text:
    15018.
    SOUTHERN RAILWAY CO. v. WESSINGER.
    1. The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible; and such opinions may be given on the facts as proved by other witnesses. The testimony of an expert, as to his opinion as such, is admissible upon any matter, if the opinion given relates to scientific or technical knowledge. The court did not err in allowing a witness of nine years experience as an engineer to give his opinion as to what would cause described violent and unusual jerking of the “reverse lever,” as an appliance upon engines in general, although he was not acquainted with the particular kind of gear, affecting the operation of such lever, with which the engine was equipped whereon, by the jerking of such lever, the plaintiff suffered the alleged injury for which he sued.
    2. If it shall appear in an action under the Federal employer’s liability act that the plaintiff was injured by the concurring negligence of himself and the defendant, he cannot recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both. As against the carrier, the charge of the court was not erroneous because of a failure to state this rule more explicitly.
    3. The excerpt from the charge of the court upon the subject of the credibility of the witnesses, complained of in ground 7 of the motion for new trial, was not cause for setting aside the verdict upon the hypothesis that it was “calculated to mislead the jury into the belief that they would determine the case according to the rule propounded by the court, rather than determine where the preponderance of the evidence lay,” it not being alleged that the rule as slated in the charge was incorrect.

      (a) In the absence of a timely written request, it is ordinarily not error for the court to fail to give in charge section 5731 of the Civil Code, defining preponderance of evidence.
    4. There was some evidence warranting the charge complained of in ground 6 of the motion for a new trial, upon the subject of liability for negligence which, though not the original or sole cause of an injury, yet aggravates it and adds to its extent.
    5. The court charged the jury as follows: “If a man is entitled to have a verdict for a certain amount of money for lost capacity to earn money in the future, why the verdict would give him the money all at once. That is to say, if he was allowed so much a year at the end of any particular period, — like five, ten, fifteen, or twenty years, or any other period, — you would give him all the money at once; and it is worth more to a man to have it all given to him at once than to pay it to him along in the future. To give him five dollars to-day would be worth more to him than to cause him to wait five years and give him so much money each year. So if any amount is allowed him for permanent impairment of his capacity to labor a.nd earn money, that ought to be reduced to its present value, and the x-ate of reduction to its present value is seven per cent., that being the regular rate of interest in this State.” There is no cause for a new trial merely in the fact that the court omitted the phrase “per annum” immediately following “seven per cent.” The excerpt did not intimate an opinion that the plaintiff had suffered permanent impairment of his earning capacity.
    6. Under a denial of the allegations in the plaintiff’s declaration, no other defense is admissible than such as disproves the plaintiff’s cause of action; all other matters in satisfaction or avoidaxxce must be specially pleaded. Civil Code (1910), § 5630. Whether this rule would be applicable so as to preclude an instruction upon the law in relation to the defense of assumed risk, not specially pleaded, where the defense, if involved, is so only under the evidence of the .plaintiff, the assignmexxt that “the court erred in failing to charge the jury upon the subject of assumption of risk, the question of assumption of risk inhering in the employer’s liability act of Congress, and it being incumbent upon the court to charge the jury upon the question of the assumption of risk,” is too general and indefinite to present any question for decision. Furthex-more, there was no evidence in the ease under consideration to warrant an instruction upon the subject.
    7. There wag some evidence to authorize a finding in favor of the plaintiff. This court cannot hold, as a matter of law, that the amount awarded him was excessive under the evidence. The court did not ex-r in overruling the motion for a new trial.
    Decided April 24, 1924.
    Adhered to on rehearing, August 11, 1924.
    Damages; from Fulton superior court — Judgg Ellis. August 3, 1923.

      Application for certiorari was denied by the Supreme Court.

      McDaniel & Neely, for plaintiff in error.

      J. Caleb Clarice, Marie Bolding; contra.
   Bell, J.

C. L. Wessinger recovered a verdict for $15,000 against the Southern Bailway Company in an action under the Federal employer’s liability act, and the company has excepted to the overruling of its motion for a new trial.

The plaintiff was a fireman on a freight-engine referred to in the record as No. 4567, and claims to have been injured in Green-ville, South Carolina, immediately following a run from Atlanta, while he was attempting to “thump” the engine, under'orders from the engineer, that the latter might discover the location of certain troubles or defects which were indicated by noises and knocks in the engine en route. It appears in the record that the act of thumping an engine is accomplished by applying the brakes, and then giving the_ engine steam and putting it in gear. It is shown that an engineer, when standing upon the ground and observing the engine as it attempts to run while thus held fast by the brakes, may detect, in a measure, its condition as to the existence of certain defects. The plaintiff says that when, in undertaking to thump the engine as directed, he had pulled the reverse lever, it suddenly jerked forward, snatching him with it, and causing him to strike the lever and the boiler-head, with the result that he was injured as alleged. He claims that the behavior of the lever was caused by certain worn and defective parts, and that in respect of these the defendant was negligent. The defendant admitted the plaintiff’s employment, together with facts which would render the employer’s liability act applicable if liability existed. In other respects the answer was a general denial. '

In ground 1 of the amendment to the motion for a new trial the defendant contends that the court erred in admitting certain testimony of one Skipper, whom the plaintiff had offered as an expert for the purpose of showing hypothetically the cause of the behavior of the lever. The particular engine was equipped with the Walcheart gear. The plaintiff’s attorney propounded a question which would have elicited an answer as to the cause of the jerking of the lever on the particular engine with the particular gear. The defendant interposed an objection that the witness was not an expert, and further that he had previously testified that he was not ah all acquainted with this type of gear. The question appears to have been improper. The witness, however, did not answer responsively to the question as propounded, but proceeded to testify generally with respect, as he said, to “most any engine.” There is no objection that the answer was not responsive. The witness further said: “The reverse levers on the engines are practically the same.” We find no error in the court’s ruling. “The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible; and such opinions may be given on the facts as proved by other witnesses.” Civil Code (1910), § 5876. The witness had testified to an experience of nine years as a railroad engineer. This was sufficient to allow his evidence to go to the jury as that of an expert upon the subject or question under investigation. Compare Macon Railway & Light Co. v. Mason, 123 Ga. 773 (5) (51 S. E. 569). Nor was'the fact that the witness was not acquainted with the operation of the particular gear with which the engine in question was equipped a sufficient cause for excluding his evidence altogether. It had' some relevancy to the subject-matter of the inquiry, and it was for the jury to determine its value as applied thereto. “The testimony of an expert, as to his opinion as such, is admissible upon any matter, if the opinion given relates to' scientific or technical knowledge. The weight of shch testimony, and whether its application to the proved facts is-illustrative of the particular transaction under investigation, is a question for the jury.” McClendon v. State, 7 Ga. App. 784 (68 S. E. 338). Compare, in this connection, the ruling of this court in Augusta Ry. Co. v. Arthur, 3 Ga. App. 513 (2) (60 S. E. 213), that “the admission of testimony as to experiments must largely rest in the discretion of the trial judge; and the exercise of this discretion will not be controlled, unless manifestly abused. The weight to be attached to such testimony is for the jury, and varies according to the circumstances of similarity which the jury may find to exist between the experiment made or observation taken and the actual occurrence whose facts and features are under investigation.” This phase of the question would appear to be conclusively settled against the plaintiff in error by the decision of the Supreme Court in Atlanta Ry. & Power Co. v. Monk, 118 Ga. 449 (4-6), 456 (45 S. E. 494). This ruling is controlling also of the next ground of the motion, in which it is objected that the court erred in propounding to the same witness a question which called for answer by conclusion. It is noted further that this ground does not show that any objection was made to the question or to the answer thereto at the time.

Error is assigned upon the following excerpt from the charge of the court: “That law further says that in all actions hereinafter brought against any such common carrier by a railroad, under and by virtue of any of the provisions of this act, .to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in .proportion to the amount of negligence attributable to such employee. Now if this plaintiff shows that he was injured by the alleged negligence of the defendant, or one of the allegations of negligence, then if it shall appear to you that the plaintiff was negligent, but that his negligence was not the sole cause of the injury, then he may recover; if the evidence convinces you that he was negligent to some .extent, but not amounting to bringing about the sole cause of the injury, then he would still be entitled to recover, if he was guilty of some negligence, but you ought to diminish the amount you allow him, in proportion as his negligence was made to appear.” It is urged that this charge is error for the reason that the court “failed to instruct the jury with respect to the question of damages, that in diminishing the amount of the recovery in proportion to the amount of negligence attributable to such employee, this was with relation to the total negligence of both the employer and the employee.” This does not state the assignment in full, but comprehends its substance.

This ground of the motion might be disposed of under the rule that it is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given (Smith v. Duhart, 152 Ga. 554 (3), 110 S. E. 301); but, regardless of this rule of practice, we entertain the opinion that the court’s charge as a whole, in the absence of appropriate request, sufficiently informed the jury that if the defendant was liable, but if the plaintiff was contributorily negligent, he could not recover “full damages, but only a proportional amount, bearing the .same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.” See Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114 (5) (33 Sup. Ct. 654, 57 L. ed. 1096). The court elsewhere charged the jury in relation to the same subject as follows: “To put that in a plain way, suppose that a plaintiff — and these figures are not applicable to this case, but I am simply giving you a rule for your guidance — suppose a plaintiff under this employer’s liability act was to sue a defendant, and the jury were to determine that he had a right to recover, and they were convinced that the defendant’s negligence was not the sole cause of the injury, but that the plaintiff was guilty of some negligence, then you would take a ease like this: Say that a plaintiff would be entitled to recover $3,000, —just to illustrate, and not applying to this ease, — but the plaintiff was negligent to the extent of one third, and the result of this accident or injury was brought about by the negligence of the plaintiff to that extent, then you would deduct one third or one thousand dollars of the amount from the verdict. There would be other questions that would enter into the amount of the plaintiff’s recovery, if he is entitled to recover, which the court will explain to you.”

The rule upon this question, under the employer’s liability act of this State (Ga. L. 1909, p. 160), contemplates the proportionate diminution of the plaintiff’s damages where he is eontributorily negligent, by a comparison of the negligence of the plaintiff with the negligence of the defendant. Ga. & Fla. Ry. Co. v. Newton, 140 Ga. 463 (79 S. E. 142); Pickett v. Central of Ga. Ry. Co., 138 Ga. 177 (74 S. E. 1027, Ann. Cas. 1913C, 1380); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 417 (91 S. E. 517). It is quite clear that the Georgia rule requires a greater diminution of the recovery on account of the plaintiff’s concurring negligence, and we could hardly say that the defendant would be injured if the court had not explained fully the Federal rule. Indeed, in the Earnest case, 229 U. S. 114, supra (the principal authority cited in support of this ground of the mption), it appears that the charge excepted to instructed the jury that the contributory negligence of the plaintiff would go “by way of diminution of damages in proportion to his negligence as compared to the negligence of the defendant.” The court said that these words were not happily chosen, but were possibly “not prejudicial to the defendant;” disposing of tlie assignment, however, adversely to the plaintiff in error upon a rule of practice. We conclude that there is no merit in this ground of the motion, and, with it, in like manner dispose of grounds 5 and 10, which in different forms would raise the same question. Ground 8, assigning error upon another portion of the charge, is defective under the rule of practice which we have quoted above from Smith v. Duhart.

In ground 7 an instruction upon the subject of the credibility of the witnesses is complained of. It is urged that, the court having failed to define “preponderance of evidence,” and having failed to give in charge the rule with reference to the credibility of witnesses as contained in the Civil Code, § 5732, the excerpt as given was “calculated to mislead the jury into the belief that they would determine the case according to the rule propounded by the court, rather than determine where the preponderance of the evidence lay.” It is not alleged that the rule as given by the court on the subject of the credibility of witnesses was incorrect, even though it may not have been in the language of the code section, or identical therewith in principle. One who would set aside a verdict and judgment must show error, and none here is even alleged.

Ground 9 alleges that the court did not charge the jury with reference to the burden of proof and the preponderance of evidence, and failed to charge the jury the meaning of the legal preponderance of evidence, as contained in the Civil Code, § 5731. A reference to the charge of the court discloses that the court did instruct the jury quite fully upon the burden of proof; and there was clearly no error in failing to give in charge the code section mentioned, in the absence of a timely written request. See Ga. &c. Ry. Co. v. Lasseter, 122 Ga. 679 (6) (51 S. E. 15); Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (3) (71 S. E. 887).

Error is assigned in ground 6 upon a charge that if the plaintiff “was injured by sickness that occurred before the injury, the defendant would not be liable at all for that; but if a man was sick and the defendant did anything wrongfully by which his condition was aggravated, the jury might consider that, but of course it would be subject to the consideration of what his condition was before he was injured.” It is insisted by the plaintiff in error that the charge was not warranted either by the pleadings or the evidence, and that it was “calculated to mislead the jury into the belief that any act on the part of the defendant which might have aggravated a former condition would be the subject-matter of damages, whereas there was no contention on the part of the plaintiff or specification of damages upon which this portion of the charge could be predicated.” It appears that the plaintiff, several years before the time of his alleged injury, had suffered from pleurisy, and while he claimed that he had been fully restored, the jury were not obliged, under the evidence, to accept this cohtention, but were amply authorized to infer that' the negligence of the defendant, if existing, was not the sole cause of "the plaintiff’s injured condition. We take it that the charge was intended to inform the jury that the defendant would not be responsible for any physical impairment which the' plaintiff had suffered by reason of disease, but would be liable for any negligence which may have aggravated or added to such impairment. The testimony of physicians, and even of the plaintiff himself, would have authorized the charge; and we do not think it was erroneous for any reason assigned.

The court charged the jury as follows: “If a man is entitled to have a verdict for a certain amount of money for lost capacity to earn money in the future, why the verdict would give him the money all at once. That is to say, if he was allowed so much a year at the end of any particular period, — like five, ten, fifteen, or twenty years, or any other period, — you would give him all the money at once; and it is worth more to a man to have it all given to him at once than to pay it to him along in the future. To give him five dollars to-day would be worth more to him than to cause him to wait five years and give him so much money each year. So if any amount is allowed him for permanent impairment of his capacity to labor and earn money, that ought to be reduced to its present value, and the rate of reduction to its present value is seven per cent., that being the regular rate of interest in this State.” It is assigned that this charge intimated an opinion by the court that the plaintiff had suffered a permanent impairment of his capacity to labor and earn money, but we cannot'agree that it is subject to this objection.

It is insisted further, however, that the charge “was calculated to mislead the jury into the belief that the reduction, instead of being based upon seven per cent, per annum, that they could find the full damages which he might have suffered under this item and simply deduct seven per cent, therefrom.” The record shows that the court further charged the jury, upon this subject, that they might make any legal calculation known to them to determine the present value. In Macon Ry. & Light Co. v. Mason, supra, the court said: “That the jury may clearly understand their duty with respect to reducing to its present cash value the gross amount which they may find to fairly represent the loss in earning capacity which the injured party has sustained, the court, in charging upon this subject, should make choice of language which is not calculated to confuse the jury because of inaccuracy of expression.” The only complaint here, however, in regard to the language used, or as to any fault in the charge, is aimed at the failure of the court to employ the phrase “per annum” in connection with the expression “seven per cent.” Thus the sole question for determination is, whether the jury were probably misled by the simple omission. The “seven per cent.” referred to in the excerpt was explained to be the legal rate of interest in this State. Even assuming that the jurors, who are to obtain the law from the court, should not be presumed to know as law that the legal rate of interest is fixed at a rate per annum, we should, nevertheless, think that the calculation of interest even for a period of years is so commonly upon an annual basis that the jury in their presumed intelligence could not have failed to understand that in making the computation of the present cash value they should do so on the basis of seven per cent, for each year, rather than merely by a deduction of seven per cent, from the entire loss by reason of the plaintiff’s destroyed or diminished earning capacity, for which they might find that the defendant was liable, the court having illustrated the problem before them by a reference to different periods of years. The phrase “per annum” as omitted from the charge must evidently have been supplied by the jury; and with these words supplied, it does not appear that the plaintiff in error would complain any further of this charge. There is no merit in the assignment made. Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 654 (6) (62 S. E. 130); Standard Oil Co. v. Reagan, 15 Ga. App. 571 (9) (84 S. E. 69); Georgia Railroad v. Pittman, 73 Ga. 325 (2).

Ground 11 alleges that “the court erred in failing to charge the jury upon the subject of assumption of risk, the question of assumption of risk inhering in the employer’s liability act of Congress, and it being incumbent upon the court to charge the jury upon the question of assumption of risk.” It is urged by the defendant in error that the failure of the defendant to plead the defense of assumed risk was a sufficient reason for the omission of the court to instruct the jury upon the law applicable to such defense, and a number of authorities are cited in support of this position. Alabama Great Southern Ry. Co. v. Sketzy, 196 Ala. 25 (71 So. 335); Foley v. Pioneer Mfg. Co., 144 Ala. 182 (40 So. 274); Phillips v. Union Pacific Ry. Co., 100 Neb. 157 (158 N. W. 966); Evans Laundry Co. v. Crawford, 67 Neb. 153 (93 N. W. 177); Maxon v. Case Threshing Machine Co., 81 Neb. 546 (116 N. W. 281); St. Louis &c. R. Co. v. Howard, 124 Ark. 588 (188 S. W. 14). See also Duffey v. Consolidated Black Coal Corp., 147 Iowa 225 (2) (124 N. W. 609, 30 L. R. A. (N. S.) 1067); Sparta Oil Co. v. Russell, 6 Ga. App. 293 (2) (65 S. E. 37).

If this defense was involved under the evidence, it was so only by the testimony of the plaintiff himself; and it may be true that ■in'such a case the defendant would be entitled to a charge of the law ápplicable thereto without a special plea of the defense (New York &c. R. Co. v. Vizvari, 126 C. C. A. 632 (2), 210 Fed. 118, L. R. A. 1915C, 9; Atlantic Coast Line R. Co. v. Tomlinson, 21 Ga. App. 704 (2 b), 94 S. E. 909); but the rule would perhaps be otherwise if the defense does not appear in the plaintiff’s testimony, because it is provided in our Civil Code, § 5636, that “under a denial of the allegations in the plaintiff’s declaration, no other defense is admissible except such as disproves the plaintiff’s cause of action; all other matters in. satisfaction or avoidance must be specially pleaded.”

The defense of assumed risk is founded in the common law. The Federal employer’s liability act merely saves it, with, certain modifications. New York &c. R. Co. v. Vizvari, supra; Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (6) (34 Sup. Ct. 635, 58 L. ed. 1062); Jacobs v. Southern Railway Co., 241 U. S. 229 (36 Sup. Ct. 588, 60 L. ed. 970); Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U. S. 310 (36 Sup. Ct. 564, 60 L. ed. 1016); Boldt v. Pennsylvania R. Co., 245 U. S. 441 (38 Sup. Ct. 139, 62 L. ed. 382); Atlantic Coast Line R. Co. v. Tomlinson, 21 Ga. App. 704 (2) (94 S. E. 909). As was said in the Horton case, “the elimination of the defense of assumption of risk by the employer’s liability act of April 22, 1908, § 4, in any case where the violation by the carrier of any statute enacted for the safety of the employees contributed to the injury or death of the employee, plainly evidences the legislative, intent that in all other cases such assumption of risk shall have its former effect as a complete bar to the action.”

Whether or not it should be pleaded in' order to be availing would depend upon the local rules of practice. Central Vermont Ry. Co. v. White, 238 U. S. 507 (4) (35 Sup. Ct. 865, 59 L. ed. 1433, 1436); Chesapeake & Ohio Ry. Co. v. DeAtley, supra. Whether the defendant can justly complain of the court’s failure to charge upon the law applicable to such a defense without having specially pleaded it, we are satisfied that this ground of the motion does not present a sufficient cause for setting aside the verdict, for two reasons. First, the assignment is too general. It should have been more specific in reference to the particular principle which the court should have charged in order that the trial judge could himself have intelligently corrected the error, if any existed, 'when he passed upon the motion for a new trial. There are two rules of law applicable to the defense of assumption of risk to an action under the Federal employer’s liability act, depending upon the nature of the risk assumed; and the court below was not informed, nor is this court, as to which of these rules the plaintiff in error would deem to be involved under the evidence. One rule is applicable where the risk is normally and necessarily incident to the employment. In the absence of a special contract the servant assumes such ordinary risk, without qualification. The other rule has reference to extraordinary hazards, which the servant does not assume until he has notice thereof, unless the dangers arising therefrom are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them. The negligence of the master or of the fellow servant is included within the latter class. See Civil Code (1910), § 3131; Chicago &c. Ry. Co. v. Ward, 252 U. S. 18 (2) (40 Sup. Ct. 275, 64 L. ed. 430); Seaboard Air-Line Ry. v. Horton, supra; Boldt v. Pennsylvania R. Co., supra; Duffey v. Consolidated Black Coal Corp., supra. As to the sufficiency of the assignment of error, in view of'these different rules, see the following: Smith v. State, 125 Ga. 300 (54 S. E. 124); Spence v. Morrow, 128 Ga. 722 (58 S. E. 356); McElwaney v. MacDiarmid, 131 Ga. 97 (6) (62 S. E. 20); Wall v. State, 153 Ga. 309, 323 (112 S. E. 142); Wilson v. State, 156 Ga. 42 (118 S. E. 427).

The second reason why we think that the ground of the motion here considered is without merit is founded upon a total absence of evidence involving the question of assumption of risk. The plaintiff alleged and testified that on the run from Atlanta to Green-ville the engine made loud and unusual noises and knocks, and said in his testimony that it appeared that the engine would shake to pieces. Irrespective of whether, if some accident had happened while the engine was thus running, the occurrence would have been one of which the plaintiff would possibly have had sufficient warning, the run was completed without a mishap and the arrival in Greenville accomplished in safety. There was no evidence whatsoever that the jerking of the lever with such violence as would likely be attended with danger was a normal occurrence or one ordinarily incident to its manipulation in the manner undertaken by the plaintiff at the time he alleges he was injured. Its action appears to have been unusual, and the hazard resulting therefrom' extraordinary, of which the plaintiff could not have been found to have assumed the risk, in the absence of evidence that the danger was known to him or was so obvious that an ordinarily careful person under the circumstances would observe and appreciate it. See Central Vermont Ry. Co. v. White, Chicago &c. Ry. Co. v. Ward, and Sparta Oil Co. v. Russell, supra. Thus we do not discover any error in ground 11.

It is- contended that the verdict was excessive. It appears that at the time of the alleged injury the plaintiff was 26 years of age, earning between $175 and $200 per month. There was some evidence tending to show that at the trial he was in a desperate physical condition, practically if not totally disabled; that his disability will in all probability be permanent, and that it was caused by the occurrence of which he complains against the defendant. The testimony of the plaintiff himself was supported by that of a physician; and while there was evidence introduced on the part of the defendant, including that of several physicians, to the effect that the plaintiff’s injury was solely the result of the disease of pleurisy, the jury were the tribunal to solve this issue, and they did not decide it in favor of the plaintiff without some evidence. We cannot say that the verdict was excessive.

It is further contended on the part of the plaintiff in error that there is no evidence of the negligence of the defendant as alleged, and that the verdict is therefore unsupported. We recognize the rule that in a case of this sort no presumption arises that the. defendant was negligent -merely from proof that the plaintiff was injured by the operation of the appliance, but that the burden is on him to bring evidence to establish that the defendant was negligent in one or more of the ways alleged in the petition. The-fact, however, that the lever, as testified to by the plaintiff, gave a sudden and unusual jerk by which he was injured, is some evidence of such negligence, the occurrence- being one, as some of the evidence tended to show, which would not have happened if the defendant had discharged its duty of care. The jury were authorized to apply the maxim res ipsa loquitur and, from the circumstances to which we have alluded, to infer that the defendant was negligent as alleged. See Bonita Theatre v. Bridges, 31 Ga. App. 798 (122 S. E. 255), and citations; Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087).

The plaintiff in error insists that this maxim cannot be applied in cases arising under the Federal employer’s liability act, but we cannot concur in the position taken. In Great Northern Ry. Co. v. Wiles, 240 U. S. 444 (36 Sup. Ct. 406, 50 L. ed. 732), the court said: “The application of the doctrine to cases like that at bar is disputable [citing Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361); Looney v. Metropolitan R. Co., 200 U. S. 480, 486 (26 Sup. Ct. 303, 50 L. ed. 564)]. We,- however, do not have to go farther than to indicate the dispute.” It is not clear to us whether by this language the court intended reference to the case as 'one arising under the employer’s liability act, or merely as one falling under the general law of master and servant. The Patton and Looney cases both arose prior to April 22, 1908, the date of the passage of the liability act. They were referred to again in Minneapolis & St. Louis R. Co. v. Gotschall, 244 U. S. 66 (37 Sup. Ct. 598, 61 L. ed. 995), in which the court virtually recognized that even under the rulings in those cases negligence might be inferred from the mere happening of an accident under extraordinary circumstances. The application of the maxim cannot have the effect of raising a presumption that the defendant is negligent, or of relieving the plaintiff of his accustomed burden of proof. It is merely a rule of evidence, and the party who relies upon it simply says that from proof of certain facts the jury will be authorized but not required to infer the existence of the negligence alleged, and that he has thus carried the burden of making a prima facie case. Those decisions which uphold the doctrine merely recognize the right of a party to prove his ease by circumstantial as well as direct evidence. We do not understand that there is anything contained in the Federal employer’s liability act or in any of the decisions of the Supreme .Court of the United States construing it which precludes an application of the maxim in question merely because the case in hand arises under that act. Richey on Federal Employers’ Liability Act (2d. ed.), 330, § 163; 1 Roberts Federal Liability of Carriers, 951, § 544. In the well-considered case of Central R. Co. v. Peluso, 286 Fed. 661, the United States Circuit Court of Appeals, Second Circuit, after an examination of numerous decisions, including all of those by the Supreme Court of the United States just referred to, announces the conclusion: “The doctrine of res ipsa loquitur is applicable to cases between master and servant, including eases under the Federal employer’s liability act.” See, also, McCalmont v. Pennsylvania Co., 273 Fed. 231 (1), 235; Philadelphia &c. R. Co. v. Eisenhart, 280 Fed. 271 (2), 275.

To examine further into the evidence: the witness Skipper attributed such unusual jerking of a lever (such as injured the plaintiff in this case), “on most any engine,” to some of the defects which the plaintiff alleged as negligence. While this witness was unacquainted with the Walcheart gear, with which the engine in question was equipped, and while it would appear that the testimony of numerous witnesses introduced by the defendant for the purpose of rebutting Skipper’s testimony had in contemplation this type of gear, none of the defendant’s proof can be said to have conclusively established that the Walcheart gear would not cause a behavior on the part of a lever, in case there were defects of the nature alleged, such as Skipper had testified would result from such defects.

If, consistently with the testimony of Skipper that the jerking of the- lever would be generally indicative of defective appliances, the defendant had shown by positive, unequivocal, and unimpeached testimony that there was yet, Without question, an exception in the ease of the Waleheart gear, we should think, as a matter of law, that the evidence of the particular,witness was rebutted; but such is not the case. There was in the testimony of the various witnesses no comparison of the operation or control of the 'W’aleheart gear with that of any other type of gear.

“ ‘Prima facie evidence’ is such evidence as in judgment of law is sufficient, and if not rebutted remains sufficient. It may, in addition to other ways, be rebutted by developing additional undisputed facts consistent with its truth, but tending to an opposite conclusion.” Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S. E. 435). See Ga. R. &c. Co. v. Smith, 83 Ga. 626 (6) (10 S. E. 235); Gainesville & Dahlonega Ry. Co. v. Austin, 127 Ga. 120 (5) (56 S. E. 254). It is possible for an effort at rebuttal by the method just stated to succeed as a matter of law (compare Neill v. Hill, 32 Ga. App. 381, 123 S. E. 30), but where the method adopted is merely an attack upon the truth or trustworthiness of the evidence sought to be rebutted (Ga. R. &c. Co. v. Smith, supra), the success or failure of the effort is ordinarily, if not always, to be determined only by the finding of the jury.

There was no direct testimony of such a character as to conclusively rebut the inference of negligence which the jury were authorized to draw from the violent and unusual jerking of the lever, under the circumstances detailed in the testimony of the plaintiff. See Whiddon v. Hall, 155 Ga. 57 (6) (118 S. E. 347); Redd v. Lathem, 32 Ga. App. 214 (123 S. E. 175). Furthermore, the engineer in charge of the particular engine testified: “If the engine was in good fix and a man was thumping it, like I said, and had steam in the cylinders, it would not jump forward. I have never seen one shoot forward. I could not say an engine would do it out of fix. I never saw one do it. I have never seen one do that. If it would do that I would say that it was out of fix.” This witness appears to have been an expert capable of giving conclusions for the consideration of the jury.

The plaintiff introduced as a witness one Mitchem, the defendant’s back-shop foreman, in. charge of its “wrecking shop,” who testified that the engine did not come into the shop until twenty-two days after the alleged accident. He furnished a list of the repairs then made, and testified that none of them had to do with the reverse lever, and that “there was nothing wrong . . that would cause the reverse lever to jerk in any unusual way.” The plaintiff was not bound by every fact testified to by this witness, although introducing him. “While a party cannot [as a general rule] impeach his own witness, he may nevertheless contradict his testimony and show that the facts are different. Civil Code [of 1895], § 5290 [Civil Code of 1910, § 5879]; Skipper v. State, 59 Ga. 63; Christian v. Macon &c. R. Co., 120 Ga. 314, 317 (47 S. E. 923).” Carter v. Martin, 7 Ga. App. 216, 219 (66 S. E. 630). There was a sharp issue of veracity between the plaintiff and this witness upon a material point, so that from this fact alone, the credibility of this witness became a question for the jury. While there was much testimony, on behalf of the defendant that the lever could not have jerked as the plaintiff claimed, whether there were defects or not, it cannot be said that the jury were not authorized to find from the evidence as a whole tha/t the lever did jerk, and that the cause of its jerking was the negligent condition of certain mechanisms as alleged. “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty'to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” Sappington v. Bell, 115 Ga. 856 (42 S. E. 233).

The evidence of negligence may have been slight; but this court cannot set aside the verdict because it may think the preponderance was in favor of the defendant. It was said in the Patton case, supra,.that “where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” We do not question the soundness of this proposition. It would be applicable in any case where a servant is seeking to hold his master liable for negligence. As we have already seen, the case in which the language was used was not one arising under the employer’s liability act, and has no special applicability to a case of that character. See Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Carroll v. Atlanta Paper Co., 7 Ga. App. 584 (67 S. E. 680). But it does not follow, because it may appear from the testimony that the injury may have been caused in one of two or more ways, that the jury should not be allowed to determine in what way it was caused, if the facts and circumstances in evidence warrant a reasonable inference that it was caused in one of the ways alleged in the complaint for which the master would be liable. Otherwise, the plaintiff would be required to prove the cause of the injury to a certainty, where evidence was adduced suggesting the possibility of some other cause than that alleged. Such proof is not required in a civil action, but it is enough if the evidence is sufficient to satisfy the minds of the court and jury of the reasonable probability of the truth of the allegations. See Richey on Federal Employers’ Liability Act (2d ed.), 330, § 163.

We cannot hold that the verdict is unsupported, and, in view of the several rulings made above, we conclude finally that the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15375.
    HOLLIDAY v. MERCHANTS & MINERS TRANSPORTATION COMPANY.
    1. Where an employee upon a ship, while the ship was docked, ■ obtained leave for a few hours to go into an adjacent city, he was in the course of his employment when he attempted, on his way back to the ship, to enter a gate maintained by his master between its private docks and terminals and a public street, for the entrance and exit of the master’s employees, the relation of master and servant not being suspended, though perhaps being dormant.
    2. Although such employee entered his contract of employment in the city of Baltimore, Maryland, to perform service as an oiler on board a ship plying between that city and Savannah, Georgia, and other southern ports, he and one employed by the same master as a watchman at such gate, for the purpose of controlling the entrance and exit of the master’s employees, were fellow servants, they both being engaged in labor for the furtherance of the general purposes of the same business of the common master.
    3. Where the watchman, while acting within the scope of his employment, killed the other employee upon a dispute arising about the right of the latter to enter the gate, the injury and death of the one arose from the misconduct of the other as a fellow servant about the same business, and the master was not liable in an ordinary suit for damages therefor.
    Decided August 11, 1924.
    Action for damages; from city court of Savannah — Judge Freeman. January 26, 1924.
    Application for certiorari was made to the Supreme Court.
    Mrs. Della Holliday sued the Merchants & Miners Transportation Company, in the city court of Savannah, for damages on account of the homicide of her son Eugene Holliday, upon whom she alleged she was dependent. The petition shows the following facts: The defendant is a common carrier by sea, operating steamships between the port of Baltimore and the port of Savannah, and other southern ports. It owned and controlled certain terminals and wharves at Savannah, at which its ships docked and unloaded. It had in Chatham county an office and agency, and had there regularly in its service ten or more employees in the .same business. The plaintiff’s son was employed by the defendant in Baltimore, Maryland, to do service as an oiler on board the ship “Juaniata,” and was on board as such employee when the ship arrived and docked at the port of Savannah on March 23, 1923., Thereafter during the same day he obtained “short [shore?] leave,” and went away from the ship and the terminals up into the city. Within approximately two hours he started back to the terminals in order to go aboard the ship. The defendant had and maintained a private gate, which it had erected at the foot of a street, for the purpose of closing its terminals, and had in charge thereof a watchman, Hallman, whose duty it was to protect the company’s terminals from trespassers, to guard its property, and to supervise and control the entrance and exit of the defendant’s employees. The petitioner’s son, when he reached this gate on his way back to the ship, found it closed. He was about thirty minutes late, and tried to go through it. Thereupon the watchman, who was inside and on the terminals, refused to allow him to enter, although informed that he was a member of the crew of the ship and wanted to go aboard. TJpon the refusal to allow him to enter an argument arose, and the watchman, becoming angered, picked up a wooden scant-ling, extended it through the gate, and therewith struck the plaintiffs son, inflicting an injury from which he died. It is alleged that the watchman, in refusing the decedent entrance into the gate and in striking him to prevent his entering, was acting in the prosecution, and witbin the scope, of the business of the defendant.
    The defendant demurred upon the grounds, that the petition set forth no cause of action, and that it appeared therefrom that whatever cause of action, if any, the plaintiff might have was one that should be prosecuted before the Georgia Industrial Commission, or a like tribunal in the State of Maryland. The court sustained the demurrer, and the plaintiff excepted.

      Shelby Myriclc, Edwin A. Gohen, Nimoclcs & Nimoclcs, for plaintiff.

      Adams & Adams, for defendant.
   Bell, J.

(After stating the foregoing facts.)

The case is one which suggests a number of questions in relation to the application of the Georgia workmen’s compensation act. The plaintiff in error insists that this law is excluded because the decedent’s employment was maritime. This position is clearly untenable, for the reason that the homicide occurred on land. State of Washington v. Dawson, 264 U. S. 219 (44 Sup. Ct. 302), and cases therein cited. See also annotations 11 A. L. R. 1145; 35 A. L. R. 1008. In tort cases the principal test of admiralty jurisdiction is the locus o£ the injury. 1 R. C. L. 417, § 19. For reasons to be more fully indicated below, we cannot agree that the act of Congress of June 10, 1933 (Federal Statutes, Annotated, Supp. 1933, p. 335), purporting to except the master and members of the crew of a vessel from the workmen’s compensation laws, has any bearing on the case, irrespective of the actual validity and effect of that act. See Washington v. Dawson, supra.

Another question suggested is whether the decedent and the defendant could be subject to the workmen’s compensation act, in view of the fact that the contract of employment was made in another State, and contemplated services only upon the sea. There are decisions holding that the compensation laws, as to parties who may elect to accept or reject their provisions, create an incident to the contract of employment. Does the law of this State operate contractually? If so, could it be said that the decedent and the defendant had it in mind when they made their contract in Maryland, with no other duties to be performed in the State of Georgia than as indicated in the petition? We do not think it at all necessary to enter into a discussion of these questions at this time. See 28 R. C. L. 724, §§ 19, 20. State ex rel. Chambers v. Hennepin County, 139 Minn. 205 (166 N. W. 185, 3 A. L. R. 1351); Crane v. Leonard, 214 Mich. 218 (183 N. W. 204, 18 A. L. R. 292); Reynolds v. Day, 79 Wash. 499 (140 Pac. 681, L. R. A. 1916A, 432, 5 N. C. C. A. 814, 815); Spratt v. Sweeney, 168 App. Div. (153 N. Y. Supp. 505, 9 N. C. C. A. 918); Post v. Burger, 216 N. Y. 544 (111 N. E. 351, Ann. Cas. 1916B, 158, 10 N. C. C. A. 888); State ex rel. Jarvis v. Daggett, 87 Wash. 253 (151 Pac. 648, L. R. A. 1916A, 446, 10 N. C. C. A. 688); American Radiator Co. v. Rogge, 86 N. J. L. 436 (92 Atl. 85, 94 Atl. 85, 7 N. C. C. A. 144); In re Gould, 215 Mass. 480 (102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60); Kennerson v. Thames Towboat Co., 89 Con. 367 (94 Atl. 372, L. R. A. 1916A, 443).

Clearly the present action would not be affected on demurrer thereto by the possibility of a workmen’s compensation law in the State of Maryland. We could not presume that there is such a law in that State. Nothing else appearing, we would take it that the common law prevails there.

It is also insisted in the briefs for the plaintiff in error that her case is not ousted by the compensation act of this State, because the decedent was killed by the wilful assault of a fellow servant, and that his death did not arise out of his employment, it not appearing that the employer should have known of or anticipated the slayer’s violent or vicious character. We think that the cases are generally to the effect that, where a servant is injured by a fellow servant in a dispute arising over the conduct of the master’s business, the injury will not be held not to arise out of the employment though it may have been unjustifiably and wilfully inflicted, whether the vicious or violent character of the assailant was known or should have been anticipated by the master. We do not undertake to say what should be the rule under the Georgia act. Compare Pinkerton National Detective Agency v. Walker, 30 Ga. App. 91 (117 S. E. 281). TJpon the subject generally, see the cases and citations in the following: 15 A. L. R. 574, 576, 584, 586, 588, 589; 21 A. L. R. 758; 6 N. C. C. A. 1010, 1030; 16 N. C. C. A. 930, 934; 17 N. C. C. A. 962, 963; 18 N. C. C. A. 1048, 1049, 1054; 11 N. C. C. A. 240, 243; 18 N. C. C. A. 1050-1053; 14 N. C. C. A. 224; 8 L. R. A. Digest, Workmen’s Compensation, §§ 47, 50.

If the decedent and the transportation company were otherwise subject to the provisions of the compensation law, the mere fact that the plaintiff might not be able to show that the death of her son arose out of and in the course of his employment would not afford a reason for bringing an ordinary suit for damages. If the parties to the contract were in their relation subject to this law, the plaintiff’s only redress against the employer would be under it, and if she had none there because of the particular facts, she would not merely for that reason be entitled to maintain this action. Where the act is operative it is exclusive as between the employee and employer. See Georgia workmen’s compensation act, sec. 12 (Ga. L., 1920, p: 167).

While we have stated that certain questions are suggested, and have referred to some of them above, according to our view of this case it actually involves two questions, and two only. First, was the decedent in the course of his employment at the time of the homicide P . Second, were he and his slayer' fellow servants ? • If both of these questions are answered in the affirmative, the plaintiff cannot recover in this action, irrespective of whether she might successfully prosecute a claim before the Georgia industrial commission, This is "so because, except in the ease of railroad companies, and aside from the compensation act, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business. Civil Code (1910), § 3129.

The decedent left his ship to go into the city on leave. If the relation of master and servant was thereby temporarily interrupted or suspended, then the decedent, as to the transaction in which he met his death, should be regarded as a stranger, and the company would be liable for such tort of the watchman while he was acting within the scope of his employment. The liability, however, would not be that of a master, but such as the defendant would owe even, to a stranger for a tort committed by his. servant in the prosecution of his business. See 4 'LaBatt’s Master & Servant (2d ed.), 4035, 4669, 4679; Savannah &c. Ry. Co. v. Flannagan, 82 Ga. 579 (10) (9 S. E. 471, 14 Am. St. R. 183); Snowball v. Seaboard Air-Line Ry., 130 Ga. 83, 85 (60 S. E. 189); Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706, 711 (62 S. E. 488); Cox v. U. S. Coal &c. Co., 80 W. Va. 295 (92 S. E. 559, L. R. A. 1918B, 1118); Smith v. Humphreyville, 47 Texas Civ. App. 140 (7) (104 S. W. 495); Missouri &c. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314 (10) (108 S. W. 745).

We do not think, however, that the relation of master and servant was wholly suspended at the time the decedent in this case was killed, though possibly it was dormant. The defendant’s grant of shore leave implied a requirement that the employee should return. Masters of vessels have seemingly a peculiar control over the members of the crew, even upon land. See Penal Code (1910), §§ 689, 690, 692, 693, 694, 695; Moore v. Manchester Liners, 79 L. J. K. B. 463, 467. The decedent had arrived at the gate provided for the entrance and exit of employees, and was virtually upon the company’s premises. If his death arose in the course of his employment, and if the watchman was his fellow servant, it is immaterial to the present consideration whether .his death arose out of his employment or not. Aliter if the question were whether a case could be made out before the industrial commission. Upon the question of the existence of the relation of master and servant between him and the company at the time and place of the decedent’s death, the case seems to be controlled in principle by the decision of this court in Dwan v. Great Eastern Lumber Co., 15 Ga. App. 108 (2) (82 S. E. 666), wherein it was held that where, in order to go to his home, an employee had “knocked off” work, without having completed the labors he was employed to perform or having severed his contractual relation to the master, but with the intention of returning to his work, his activities as a servant were merely dormant, and not wholly suspended, while he was being transported to his home upon a tram car operated by his employer to facilitate the performance of his work and the Work of other employees. See also St. Louis &c. Railway Co. v. Welch, 72 Tex. 298 (10 S. W. 529, 2 L. R. A. 839); International &c. Railway Co. v. Ryan, 82 Tex. 565 (18 S. W. 219); East Line &c. Railway Co. v. Scott, 71 Tex. 703, 710 (10 S. W. 298, 10 Am. St. R. 804); Ewald v. Railway, 70 Wis. 420 (36 N. W. 12, 591, 5 Am. St. R. 178); Vick v. N. Y. &c. R. Co., 95 N. Y. 267 (47 Am. R. 36); O’Brien v. Boston & Albany R. Co., 138 Mass. 387 (52 Am. R. 279); Southern Railway Co. v. West, 4 Ga. App. 672 (62 S. E. 141); Self V. Adel Lumber Co., 5 Ga. App. 846 (64 S. E. 112).

Cases might be cited on both sides of the question, as to whether an employee other than a seaman, but injured under similar circumstances, should be held to have been at the time in .the course of his employment. The cases we note next below are only those of seamen, and are cited in support of the proposition that the decedent was in the course of his employment, irrespective of whether the injury arose out of the employment.

In Kitchenham v. “Johannesburg” Steamship, 80 L. J. K. B. (N. S.) 313, Lord Justice Moulton of the English Court of Appeal said: “I consider it, therefore, to be settled that when a ship is in port and a sailor goes on shore leave, his employment is not interrupted thereby.” This case was later affirmed by the House of Lords, 80 L. J. K. B. (N. S.) 1102. See, in this connection, Carter v. Rowe, 92 Conn. 82 (101 Atl. 491); Robertson v. Allen, 77 L. J. K. B. (N. S.) 1072, 98 L. T. 821; O’Brien v. Star Line, [1908] A. C. 1258; Moore v. Manchester Liners, 1910 A. C. 498; Craig v. Calabria, 7 B. W. C. C. 934; Duck v. North Sea Steam Trawling Co., 9 B. W. C. C. 83; Murray v. Allan, 6 B. W. C. C. 215; Kearson v. Kearson, 4 B. W. C. C. 435; 5 LaBatt’s Master & Servant (2d ed.) 5425; 1 Honnold on Workmen’s Compensation, 387; 1 Schneider’s Workmen’s Compensation Law, 562. The rulings in some of the English cases just cited may have been somewhat limited in the later cases. Davidson v. McRobb, 1918 A. C. 304; Webber v. Wansborough Paper Co., 82 L. R. K. B. (N. S.) 1058; Parker v. Black Rock, 83 L. J. K. B. (N. S.) 421; Nash v. Rangatira, 83 L. J. K. B. (N. S.) 1496; Parker v. Black Rock, 84 L. J. K. B. (N. S.) 1373. It was suggested in the McEobb case that the statement quoted from Justice Moulton was obiter.

As already intimated, whether any employee in the situation of this decedent at the moment of his death was in the course of his employment will depend largely upon the view of the particular court, the decisions being far from harmonious. Whether the present case falls within the range of these later English cases or not, we are constrained to hold, under our own decision in Dwan v. Great Eastern Lumber Co., supra, and the above-cited code sections in reference to seamen, and in consideration,- too, of the other authorities cited, that the decedent was in the course of his employment as he attempted to pass through the gate, and thus, by a prescribed route, to enter upon the defendant’s premises and return to the ship, after the absence on leave. He was not a stranger, but occupied the relation of a servant.

Whatever might be held in other jurisdictions, we think it is clear that under the decisions of the courts of this State the decedent and the watchman were fellow servants within the meaning of our Civil Code, § 3129. The rule that in order for employees of a common master to be fellow servants, they must be employed in the same department of a business, known as the “departmental or conassociation doctrine,” does not obtain in this State. See Winn v. Fulton Bag &c. Mills, 15 Ga. App. 33 (82 S. E. 586); Dwan v. Great Eastern Lumber Co., supra; Georgia Coal &c. Co. v. Bradford, 131 Ga. 289 (62 S. E. 193, 127 Am. St. R. 228). The decedent and his slayer being fellow servants, the master was not liable for the death of the one by the other under the circumstances detailed in the petition.

If the relation of master and servant between the decedent and the defendant was suspended, the compensation law would be irrelevant, and the defendant would be liable as for the homicide of any one by its servant within the scope of his employment. If that- relation was subsisting, as we think it was, then, for the reasons stated, the plaintiff cannot recover in this action, irrespective of whether she may successfully prosecute a claim before the industrial commission.

This case is distinguishable from the Cox case, supra, in which the Supreme Court of West Virginia held, and properly we think, that the relation of master and servant between the employer and the person injured was suspended at the time of the injury. The employee was not going either to or from his work, but was returning from a visit to his foreman to explain why on that day he would not work. In the Hendricks cases, supra, the appellee (or party injured) was not subject to the call of his employer, but had determined to quit the employment and was on another pursuit, entirely his own, when injured. Again, in .the case of Smith v. Humphreyville, supra, the person killed was not working in the master’s service “at the time of the accident and had not been since Monday previous to the Saturday when he was killed.”

Nothing we have said above is in conflict with our rulings in the Sumrell case, 30 Ga. App. 682 (118 S. E. 786), or in the Edmondson case, 30 Ga. App. 697 (119 S. E. 39).

The decedent, as he was seeking to enter the gate on his way back to the ship, was “engaged in doing something incidental” to the fulfilling of the duties of his employment, though he was not actually in the performance of such duties. There was no such abandonment of the employment in this case as might, according to the suggestion in the Edmondson case, prevent the successful prosecution of a claim under the compensation law. Nor are the following English cases cited in the last supplemental brief for the plaintiff in error authority for the proposition that the decedent did not sustain to the defendant the relation of employee at the'time of the transaction in question: Hewitt v. “Dutchess” Steamship, 79 L. J. K. B. (N. S.) 867, 102 L. T. 204, 54 S. J. 325, 26 T. L. R. 204; McDonald v. “Banana” Steamship, 2 K. B. 926 [1908], 78 L. J. K. B. (N. S.) 463; Moore v. Manchester Liners, 78 L. J. K. B. (N. S.) 26, 1 K. B. [1909] 417.

We conclude that the case falls under section 3129 of the Civil Code, providing that, “except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business,” and that the court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

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


text:
    15615.
    WOOLWORTH COMPANY v. WOOD.
    1. As against a general demurrer, the petition sufficiently charged that the defendant was negligent in causing or allowing a slippery substance to be placed upon the floor in its store, into which the plaintiff was invited as a customer, and that by reason of the resultant condition of the floor she was injured in slipping and falling thereon.
    2. In an action for damages for the alleged negligence of the defendant in a case like the present, it is not necessary for the plaintiff to negative any negligence or want of ordinary care on her part. This is a matter of defense, and in such a case the petition in this respect will he good, unless from the avermezits made it affirmatively appeaz's that the injuries were the result of the plaintiff’s own negligence or failure to exercise ordinary care.
    3. Negligence on the part of the defendant, and resulting injury, being alleged, and no failure to exez-eise ordinary caz'e, and no negligence amounting thereto, on the part of the plaintiff, appearing, the petition set forth a cause of action. The general demurrer thereto was properly overruled.
    Decided August 11, 1924.
    Damages; from city court of Atlanta — Judge Reid. April 12, 1921.
    Mrs. Wood sought to recover for injuries alleged to have been received by her while a customer in the 'defendant’s store, when she slipped and fell because of an alleged negligent condition of the floor. The case came to this court on exceptions to the overruling of a general demurrer to the petition.
    The petition as amended contained, among others, the following allegations:
    “Petitioner alleges that defendant negligently spilled, poured, placed, or put some kind of floor oil, grease, chocolate candy, or other slippery substance on the floor of its store at No. 11 Whitehall St., in said State and county, and allowed said floor oil, grease, chocolate candy, or other slippery substance to remain on said floor, and that said floor oil, grease, chocolate candy, or other slippery substance was on said floor on January 21, 1922.
    “Petitioner alleges that said floor appeared to be safe from ordinary inspection at such points and places as petitioner was able to see same, and didn’t look dangerous to petitioner, but appeared to have been oiled with floor oil, which petitioner knew was neither slippery nor dangerous providing said floor oil had been properly and correctly applied to said floor, and that by reason of the throngs and masses of people crowding and jamming into the defendant’s store at No. 11 Whitehall St. as aforesaid at the time petitioner fell, she was unable to see the floor of defendant’s store so as to inspect same and ascertain whether or not said floor was safe to walk upon; and that by reason of said throngs, crowds and masses of people who were in defendant’s store at the invitation of defendant, she was unable to see the floor upon which she was walking and relied upon the implying [implied?] warranty that defendant’s floor was reasonably safe for petitioner and other members of the public to walk upon and pass over for purpose of purchasing defendant’s wares. Petitioner charges that defendant carelessly and negligently improperly applied the floor oil upon its floor, in that they poured, put, or placed upon said floor at the place or point where petitioner slipped and fell, and that said floor oil, by reason of same being negligently, carelessly and improperly applied in that a large quantity of said oil was put, poured or placed upon the floor at and upon the place where petitioner slipped, made said floor slippery and dangerous to walk upon, and that defendant knew, or could have known by the exercise of ordinary care and diligence, that said floor at the point and place where petitioner slipped and fell was dangerous. And that defendant’s failure to exercise ordinary care and to ascertain that its said floor was improperly oiled with floor oil in that too much floor oil was spilled, poured, put, or placed upon its floor at the point, or place where petitioner slipped, fell and was seriously and permanently injured.
    “Petitioner alleges that it was the duty of defendant to inspect the floors of said store at No. 11 Whitehall street to ascertain whether or not it was reasonably safe for petitioner and other members of the public to enter and pass over for the purpose of purchasing defendant’s wares, and she charges that defendant’s failure to do so constitutes negligence, for which defendant is liable to petitioner.
    “Petitioner alleges that defendant knew or should have known had it used ordinary care and diligence that the floor in its said store above referred to at the place where petitioner slipped, fell and was seriously injured was dangerous, and petitioner charges that defendant’s failure to use ordinary care and diligence to ascertain the condition of the floor in its store above referred to and to make same safe was negligence, and for which it is liable to this petitioner in damages.
    “Petitioner alleges that defendant was negligent in that it permitted grease or other slippery substance to be and remain on the floor of its store where the public, one of which is petitioner, who are customers of defendant’s store must-necessarily walk and pass oyer such substance.

      “Petitioner alleges that on account of the negligence of the defendant in improperly putting, pouring, or placing floor oil, grease, or other slippery substance on its floor at No. 11 Whitehall street, and allowing same to remain thereon, made said floor dangerous for the public to pass over, and that said defendant knew, or should have known, that the throngs, crowds and masses of people jamming into its store made it impossible for petitioner and other members of the public to see the floor of its store and to ascertain whether there was any grease, floor oil, or other foreign or slippery substance thereon. And petitioner alleges that defendant’s negligence in permitting said improperly applied floor oil, grease, or other slippery substance to remain on the floor of its store at No. 11 Whitehall street, Fulton county, Georgia, was the direct proximate cause of petitioner’s injury and subsequent danger. All of which she charges is the result of defendant’s negligence, and she lays her damages in the sum of $25,100, for which she asks judgment against defendant.”

      Wharton 0. Wilson, for plaintiff in error.

      Thomas B. Scott, contra.
   Bell, J.

(After stating the foregoing facts.)

The petition in this case, as against a general demurrer, sufficiently charged that the defendant was negligent in causing or allowing a slippery substance to be placed upon the floor of its store, into which the plaintiff was invited as a customer, and that by reason of the resultant condition of the floor she was injured in slipping and falling thereon. Mattox v. Lambright, 31 Ga. App. 441 (120 S. E. 685). In the case cited most of the decisions relied on by the plaintiff in error are analyzed, and they are distinguishable upon their facts from the case now before us.

In an action for damages for the alleged negligence of the defendant in a case of this character, it is not necessary for the plaintiff to negative any negligence or want of ordinary care on her part. This is a matter of defense, and in such a case the petition in this respect will be good unless from the averments made it affirmatively appears that the injuries were the result of- the plaintiff’s own negligence or failure to exercise ordinary care. Martin v. McAfee, 31 Ga. App. 690 (2) (122 S. E. 71). The rule is otherwise as to a suit by a servant for injury arising from the negligence of the master, in which “the servant must not only make it appear that the master failed to perform his duty’ to furnish him a safe place to work, or to warn him of an unknown danger, but also that the servant injured did not know and had not equal means of knowing of the defective condition of the instrumentality employed or of the danger, and by the exercise of ordinary care could not have known thereof; and it is necessary to allege these facts in the complaint.” Dunbar v. Hines, 152 Ga. 865, 871 (111 S. E. 396); Carolina Portland Cement Co. v. Turpin, 126 Ga. 677 (55 S. E. 925); Western & Atlantic R. Co. v. Casteel, 138 Ga. 579 (2) (75 S. E. 609).

Under the facts as detailed in the petition it cannot be said as a matter of law that the petition affirmatively discloses that the plaintiff failed to exercise ordinary care, or was guilty of negligence amounting to a want of such care. The petition set forth a cause of action, and the court did not err in overruling the general demurrer.

Judgment affirmed.

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


author: Stephens, J.

text:
    14830.
    London Guarantee & Accident Co. Ltd. v. Riley & Co.
   Stephens, J.

1. Where a bank check containing an indorsement that it is acknowledged by the payee as payment in full of all claims which the payee may have against the maker is mailed by the maker to the payee, accompanied by a letter from the maker to the payee containing a statement that the payment evidenced by the cheek is tendered in full settlement of all claims of the payee against the maker, and where the cheek is cashed and the proceeds thereof are collected by the payee and applied to the payee’s own use and not tendered back to the maker, the inference is authorized that the payee accepted payment for the amount evidenced by the check, in full satisfaction of all claims against the maker of the check. This is true although the agents of the payee who actually received the check and deposited it to the credit of the payee in a bank in which the payee did business may not have had authority to bind the payee to an agreement in satisfaction of the claim.

2. In a suit by the person who was the payee of the check, against the person who was the maker, to recover for an alleged balance due the plaintiff by the defendant above the amount represented by the check, the jury were authorized to find in favor of the defendant’s plea of accord and satisfaction, where the evidence authorized the inference that the defendant had bona fide disputed the justice of the plaintiff’s claim, whether the defendant’s contention was meritorious or not, and that the plaintiff had in full settlement received and retained the proceeds of the check mailed and tendered under the circumstances above narrated.

Decided August 13, 1924.

Action for money had and received; from city court of Atlanta— Judge Eeid. May 21, 1923.

Westmoreland & Smith, for plaintiff.

Underwood, Pomeroy & Haas, for defendant.

3. Applying the above rulings, and also as the law of this case the rulings of this court upon a former hearing of the case (27 Ga. App. 686), the trial judge did not err in overruling the plaintiff’s motion for a new trial based only upon the general grounds.

Judgment affinned.'

Jenkins, P. J., and Bell, J., conenr.


text:
    14892.
    Forster v. Levy.
    Decided August 13, 1924.
    Complaint; from Fulton superior court — Judge Humphries. June 20, 1923.

      Horsey, Brewster, Howell & Heyman, W. P. Bloodworth, for plaintiff in error.

      Slaton & Hoplcins, contra.
   Stephens, J.

1. Where a seller of merchandise delivered to the purchaser had had his attention called by the purchaser to the fact that the shipment contained a number of articles which the purchaser had not contracted for, and had requested the purchaser not to return the articles but to give the seller detailed information respecting them, and stated that he would promptly advise the purchaser what to do with the articles, and where the seller afterwards stated to the purchaser that payment for the goods not ordered would not be expected of the purchaser, and where the purchaser afterwards tendered to' the seller a remittance, accompanied with a statement to the seller that the goods which the purchaser had not ordered were in the purchaser’s possession and were being held by him awaiting the seller’s shipping instructions, although the purchaser had in the meantime intended to resell and thereby accept the merchandise not ordered, which intention was communicated to the seller, but had never in fact been put into effect, no inference arises that the merchandise not ordered had been accepted by the purchaser.

2. A mere intention on the part of a person to purchase goods which he had not contracted for, but which a prospective seller had placed in his possession for the purpose of acceptance, is not alone, in the absence of any overt act of acceptance, sufficient to authorize the inference of an acceptance.

3. In a suit by the seller against the purchaser, to recover for the articles not contracted for, where the undisputed evidence established the above state of facts, a finding in behalf of the plaintiff was without evidence to support it.

Judgment reversed.

Jenkins, P. J., and Bell, J., eonour.


text:
    14926.
    Mendel v. Barrett & Son.
   Bell, J.

1. While a landlord does not waive his right of action against his tenant merely by allowing a subtenant or assignee of the original tenant to remain in possession of the premises, even though he accept payment of the rents from the subtenant or assignee with knowledge of such subletting or assignment, the original tenant may be released from liability by an agreement with the landlord for the substitution, or by the landlord’s electing to proceed against the subtenant as his own tenant. See Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983); Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178). “One tenant may replace another by virtue of an express contract of substitution; or such a contract may be. created, as may any other similar contract) by a mutual course of eonduct that indicates an agreement to effect such substitution, as well as by spoken or written words.” Golden v. Adler, 16 Ga. App. 342 (2) (85 S. E. 349); 16 R. C. L. 847, § 347.

2. The evidence was sufficient to authorize the inference of an express contract whereby the plaintiff landlord agreed to a substitution of the first assignee of the written lease as his tenant in lieu of the original lessor; but, whether such agreement when standing alone would be binding and enforceable in view of the fact that the original lease was for a period of more than one year, and therefore necessarily in writing, and the agreement to substitute was in parol, the evidence nevertheless warranted the conclusion that the plaintiff expressly agreed to accept the second assignee of the written lease as his immediate tenant, and that this agreement was so far executed as to be taken out of. the statute of frauds. If, as the'evidence offered in behalf of the defendant tended to show, the second assignee paid a sum'of money to the first assignee for a transfer of the lease, with the understanding with the plaintiff that he would adopt the second assignee as his immediate tenant, and if such second assignee thereupon exercised a control over the premises to the extent of allowing the same to be used by another, to whom he made a third assignment of the lease and from whom the plaintiff thereafter accepted the rents, the agreement between the landlord and the second assignee would operate as a substitution of the second assignee as the immediate tenant in lieu of any prior tenant. -Although the agreement was in parol, it was removed, by execution, from the operation of the statute of frauds; and this is so irrespective of whether such second assignee became a tenant at will or for the period of the written lease. Civil Code (1910), §§ 3693, 3223; Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Sikes v. Carter, 30 Ga. App. 539 (2) (118 S. E. 430); Ambrose v. Ambrose, 94 Ga. 655 (19 S. E. 980); Bliss v. Gardner, 2 Ill. App. 422 (2). The jury were, therefore, authorized to find that the original lessor was discharged from liability to pay the rents.

3. “Where long extracts from the charge of the court'are excepted to, the plaintiff in error must specify what parts of them are erroneous or inapplicable. If this be not done, and some parts be applicable, a new trial will not be granted because of such charges.” Grace v. Martin, 83 Ga. 245 (5) (9 S. E. 841); Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (3 a) (89 S. E. 383); Seaboard Air-Line Ry. v. Lyon, 18 Ga. App. 266 (5) (89 S. E. 384). Under this rule a new trial should not he ordered upon the first ground of the amendment to the motion for a new trial, even though some parts of the charge therein excepted to may have been erroneous, other parts being applicable and correct.

Decided August 13, 1924.

Distraint; from Walton superior court — Judge Fortson. June 16, 1923.

M. Mendel sued out a distress warrant against C. L. Barrett & Son for wbat he alleged to be a balance due for the rent, at $65 per month, of a store leased to the defendants in writing on November 25, 1919, for the period of two years from January 1, 1920. The contract contained no provision for assignment or subletting. The defendants filed a counter-affidavit, in which they alleged that they had been released from liability under the contract by the elections of the plaintiff to treat successive assignees of the lease as his immediate tenants.

The defendants, without entering possession, assigned their lease to B. B. Barrett. The plaintiff was consulted before this assignment was made; and, with reference to a conversation had with a member of the defendant firm, he testified: “He asked me if I objected to B. B. Barrett having the store. I says, 'No.' I told him B. B. Barrett was as good for his rent as he was. . . I meant by that I had as soon risk B. B. Barrett as C. L. Barrett & Son, — no difference to me. I had my contract. That is what I meant for him to understand.” Besides other testimony with reference to this'transaction introduced by the defendant, the 'evidence of B. E. Barrett was substantially to the effect that he talked with the plaintiff, and that the plaintiff expressed his satisfaction at having the witness for a tenant. But B. B. Barrett, also without entering under the lease, assigned it to Hearn Hardware Company, and, with reference to this transaction and the plaintiff's, connection with it, he testified: “I went to Mr. Hearn and told him if he was acceptable and it was agreeable with Mr. Mendel, I would lease him that house; and I think the difference was $210 for the term of the lease. I told Mr. Hearn if Mendel would agree to take him in my stead that I would transfer this lease to him. I went to Mr. Mendel and he told me he would. I told Hearn to talk to Mendel, and he told me he did, and under those terms I transferred that contract, and I think Mr. Hearn paid me $210. Business was very flush and houses were in great demand. Mr. Hearn was to take my place and pay the rents.” The testimony of Mr. Hearn upon the same subject was as follows: “After I had talked with Mr. Barrett I saw Mendel. Mr. Mendel mentioned it to me about taking over this lease. He says, 'I heard you wanted to get a place for your hardware company.’ He says, 'I would be glad to have you down there in this end of town; it would help business to get a hardware store down here.’ . . He says, 'I heard you got Mr. Barrett’s place.’ I says, 'No, I have not got it yet. . . I can’t afford to move a hardware store for two years. . . I have got to have a lease for five years,’ . . and Mendel told me if I would get B. R. Barrett’s lease that he would give me a lease for five years, and then I went over and told Mr. Barrett I would take that lease, and we traded, and I paid Mr. Barrett $210 with the understanding I would get a lease from Mendel for five years. I paid the $210 and got this transfer. . . He [Mendel] had promised to lease it to me for five years before I bought out Mr. Barrett. I traded with Mr. B. R. Barrett with that understanding. I told him I did not want it if I could not get it for over two years, and he said a lease any longer than two years, and I can’t give you any lease over that time, but says I would be glad for you to take it. That was after I had expended my money.”

5. The plaintiff relied for a recovery upon the obligations of the defendants as contained in the original lease contract, and the court did not err as against him in stating the contentions of the parties as in the excerpt complained of in the second ground of the amendment to the motion for a new trial.

6. The evidence authorized the verdict found for the defendants, and for no reason assigned did the court err in overruling the plaintiff’s motion for a new trial.

Judgment affirmed.

Jenlmis, P. J., and Stephens, J., concur.

The plaintiff testified: “Mr. Hearn told me he got a contract from B. R. Barrett, and I told him I was glad to have him, and he asked me for three years longer term. . . He offered me $75 a month for the next three years after this contract was out, and everything was so booming I thought if he offered me $75 I could get $100.” The plaintiff further said, in effect, that he represented to Mr. Hearn that he did not have the right to lease the store for the three additional years, “for an excuse.”

The several transfers were made during the first part of 1920. J. F. Whatley was occupying the premises as a tenant of Mendel at the time of the execution of the original lease to C. L. Barrett & Son, and was not required by any of the parties to vacate, although Mendel testified that lie gave Whatley a notice to vacate, in order to obtain possession for C. L. Barrett & Son. Hearn Hardware Company, without consulting the plaintiff, assigned the lease to Whatley, who continued to occupy the premises thereunder and for some time paid the rents. The plaintiff testified: “I collected rents out of Whatley after he Avent in possession; he paid me and I receipted him; he paid me $65 per month. I receipted the rent, not as tenant. I collected that several months. . . As long as he paid it I was not trying to collect from those people.”

The verdict was in favor of the defendant. The plaintiff’s motion for a nerv trial was overruled, and he excepted.

In the first special ground of the motion for a neiv trial error is assigned upon the folloAving charge of the court: “Mr. Bailiff, bring the jury in. Gentlemen, in charging you just now I misstated the laAv and I did not read the laAv full enough to you, the law in reference to the statute of frauds; and I will ask you to disregard Avhat I have stated heretofore on that subject, and I will now give it to you correctly in charge. It is in reference to the making a substitution of the contract. The law says, to make the folloAving obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized; that is, any contract that is not to be performed within one year from the making thereof. The law further says the foregoing section does not extend to the following cases: AAdien the contract has been fully executed; where there has been performance on one side, accepted by the other in accordance Avith the contract; where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the contract did not compel a performance.

“I charge you if you believe from the evidence in this case that a contract Avas made in writing by C. L. Barrett & Son and Mendel, and that later that Mendel and 0. H Barrett & Son agreed that C. L. Barrett & Son Avould be released from that contract, that agreement to release the contract need not be in writing.'

“I charge you further that if you believe that subsequent to the making of the contract with 0. L. Barrett & Son and Mendel, that 0. L. Barrett & Son undertook and agreed with B. B. Barrett to transfer their interest in the lease to 13. B. Barrett and that Mr. Mendel was brought into the conference, or the contract, and that all these parties agreed among themselves that a new contract would be eutered into, which .would be a substitution of the old contract, and that was a -complete and entire contract, then I charge you that contract would have to be in writing to the extent it would have to be signed by the party charged with the performance of it. Mendel would not have had to sign that contract, but it would have had to have been signed by the party obligated in that case, which would have been B. B. Barrett.

“I repeat that if you believe from the evidence in this case that C. L. Barrett & Son informed Mendel that they had transferred their lease to another and Mendel assented to that, why that would release C. L. Barrett & Son, regardless of whether a new contract, if any, with Mendel made with B. B. Barrett was in writing or not; if C. L. Barrett was released by Mendel and that release was not a part of a three-cornered contract, so to speak, why that need not have been in writing. Mendel could have released him by a verbal agreement.

“Further, I charge you that if you believe in this case that there was a three-cornered agreement, so to speak, and that Mendel and B. B. Barrett and C. L. Barrett all agreed that there would be a substitution, and that contract was partly performed, that would take it out of the statute of frauds, if there had been such part performance as would make it a fraud not to enforce it, and then it need not have been in writing, under the section of the law I have read to you. I inadvertently misstated the law to you, and called you back to correct it, and you will disregard the law as I first gave it to you and apply the law as I gave it to you this second time.”

The exception to this charge was that it was “hurtful to the defendant [plaintiff?] in that it was calculated to confuse the jury; that said charge is not applicable under the law and the facts of this case; that any agreement between C. L. Barrett & Son, B. B. Barrett and Mendel as claimed was void for want of a consideration and a nudum pactum in so far as Mendel is concerned; that, the contract being in duplicate, or the lease between the parties being executed in duplicate, Mendel would be bound by no transfer of the lease held by Barrett & Son unless entered upon the duplicate held by Mendel and agreed to by him, and that therefore the charge above quoted is erroneous and hurtful to the movant.”

In the second special ground of the motion for a new trial error is assigned upon the following excerpt from the court’s charge: “These are the contentions of the parties in this case,— the plaintiff relying upon his rental contract; the defendant relying upon the facts as stated in the counter-affidavit, the substance of which I have just repeated to you.” The movant contends that the plaintiff’s “rights to recover were thus confined to the rental contract alone, when he claimed other grounds of recovery and denied the contentions of the defendant, and this charge was calculated to confuse the jury and to confine the plaintiff entirely to the evidence of his contract, and to exclude his other testimony in the case.”

Orrin Roberts, for plaintiff.

R. L. & II. C. Cox, for defendants.


text:
    15230.
    Hall County v. Quillian.
   Stephens, J.

1. A public office being a public trust or agency, and the incumbent having no property right therein, and therefore no contractual right of continuous service therein, the compensation fixed by law for services rendered by a public official may, unless prohibited by law, be reduced during his term of office. Gray v. McLendon, 134 Ga. 224 (67 S. E. 859).

2. The act of 1913 (codified in Park’s Code, §§ 1116 (g), (h), (i) ), creating the board of county tax-assessors, and empowering the board of county commissioners in certain counties to appoint the tax-assessors for terms of six years, and providing that the tax-assessors “shall be paid as compensation for their services such an amount as may be fixed from time to time by the board of county commissioners,” but not less than $3 per day each, does not prohibit the county commissioners from reducing, during the term of office of a tax-assessor, the compensation originally fixed in excess of $3 per day. Since the board of county commissioners is not otherwise prohibited from reducing the compensation of the tax-assessors during their terms of office, the board has the right, at any time during the term of office of a tax-assessor appointed under this act, to reduce and reffx his compensation, provided the compensation is not less than $3 per day.

3. The power given to the board of county commissioners to fix from time to time the compensation of the tax-assessors is to be construed as giving the board the right to change the compensation- of any tax-assessor during his term of office.

Decided August 13, 1924.

Complaint; from Hall superior court — Judge J. B. Jones. November 10, 1923.

H. II. Perry, A. G. Wheeler, for plaintiff in error.

Pd. Quillian, Luther Roberts, G. N. Davie, contra.

4. Applying the above rulings, a tax-assessor who was appointed for the term of six years at a fixed compensation of $5 per day cannot, after having served the appointed time, collect compensation from the county for his entire term, at the rate thus originally fixed, after the county commissioners had, during the term, reduced such compensation. He can only recover the compensation fixed from time to time by the board of county commissioners. Such fixed compensation having been paid, the assessor cannot, in a suit against the county, recover any additional compensation at the rate originally fixed upon entering upon his term of office.

5. In a suit by the assessor against the county, a finding for the plaintiff for such excess was without evidence to support it, and contrary to law.

Judgment reversed.

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


text:
    15234.
    Stembridge v. Wright et al.

   Stephens, J.

1. A municipal magistrate such as a mayor or a recorder can inquire into the violation of a State statute only in a case pending before him wherein the defendant is charged with the violation of an ordinance of the municipality. Penal Code (1910), § 952.

2. In no event has a municipal magistrate jurisdiction to assess a fine against a person for the violation of a State statute.

3. Where a person brought before a municipal magistrate is charged only with the violation of a State statute prohibiting the running of a motor-vehicle along the public highway without a State license, or without a license number plate upon the vehicle, and where such person is nowhere charged with the violation of a municipal ordinance, the magistrate has no jurisdiction whatsoever to act in such a case, and the imposition by him of a fine for the violation of such statute, and the ordering of the defendant held in custody until the fine is paid, is an illegal act. Such custody is illegal and constitutes an illegal imprisonment, for which the magistrate and the police officer holding the defendant in custody for the purpose of enforcing the payment of the fine with knowledge of all of the facts are both liable in tort to the person thus illegally imprisoned.

4. Although an arrest may be legal and regularly made, an imprisonment thereafter is unlawful when used as a duress by which money is illegally extracted from the person held in restraint. An arrest knowingly made for such illegal purpose, or knowingly used for such illegal purpose, is illegal, and the person making such arrest and holding the person arrested in custody is liable in tort for false imprisonment.

5. It is no defense that a person perpetrating an illegal arrest or imprison]iu:n(, is ignorant of tlie illegality of his acts. Knowingly committing or participating iii an act which is in fact illegal is sufficient to fix liability.

Decided August 13, 1924.

Action for false imprisonment; from Gilmer superior court— Judge Blair. October 8, 1923.

Statement by Stephens, J. Stembridge brought suit against Wright and Waters for false imprisonment. Upon the trial the following evidence was in substance adduced: The defendant Wright was the mayor-pro tern., and the defendant Waters was the marshal, of the town of Ellijay. On December 30, 1921, the plaintiff, while in said town, was approached by said marshal and asked if a certain motor-vehicle which bore no State license number plate was the property of the plaintiff; the plaintiff admitted to the marshal that the vehicle belonged to plaintiff and that it had been that day driven to said town by his son under the authority and direction of plaintiff; whereupon the marshal placed the plaintiff under arrest, charged with the violation of the State statute prohibiting the operating of a motor-vehicle without a State license number plate; the marshal then procured the defendant Wright, and Wright, after learning of the above facts, fined the plaintiff $10 for the violation of the said State statute and directed the marshal to hold the plaintiff'in custody until the payment of the fine; the plaintiff soon thereafter paid the fine and was released. At the conclusion of the above evidence the trial judge granted a nonsuit, and the plaintiff excepted.

Morris, Ilawlcins & Wallace, for plaintiff.

A. H. Burtz, for defendants.

6. In a suit against a magistrate and police officer for an alleged illegal arrest and imprisonment growing out of the above-narrated facts, an allegation in the petition that one of the defendants violated the law of the State, in proceeding to the place where the alleged illegal act was perpetrated, in a motor-vehicle upon which the State license had not been paid, was irrelevant and was properly stricken on demurrer.

7. The evidence for the, plaintiff authorized a finding that he had been illegally imprisoned by both defendants, and the grant of a nonsuit was error.

8. See, in this connection, the following authorities: Glazar v. Hubbard, 102 Ky. 68 (42 S. W. 1114, 39 L. R. A. 210, 80 Am. St. R. 340); Hackett v. King, 88 Mass. 58; Vanderpool v. State, 34 Ark. 174.

Judgment reversed.

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


text:
    15236.
    Fourth National Bank of Macon v. Swift & Co.
    Decided August 13, 1924.
   Bell, J.

1. Choses in action are not liable to be seized and sold under execution unless made so specially by statute. Civil Code (1910), § 594S. While stock in a corporation is a chose in action, and, therefore, in the absence of a statute would not be subject to levy and sale under execution,.it is specially made subject thereto by the act of 1822 (Cobb’s Dig. 511, 512), Civil Code (1910), §§ 6035, 6036. Tuttle v. Walton, 1 Ga. 43; Owens v. Atlanta Trust & Banking Co., 122 Ga. 521 (2) (50 S. E. 379); McGehee v. Cherry, 6 Ga. 550 (1); Buena Vista Loan &c. Bank v. Grier, 114 Ga. 398 (3) (40 S. E. 284); Tompkins v. American Land Co., 25 Ga. App. 326 (103 S. E. 190).

2. Where the owner of shares of stock in a bank of this State borrowed money and deposited the stock certificates, duly assigned, as collateral security for the debt, on February 13, 1922, and the pledgee sued upon the debt and obtained a judgment on May 7, 1923, in which a special lien upon the stock from the date of the pledge was confirmed, and where the shares of stock under the judgment were thereafter levied upon and sold by the sheriff, under a fi. fa. issued thereon, the lien of a judgment against the shareholder, obtained by another creditor on February 9, 1922, upon which was duly issued an execution which was entered upon the general execution docket and placed in the hands of the sheriff with a claim for the fund, was entitled to priority over the lien of the pledge, in a contest in the nature of a money rule. Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619 (28 S. E. 393); Bank of LaFayette v. Wardlaw, 20 Ga. App. 741 (1, 2) (93 S. E. 236). This is true although the pledgee had no actual knowledge of the prior judgment at the time of the pledge. Civil Code (1910), §3321; Thomson v. McCardel, 27 Ga. 273; Hixon v. Callaway, 2 Ga. App. 678 (3) (58 S. E. 1120).

3. While the lien of the judgment of February 9, 1922, would not have attached to the stock as against the corporation until levy and notice to the corporation (Owens v. Atlanta Trust & Banking Co., supra; Civil Code of 1910, §§ 6035, 6036), and a levy'upon the shares, without the statutory notice, would have been subject to arrest on illegality by the defendant in execution, the owner of the stock_ (Weaver v. Tuten, 144 Ga. 8 (5), 85 S. E. 1048), yet in a money rule between others, such as this, over a fund derived from a sale of the stock, the older judgment does not lose its priority because its fi. fa. was not actually levied, although the fi. fa. based upon the younger judgment was so levied and the lien thereof related back to the date of the pledge, such lien being subsequent in date to the older judgment. Bank of LaFayette v. Wardlaw, 20 Ga. App. 741 (2) (93 S. E. 236), and eases cited. Bee also Civil Code (1910), §2219; Southwestern R. Co. v. Thomason, 40 Ga. 408; Buena Vista Bank v. Grier, supra; American National Bank v. East Atlanta Bank, 147 Ga. 750 (95 S. E. 286).

Judgment affirmed.

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

Money rule; from city court of Eastman — Judge O. J. Franklin. November 16, 1923.

Certiorari was granted by the Supreme Court.

Walter BeFore and James G. Estes, for plaintiff in error.

Lawson & Ware, contra.