size or capacity. Compare Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Reeves v. Allgood, 133 Ga. 835 (67 S. E. 82). Where, in addition, the inference was warranted, from the evidence, that the mortgagor had but one such truck, the mortgage was admissible in evidence upon the trial of the claim filed by one purchasing directly from the mortgagor.

3. In view of the above, the judge of the superior court should have sustained the certiorari instituted by the plaintiff in the mortgage fi. fa. to the judgment of the municipal court in favor of the claimant.

Judgment reveised.

Jenldns, P. J., and Stephens, J., concur.


author: Bell, J.

text:
    14284.
    House v. American Discount Co.
   Bell, J.

The only assignment of error in this case is contained in the following recital of the bill of exceptions: “On the 4th day of December, 1922, and within the time provided by law, this defendant did file his exceptions pendente lite excepting to and assigning error upon the order of the court in disallowing the defendant’s amendment, and further excepting to the order of the court in striking the answer of this defendant. Therefore, on the 5th day of December, 1922, at the regular December term of said court, the plaintiff did take a verdict and judgment against this defendant. To this judgment of the court the defendant excepted, and now excepts and assigns error thereon.” The defendant in error has moved to dismiss the bill o'f exceptions for want of a sufficient assignment. Held:

1. “By the act of August 15, 1921 (Ga. Laws 1921, p. 233), when the final bill of exceptions shows that exceptions pendente lite were properly filed in the trial court, and when the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of the record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to, is sufficient.” Alexander v. Chipstead, 152 Ga. 851 (1) (111 S. E. 552).

(a) While the bill of exceptions describes the exceptions pendente lite by stating the nature of the assignments therein made, there is no assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to. There is, therefore, no compliance with the act above mentioned.

Decided December 10, 1923.

Complaint; from DeKalb superior court—Judge Hutcheson. December 5,. 1932.

Hendrix & Buchanan, for plaintiff in error.

Frank Carter, contra.

2. “If exception be taken to a final judgment as being erroneous in itself, the assignment of error should specifically set forth the error or errors in it which are complained of.” Mayor &c. of Gainesville v. Jaudon, 145 Ga. 299 (5) (89 S. E. 210); Lyndon v. Georgia Ry. & Elec. Co., 129 Ga. 353 (58 S. E. 1047). Generally it is only where the final judgment is excepted to merely for tlje purpose of reaching a controlling error involved in an antecedent ruling that a general assignment will be deemed sufficient. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (1) (94 S. E. 892). See also Sikes v. Edwards, 149 Ga. 168 (2) (99 S. E. 621); Palmer v. Ingram, 2 Ga. App. 200 (1) (58 S. E. 362).

3. There being no exceptions in any form to any antecedent ruling, the assignment upon the final verdict and judgment (the sole assignment made) is too general to raise any question for decision, and the motion to dismiss must be sustained.

4. The exception is not to the direction of a verdict, and the ease does not fall within the ruling in McKenzie’s Sons & Co. v. Consolidated Lumber Co., 142 Ga. 375 (40, 380.

Writ of error dismissed.

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


text:
    14312.
    Sistrunk v. Davis.
   Bell, J.

Where an action is instituted seeking substantial relief against several defendants, and one of them files a demurrer which goes to the substance of the whole petition and challenges the plaintiff’s right to any relief, and the demurrer is sustained, the resulting dismissal of the petition enures to the benefit of all the defendants, and they become interested in sustaining the judgment. The same is true as to a later judgment refusing a motion of the plaintiff to reinstate the suit. Where in such a case the plaintiff desires to except to the court’s rulings in dismissing the action and in thereafter refusing to reinstate it, it is essential that he make all of the defendants in the trial court defendants in error and serve them with a copy of the bill of exceptions. A failure to do so will require a dismissal of the writ of error. Civil Code (1910), § 6176; Tate v. Good, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310); United States Leather Co. v. First National Bank, 107 Ga. 263 (33 S. E. 31); Davis v. Walters, 140 Ga. 229 (78 S. E. 838); Humphrey v. Powell, 145 Ga. 458 (1) (89 S. E. 427); Tillman v. Davis, 147 Ga. 206 (1) (93 S. E. 201); Woolard v. Corcoran, 148 Ga. 299 (96 S. E. 564); Edwards v. Wall, 153 Ga. 776 (113 S. E. 190). Only one of the defendants in the court below having been made a party to the plaintiff’s bill of exceptions, the motion of that defendant to dismiss the bill of exceptions for the want of necessary parties must be sustained.

Decided December 10, 1923.

Action for libel; from Fulton superior court—Judge Bell. January 20, 1923.

J. F. Sistrunlc, pro se.

Branch & Howard, Bond Almand, for defendant.

Writ of error dismissed.

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


text:
    14313.
    SOUTHERN RAILWAY COMPANY v. WHITEHEAD.
    Under the allegations and evidence of 'the plaintiff, it was not necessarily, as a matter of law, negligence for her to be upon the platform of the train or to attempt to alight, when it was moving slowly and just before it stopped. That she acted at the instance of the porter of the car in which she was a passenger was a fact that the jury could consider, in connection with 'the other facts of the ease, in determining whether she was negligent, and the degree of negligence.
    Under the evidence (construing the plaintiff’s own testimony most strongly . against her) the jerk of the train, which the petition alleges to have been negligent, was no more than was customary in stopping the train; the remaining charges of negligence were not sustained by any evidence, and the verdict for the plaintiff was therefore unauthorized.
    Decided December 10, 1923.
    Action for damages; from city court of Eastman—Judge O. J. Franklin. January 6, 1923.

      W. 8. Mann, for plaintiff in error.

      T. J. Smith Jr., J. II. Milner, contra.
   Jenkins, P. J.

1. “It is not necessarily, as a matter of law, negligence for a passenger to be upon the platform of a moving train,” or to attempt to alight therefrom, unless the danger is obviously great. Augusta So. R. Co. v. Snider, 118 Ga. 146 (44 S. E. 1005); Suber v. G., C. & N. Ry. Co., 96 Ga. 42 (23 S. E. 387); Tallulah Falls R. Co. v. Harris, 129 Ga. 305, 306 (58 S. E. 838); Cen. of Ga. Ry. Co. v. Forehand, 128 Ga. 547 (1) (58 S. E. 44); Branan v. So. Ry. Co., 135 Ga. 24 (68 S. E. 793); Cotchelt v. Savannah Ry. Co., 84 Ga. 687 (11 S. E. 553); Macon & Western R. Co. v. Johnson, 38 Ga. 409, 438; Cen. of Ga. Ry. Co. v. Weathers, 27 Ga. App. 375 (2) (108 S. E. 556); Sherrod v. Atlanta, Birmingham &c. Ry. Co., 27 Ga. App. 510 (2) (108 S. E. 908). Where the danger is not so obvious as the court may thus say should have been avoided, “it is a question for determination by the jury whether, under all the circumstances, an ordinarily prudent person would have done such a thing.” So. Ry. Co. v. Clariday, 124 Ga. 958, 960 (53 S. E. 461); Coursey v. So. Ry. Co., 113 Ga. 297, 299 (38 S. E. 866); Simmons v. Seaboard Air-Line Ry., 120 Ga. 226 (47 S. E. 570, 1 Ann. Cas. 777). Under the allegations of the petition, and the plaintiff’s evidence, the fact that the plaintiff went upon the platform and attempted to alight, upon the express or implied instruction of the porter in charge of the coach, and while the train was slowly in motion and just before it stopped within a few feet, would not as a matter of law show such .negligence as must necessarily defeat her recovery. While the instructions of a carrier’s employee in the line of his authority and duties will not excuse or justify an act by a passenger which is obviously dangerous (So. Ry. Co. v. Bandy, 120. Ga. 463 (2), 47 S. E. 923, 102 Am. St. Rep. 112), such instructions or invitation, where the act is -not obviously dangerous, may be considered by the jury in connection with all the facts and circumstances of the case in determining whether or not the passenger was negligent and the degree of negligence. Hood v. Atlantic Steel Co., 29 Ga. App. 457 (115 S. E. 917);

2. “It has been repeatedly held by the Supreme Court that it is not sufficient, as a basis of recovery, to show a sudden, violent, and unusual jerk of the car; that the proof should also show that the sudden, violent, and unusual jerk or motion of the car was unnecessary at the particular time and place.” Augusta Ry. Co. v. Lyle, 4 Ga. App. 113, 114 (60 S. E. 1075); Ball v. Mabry, 91 Ga. 784 (18 S. E. 64). Under the carrier’s evidence, if the plaintiff was injured thereby, the jerk of the car from which she was alighting was neither unnecessary nor unusual, but only that which was customary in the stopping of the train. Upon direct examination, the plaintiff, whose evidence alone was offered to show the unusualness of the jerk, testified, “You know how a train makes that stop and sudden jerk;” and upon cross-examination: “In riding this train I have noticed a motion or rocking of the train coming to a stop, a kind of a jerk when you are getting up out of your seat, before it stops and you are going to the platform; it gives you a right good jerk,—that is in stopping the train,—and it was that kind- of a jerk that threw me off. I suppose that is caused by applying the brakes in stopping the train; that is usual in stopping the train, and that is why I thought they were fixing to come to a stop.” While on redirect examination the plaintiff testified, “It seems to me like it was a kind of an unusual jerk that threw me off of the train,” she explained and qualified this in the language following: “It seems to me like it was more violent that morning on account of the rush of the porter . . The porter did not run the train or pull the bell-cord.” Under the rule that a party’s evidence must be taken most strongly against his case where contradictory, the first portion of the plaintiff’s evidence clearly showing that the jerk was no more than that customary in stopping the train, the plaintiff by her own evidence absolved the defendant from the charge of negligence; and the verdict for the plaintiff being thus unauthorized by the evidence, the court erred in refusing to grant a new trial upon the general grounds. The remaining charges of negligence were not sustained by any evidence.

3. With reference to the exceptions pendente lite and such of the special grounds of the motion for new trial as are not disposed of in the foregoing rulings, or as are likely to recur in a future trial, such grounds, not being argued or insisted upon in the briefs, will be treated as abandoned. Harbin v. Flannigan, 22 Ga. App. 30 (95 S. E. 320), and cases cited.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Jenkins, E. J.

text:
    14319.
    Croft v. Farmers & Merchants Bank of Berlin.
   Jenkins, E. J.

The bank, through the State superintendent of banks, sued on a promissory note payable to plaintiff’s order. The defendant in his plea admitted the execution of the note, but claimed as an equitable set-off, damages sustained by reason of his purchase of six shares of the bank’s capital stock, induced by alleged fraudulent misrepresentations of the bank’s president as to its solvency and financial condition. The uncontroverted evidence in the trial showed that the shares sold to the defendant were not the property of the bank, but of a third person, for whom the bank’s president, acting solely in an individual capacity, negotiated the sale as agent; that the directors of the bank did not undertake or assume to authorize the transaction; nor did the bank have any interest therein, but all of the purchase-price went to the owner of the stock, by cash paid, either directly to him or by his request or consent, to take up notes due to the bank’s president solely as an individual, except cash to take up one note due to the bank, on which the owner of the stock and the defendant were both sureties, and that this was paid as part of the purchase price to the owner, not on the bank’s request, but upon the demand of the defendant himself and by the express agreement of the owner. It was further undisputed that the bank throughout its liquidation was unable to pay its debts; but it was not made to appear that the liabilities exceeded the assets. The jury found for the plaintiff, and a motion for new trial was overruled. The only ground of the motion insisted upon by the plaintiff in error is the ground, supported by affidavits, alleging that the court erred in refusing to inquire, upon timely motion to that effect, if the trial jurors were related by blood or marriage to any depositor of the bank, and to disqualify any related within a prohibited degree; and that one of the trial jurors was so disqualified because he was a brother of one who at the time of trial had on deposit in the bank the sum of six cents. Reid:

Decided December 10, 1923.

Complaint; from Colquitt superior court—Judge W. E. Thomas. January 26, 1923.

J. L. Bowling, H. H. Whelchel, for plaintiff in error.

Askew & Mather, contra.

Under the undisputed evidence, the alleged fraudulent misrepresentations, if made as the defendant’s testimony tended to show, were the acts of the bank’s president, acting solely in his individual capacity or as the agent of the third person who owned the bank stock in question; and the plaintiff bank could not be charged with liability therefor. Napier v. Central Ga. Bank, 68 Ga. 637 (5), 640; Strickland v. Bank of Cartersville, 141 Ga. 565, 575 (4) (81 S. E. 886); Merchants Nat'l. Bank v. Guilmartin, 88 Ga. 797 (1), 801, 802 (15 S. E. 831); Brown v. Bank of Covington, 24 Ga. App. 511 (101 S. E. 196). A verdict for the plaintiff and against the plea being thus demanded by the evidence, the court properly overruled the motion for a new trial. Frazier v. Swain, 147 Ga. 654 (3), 657 (95 S. E. 211).

It is unnecessary to consider and determine the question whether the verdict was demanded for the additional reason, urged by the defendant in error, that the defendant failed to prove insolvency within the meaning of the definition as applied to a civil suit of this character. Nor is it necessary to determine whether the interest of the depositor is so infinitesimal that in any event the court would decline to treat him as having a real interest in the controversy.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14383.
    AVARY v. ANDERSON.
    Whether the plaintiff was a tenant, boarder, or guest of the defendant innkeeper, when her petition is construed most strongly against her (as it must be, on demurrer), it appears that the grease upon the floor of the bathroom, which caused her to slip, fall, and suffer the injuries sued for, was patent and obvious, and that, even though the defendant, in allowing such condition to exist in the bathroom furnished for the plaintiff’s use, was negligent as alleged, the plaintiff could have avoided the consequences thereof by the exercise of ordinary care; and this is so notwithstanding the general averment of proper care on her part, and the further allegation that she did not know of the existence of the greasy substance at the particular place where she fell, and that she did not see and had no means of seeing or knowing that it was there; these averments being negatived by the particular facts pleaded. It affirmatively appears that the plaintiff could see; but if this were not so, she would be presumed, in the absence of anything to the contrary, to be free from disability in this regard. The general demurrer was properly sustained.
    Decided December 10, 1923.
    Action for damages; from city court of Atlanta—Judge Reid. February 3, 1923.
    Application for certiorari was denied by the Supreme Court.
    Mrs. Cora L. Avary brought a suit for damages against T. J. Anderson as an innkeeper operating the Marion Hotel. It is alleged that she rented a room from the defendant, to be occupied permanently, for which she was to pay a named sum per week, and that, in addition to having the use of the room, she was privileged to use either of two bathrooms; that during her occupancy of the room under the terms stated above she went to one of the bathrooms for the purpose of taking a bath, and found it “in a muddy, unsanitary, and filthy condition and unfit for use.” She then went to the other bathroom, and, finding it occupied, requested a maid in the employ of the defendant to clean and place in order the one first visited; that the maid replied that she was busy, and refused to comply with the plaintiff’s demand; that the plaintiff then returned to the bathroom to which she had gone at first, and “again found muddy footprints, talcum powder, and dirt on the floor, and the bathtub in a filthy and unsanitary condition;” that she then scrubbed out and cleaned the. tub and took her bath, after which she dressed in light garments, put on her bath shoes, and, with some articles in each hand, proceeded to leave the bathroom, “When she reached the door she discovered that she had left her key on the window-sill, and returned and got it; she proceeded again to leave the room, and when she reached the door she slipped and fell, her feet extending into the hallway, the back of her shoulders and head striking on the bathtub, and her left arm striking the door and floor.” “Petitioner shows that said bathroom and' the floor thereof [were P] unclean, filthy, dirty, and unsanitary, in that there was mud, talcum powder, and a greasy substance on the floor, and that said floor was thereby rendered unsafe for use by petitioner and guests, and that said defendant had knowledge of the condition of said bathroom and the floor of same” (italics ours); “that near the door of said bathroom, and at the place and spot where petitioner slipped and fell, there was a greasy and slippery substance on the floor, which petitioner did not see and had no means of seeing nor of knowing that it was there, and that, without knowledge of it being there, she stepped on and in it and fell.” “Petitioner further shows that at the spot where she slipped and fell there was a greasy substance, the existence of which at said particular place petitioner did not know, and that she fell in spite of extraordinary care and precaution which she exercised in walking on said floor.” “Petitioner shows that said defendant was negligent as follows: in allowing the floor of said bathroom to become unsafe by the accumulation of filth and grease as alleged; in allowing said floor to remain in said unsafe condition; in failing to keep said floor in a clean and safe condition; in inviting guests to use the bathroom with its floor in the condition above set forth; in permitting petitioner to use said bathroom when it was in the condition alleged above; in not causing servants to keep said floor clegn and [in] safe condition; and in not keeping in his employ sufficient servants, maids, and help to maintain said bathroom and the floor thereof in a safe and sanitary condition.” Her injuries are described, and damages are laid in the sum of $10,000. She excepted to sustaining of a demurrer to the petition.

      F. E. Radensleben, for plaintiff, cited:
    22 Cyc. 1080-1; 70 S. E. (N. C.) 395; 86 N. E. 918; 129 Pac. 103; 222 Pa. 395.

      McDaniel & Neely, W. O. Wilson, for defendant, cited:
    22 Cyc. 1077, 1080-1; 48 S. W. (Tenn.) 809; 131 Fed. 161; 24 Ga. App. 524; 25 Ga. App. 369; Id. 415; 28 Ga. App. 335.
   Bell, J.

(After stating the foregoing facts.)

It appears from the petition that the plaintiff could see and did see the general condition of the bathroom, and was thereby tvarned. She only alleges that she did not see the greasy sub¡stance at the particular spot where she fell. The inference is demanded that she saw that a “greasy substance” was on the general floor, and that the “floor” was “thereby rendered unsafe.” See italics in the statement of facts. To allege that she did not see and had no means of seeing or of knowing that the greasy substance was at the particular place is not equivalent to an averment that it was in some way obscured. She does not allege it was dark. It does not appear that the plaintiff was suffering from any defect of vision. It is therefore presumed that her vision was normal, and thus she did have the means of seeing and knowing of the condition which brought about her injury. Construing the petition most strongly against her, as must be done on demurrer, it appears that the grease upon the floor was patent and obvious, and that even though the defendant may have been negligent in allowing it to be there, the plaintiff could have avoided the consequences of that negligence by the exercise of ordinary care; and this is so notwithstanding the general averment of proper care on her part. The specific facts pleaded must prevail over the mere conclusions of the pleader. The general demurrer was properly sustained. Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Lebby v. Atlanta Realty Corporation, 25 Ga. App. 369 (103 S. E. 433) (in which Judge Stephens dissented); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225); Bolden v. Central of Ga. Ry Co., 130 Ga. 456 (60 S. E. 1047); Banks v. Schofield’s Sons Co., 126 Ga. 667 (55 S. E. 939); Civil Code (1910), § 4426.

Furthermore, it may be noticed that the plaintiff does not allege that the greasy spot caused her to fall, but merely that she stepped on it, slipped, and fell. But in view of what we have said above, it is unnecessary to decide whether the petition was defective for this reason.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.


text:
    14420, 14421, 14434.
    ALLEN v. SAMS et al. (three cases).
    1. “A contract will be construed as made for a legal, rather than foían illegal purpose, and the more especially when such contract is attacked by a party thereto who has been benefited thereby” (Virginia Bridge & Iron Go. v. Grafts, 2 Ga.. App. 126 (3), 58 S. B. 322; Kiser Go. v. Padriek, 30 Ga. App. 643 (2), 118 S. E. 491), and will not be held invalid on demurrer, unless the invalidity appears upon its face.
    2. A valuable consideration is essential to a sale; it must be definite, or there must be an agreement by which it can be made certain; if its ascertainment becomes impossible, there is no sale. The fact that the price of goods sold and delivered was to be ascertained subsequently, by the condition of the market within a specified time at a particular place, does not affect the validity or completeness of the sale, unless for some reason the ascertainment by the terms of the contract becomes impossible. ' ,,
    3. It affirmatively appears from the petition designated in the court below as No. 550 that certain moneys loaned to the defendant were used by the borrower for the illegal purpose of dealing in cotton futures on margins, and that the plaintiff not only had knowledge of such purpose, but aided the borrower in carrying into effect the unlawful design, and participated therein. In such a case the lender cannot recover f.or the loans. But under the rulings stated in the preceding headnotes, the action was not wholly bad, and the court erred in sustaining the general demurrer thereto.
    4. Where one person delivers property to another in pursuance of a contract of sale providing that the price or consideration shall be determined by the condition of the market within a specified time at a particular place, if the price is not fixed within the time specified, and no new agreement is made with reference thereto in the meantime, there is an impossibility to ascertain the price by the terms of the original contract, and there is no sale. Without more, the rights of the seller could only be fixed upon a quantum valebat. In such a case the expired agreement could not be legitimately employed as the basis for a new agreement providing that the price would be determined by the future condition of the market, and that the differences between the parties would be settled in money on the day fixed for ascertaining-the price. Such new. agreement could not be made in contemplation of an actual delivery, but the parties would be dealing in futures on margins, and neither could recover of the other upon a claim founded in such illegal transaction.
    (a) Applying these rulings to the two actions designated in the court below as No. 548 and No. 549, the general demurrer to each was properly sustained.
    Decided December 10, 1923.
    Complaint; from city court of Hall county—Judge Sloan.. February 10, 1923.
    Application for certiorari- was denied by the Supreme Court.

      B. P. Gaillard Jr., II. II. Perry, for plaintiff.

      Greene F. Johnson, G. N. Davie, for defendants.
   Bell, J.

S. H. Allen filed three suits designated in the court below as numbers 548, 549, and 550, against L. B. Sams So Company, a partnership. He has excepted to the sustaining of a general demurrer to his complaint in each case. Our decision in ease number 550 will dispose of all the questions presented in number 548 and 549 save one, and the several cases will be treated together. The petition in number 550 (omitting formal parts) alleges:

“4. That said partnership is indebted to petitioner in the sum of $15,837.44, besides interest as hereinafter shown.

“5. That on the 18th of November, 1921, petitioner sold and delivered to said partnership 100 bales of cotton; that the number and weight of each of said bales is correctly set forth in a copy of the contract or purchase of same by said partnership hereto attached, marked exhibit ‘A’, as part of this petition.

“6. That the aggregate weight of said bales was 46,263 pounds.

“7. That said cotton was actual cotton and was actually delivered by petitioner to said partnership in Gainesville, Georgia, on said date, and recovered and taken possession of by said partnership and converted to the use of said firm.

“8. That said cotton was sold by petitioner to said partnership on the following terms: that said partnership would pay on said cotton only as a partial payment of the purchase-money of said cotton $4976.82 in cash, and would make the payment of the balance to petitioner of said purchase-money whenever petitioner should call upon them for said balance, the entire 100 bales to be then paid for at the price of 115 points on the Jply cotton price and quotation on the cotton exchange of New Orleans with 200 points off good middling on the day petitioner called upon them for a settlement. A copy of said contract or purchase is annexed hereto, marked exhibit ‘A,’ as a part of this petition.

“9. That the partial payment of the purchase-money of said 100 bales of cotton amounted to $4976.82, which was duly paid by said partnership, but the balance of said purchase-money has never been paid.

“10. That on the 20th day of June, 1922, petitioner, exercising his rights under the aforesaid contract, called upon said partnership for a settlement for said cotton for the payment of said balance.

“11. That on said 20th day of June, 1922, the price and quotation of cotton on the cotton exchange at New Orleans for July was 23-08/100 cents a pound, to which, if 115 points be added, the purchase-price per pound would be 24-23/100 cents, and taking off 200 points on grading from good middling made the price 22-23/100 cents per pound, and the price of the whole weight, to wit: 46,263 pounds of said 100 bales at said 22-23/100 cents per pound was $10,284.26.

“12. That deducting the sum of $4976.82 paid by said partnership as aforesaid as a partial payment, there was due to petitioner, as the balance of the purchase-money of said 100 bales, according to the said contract, on said 20th day of June, 1922, the sum of $5307.44.

“13. That said balance of $5307.44 is now due-and unpaid, and on said sum petitioner is entitled to interest at seven per cent, per annum from said 20th day of June, 1922, until it is paid.

“14. That on the date of the above purchase and the date of said contract the aforesaid partners were engaged in the business of buying and selling cotton as partners, and so continued until and on said 20th day of June, 1922.

“15. That from October 18, 1921, until February 2, 1922, said partnership being engaged in buying and selling cotton, on call, on prices to be fixed by the price and quotation of price of cotton on the New York and New Orleans cotton exchanges at the date of call, in order to protect themselves against the possible fall of prices, from time to time made contracts for the purchase or sale of cotton through brokers on or in the cotton exchanges aforesaid, or doing business on or through said exchanges, and, in order to keep said contract alive, were required to put up what are called margins or certain percentages of the contract prices on their various contracts, and obtained from petitioner various amounts of money, either in cash, cheek, or draft, as hereinafter itemized, which amounts were furnished said defendant at their request.

“16. On October 8th, 1921, petitioner wired to Hubbard Brothers, New York, $500 for account of J. M. Hulsey for said partnership, at the request of J. M. Hulsey, on contract for 100 bales of March cotton.

“That on November 1, 1921, petitioner wired J. D. Haywood & Son, Cotton Merchants, New Orleans, $1000 at the request of L. E. Sams for said partnership.

“That on November 11, 1921, petitioner sent direct to said partnership $2000 at their request, to be used by them as a margin aforesaid. •

“On November 12, 1921, petitioner at the request of L. E. Sams for said partnership wired to J. D. Haywood & Son at New Orleans $1000 for said partnership of L. E. Sams Oo.

“On November 18, 1921, petitioner wired to J. D. Haywood & Son, New Orleans, $1500 for said partnership of L. E. Sams Co.

“On January 26, 1922, petitioner paid for said L. E. Sams Oo. $3500 to J. D. Haywood & Son, New Orleans, paid through H. K. Stanford of Atlanta. Said amount being paid by petitioner at the request of L. E.' Sams for said partnership.

“On February 2, petitioner wired J. D. Haywood & Son at New Orleans for said L. E. Sams Co. and at their request $2000.

“The above amounts aggregate $12,500.

“The said L. E. Sams Co. repaid to petitioner on account of the foregoing on December 2, 1921, $1000, and on December 23, 1921, $500, and $500 on February 18, 1922, aggregating $2000, leaving due to petitioner on foregoing advancements the sum of $10,500, which he prays to recover from said defendants with interest from February 18, 1922.

“Wherefore petitioner prays,” etc.

The contract attached to the petition as exhibit “A” was as follows:

“No. - Gainesville, 11-18-1921.

“Invoice of 100 bales of cotton bought by L. E. Sams Co.

“From S. H. Allen, against sales 100 B/O reported 11-17-21.

•“Limit 115 points on New Orleans July basis G.M.

“Marks 51 B/C AA 49 B/C X X.

[At this point in the contract is a description of the cotton by the serial numbers and the weights of the several bales.]

“Above-described cotton averages 200 points off good middling, and there being advanced $4976.82, balance to be paid at option of S. H. Allen, as above stated, light weights already deducted; it being understood said option to be'kept fully margined. Total weight 46,263.

L. E. Sams Co., by L. E. Sams.”

The contract with reference to the sale of the cotton does not appear upon its face to be illegal. The fact that it provides that the plaintiff should keep it “margined” does not alter this conclusion. A contract containing such a feature was held prima facie good in Robson v. Weil, 142 Ga. 429 (83 S. E. 207). See also Virginia Bridge Co. v. Crafts, 2 Ga. App. 126 (3) (58 S. E. 322). Where the illegality of a contract does not appear upon its face, it will not be declared invalid on demurrer. See the case last cited and others therein referred to.

Defendants in error insist that although the cotton was actually delivered, the contract is nevertheless a wager, because the plaintiff, on the sale and- delivery, parted with all interest in the cotton and was only concerned thereafter in the “optional feature,” by which on his call the price would be determined on the basis of New Orleans quotations for July, and that thus the parties were gambling with reference to the price of a commodity as to which the sale and delivery was complete. Two cases by the Civil Court of Appeals of Texas are cited in support of this contention, namely, Burney v. Blanks, 136 S. W. 806; Wolfe v. Andrews, 192 S. W. 666. The contracts there involved were in some respects similar to the one now before us. In the first of these eases the court said: “Though the cotton was actually delivered at the time of the sale, the agreement was void as a wagering contract, since, except under the optional provisions thereof [referring to the fixing of the price by a future condition of the market] which constitute the wagering feature, only the plaintiff has any real interest in the cotton after its sale and delivery;” and further, “the mere fact that there was specified property about which the transaction occurred would make no difference. Parties may as effectually gamble with reference to actual property as with reference to the price of different kinds of property. The cases do not turn upon that point, but upon the actual intention of the parties.” While we have stated that the contracts in those cases were similar to the one involved here, there is one material difference.. The Texas court construed the contract in each instance as showing the value of the cotton on the date of its delivery and the receipt by the plaintiff of full payment; not only so, but that the parties actually intended that the sale should be complete to all practical intents and purposes, and thus that the future gain or loss upon the basis of a future condition of the market was a contrivance for speculation, without respect to an actual sale. The language of the contract before us does not authorize such a construction, and for this reason we think that the cases cited are inapplicable at this point, but we shall refer to them again in connection with our consideration of the plaintiff’s petition in eases 548 and 549'.

The contract sued on is not so indefinite as to the method of fixing the price as to be unenforceable. “A valuable consideration is essential to a sale; it must either be definite, or an agreement made by which it can be made certain; if its ascertainment becomes impossible, there is no sale.” Civil Code (1910), § 4128. “The fact that the price of the cotton was to be ascertained subsequently by the condition of the market at a particular place does not affect the validity or completeness of the sale. Loud v. Pritchett, 104 Ga. 648.” Daniel v. Hannah, 106 Ga. 91 (3), 95 (31 S. E. 734). See also Jeringan v. Wimberly, 1 Ga. 220. We think that a cause of action was set forth for the balance of the purchase-price of the cotton, as alleged in paragraphs 11, 12, and 13 of the petition. It does not appear upon the face of the petition that the transaction thus far considered was in any way connected with those to which we will next refer.

With regard to the items declared for in paragraphs 15 and 16, we think it affirmatively appears that the defendant was “dealing in futures on margins.” See Anderson v. Holbrook, 128 Ga. 233 (2) (57 S. E. 500); Anderson v. State, 2 Ga. App. 1 (58 S. E. 401); Ga. L., 1906, p. 95, section 1; Civil Code (1910), §§ 4257, 4258, 4259. This fact alone would not prevent a recovery of the plaintiff’s advances if his concern was solely as a lender, although he may have had knowledge of the purpose for which the defendant intended to use the money. Singleton v. Bank of Monticello, 113 Ga. 527 (1) (38 S. E. 947). In that case the Supreme Court approved the following principle enunciated in Waugh v. Beck, 114 Pa. St. 442: “It is not enough to defeat recovery by the lender, that he knew of the borrower’s intention to use it in a gambling transaction, in purchasing commodities on margin; he must have known that the borrower was purposing such use of the loan and must have been implicated as a confederate in the transaction though not necessarily for gain.”

It appears from the averments in regard to these advances that the plaintiff was “implicated as a confederate” in the illegal transaction. With the exception of one item, the money was sent directly by the plaintiff to the brokers with whom the defendant was dealing, and in this way the plaintiff became a party to the transaction by aiding and abetting therein. The only item not loaned in this manner is set forth in paragraph 16 as follows: “That on November 11, 1921, petitioner sent direct to said partnership $2000 at their request, to be used by them as a margin aforesaid.” The language which we have italicized contains the solemn allegation by the plaintiff that this loan was made to. the defendant not merely with plaintiff’s knowledge of the use to which it would be put, but with the intention by the plaintiff that it was “to be used . . as a margin.” We think the part of the complaint contained in paragraphs 15 and 16 comes squarely within the rule announced in the first headnote of the Singleton case, that “if the lender in any manner aids the borrower in carrying into effect the .unlawful design, or participates therein, he can not recover.” The plaintiff did not merely loan the money, but participated in the consummation of the unlawful project as to all sums advanced save the item of November 11, with reference to which, however, in view of the allegation made, the plaintiff must be held to have shared in the unlawful purpose or design.

Although in Mixon v. Walker, 9, Ga. App. 610 (1) (71 S. E. 1007), the facts were stronger perhaps against the plaintiffs than is true here, the observations of this court in that case would seem pertinent in this connection: “If they [the plaintiffs] had paid this money over to Mixon, and he had bought the futures, or perhaps if they had merely placed the money to his credit and had honored his drafts in favor of others of whom the futures were bought, they might recover as to these items, under the doctrine announced in the case of Singleton v. Bank of Monticello, supra; but the fact is they were particeps criminis; they actively officiated in the buying of the futures, and they cannot supply any part of the consideration of this note by showing that they advanced money in any such way.” See also Benson v. Dublin Warehouse Co., 99 Ga. 303 (25 S. E. 645). But the fact that the advances for margins are not recoverable would not authorize the sustaining of a demurrer to the petition as a whole, the petition being good on its face for the recovery of the balance of the purchase-price of the cotton. Where divisible items are sued for, a part of which are recoverable, a demurrer which is general and attacks the petition as a whole should be overruled. Port Wentworth Terminal Corp. v. Leavitt, 24 Ga. App. 650 (1) (101 S. E. 766).

The judgment of the court below in sustaining the demurrer in ease number 550 is therefore reversed, but the trial court may hereafter entertain such proper motion as the defendant may make, if any, with reference to striking paragraphs 15 and 16 of the petition, and so much of the prayer as seeks a recovery for the items therein set out.

It will have been noticed that the contract in case number 550 was made in November, 1921, and provided for the fixing of the price at the option of the plaintiff on the basis of New Orleans quotations for July. For reasons to be herein stated we construe “July” to mean the July next succeeding. Prior to the arrival of that time the plaintiff called for his settlement. The other two cases were suits for the recovery of 'the balance of the purchase-price of cotton, alleged to be due under contracts similar to the one sued on in number 550, but in these cases our conclusions are different, for the reason that material additional facts are dis- ■ closed in each. We will refer only to the averments of the petition in number 548, as a decision in this case will be controlling of number 549. The petition in that case sued upon a contract dated October 29, 1921, and provided for the determination of the price at the option of the plaintiff on the basis of 111 points added to the quotations on the Cotton Exchange of New York for “March.” The plaintiff did not call for a settlement until June 20, 1922. He alleged: “That in May, 1922, defendants proposed that the price should be fixed by the price and quotation of October cotton on the cotton exchange in New York with 111 pounds added on the day petitioner called upon them for a settlement, instead of March, the only change proposed being October instead of March. To this petitioner agreed, and waived the right to call for a settlement on the basis of the March price.” In the absence of anything to the contrary, the reference in the contract to the quotations on the New York Cotton Exchange for March should be construed as implying that the price would be fixed by the quotations for March, 1922,—that is, the March next succeeding the date of the contract. “Ordinarily, when a month is referred to, it will be understood to be of the current year, unless from the connection it appear that another is intended.” Tipton v. State, 119 Ga. 304 (2) (46 S. E. 436). The parties could not have meant March, 1921, because they were dealing with reference to the future, and the month of March of the current year was past. The rule of the Tipton case is therefore not absolute authority, but we should think that, following the principle therein announced, the March quotations should be the quotations for the next March following the date of the contract. If a person in October invite another to visit him in March, or promise in October to perform an act in March, there can be no doubt that the next succeeding March is the time intended. The parties could hardly have intended that the contract would continue for all time. Baker v. Keener, 130 Ga. 257 (60 S. E. 551). The thought might arise, however, in the mind of some that the contract would contemplate a settlement by the basis of the quotations for March of any year within a reasonable time after the making of the agreement. Such a construction would appear to be unreasonable in the case before us, because it would multiply the speculative elements of the contract and remove the implication that the parties were acting with foresight relative to known or probable conditions. The parties in October, 1921, might have a basis for judgment with respect to the price of cotton in March, 1922, but a forecast in regard to the market condition in March, 1923, nearly a year and a half beyond the date of the contract, would depend upon acreage, crop conditions, and economic problems about which the vision of the wisest could find but little basis for an intelligent conclusion. The cardinal rule of construction, to which every other is subservient, is to ascertain the intention of the parties. Civil Code (1910), § 4266. We think that if a contract be subject to two constructions, one of which would render it highly speculative and the other of which would confine its operation to facts and circumstances more reasonably to be anticipated, the latter should be adopted as the one more likely in harmony with the intention of the parties, who presumably would not desire in the contract any element of' chance that, might reasonably be avoided, but would prefer to agree with reference to conditions about which an intelligent judgment might be exercised. In the absence of anything in the petition to show a different meaning, we are satisfied that the contract here under consideration, made in October, 1921, and providing for the fixing of the price of the cotton by the quotations of March, should be construed as referring to the quotations for March, 1922. The petition does not claim that the clause under consideration should not be understood according to the ordinary import of the words employed, and the rule is applicable that words in a contract usually bear their usual and common signification.

No call for a settlement was made by the plaintiff until June, 1922. We would not suppose that quotations were made upon the New York Cotton Exchange for March, 1922, after the month of March in that year had passed. It would thus appear that the method of fixing the price of the cotton as prescribed by the agreement had been rendered impossible by the inaction of the plaintiff until subsequent to the time within which the price of the cotton might be determined by the terms of the contract. Beferring again to the Civil Code, § 4128, we note that if the ascertainment of the consideration becomes impossible, there is no sale. “Where the parties to an executory agreement for the sale of goods agree that the price to be paid for the property shall be fixed by valuers nominated in the agreement, there is no contract of sale if the persons appointed .as valuers fail or refuse to act as such; and this is true even where one of the parties to the agreement is the cause of such failure or refusal.” Elberton Hardware Co. v. Hawes, 122 Ga. 858 (1) (50 S. E. 964). “A valuable consideration is essential to a sale; and if its ascertainment becomes impossible, there is no sale. Where a contract is made for the sale, at a specified price per pound, of certain bales of cotton, even though there be a constructive delivery to the buyer, if the weights of the cotton be then unknown, and such weights, by which the amount of the purchase-price is to be determined, are by such contract to be ascertained by subsequent weighing by the buyer when actual delivery to him is made, and the cotton is destroyed by fire before being so delivered and weighed and it becomes impossible to ascertain such weights, there is no sale.” Deadwyler v. Karow, 131 Ga. 227 (1) (62 S. E. 172, 19 L. R. A. (N. S.) 197). That is certain which may be made certain, but the validity of the contract was nullified by the failure of the plaintiff to take the necessary action to fix the price in the manner and within the time provided by its terms. The defendant, having received the cotton, would be liable for its value as of the date of its delivery, less the amount of advances thereon. Civil Code (1910), § 5513. The rights of the plaintiff could not be determined under the original contract, but were fixed by the law under the provisions of this code section, and in the absence of a new valid agreement could only be enforced upon a quantum valebat. Compare Humaston v. American Telegraph Co., 20 Wall. (U. S.) 20 (1) (22 Law. ed. 279). The plaintiff could have no further interest in the cotton or in the fixing of the price under the agreement. His interest was solely in the collection of its value upon the date of delivery. When, therefore, in May, 1922, the parties undertook to substitute October for March, and to extend the operation of their agreement, they could not possibly be dealing with reference to a subsisting contract or on the basis of an actual sale of cotton, whether there was a new consideration or not. The original contract was extinct, and thereafter the parties were engaging solely in a speculation. The original agreement could no more be used as a basis for a new engagement of the particular hind made than one fully performed, however long before. Thus, in the transaction relied upon, the parties were “dealing in futures on margins.”

The Texas decisions referred to above would appear now to be applicable. We think, too, that under the decisions in this State the transactions declared on are outlawed. “Anything which induces men to risk their money or property, without any other hope for return than to get for nothing any given amount from another, is gambling, and demoralizing to the community, no matter by what name it may be called.” Quoted from Brua’s Appeal, 55 Pa. 298, in Anderson v. State, 2 Ga. App. 1 (1), 24. See also Hentz v. Booz, 8 Ga. App. 577 (5) (70 S. E. 108); Anderson v. Holbrook, supra; Civil Code (1910), §§ 4256, 4257, 4258. The plaintiff does not lay his case upon a quantum valebat, but alone upon the contract.

Assuredly the parties were at liberty to contract anew with reference to the respective rights and liabilities as fixed by law upon the failure of the original contract, provided the new agreement was not of a character inhibited by law. The vice in the case is not that the parties undertook to agree about a matter which could not be the subject of contract, but rather that the character of the particular agreement made is condemned by law. The attempted novation could not have been made in anticipation of an actual delivery, for it appears that the only delivery which could have been in mind was one irretrievably past, and the new agreement was therefore invalid because it necessarily contemplated a mere settlement of the differences based upon the market value of the goods on a future day.

What is said above with reference to the case numbered 548 applies equally to number 549. The general demurrer was properly sustained in each.

Judgments in cases designated in the court below as numbers 6J/.8 and 5J/.9 affirmed; in number 550 reversed, with direction.

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


text:
    14496.
    Laing et al. v. Hinesville Bank.
   Jenkins, P. J.

1. The one-year period of limitation for tlie recovery by plea or suit for a forfeiture of usurious interest lias reference to a set-off claiming such forfeiture, and to suits to recover usury which has been paid. Thus, where usurious interest has been paid and applied as such, the statute is applicable in a suit brought on the obligation. Civil Code (1910), § 3441; Lankford v. Peterson, 21 Ga. App. 1 (3), 15 (93 S. E. 499). In the instant ease the plea of the defendant and the agreed statement of facts show that more than two years from the exaction and payment of the usurious charges had elapsed prior to the bringing of the suit, and the judge, hearing the case without a jury, properly found for the plaintiff. The ease does not fall within the exception recognized in the Lankford case, that, “when not otherwise directed by the debtor, payments made on a debt infected with usury will be applied first to the payment of the legal interest at the date of payment; and any balance remaining after such interest is discharged will go in reduction of the principal;” and, that “a plea alleging such payment may be properly filed although more than twelve months have elapsed since the payment;” for the reason that here the plea alleges and the statement of facts shows that the unlawful discount was “paid” to the plaintiff “as interest on said loan,” in “addition to the amount of money paid plaintiff as principal,” and that the unlawful discount “represents a charge of interest on the respective loans at the rate of twelve per cent, per annum;” and consequently, the defense can be taken only as a claim of set-off. See also: Camp Lumber Co. v. Citizens Bank, 142 Ga. 84 (1) (82 S. E. 492); Lee v. King, 142 Ga. 609 (2) (83 S. E. 272); King v. Moore, 147 Ga. 44 (4) (92 S. E. 757); Gramlimg-Spalding Co. v. Pool, 111 Ga. 93 (36 S. E. 430); Bagley v. Hinesville Bank, 28 Ga. App. 400 (111 S. E. 216).

Decided December 10, 1923.

Complaint; from city court of Ludowici—Judge M. Price. February 38, 1933.

horsey & Mills, W. C. Hodges, for plaintiffs in error.

H. P. Coll, 8. B. Brewton, contra.

2. The separate plea of the accommodation endorser, or surety, on the note sued upon alleged that it “contains a waiver of homestead,” and that the plaintiff bank “charged, reserved, and took more than 8 per cent, interest on said loan, without the knowledge or consent of this defendant, . . which taking and charging and reserving constituted secret usury, and thus voided the homestead waiver in said note, thus increasing the risk of this endorser,” and discharging him from liability. Beld: Under the agreed facts, the court properly found for the plaintiff bank. The only theory under which the surety upon a promissory note has formerly been held discharged by the exaction of concealed usurious interest from the principal was that, since, under the law as it existed prior to the usury act of 1916 (Ga. L. 1916, p. 48), usury voided all titles, including the waiver of a debtor’s right to homestead and exemption, the voiding of such a provision in a note increased the surety’s risk. Vaughan v. Farmers & Merchants Bank, 146 Ga. 51 (1, 2) (90 S. E. 478); Lott v. Peterson, 23 Ga. App. 458 (2), 463 (98 S. E. 361); Duckett v. Martin, 23 Ga. App. 630 (1) (99 S. E. 151); Morris v. Reed, 14 Ga. App. 729 (5), 733 (82 S. E. 314); Jones v. Pope, 7 Ga. App. 538, 539 (67 S. E. 280). The act of 1916, supra, however, expressly repealed sections 3438 and 3442 of the Civil Code, in which it is provided that “all titles to property made .as a part of an usurious contract, or to evade the laws against usury, are void;” and, in lieu of that provision and the forfeiture under the old law, provided for the forfeiture of “the entire interest so charged or taken, or contracted to be reserved, charged, or taken,” and that “no further penalty or forfeiture shall be occasioned, suffered, or allowed than as stipulated in section 1 hereof (the entire interest).” Act 1916, §§ 1, 2; Park’s Ann. Code, Supp. 1922, § 3438 (a). The effect of this legislation was to nullify, among other penalties under the former law, the rule voiding a waiver of homestead and exemption. The defense of the surety was therefore without merit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14510.
    Standard Gas Products Company v. Vismor.
   Bell, J.

1. Tlie Civil Code, § 5185, requires, among other things, that “before any writ of certiorari shall issue, the party applying for the same, his agent or attorney, . . shall . . produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all costs which may have accrued on the trial below have been paid.” This provision has reference to the costs which may have accrued on the trial which resulted in the verdict or judgment with which the applicant is dissatisfied, and to which he excepts. Johns v. Levis Drug Co., 120 Ga. 640 (3) (48 S. E. 127); Williams v. Sulter, 76 Ga. 355 (2). A certificate that the applicant “has paid all costs which have accrued in the foregoing petition for certiorari, so far as the municipal court of Atlanta is concerned,” does not meet the requirements of the law. Osborn v. Osborn, 70 Ga. 716. No costs could have accrued in ihe certiorari case in which the municipal court of Atlanta was concerned, for the reason that the costs in such a case attach only in the superior court. The certificate could be true even though the applicant may never have paid the costs which have accrued in the municipal court, the statement of the certificate being entirely consistent with the nonpayment of the same. Such certificate should have reference to the case as tried in the court whose judgment is complained of in the petition for certiorari, while here it refers only to the case as made by such petition. Although it is true that the Civil Code does not prescribe any special form of certificate (Western & Atlantic R. Co. v. Carder, 120 Ga. 460, 47 S. E. 930), and that a certificate should be deemed sufficient when upon a fair interpretation it substantially meets the requirements of the code (Williams v. Shuler, 94 Ga. 660 (2), 19 S. E. 981), no certificate should be held sufficient when it is so drawn that to uphold it would have the effect, by construction, of rendering the meaning of the law in respect thereto vague and uncertain.

2. “In procuring a second writ of certiorari after a first writ in the same case has been dismissed, the second proceeding being a renewal of Ihe first, as provided for in the code, § 2932 [Civil Code of 1910, § 4381], it is not necessary to produce to the clerk, or to file, a new certificate as to the payment of costs. The certificate already filed with the first petition, being still on file [italics ours], may be treated by the clerk as sufficient evidence on which to base the second writ, inasmuch as the second proceeding would relate alone to the state of facts, relatively to the justice’s court [or, as here, the municipal court of Atlanta], which existed when the first proceeding was instituted.” Williams v. Shuler, supra. But in the instant case it appeared that the certificate on file with the first petition for certiorari, like that attached to the second petition, certifies merely that the applicant “has paid all costs which have accrued in the foregoing petition for certiorari,” and is subject to the rulings made in the preceding paragraph.

3. The requirement of a proper certificate of the payment of all costs which may have accrued on the trial below is not met or satisfied by the fact that in the petition for certiorari it.was alleged that the petitioner had complied with the requirements of the law before presenting the petition for sanction, and that thereafter the municipal-court judge answered that this averment was true. Such answer necessarily was made after the petition for eertiorari had been filed and after the writ had issued, while the code requires that such certificate shall be produced and filed with the petition as “a condition precedent to the issuance of the writ.” Osborn v. Osborn, supra; Civil Code (1910), § 5185.

(a) Nor would it alter the case that a similar averment was made in a prior petition for certiorari and was similarly answered, and that copies of such prior petition and answer were annexed as exhibits to the renewal petition, the prior petition, and necessarily the answer with it, having been dismissed. The statute does not contemplate such a method of proof that the costs have been paid.

4. While the requirement of the payment of costs is primarily for the protection of the officers of court (Johns v. Lewis Drug Co., supra), a party to the case may challenge the right of the other party to proceed without proof of the payment of the same, where such proof is made by law a condition precedent to the exercise of the right.

5. “If a certiorari, after being sanctioned by the judge of the superior court, be dismissed on the hearing before him for the reason that it does not properly appear that the cost has been paid, the judgment of dismissal is equivalent to holding that the proceeding is void.” Ray v. Cruce, 21 Ga. App. 539 (94 S. E. 899); Cole v. Thurman, 119 Ga. 55 (1) (45 S. E. 718). The court may dismiss a void proceeding upon its own motion.

6. Where a defendant in certiorari makes a motion to dismiss the proceeding upon the ground that the certificate as to the payment of costs appearing in the record “is insufficient in law” and “is not a sufficient compliance with the mandatory requirements of the statute,” and the motion is granted, and where an inspection of the certificate discloses that it is a nullity, so that the judge of the superior court might have dismissed the certiorari upon his own motion, this court will not reverse the judgment of dismissal merely because the motion made therefor would have been too general (assuming that it was) to present any question for decision by this court if the motion had been refused and exceptions brought to that judgment by the party making the motion. Erom the rule that a judgment will be affirmed if correct upon any ground, even though an erroneous rqason should be assigned (Kendricks v. City of Millen, 16 Ga. App. 273 (3), 85 S. E. 264; Flynn v. City of East Point, 18 Ga. App. 729, 90 S. E. 372; Boozer v. City of Atlanta, 18 Ga. App. 732 (3), 734, 90 S. E. 492; Ruffin v. City of Millen, 18 Ga. App. 784 (4), 90 S. E. 654), it must follow as a corollary that a dismissal upon a valid ground should likewise be affirmed, however general and imperfect may have been the terms in which it was urged.

7. It does not appear that the sufficiency of the allegation with reference to the invalidity of the certificate was in any way brought into question in the court below, nor is it done in the bill of exceptions (compare Puckett v. State Banking Co., 130 Ga. 586 (5), 61 S. E. 465; Barham v. Weems, 129 Ga. 704 (3), 59 S. E. 803), and the judge of the superior court having treated this ground of the motion as technically sufficient and having thereupon sustained the motion, the case. is unlike that of Abercrombie v. Gurley, 21 Ga. App. 389 (3) (94 S. E. 606), wherein the motion to dismiss was overruled, after which on exceptions to that judgment this court held that the attack upon the bond as contained in the motion was too loose'and general to present for decision any question as to whether the court erred in overruling it. If the motion in that case had been sustained, this court would probably have tested the correctness of the judgment by the actual sufficiency of 'the bond, and not by the technical precision of the attack made upon it, for the reason that error is never to be presumed, and that the burden is upon him who alleges error to show it by plainly and distinctly setting it forth. Civil Code (1910), §§6139, 6140. Compare White v. Little, 139 Ga. 522 (2) (77 S. E. 646).

Decided December 10, 1923.

Motions for rehearing denied February 8 and March 1, 1924.

Certiorari; from Fulton superior court—Judge Ellis. January 11, 1923.

Bryan & Middlebroolcs, N. T. Anderson Jr., for plaintiff in error.

McCallu.ni & Sims, Weltner, Cheatham & Sims, contra.

8. There being no proper certificate produced as to the payment of “all costs which may have accrued on the trial below” before the issuance of the writ on either the first or the second application, the court did not err in dismissing the second, or renewal, petition.

Judgment affirmed.

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


text:
    14522.
    HOWARD v. ECHOLS.
    1. “ Where witnesses have been separated at request of counsel, a person not sworn and sequestered, but who has remained in the court-room and heard the testimony in the case, is still competent to testify as a witness in the cause. If lie has been purposely kept in the court-room in disobedience of the orders of the court, with knowledge of the fact that he was to be used as a witness, the fact that he has heard the testimony goes to his credit, and the court may punish either the party who caused him to remain in the court-room or the witness himself, or both, according to the circumstances, for contempt of court; but it is error to refuse to allow him to testify, unless the party offering him has expressly waived the right to use the witness.” “A party’s right to have the testimony of any witness, when material to the assertion of his rights, is, under the provisions of the evidence act of 1889 (Civil Code, § 5269 [Civil Code of 1910, § 5858], unabridged, except by the exceptions therein specified, and is unaffected by section 5280 of the Civil Code [Civil Code of 1910, § 5S69], which relates to the sequestration of witnesses.” Thomas v. State, 7 Ga. App. 615 (1) (2) (67 S. E. 707). See also Wallace v. Mine, 153 Ga. 374 (8), 388 (112 S. E. 724). Under this ruling the court erred in refusing to allow a Witness to give material evidence in behalf of the defendant, on the ground that the proffered witness had been in the court-room in violation of an order for the sequestration of the witnesses.
    2. One of the excerpts from the charge improperly assumed a disputed material fact in favor of the plaintiff, and, under the Civil Code, § 4863, was error. The evidence authorized the verdict found for the plaintiff, but, for the errors noted in this and the preceding headnote, the defendant was entitled to the grant of a new trial.
    Decided December 10, 1923.
    Action for damages; from Forsyth superior court—Judge Blair. March 10, 1923.

      Clay & Blair, Morris & Ilawlcins, for plaintiff in error.

      H. L. Patterson, contra.
   Bell, J.

This was an action for the alleged seduction of the plaintiff’s daughter. A verdict was found for the plaintiff. The defendant’s motion for a new trial was overruled, and he excepted.

In one of the grounds of the motion for a new trial it is complained that the court erred in refusing to allow a witness to testify in behalf of the defendant, on the ground that the proffered witness had remained in the court-room in violation of an order for the sequestration of the witnesses. Some time before the filing of the action a warrant had been issued for the arrest of the defendant on the charge of seduction. The plaintiff, in rebuttal of the evidence of the defendant, testified: “When I had him arrested he says he didn’t ask for any settlement, and he certainly did. . . He says “T will settle this matter if you will settle it right before it goes any further.’ . . Mr. Lewis Ledbetter was there and heard this.” The defendant had testified in reference to the alleged offer of settlement only upon cross-examination, denying the imputation in answer to questions propounded. He does not appear to have volunteered the issue. Thereafter and in due course the defendant proposed to prove by Lewis Ledbetter that this evidence of the plaintiff was untrue; that no such conversation took’ place between the plaintiff and the defendant at the time and place mentioned. Mr. Ledbetter had been called as a,witness for the defendant, had taken the witness’s oath, and had been excluded with- the other witnesses under the rule of sequestration. The plaintiff objected to the testimony, on the ground that the witness had violated the rule and had been in the court-room while the testimony of the plaintiff above quoted was being delivered. It appears that his presence in the court-room at the particular time had been by the consent of the defendant’s attorney, but not that it was the intention of the attorney to waive the privilege of introducing him as a witness. It is fair to say that the statement of the defendant’s counsel would indicate also that there was no improper motive in consenting for the witness to be relieved of the rule, but this is immaterial to a decision. The testimony as given by the plaintiff,—namely, that the defendant, on being arrested under the charge of seduction, sought a settlement,—was relevant and material to be considered by the jury in passing upon the defendant’s guilt. The offer of settlement, if made, had reference to the criminal charge, because the civil case had not then been filed. It was not, therefore, such an offer of compromise as should have been excluded. Under the decisions cited in the headnote, it was error to refuse to permit the witness to testify. Having heard the plaintiff’s testimony would go to his credit, but would not render him incompetent, and his misconduct, while not operating to disqualify him, simply rendered him amenable to the court as for a contempt. The rule would be the same even if the defendant’s attorney might have been subject to the same correction. Cunningham v. State, 97 Ga. 214 (1) (22 S. E. 954). It is true in the ease at bar, as in that case, that the evidence rejected was only of an impeaching character, but we cannot rule, as was done there, that the testimony was of “little or no materiality.” See Blitch-Everett Co. v. Jackson, 29 Ga. App. 440 (116 S. E. 47). It had for its purpose the refutation of a material circumstance testified to by the plaintiff, which might have influenced the jury in concluding that the defendant was guilty.

It is assigned further that the court erred in charging as follows: “In dealing with these two questions, with reference to that, you can consider all the facts and circumstances in the case, consider any evidence that showed licentiousness of mind oji the part of the female, in determining whether she was virtuous at the time of the alleged seduction, and also whether she was seduced, or whether she yielded simply to gratify her own desires.” It is complained that the charge intimated an opinion on the part of the court that the intercourse occurred between the parties as the plaintiff contended, and that the court invaded the province of the jury in assuming this as a fact, when it was a disputed issue in the case. The “two questions” had previously been stated by the court, as whether the female was virtuous and whether she had been seduced. We believe that the charge was error. Civil Code (1910), § 4863. If the court anywhere else in the charge had fully submitted the defendant’s contention that he never at any time had with the plaintiff’s daughter the intercourse alleged, we should be disposed to hold that the error here was so slight as to be negligible, but we have examined the charge carefully, and find that this issue was nowhere clearly presented. The jury were possibly led to minimize the issue, or to assume it in favor of the plaintiff, as they proceeded to settle the other disputes contained in the evidence. The excerpt improperly assumed in favor of the plaintiff the fact of the sexual relation.

The court did not err in refusing a certain request to charge, which, though embodying a correct principle of law, was inapplicable to the issues as developed by the evidence; and a charge given in lieu of the one requested, though perhaps incorrect, was not prejudicial, in view of the issues so made.

Other excerpts from the charge are excepted to in the motion, but any inaccuracies therein were so slight that they could not have been harmful. It is unnecessary for us to pass upon the ground of the motion based upon alleged newly discovered evidence, the judgment being reversed for other reasons. The other assignments are without merit. The verdict found for the plaintiff was authorized -by the evidence, and a new trial is awarded solely because of error during the trial.

We are frank to say that under the issues as made in the particular ease, we do not consider that any of the errors were exceedingly grave. The trouble has been in determining whether any of them were so prejudicial as to require a new trial. We cannot escape the conclusion, however, that for the two errors noted in this and the preceding division of the opinion the defendant was entitled to a new trial.

Judgment reversed.

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


text:
    14527.
    Grooms v. City of Hawkinsville.
    Decided December 10, 1923.
    Action for damages; from Pulaski superior court—Judge Graham. March 13, 1923.

      II. F. Lawson, for plaintiff.

      L. G. Ryan, T. 8. Felder, for defendant.
   Bell, J.

1. “In bringing suit against a municipal corporation for damages on account of a personal injury, it is necessary to allege a substantial compliance with the Civil Code, § 910, which requires a presentation in writing of such claim to the governing authority of the municipality for adjustment, stating the time, place, etc., before bringing suit, and allows the municipal authorities thirty days in which to act on the claim. A petition which' fails to do this is demurrable. Saunders v. City of Fitzgerald, 113 Ga. 619 (38 S. E. 978); City of Columbus v. McDaniel, 117 Ga. 823 (45 S. E. 59); Langley v. City Council of Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. R. 133).” City of Tallapoosa v. Brock, 138 Ga. 622 (1) (75 S. E. 644).

2. “When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation.” Civil Code (1910), §4, par. 8.

3. Where, in a suit for damages against a municipal corporation on account of a personal injury, it appeared from the petition that the claim was first presented to the governing authority of the municipality for ad justment on October 16th next prior to the filing of the suit on November 15th, the action was subject to general demurrer. Only the first or last of these days should be counted; and this being done, the action was commenced before the municipality had been allowed the statutory period of thirty days after the claim had been presented, within which to consider and act upon the same. Eor this reason the petition was properly dismissed. Saunders v. City of Fitzgerald, supra; Williamson v. Mayor &c. of Savannah, 19 Ga. App. 784 (1) (92 S. E. 291); Reid v. Jordan, 56 Ga. 283 (2); Knoxville City Mills Co. v. Lovinger, 83 Ga. 563 (10 S. E. 230).

Judgment affirmed.

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


text:
    14542.
    Adams v. Black.
   Bell, J.

Where a cause involving both questions of law and of fact is adjudicated by the judge upon an agreed statement of facts, without the intervention of a jury, a general assignment of error upon the judgment which fails to specify how or wherein the trial judge erred, whether as to matter of law or matter of fact, cannot be taken as the foundation of a reversal. This was a claim case submitted by consent to the judge, upon an agreed statement of facts, without a jury. To his judgment in favor of the plaintiff in fi. fa. the claimant has sued out a bill of exceptions, in which the only assignment is as follows: “To this judgment of the court plaintiff in error excepted and now excepts, and' assigns. error thereon, and says that the court erred in his judgment finding the property subject to the fi. fa., and ordering said fi. fa. to proceed.” Held, the assignment is too general, and the motion of the defendant in error to dismiss the bill of exceptions must be sustained. Adams v. May, 145 Ga. 234 (88 S. E. 928); Horkan v. City of Moultrie, 145 Ga. 588 (89 S. E. 681).

Decided December 10, 1923.

Levy and claim; from city court of Carrollton—Judge Hood. March 30, 1923.

Raymond Robinson, for plaintiff in error.

Beall & Smith, contra.

Writ of error dismissed.

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


text:
    14553, 14637.
    KIRK v. JEFFERSON LOAN SOCIETY; and vice versa.

    This case is controlled by the ruling in the case of Johnston v. Brenau College, 146 Ga. 182, 187 (91 S. E. 85), where it was held, that if the losing party in a case tried by a judge of the municipal court of Atlanta “sues out the writ [of certiorari] to the decision made by the trial judge, he can have the question whether the finding is contrary to evidence and contrary to law passed upon; but if, instead of suing out the writ of certiorari then, he takes an appeal to the appellate division, inasmuch as the act eliminates these two questions on such appeal, he cannot have them reviewed by certiorari taken from a decision made by such division.”
    Decided December 10, 1923.
    Certiorari; from Fulton superior court—Judge Bell. April 9, 1923.

      Jackson & Bchols, for plaintiff.

      Weltner, Cheatham & Sims, for defendant.
   Jenkins, P. J.

The petitioner in certiorari, as plaintiff, brought in the municipal court of Atlanta an action in trover for the recovery of a diamond ring, pledged to the defendant as a pawnbroker as security for a loan of $100, and alleged that he had tendered to the defendant the full principal and interest due and demanded the property, but that the demand was refused. The finding and judgment of the judge of the municipal court who tried the case was in favor of the defendant, and the plaintiff made an oral motion for a new trial, upon two grounds, which, subsequently reduced to writing, are in terms as follows: (1) “wherein appellant set up and insisted that a charge of $3 per month on a loan of $97 received, charged, taken, and collected by the pawnbroker was error and contrary to law under the laws governing loans of money;” and (2) “that the positive proof of the plaintiff as to the valuation of the property was $225, and, under the contract and law governing the same, that the defendant was 'without authority of law to sell the property that was sold for the price it was sold for at the time he is alleged to have sold it, and if the same was sold the same should have been sold for its true valuation, and the surplus that it brought in addition to the amount that plaintiff owed to defendant should have been paid to the plaintiff.” From an order overruling this motion for new trial the plaintiff appealed to the appellate division of the municipal court upon the same grounds; and thereafter, the judgment being there affirmed, the case was taken by certiorari to the superior court. Exception is now taken to the order overruling the certiorari.

“If the plaintiff in certiorari sues out the writ to the decision made by the trial judge [in the municipal court of Atlanta], he can have the question as to whether the finding is contrary to evidence and contrary to law passed upon; but if, instead of suing out the writ of certiorari then, he takes an appeal to the appellate division, inasmuch as the act eliminates these two general questions on such appeal, he cannot have them reviewed by certiorari taken from a decision made by such division.” Johnston v. Brenau College, 146 Ga. 182 (5b), 187 (91 S. E. 85); Gresham, v. Lee, 152 Ga. 829, 835 (111 S. E. 404); Ga. L. 1913, p. 168. While the petition for certiorari recites, by way of history of the case, that the municipal-court judge overruled the plaintiff’s demurrer to paragraph 4 of the answer, “wherein defendant seeks to enforce by way of charges three per cent, per month on a loan of one hundred dollars,” there is no exception to this order. The two contentions of the plaintiff in the motion for new trial and as grounds of appeal to the appellate division, including the attack on the three per cent, a month interest charge, are made only in an attack upon the finding and judgment itself in favor of the defendant. The exceptions, being thus necessarily limited to the correctness of the finding and judgment as being contrary to law, under the evidence, fall within the ruling in the Brenau College case, and are without merit. The superior court properly overruled the certiorari.

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

Stephens and Bell, JJ., concur.