text:
    17088.
    Augusta Motor Sales Company v. King.
    Bills and Notes, 8 O. J. p. 979, n. 4, 6; p. 1053, n. 51.
    Contracts, 13 O. J. p. 625, n. 9, 10, 12.
    Principal and Surety, 32 Oye. p. 59, n. 47; p. 138, -n. 50 New, 54 New.
   Stephens, J.

1. Where the execution of a contract is procured by duress, the person executing it may, after removal of the duress,' waive the duress'and ratify the contract. 9 R. C. L. 725, § 15; 13 C. J. 625, § 688; 35 A. L. R. 866 (note).

2. An admission of liability under the contract, made to the opposite party by a party who executed it under duress, after removal of the duress, amounts to a ratification of the contract and a waiver of the duress.

3. In a suit upon a promissory note, where the defendant pleaded that he executed the note as surety for his son under a threat of criminal prosecution of the son, made by an agent of the plaintiff, and that therefore he was not liable on the note, where it appeared conclusively from the evidence that he did not repudiate the contract until after he was sued on the note, more than two years after its execution, and that about two years after its execution and after the removal of the duress he stated in a letter to the plaintiff’s attorney who held the note for collection that he had already made payments on it, and in the letter asked for indulgence in payment of the amount due, the evidence demanded an inference that the letter amounted to a waiver of the duress and a ratification of his execution of the note as surety. Strickland v. Parlin & Orendorf Co., 118 Ga. 213 (3) (44 S. E. 997).

Decided March 3, 1927.

Complaint; from Columbia superior court — Judge Franklin. December 18, 1925.

John J. Jones, Callaway & Howard, for'plaintiff.

W. D. Lanier, for defendant.

4. Where the alleged duress consisted in a threat made by the agent of the payee of the note, at the time of its execution by the defendant as surety, that if he did not sign it, the party making the threat would prosecute his son for criminally disposing of mortgaged property, and where upon the trial the defendant testified that after he' signed the note he investigated and learned from the son that the cows which constituted the mortgaged property claimed to have been disposed of by the son had died, it appeared that the son was not guilty of the criminal conduct charged, and that upon the defendant’s ascertaining this fact the duress was removed. Where the defendant further testified that he and the son had an understanding by which the defendant made a payment on the note for the son, the inference was demanded, construing the defendant’s testimony most strongly against him, that at the time of the arrangement with the son for the payment upon the note, the defendant had acquired knowledge of the innocence of the son, and that therefore the duress was removed.

5. A letter written by the defendant to the plaintiff’s attorney after the payment had been made upon the note by the defendant for his son, the maker of the note, which recited that the representative of the plaintiff had promised the defendant that if he made a substantial payment upon the note he would- be given all the time that he needed, that the defendant had paid to the representative of the plaintiff certain stipulated amounts upon the note, which it had “strained” him very much to do, that it was utterly impossible for him to raise any money, and that therefore he would have to ask for a postponement of matters until fall when he would do his “very best” for the representative of the plaintiff, and that he had some corn which he would be very glad for the representative of the plaintiff to take at a price, was an admission of the defendant’s liability on the note, and amounted to a waiver of the duress and a ratification of the execution of the note by him as surety.

6. Where the defense filed to a suit upon a promissory note sets up in denial of liability matters which inhere in the execution of the note, as that its execution was procured by fraud or duress, and does not set up matters in confession and avoidance, the burden generally is upon the plaintiff to make out his case by a preponderance of the evidence. A charge to the jury in this case that the burden of proof was upon the plaintiff to make out his ease by a preponderance of the evidence was not error.

'7. The evidence demanded a verdict for the plaintiff, and the verdict for the defendant was unauthorized.

Judgment reversed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17236.
    Groover v. Durrence et al.

    Boundaries, 9 C. J. p. 250, n. 73 New; p. 251, n. 79 New; p. 252, n. 10 New.
    Trial, 38 Cyc. p. 1379, n. 2; p. 1380, n. 5; p. 1388, n. 82.
   Stephens, J.

1. This being an application for the processioning of land, brought by certain persons as tenants in common, and it not appearing that any other person had any title to the land, the court did not err in overruling the protestant’s motion to dismiss the case upon .the ground that there was a failure to make all the tenants in common parties plaintiff to the proceeding.

2. Where a writing, such as one purporting to be an assignment of dower, including a plat of land, made by dower commissioners more than thirty y^ars before it was offered in evidence in this case, could, under a proper showing of custody, etc., have been admitted in evidence as an ancient document, without proof of its execution, an objection to its admission, upon the ground that it did not appear that the document was recorded as required by law, was insufficient to show error in admitting it in evidence. Durrence v. Groover, 160 Ga. 680 (2) (129 S. E. 29).

3. In a hearing upon a protest to a return of processioners, where it appeared that in marking out the land lines they were guided by a certain plat made by commissioners in assigning dower, and where it conclusively appeared that the true line between the lands in dispute was determinable by the lines marked on the dower plat, the introduction in evidence of another plat, made by a private surveyor without the authority of or the consent of the protestant, which to all intents and purposes amounted practically to a retracing of the land lines in accordance with the dower plat, could not have influenced the jury adversely to the claim of the protestant, and therefore was harmless.

4. A suit between parties over the title to the dower land in no way affected the land lines between that land and the land of the protestant, and the admission in evidence of the record of that suit was harmless to the protestant.

5. Where the only dispute was as to the dividing line between two tracts of land, a survey of other boundaries was unnecessary (Civil Code of 1910, § 3823), and’where it appeared conclusively that the surveyor for the processioners followed the line between the lands of the litigants as shown by the dower plat, any errors made upon the lines between other landowners, or any discrepancies in the dower plat and the plat made by the processioners, were immaterial and harmless. .

6. Where it appeared that both the applicants and the protestant claimed under a common grantor, the applicants claiming by inheritance from the heirs of the estate as reversioners' after the expiration of the life estate which was set aside as dower, and the protestant claiming under a deed made by the administrator of the estate, and it appeared conclusively, from the evidence, that the dower 'was set aside before the execution of that deed, the objection that the processioners should have followed the description in the deed under which the protestant held, instead of the dower plat, was without merit.

7. Where it appeared that the widow to whom the dower was set aside, and under whom the applicants claimed, went into possession of the lands assigned as dower, it was immaterial that no judgment of the court, setting the dower aside, appeared. Callaway v. Irvin, 123 Ga. 344 (51 S. E. 477); Wells v. Dillard, 93 Ga. 682 (20 S. E. 263); Peters v. West, 70 Ga. 343.

Decided March 4, 1927.

Processioning; from Tattnall superior court — Judge Sheppard. January 19, 1926.

W. T. Burkhalter, for plaintiff in error. J. T. Grice, contra.

8. The evidence is not conclusive that there was ever established by agreement a line between the lands of the protestant and those of the applicants.

9. The evidence authorized a finding sustaining the return of the processioners, and no error of law appears.

Judgment affirmed.

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


author: Stephens, J. Jenkins, P. J.,

text:
    17289.
    Fort et al. v. Sparks et al.

    Mines and Minerals, 40 C. J. p. 1014, n. 36.
   Stephens, J.

1. Where a contract provides that the owners of land, as the parties of the first part, lease to the parties of the second part, for a consideration, the right to take a certain product known as Fuller’s earth out of the land of the parties of the first part, that the parties of the second part pay a certain sum — as $2500 — to the parties of the first part as a part of the consideration, and that the parties of the second part have an option for ninety days “to make a more thorough investigation as to the quality of fuller’s earth contained in and upon said lands, to determine its commercial value, and that the said parties of the second part, in making such investigation, are to secure competent authority, whether chemists, geologists, or. refiners, to determine whether or not it has any commercial value equal to any standard fuller’s earth as a merchantable product, . . and at the end of ninety days, after thorough investigation from the records to be made, shown, and exhibited to parties of the first part, [if?] the fuller’s earth aforesaid should have no standard commercial value, then the bonus or pledge mentioned is to be returned to parties of the second part, but should it be shown or proved to be. of standard commercial value, then the said $2500 pledge or bonus as aforesaid is to be retained and to become the property of the parties of the first part,” it is in contemplation of the parties that the fuller’s earth shall in fact be of such a character as to have a standard commercial value; and, in order to determine this fact and to authorize the parties of the second part to withdraw from the contract and to obtain a refund of the bonus paid, the parties of the second part must act in good faith and procure an investigation of the character of the product by chemists, geologists, or refiners, or other competent authority, and if, after such' investigation and the report of sueli i authorities examining the product, and after such reports are submitted to the parties of the first part, it is true in fact that the product has not such a standard commercial value as is contemplated in the contract, the parties of the second part will then be entitled to a refund of the bonus paid. A mere investigation and report of such authorities, as chemists, geologists, or refiners, and a conclusion stated by them to the effect that the fuller’s earth has no standard commercial value, will not, standing alone, for the purposes of this contract, be sufficient to establish as a faqt that the fuller’s earth lias no standard commercial value, but before the parties of the second part will be authorized to withdraw from the contract and to obtain a refund of the bonus paid, it must appear in fact that the fuller’s earth has no such standard commercial value as is contemplated in the contract.

Decided March 4, 1927.

2. Upon the trial of a suit brought by the parties of the second part against the parties of the first part, alleging that, after an investigation of the product as provided in the contract, and after reports made by competent authorities, it was shown that the fuller’s earth had no standard commercial value, it is essential to the right of the plaintiffs to recover that they establish that they had in good faith obtained the reports of competent authorities and submitted them to the parties of the first part, and that in fact that product had no standard commercial value as contemplated in the contract. The reports of such authorities as to the commercial value of the product would be evidentiary as to its commercial value. Where it appears from such reports and from the testimony of the authorities, as well as from other testimony, that the fuller’s earth did not in fact have a standard commercial value, the plaintiffs will be entitled to withdraw from the contract. It is not essential that the authorities, in making the examination for the report under the terms of the contract, expose the fuller’s earth to every possible test, whether in the laboratory or in refineries, or by -actual experiment, but it will be sufficient, as a compliance with the provisions of the contract, that the authorities make such tests as will enable them to determine the value of the product for commercial purposes.

3. Considering- the proof as to the tests shown in the reports of the authorities and the testimony given by them and other witnesses in this case, the evidence authorized the inference that the product had no standard commercial value as contemplated in the contract, and a verdict for the plaintiffs will not be set aside upon the ground that it was contrary to the evidence, in that it appeared conclusively, from the evidence, that the fuller’s earth was not exposed to every test possible to determine its commercial value.

4. - This being a suit by the parties of the second part against the parties of the first part to recover the bonus paid, upon the ground that, after thorough investigation, it was ascertained that the product contracted for had no standard commercial value, the evidence authorized the verdict for the plaintiffs.

Judgment affirmed.

Jenkins, P. J., concurs specially. Bell, J., concurs.

Complaint; from Dooly superior court — Judge Crum. February 25, 1926.

J. M. Busbee, W. H. Lasseter, Hooper & Hooper, for plaintiffs in error.

T. Hoyt Davis, Watts Powell, contra.

Jenkins, P. J.,

concurring specially. In my opinion the contract provided thjit before a refund of the deposit could be had by the holders of the option, they must not only furnish to the seller expert opinion that the product had no standard commercial value, but that such opinion must needs be based upon adequate tests and investigations; and that any opinion which might show on its face that no such thorough and comprehensive tests had been made would fail to have such probative value as to meet the requirements of the contract. Accordingly, it is my opinion that the major portion of the evidence submitted by the holders of the option fails to meet the requirements of the contract as proof that the product in fact had no standard commercial value, since it appears that the only tests actually made related to the use of the product for one purpose, and that such purpose did not in fact constitute the main purpose for which the product might be used, and that the tests made would throw no light upon the efficiency of the product for other purposes of more importance. However, it appears that the evidence of McGowan and one other witness indicates, without reservation or restriction, that they -had made such tests as showed the product to have no commercial value whatsoever. Since the jury were authorized to accept this evidence, the verdict can not be set aside on the general grounds.


text:
    17395.
    Danville Lumber Company v. McArthur.
    Bvidence, 22 C. J. p. 536, n. 92 New.
    Logs and Logging, 38 O. J. p. 191, n. 75, 77.
    Trial, 38 Cyc. p. 1615, n. 20; p. 1617, n. 34; p. 1618, n. 36; p. 1619, n.' 38; p. 1693, n. 55; p. 1695, n. 63; p. 1697, n. 81 New.
   Stephens, J.

1. This being a suit in which it was alleged that the defendant had contracted with the plaintiff to cut and saw into lumber the timber upon the plaintiff’s lands, and to pay her a stipulated sum per thousand feet for the lumber as sawed, and that the defendant breached the contract by cutting more timber than the defendant reported to the plaintiff and paid for, by leaving valuable timber standing which should have been cut, by failing to cut the trees close enough to the ground to prevent waste of valuable timber left in the stumps, by cutting timber and leaving the logs in the woods to rot, by destroying the plaintiff’s fences upon the lands, and by failing to saw lumber from timber on the lands for the plaintiff’s own use, as required by the terms of the contract, and there being evidence, both positive and circumstantial, from which the jury could infer that the defendant had breached the contract in a number of tile particulars alleged, and that the plaintiff’s damage was in the amount found by the jury, the verdict was supported by the evidence, and the court did not err in overruling the defendant’s motion for a new trial upon the general grounds.

Decided March 4, 1927.

2. There being no evidence to authorize the inference that any of the persons sawing the lumber upon the plaintiff’s lands pursuant to the contract were contractors independent of the defendant, the court did not err in failing to instruct the jury with reference to independent contractors.

3. Testimony that lumber sells for a certain price at a named place is evidence as to a fact, and is not inadmissible upon the ground that it is opinion evidence and the opportunity of the witness to form a correct opinion does not appear.

4. As this is a suit to recover for various breaches of a contract, the court did not err in failing to instruct the jury on the “law of torts.”

5. Although there may have been evidence to the effect that the defendant had paid the plaintiff for some of the fences damaged and destroyed, or had settled with the plaintiff for some of the lumber which the plaintiff claimed had been sawed and had not been paid for, yet as the defendant did not plead an accord and satisfaction, and the trial judge submitted generally to the jury the contentions of the parties, the failure of the court, in the absence of a request, to charge in reference to an accord and satisfaction was not error.

6. Where the only testimony as to the amount of the plaintiff’s damage from failure of the defendant to saw for her certain lumber out of timber upon her lands, as provided in the contract, was testimony that ’ tended to establish the difference between the price at which the defendant had contracted to saw the lumber and the market value at the time and place of delivery, the failure of .the court to instruct the jury, without request, that this was the measure of the plaintiff’s damage was not error.

7. It being provided in the contract that the defendant was to saw lumber at a certain price for the plaintiff’s personal use, and it appearing, from the evidence, that the defendant refused to saw lumber requested by the plaintiff, but that the refusal was not based upon the ground that the plaintiff did not desire the lumber for her own personal use, the court did not err in failing to charge that the plaintiff must show that the lumber which she requested the defendant to saw was for her personal use, before she could recover for a breach of contract in failing to saw the lumber for her. ’

8. The verdict for the plaintiff was supported by the evidence, and no error of law appears.

Judgment affirmed.

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

Breach of contract; from Twiggs superior court — Judge Camp. April 17, 1926.

R. A. Harrison, H. F. Griffin, J. D. Shannon, for plaintiff in error.

L. D. Moore, Walker DeFore, contra.


text:
    17488.
    Woodbury v. Atlanta Dental Supply Company.
    Appeal and Error, 4 O. J. p. 1113, n. 19.
    Bailments, 6 O. J. p. 1128, n. 39.
    Courts, 15 C. J. p. 986, n. 54.
    Replevin, 34 Cyc. p. 1509, n. 69; p. 1545, n. 92, 94.
    Sales, 35 Cyc. p. 700, n. 24; p. 702, n. 64 New; p. 703, n. 72.
    Trover and Conversion, 38 Cyc. p. 2086, n. 25.
   Stephens, J.

1. Since, in a suit in trover, a conversion of the property sued for may be shown although the property be not in the possession of the defendant at the time of the filing of the suit, it follows that, in a suit where the petition alleges that the property sued for is in the possession of the defendant, a verdict for the plaintiff will not be set aside upon the ground that the plaintiff has failed to prove that at the time of filing the suit the defendant was in possession of the property. Wilkin v. Boykin, 56 Ga. 45; Chambless v. Livingston, 123 Ga. 257 (51 S. E. 314); Citizens Bank of Valdosta v. Peeples, 10 Ga. App. 703 (2) (74 S. E. 303).

2. Where personal property belonging to another, which is in possession of a bailee, is levied on and sold under a distress warrant for rent, instituted in behalf of a third person against the bailee, and the bailee fails to notify the true owner of the bailee’s loss of possession under such process, and allows the property to be sold to satisfy his own debt, the inference is authorized that the bailee has, by such conduct, converted the property to his own use, and is therefore guilty of a conversion. Savannah etc. R. Co. v. Wilcox, 48 Ga. 432 (4); 33 L. R. A. (NS) 693 (note).

3. The institution of a suit in trover by a vendor of personalty, who has retained title thereon, against the purchaser, itself amounts to a rescission of the contract of sale, and upon the trial of the case there is presented no issue of fact as to whether there has been a rescission by the plaintiff of,the contract of sale, and an assignment of error upon the ground that the court failed “to charge the law as to rescission” is without merit.

4. In a suit in trover, where the plaintiff elects to take a money verdict, he is not required to do so at the beginning of the trial. Where the plaintiff declares such an election at the conclusion of the taking of the testimony, a money verdict for the plaintiff will not be set aside upon the ground that the plaintiff failed to make his election at the beginning of the trial. Holland v. Lawrence, 147 Ga. 479 (94 S. E. 561); Young v. Durham, 15 Ga. App. 678 (84 S. E. 165); Garrett v. Atlanta Home Underwriters, 35 Ga. App. 404 (133 S. E. 265).

Decided March 4, 1927.

Certiorari; from Fulton superior court — Judge E. D. Thomas. May 19, 1926.

Ray & Ray, for plaintiff in error.

McElreath & Scott, J. Lon Duckworth, contra.

5. In a suit in trover by a vendor, wlio retained title to the property, against the purchaser, where .the verdict rendered is in an amount less than the unpaid purchase-money, and there is evidence that at the time of the trial the property is worth considerably in excess of the amount of the verdict, the verdict is not subject to the objection that the evidence fails to show the value of the property between the date of the alleged conversion and the trial.

6. Under the above rulings, the verdict for the plaintiff in the municipal court of Atlanta was authorized by the evidence, and on an appeal to the appellate division of that court no error of law appeared, and the appellate division therefore erred in setting aside the judgment for the plaintiff and in rendering a final judgment for the defendant; and the judge of the superior court properly sustained the certiorari from the judgment of the appellate division of the municipal court and reversed the judgment.

7. Since, however, it appears that the evidence would authorize a verdict for either the plaintiff or the defendant, it is directed that the judge of the superior court amend the judgment reversing the judgment of the appellate division of the municipal court and direct that the case stand for a rehearing before the appellate division of the municipal court upon the question as to whether or not the appellate division will grant a new trial upon the discretionary grounds stated in the act of 1925 relative to the municipal court of Atlanta (Ga. L. 1925, p. 370, 384, sec. 42 (b) ), which provides that an appeal lies to the appellate division of the municipal court upon any ground which would be a ground for a new tidal in the superior courts, and that the appellate division of the municipal court in so doing pass upon the assignment of error in the appeal to that division which is based upon the ground that the verdict is decidedly against the weight of evidence.

Judgment affirmed, with direction.

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


text:
    17493.
    Motor Parts Corporation v. American Auto Parts Company.
    Sales, 35 Cyc. p. 136, n. 27; p. 146, n, 13; p. 156, n. 78; p. Í79, n. 11; p. 187, n. 82; p. 574, n. 84,
   Stephens, J.

1. Where a manufacturer of automobile parts, located in Detroit, Michigan, enters into a contract with an automobile dealer in Atlanta, Georgia, whereby the latter is given the exclusive right, witliin certain territory in the State of Georgia, to sell the parts manufactured, and the distributor agrees to purchase from the manufacturer, during the life of the contract, articles at a price up to a designated figure, and where, from the nature of the goods contracted for, it is necessary to give efficient and'quick service in their sale and distribution by the distributor to local customers, and where, immediately upon the execution of the contract, the distributor places an order with the manufacturer for a considerable amount of automobile parts, to be manufactured and delivered to the distributor, but as to which no time for delivery is specified, from the nature of the contract it may be inferred that the time within -which the parts shall be manufactured and delivered to the distributor is an essential element of the contract, and the time -within which the goods shall be manufactured and delivered must be a reasonable time, to be determined by reference to the objects and purposes of the contract.

2. Where the manufacturer, about eighteen days after the acceptance of the order, makes a shipment to the distributor of only a part of the goods ordered, which the distributor accepts, and where, about twenty-nine days after making the first shipment, the manufacturer ships to the distributor another installment of the goods ordered, which the distributor accepts, and where, about twenty-three days after shipping the second installment, and about seventy days after the acceptance of the distributor’s order, the manufacturer delivers to a carrier, consigned to the distributor, a third installment of the goods ordered, which the distributor declines to accept and which is returned by the carrier to the manufacturer, it can not be held, as a matter of law, that the completion of the delivery of the entire order by delivery of the third installment was made within a reasonable time, as contemplated by the contract. If the delivery of the entire order was not made within a reasonable time, as contemplated by the contract, and the manufacturer thereby violated the contract as respects delivery of the goods as an entirety, the distributor could refuse to accept the last installment and rescind the contract and tender back the two installments received, or their value where sold in expectation of the manufacturer’s complying with the contract in making further deliveries promptly. Where it appears that before the arrival of the last shipment, which the distributor rejected, the distributor expressed dissatisfaction to the manufacturer as to the manner in which the manufacturer was performing-under the contract, and requested a cancellation of the remainder of the order, and requested that the third shipment be -withheld, but the request to withhold the third shipment -was refused upon the ground that it had been delivered to the carrier in Detroit, consigned to the distributor, the inference is authorized that the distributor, after rejecting the third shipment when tendered to him by the carrier, was waiting to hear from the manufacturer as to the proposed adjustment of the differences which had arisen, and it is a question of fact whether a communication from the distributor to the manufacturer, fifty-seven days after the arrival of the last shipment, in which the distributor announced his intention not to go on further with the contract, and that the shipments received were at the disposal of the manufacturer, was made within a reasonable time and amounted to a rescission of the contract.

Decided March 4, 1927.

Complaint; from Fulton superior court — Judge Pomeroy. May 21, 1926.

Application for certiorari was made to the Supreme Court.

Alston, Alston, Foster & Moise, for plaintiff in error.

George B. Rush, contra.

3. This being a suit by the manufacturer against the distributor to recover the full contract price of all the goods, including the shipments received by the defendant as well as the rejected shipment, and the evidence authorizing the inference that there had been a legal, rescission of the contract by the defendant, the court erred in directing a verdict for the plaintiff.

4. Since the case will be retried upon a different theory, it is unnecessary to pass upon the other assignments of error in the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    17129.
    Irving v. Home Accident Insurance Company et al.

    Master and Servant, 39 G. J. p. 1316, n. 7; p. 1317, n. 11; p. 1319, n. 30; p'. 1321, n. 67; p. 1322, n. 83.
    Workmen’s Compensation Acts, — C. J. p. 50, n. 62; p. 118, n. 82.
   Stephens, J.

1. Where the owner of timber furnishes a sawmill and employs another person to saw the timber into lumber, and pays him a definite sum per thousand feet for the sawing, which sum is paid in advancements as the lumber is sawed, and where from the money advanced the person so employed pays all the help employed in the work, and the difference between the sum advanced and the expense of operating the sawmill constitutes his profits, and where he has0 exclusive power to control the help and to fix their compensation, and to hire and discharge the help at his discretion, and where he cuts and saws the lumber into merchantable products under specifications given to him from time to time by the owner as the owner receives orders for the lumber, and where he saws the trees into lumber of such dimensions as in his judgment' the trees will make, he is not a servant of the owner, but is an independent contractor. Zurich General Accident & Liability Ins. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173). Where a laborer thus employed by the person operating the sawmill is injured in such a manner as would entitle him to compensation under the workmen’s compensation act, he can not recover compensation from the owner of the sawmill.

2. Upon the hearing of a claim for compensation, filed by a laborer thus employed, against the owner of the sawmill, where it appeared from uncontradicted evidence -that the employment was as above indicated, the finding by the industrial commission, that the person operating the sawmill and who employed the claimant was a servant of the owner and an employing foreman, was not authorized by the evidence, and the award of compensation to the claimant was unauthorized by the evidence and contrary to law. The judge of the superior court properly set aside the award.

Decided March 5, 1927.

Appeal; from Stewart superior court — Judge Littlejohn. December 31, 1925.

G. Y. Harrell, J. J. Dunham, for plaintiff.

Brock, Sparks & Russell, for defendants.

Judgment affirmed.

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


text:
    17151.
    17152.
    Southern Railway Company v. Autry et al. City of Rome v. Autry et al.

    Appeal and Error, 4 O. J. p. 929, n. 77; p. 1039, n. 10.
    Damages, 17 C. J. p. 1365, n. 61.
    Highways, 29 O. J. p. 679, n. 55, 56.
    Municipal Corporations, 28 Cyc. p. 835, n. 22,' 24; p. 837, n. 38; p. 1465, n. 36; p. 1494, n. 87; p. 1515, n. 99; p. 1518, n. 20; p. 1522, n. 44.
    Negligence, 29 Cyc. p. 467, n. 44, 47, 49; p. 547, n. 42; p. 549, n. 50; p. 550, n. 55.
    Trial, 38 Cyc. p. 1675, n. 65, 66.
   Stephens, J.

1. Assuming that a property owner whose land is traversed by a highway is under no duty to alter conditions existing upon the land before the dedication of the highway, so as to render his abutting property safe for travel by persons using the highway, yet where, after the establishment of the highway over his land, a pre-existing condition on the land, which consisted of a deep and wide hole in the ground, became altered by the hole being in the highway and being connected with a shallow ditch or drain in the actually traveled roadway, and there was thus created a condition in both the highway and on the abutting land dangerous to travelers along the highway, the owner of the land owes a duty to travelers along the highway not to negligently maintain this dangerous condition; and where a traveler in an automobile along the highway is injured as a result of the automobile running into the ditch and overturning and falling into the hole, the owner of the land may be liable in damages for the injury thus sustained. Autry v. Southern Ry. Co., 32 Ga. App. 8 (123 S. E. 752).

2. Where a traveled way over private property in a city has been used by the public more than fifteen years as a public street or highway for vehicular traffic, and constitutes a continuation of the roadway of a public street of the city, and leads into another street of the city, and where the city has recognized it as a street by assuming authority over it and working it as such, it will, as between the city and a person traveling over it in a vehicle, be regarded as a regularly laid out and dedicated street of the city.

Decided March 5, 1927.

Damages; from Floycl superior court — Judge Maddox. December 18, 1925.

Application for certiorari was denied in No. 17151.

Harper Hamilton, Maddox, Matthew.s & Owens, for Southern Railway Company.

3. Where the contentions of the plaintiff were elaborately set out in the petition, and the defendant set up no affirmative defense, but merely denied the allegations of the petition, and where the trial judge, in his charge to the jury, made a long and elaborate statement of the plaintiff’s contentions, and in a short statement referred to the defendant’s contentions as being denials of the plaintiff’s contentions, yet where he, fairly to the defendant, stated the contentions of both the plaintiff and the defendant, it can not be held that he gave undue prominence to the contentions of the plaintiff, and that such charge was harmful to the defendant. Macon, Dublin &c. R. C. v. Joyner, 129 Ga. 683 (59 S. E. 902).

4. In this suit against the city and a railroad company, which was the owner of land traversed by the traveled way, a mother sought to recover damages for the death of her son, alleged to have resulted when an automobile, in which he was traveling along the highway, fell into a hole, which it is alleged both the defendants negligently maintained. The charge of the court is not subject to the exception that the jury was instructed that if one defendant was negligent, there could be a recovery against both defendants. Nor is it subject to the objection that the jury were instructed that, between the plaintiff and the defendant city, the roadway along wliich the plaintiff’s son. was traveling was a public street of the city. Nor is the charge anywhere subject to the objection that the judge erroneously expressed an opinion upon the facts.

£. There being evidence to the effect that the automobile in which the plaintiff’s son was traveling did not belong to him, and was at the time being driven by another person, over whom, in the operation of the automobile, the plaintiff’s son had no control, the negligence of the driver was not imputable to him. The court properly charged the law in reference to imputed negligence.

6. The petition set out a cause of action against the city, and was good against the demurrer interposed by the city. If the court erred in refusing to pass upon the city’s demurrer, upon the ground that it was filed too late, the error was harmless.

7. There was' evidence from which the jury could estimate the value to the plaintiff of the life of her son.

8. The court, fairly to both parties, submitted all the issues presented. The evidence authorized the verdict for the plaintiff, and no error of law appears.

Judgments in both eases affirmed.

Jenkins, P. J., amd Bell J., concur.

Paul H. Doyal, for City of Rome.

Porter & Mebane, contra.


text:
    17168.
    Smith v. Floyd County et al.

    Appeal and Error, 4 C. J. p. 675, n. 63.
    Eminent Domain, 20 C. J. p. 751, n. 78; p. 1191, n. 73, 85; p. 1192, a. 89, 1.
    Parties, 30 Cyc. p. 122, n. 97, 2, 4.
    Pleading, 31 Cyc. p. 101, n. 95; p. 270, n. 97; p. 277, n. 77; p. 290, n. 65; p. 298, n. 28.
    Torts, 38 Cyc. p. 484, n. 94; p. 487, n. 8; p. 488, ri. 14.
   Stephens, J.

1. The test of the sufficiency of a petition as against a general demurrer is whether the defendant can admit all the allegations made therein and escape liability. If the petition in the instant case sets forth a cause of action either for the recovery of damages as for the maintenance of a nuisance, or for a recovery under that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation first being paid, it will withstand a general demurrer and it will not be the duty of this court, in passing upon the exceptions to the judgment sustaining the general demurrer, to construe the petition, for the purpose of determining the exact character of the cause of action relied on. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (9) (122 S. E. 327); Vandalsem v. Caldwell, 33 Ga. App. 88 (7) (125 S. E. 716).

2. As against a general demurrer, the petition sufficiently alleged that the street and avenue therein referred to were public highways, and, though not so called, were public roads, under the control and supervision of the county; and it being further shown therein that in raising the grade of these two roads, and in laying and arranging the new sewer-pipe, the county caused large quantities of rainwater to be diverted on to the plaintiff’s property with resulting damage, and it further appearing that the plaintiff had presented his claim to the county within twelve months, as required by section 411 of the Civil Code (1910), and that payment of the claim had been refused, tlie petition set forth a cause of action for the recovery of damages under provision of the constitution that private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid. Civil Code (1910), § 6388; Bates v. Madison County, 32 Ga. App. 370 (2) (123 S. E. 158); Westbrook v. Baldwin County, 121 Ga. 442 (49 S. E. 286); Terrell County v. York, 127 Ga. 166 (56 S. E. 309); Marion County v. Short, 145 Ga. 404 (89 S. E. 324); Adkins v. Crawford County, 135 Ga. 679 (70 S. E. 335).

(a) Under this construction, the plaintiff properly claimed as his measure of damages the actual depreciation in the market value of the .property, caused by the wrongs complained of Smith v. Floyd County, 85 Ga. 420 (3) (77 S. E. 850); Sheppard v. Georgia Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868).

Decided March 5, 1927.

Action for damages; from Floyd superior court — Judge Maddox. January 4, 1926.

STATEMENT OK PACTS BY STEPHENS, J.

N. W. Smith brought suit for damages against Floyd County and the Rome Railway & Light Company, and in his petition made the following case: The public roads of Floyd county are under the supervision, management, and control of the board of roads and revenues of said county. The plaintiff owns and is in possession' of a tract of land at the northeast corner of Webster street, running north and south, and Shorter avenue, running east and west, on which he has erected a home in which he resides with his family. In September, 1923, there was a storm-sewer some twelve inches in diameter, under the “public highway” immediately in front of his home and known as Shorter avenue, which storm sewer began on the south side of Shorter avenue and ran thence under Shorter avenue and under the tracks of the railway company into Webster street, and then “bore to the right and across and under the lot of . . petitioner, and, after running some twenty-five feet beyond the lot of . . petitioner, emptied into a vacant lot.” This sewer carried all the water which accumulated on the north side of Shorter avenue and emptied it beyond the plaintiff’s lot, and his premises were in no wise injured or damaged because of overflow. About the month of September, 1923, “said county raised the street in front of . . petitioner’s home, the said Shorter avenue, about eighteen inches, and also the Rome Railway & Light Company raised its ear-track in front of petitioner’s home a distance of eighteen inches; . . at said time said county and said Rome Railway & Light Company dug up and tore up that part of said sewer aforesaid described which began on the south side of said Shorter avenue, -and ran under the track of the Rome Railway & Light Company and out into Webster street, and put in a new storm-sewer about twenty-four inches in diameter.” . The new storm-sewer was not connected with the part of the sewer which ran under the plaintiff’s lot, but “the end of said new sewer put in by said county and said Rome Railway & Light Company is some three feet down in the ground and lower than the old storm-sewer and that part of said sewer which extends under and across . . petitioner’s "property.” “Petitioner shows further that said county and said ■ Rome Railway & Light Company completely stopped up said sewer under the premises of . . petitioner, with dirt, gravel, and other debris, and that said sewer is of no use whatever now.” The defendants “dug a big deep hole in Webster street, and at the end of said new sewer as aforesaid, and foul, fetid, and polluted waters stand in said hole, to the discomfort, annoyance and damage to the health of petitioner and his family; that foul, fetid, poisonous, and dangerous odors are constantly coming from said water standing at said place.” “Petitioner shows that prior to the tearing up of said old sewer as aforesaid, all the water from College Heights and in and along the southern part of Shorter avenue ran through said sewer, but that since the installation of said new sewer and the stopping up of said sewer on the premises of . . .petitioner, as aforesaid, all the water in and along said Shorter avenue and for hundreds of yards from College Heights comes through said new storm-sewer and then spreads out all over the premises of . . petitioner, standing in the front yard of . . petitioner, making it wet, damp, and muddy, washing-gravel and poor soil over the front yard of . . petitioner, and greatly injures and damages the premises of . . petitioner.” “Petitioner further shows that because of said water standing in said hole and on the premises of . . petitioner, he and his family suffer great inconvenience and hardships from the foul and fetid odors; that the water so accumulating and standing on the premises as aforesaid greatly mars the beauty of petitioner’s premises.” Prior to the acts complained of, the reasonable value of the plaintiff’s property was $2,500, but because of the wrongs alleged to have been committed by the defendants the property has been reduced to a value of not exceeding $2,000, so that the plaintiff has been damaged in the sum of $500, this being the amount sued for. The plaintiff presented his claim to the county in accordance with the provisions of section 411 of. the Civil Code (1910).

3. The petition, under the allegations, is also susceptible of the construction that it is a suit for damage caused by the maintenance of an alleged nuisance, and even under this construction was not subject to the general demurrer. The fact that the petition may not have laid the correct measure of damages under the latter construction was no cause for dismissing it, in the absence of a special demurrer attacking the petition on that ground. Nalley v. Carroll County, 135 Ga. 835 (70 S. E. 788); Bank of Bullochville v. Riehle, 36 Ga. App. 470 (137 8. E. 642). and cit.

4. Where a petition is duplicitous and may be construed as setting forth a cause of action, either as an action for damages for the maintenance of an alleged nuisance, or because of the county’s damage to the plaintiff’s private property for public purposes without first paying the plaintiff therefor, and where there is no special demurrer objecting to the petition because of such duplicity, the plaintiff may at the trial elect as to the character of the action he will rely upon. Citizens & Southern Bank v. Union Warehouse & Compress Co., supra.

5. As a general rule, “where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such case a joint action against them can not be maintained.” Armstrong v. Southern Ry. Co., 29 Ga. App. 418 (116 S. E. 31). “But it is also true that, even though voluntary, intentional concert is lacking, if the sep.arate and independent acts . . of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts . . occurred . . Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties.” Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (3) (126 S. E. 883).

6. Applying these rulings, the petition was not subject to any ground of the demurrer interposed, and the court erred in dismissing the same.

Judgment reversed.

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

Floyd County demurred to the petition, on the grounds that it set forth no cause of action and that it contained a misjoinder of parties defendant. The demurrer made no point as to the measure of damages. The demurrer was sustained, and the plaintiff excepted.

Porter & Mebane, for plaintiff.

Denny & Wright, Graham Wright, Seward M. Smith, Lamar Gamp, L. A. Dean, for defendants.


text:
    17225.
    MARYLAND CASUALTY COMPANY et al. v. PEEK.
    Where one is employed as a drapery-hanger and, in the discharge of his duties, is required to travel upon a train from one town to another, his exposure, while traveling upon a train, to an unprovoked assault by a passenger, who, after the manner of a madman or lunatic, jumps up from his seat and begins shooting at the passengers, is not a risk incident to the employment, and an injury resulting in the death of the employee as a result of such an assault is not an injury which arises out of the employment, and therefore is not compensable.

      Workmen’s Compensation Acts, — C. J. p. 72, n. 69, 72; p. 73, n. 80; p. 74, n. 86, 87; p. 75, n. 88; p. 77, n. 98 New; p. 78, n. 3.

      Decided March 5, 1927.
    Appeal; from Fulton superior court — Judge E. D. Thomas. February 12, 1926.
    Application for certiorari was made to the Supreme Court.
    This is a claim against the W. E. Browne Decorating Company and the Maryland Casualty Company, the insurance carrier, by the widow of Eay E. Peek, for compensation under the workmen’s compensation act (Ga. L. 1920, p. 167) for her husband’s .death. Upon the hearing before the commissioner it appeared from uncontradicted evidence that Peek, the deceased, was an employee of the W. E. Browne Decorating Company, of Atlanta, Georgia, and, as such employee, came under the workmen’s compensation act. He was employed as a drapery-hanger and superintendent of the drapery room, and worked for a salary of $40 a week. His duties required him to go from Atlanta to other points, to which he was sent by his employer, to hang and install draperies, and in making such trips he went back and forth upon railway trains. While occupying a coach of the Southern Eailway on his way to Atlanta from Durham, N. C., to which latter place he had been sent by his employer for the purpose of installing draperies in a residence in Durham, one of the passengers, who occupied the same coach with ■him and who had become incensed on account of an argument between himself and the conductor of the .train when the conductor came through to take up tickets, jumped up.and began shooting in the coach. He shot Peek twice in the head, inflicting wounds from which Peek died, and also shot another passenger by the name of W. F. Flindt, who recovered. The shooting occurred about fifteen or twenty miles out from Spartanburg, S. 0.,' just after the conductor had come through to take up tickets. There had been no conversation between Peek and the person who did the shooting, after the train left Spartanburg. There is no evidence as to what happened prior to the train’s leaving Spartanburg. So far as appears from the evidence, Peek and Flindt were strangers to the person who did the shooting. Neither Peek nor Flindt had taken part in the argument with the conductor. Peek, when shot, was reclining in his seat, reading a book, with his head resting on the arm of the seat, toward the aisle, the back of his head being toward the person who did the shooting.
    The commissioner concluded, from the evidence, that Peek’s death resulted from injuries arising out of and in the course of his employment, and awarded compensation. This award was affirmed upon an appeal to the superior court. The judgment of the superior court was excepted to by both defendants.

      Underwood & Haas, E. Smythe Gambrell, for plaintiffs in error.

      Reuben R. & Lowry Arnold, Edward C. Hill, contra.
   Stephens, J.

(After stating the foregoing facts.) It appears conclusively, from the evidence, that the shooting of Peek did not grow or arise out of his employment. The assault upon him had no connection whatever with his employment. The risk of being exposed to an unprovoked assault by one seemingly insane was not a risk peculiarly incident to Peek’s employment. All persons, whether in an employment similar to that of Peek or in any other employment, are subject to such a risk anywhere in the company of others. We adopt the legal conclusions expressed in the opinion of lion. R. C. Norman of the industrial commission, who passed upon the application for compensation of the other passenger who was shot at the same time as Peek, namely W. F. Flindt. From Commissioner Norman’s opinion denying compensation to Flindt we take the following, which is applicable to the case here under consideration:

“The terms 'in the course of’ and 'out of’ are not synonymous. Both must concur to render the case a compensable one. An accident arises 'out of’ the employment when it arises because of the employment, as when the employment is a contributing proximate cause. New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (2 a) (118 S. E. 786). There must be a causal connection between the employment and the injury, and the injury must be the rational consequence of some hazard connected with the employment. The danger which the employee is exposed to may originate either from the employment or outside of it, if the exposure is peculiar to it. Corpus Juris, Workmen’s Compensation Acts, p. 74, section 65. It is not enough to say that the accident would not have happened if the servant had not been engaged in the work at the time, or had not been in that place. It must appear that it resulted from something he was doing in the course of his work, or from some peculiar clanger to which the work exposed him. Archibald v. Ott, 77 W. Va. 448 (87 S. E. 791, L. R. A. 1916D, 1013). If the injury can be said to have followed as a natural incident of the work .and to have been contemplated by a reasonable person familiar with the whole situation as a result of exposure occasioned by the nature of the employment, then it arises ‘ out of ’ the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. In re McNickol, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306). The nature of claimant’s work made it necessary for him to travel by train. While on the train he was in the course of his employment. He would therefore be protected under the compensation act against any accident incident to the running of the train. Had he been injured by a derailment, a collision, a breaking through a trestle or bridge, or other travel accident, his right to compensation would be clear. But the shooting of claimant by an infuriated passenger, whether sane or insane, the cause of the shooting-being in no wise connected with nor growing out of his employment, was not a peril of the service, nor was it reasonably incidental to his employment. The most that can be said is that the injury would not have occurred but for claimant’s employment bringing him to the time and place of the altercation between the conductor and the passenger which precipitated the shooting. According to the authorities above quoted and numerous other authorities which might be cited, this is not sufficient. There must be a causative connection between the accident and the employment. It must arise ‘out of’ the employment. As was said in Plumb v. Cogden Flour Mills, 7 B. W. C. C. (1), ‘It is not an assault which had its origin in the nature of the employment, nor was it in any way whatsoever connected with the master’s work.’ The ‘lightning cases’ passed upon by the various courts are in point. Where the natural hazard from lightning is greater by reason of the nature of the employment, the eases have been held compensable, but when the nature of the employment subjected the servant to no greater risk than others in the neighborhood, compensation has been denied. Claimant in the instant case was not by reason of his employment exposed to the danger of being shot, in a greater degree than .any other passenger upon the particular train. Another passenger was actually shot and killed. There was no causative connection between the employment and the shooting, and it must therefore be held in this case that the injury did not arise out of and in the course of the employment, and compensation be denied.”

'See, in this connection, Martin v. Georgia Casualty Co., 157 Ga. 909 (122 S. E. 881), and the recent case decided by the Supreme Court of Louisiana, of Conaway v. Marine Oil Co., (La.), 110 So. 181, wherein it is held that a workman who is shot at his place of business by a bullet accidentally discharged from the pistol of a fellow employee is not entitled to compensation.

We therefore conclude that Mrs. Peek, the widow of the deceased, under the undisputed evidence was not entitled to compensation, and that the judge of the superior court erred in affirming the judgment of the commissioners awarding compensation.

Judgment reversed.

Jenkins, P. J., concurs.' Bell, J., dissents.


text:
    17241.
    Pierce v. Jones.
    Bills and Notes, 8 C. J. p. 943, n. 21; p. 950, n. 26 New; p. 1099, n. 39.
    Pleading, 31 Cyc. p. 546, n. 93.
    Trial, 38 Cyc. p. 1564, n. 69, 70; p. 1575, n. 23.
   Stephens, J.

1. Where the defendant in a suit upon a promissory note which is unconditional in so far as it relates to the payment of tne principal and interest, and conditional in so far as it relates to the payment of attorney’s fees, seeks in his answer to defeat in part the plaintiff’s claim for principal and interest, the answer should be. verified as to the allegations made for that purpose. Where, as in the present case, the answer is not so verified, and the plaintiff interposes a demurrer to the answer, based upon several grounds, one of which is that the answer is not verified, and where the defendant then amends his answer, and the amendment affirmatively shows that it is made in response to the' demurrer, but is not verified, and the defendant still fails to verify his answer or to move to be allowed to do so, there is no error in striking, for want of verification, those allegations of the answer which deny the alleged liability as to principal and interest, irrespective of whether they might otherwise have set forth a valid defense. Civil Code (1910), § 5660; Ward v. Frick Co., 95 Ga. 804 (22 S. E. 899); Fisher v. Savannah Guano Co., 97 Ga. 473 (3) (25 S. E. 477). O’Kelly v. Welch, 18 Ga. App. 157 (89 S. E. 76); Trippe v. Sheppard, 21 Ga. App. 279 (2) (94 S. E. 328); Patterson v. Bank of Alapaha, 23 Ga. App. 622 (99 S. E. 141); Amason v. Bank of Tignall, 35 Ga. App. 509 (134 S. E. 115).

Decided March 5, 1927.

Complaint; from Richmond superior court — Judge A. L. Franklin. January 15, 1926.

STATEMENT OE FACTS BY STEPHENS, J.

This is a suit by a payee upon notes for purchase-money of a house and lot. The defendant, in his answer as amended, pleaded, that “when said property was .sold to him it was represented [by the plaintiff’s agent] that there was sewerage and water connections therewith,” whereas “there was no sewerage on said property at all;” and the “only method of carrying off the sewerage . . was a septic tank which was wholly inadequate for the purpose;” “if it had been represented to him [the defendant] that there was no sewerage connection there, he would not have purchased said property;” “all of which was unknown to this defendant and could not have been discovered by ordinary observation,” or “by a superficial inspection.” The answer further alleged that the defendant had been damaged because of having to install adequate sewerage connections at a stated cost, which was pleaded in abatement of the purchase-price.

2. Where an attorney for the payee in a promissory note providing for the payment of attorney’s fees in addition to principal and interest gives to the maker a written notice of the intention of the payee to bring suit on the note and to claim attorney’s fees in accordance with the terms of section 4252 of the Civil Code (1910), and where it affirmatively appears therein that the note is in the attorney’s hands for collection in behalf of the original payee, who is still the holder and owner, and where the notice discloses the address of tile attorney, the notice is not insufficient because of an alleged failure to state where the note is 'located or where or to whom it should be paid. Rylee v. Bank of Statham, 7 Ga. App. 489 (3) (67 S. E. 383); Aycock v. Tillmam, 14 Ga. App. 80 (80 S. E. 301); Phelps v. Belle Isle, 29 Ga. App. 571 (116 S. E. 217); McKibben v. Fourth National Bank, 32 Ga. App. 222 (11) (122 S. E. 891); Collins v. Savannah Guano Co., 33 Ga. App. 729 (3) (127 S. E. 672).

3. The defendant’s answer having failed to set forth defense as to any part of the plaintiff’s demand, the court did not err in striking it. “The suit then being in default, the plaintiff was entitled to take a verdict as if each and every allegation of the petition had been proven by evidence. Civil Code (1910), §§ 5539, 5662. Although it is true, as contended by counsel for plaintiff in error, that as to the notes which had not matured by their own terms the suit was not one upon unconditional contracts in writing (see Howard v. Wellham, 114 Ga. 934, 41 S. E. 62; Rodgers v. Caldwell, 112 Ga. 635, 37 S. E. 866), the direction of the verdict for the plaintiff was not for this reason violative of the provisions of the Civil Code (1910), § 6516. While the judge may ordinarily have no authority to render judgment without the verdict of a jury, except in cases referred to in that section, this does not mean that, even in those cases where the verdict of a jury is necessary, the court may not direct it where- it is demanded by the law and the facts.” Pape v. Woolford Realty Co., 35 Ga. App. 284 (6) (134 S. E. 174), and cit.

(a) A fortiori, the verdict in favor of the plaintiff upon the notes providing for the payment of a certain amount as attorney’s fees was not, under the facts of this case, contrary to law as being without evidence to support it.

4. The court did not err in striking the defendant’s answer, or in refusing his motion for a new trial.

Judgment affirmed.

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

The notes provided for the payment of a certain per cent, of the debt for attorney’s fees, and the petition alleged that “due notice in writing” of the plaintiff’s intention “to sue these notes at the March term, 1925, to the superior court of said county has been given to said defendant in terms of the statute more than ten days prior to the filing of this suit, to wit, January 28, 1925, said written notice having been given for the purpose of binding said defendant to the payment of attorney’s fees as specified in said notes.” - No copy of the notice was annexed to the petition, but the defendant attached to his answer the notice served upon him, and alleged that the notice was not in law such as to entitle the plaintiff to recover attorney’s fees “for the reason that it does not state where said notes were located or where they should be paid, or whom they should be paid to.” The notice was addressed to the defendant and began as follows: “Take notice that I have for collection two notes against you in favor of Mrs. Susie C. Jones of Augusta, Georgia,” being the notes sued on. Mrs. Jones was the payee. The notice declared that the suit would be brought in her name, and it was so brought. The, notice was dated January 26, 1925, and was signed as follows: “J. S. Adams, attorney at law for Mrs. Susie C. Jones, Dublin, Georgia.”

The defendant’s answer was not verified. The plaintiff demurred generally and specially to the original answer, and one ground of the demurrer was as follows: “The plea and answer filed by the defendant is not sworn to or verified by the oath of the defendant or any one for him, and plaintiff moves the court to strike said plea for that reason.” The defendant thereupon filed an amendment to Ms answer, which amendment expressly stated that it was made in response to the plaintiff’s demurrer. This amendment was not verified, and the defendant still failed to verify his answer or to move to be allowed to do so. The court thereafter passed a general order sustaining the demurrer and striking the plea as amended. To this ruling the defendant excepted pendente lite. A verdict was thereupon directed for the plaintiff, for principal, interest, and attorney’s fees. The defendant’s motion for a new trial was overruled, and he excepted. The defendant demurred to the plaintiff’s petition, and this demurrer was overruled, but no exceptions to that judgment were taken.

Pierce Brothers, for plaintiff in error.

D. G. Fogarty, Hardwick & Adams, contra.


text:
    17264.
    Georgia National Bank v. Wall.
    Frauds, Statute of, 27 O. J. n. 223, n. 21.
    Fraudulent Conveyances, 27 C. J. p. 667, n. 61.
   Stephens, J.

1. One majr hold land tinder a title void as against creditors and yet be entitled to the crop raised thereon by himself as a result of his labor and the expenditure of his money.

2. Where a woman owning farm lands and certain personal property thereon necessary to farming operations, which lands are incumbered by a mortgage, finds that she is in debt and is unable to conduct farming operations successfully on the lands, and conveys the lands and the personalty to her son in consideration of the son’s assuming and paying off the mortgage and other valuable consideration, and in the conveyance retains a right to the use of the lands and the personalty for and during her life, with the right to remain in possession of the same, and continues in possession, operating the farm through her husband as her agent, and where it is afterwards agreed between her and the son that he is to conduct farming operations upon the lands, while she is to remain in possession and live on the lands with her husband, and where the son, pursuant to the latter agreement, employs the husband (who is his father) to manage the farm for him at an agreed salary, which is afterwards paid by the son, and where the mother and the father continue to live on the lands and the son continues to live elsewhere, but, under such arrangements, the husband acts as agent and raises a crop upon the lands, the expense of raising which is paid for by the son out of his own funds and out of funds raised by the sale of some of the personalty, and where the son pays nothing upon the purchase-price of the property except a part due on the mortgage, and the mother pays no rent, whether or not the conveyance to the son is void as in fraud of creditors and he acquires as against creditors no title to the lands, and whether or not the lease from the mother to the son, under which he operates during the year the crop is made, is also void as being a fraud against creditors, the son nevertheless is • entitled to the crop made by him as a result of labor and supplies furnished by him. Irrespective of the state of the title to the property as affected by fraud, he in fact conducted the farming operations on his own account, and no inference or presumption is authorized that he gave liis services or the crop to his mother, but it appears conclusively and without dispute that the title to the crop thus raised is in him.

Decided March 5, 1927.

Levy and claim; from city court of Sylvester — Judge Monk. February 13, 1926.

R. B. Williamson, E. L. Smith, for plaintiff.

Clifford E. Hay, Perry & Tipton, contra.

3. Although the son in making the crop may have consumed the personal property upon the place, which belonged to the mother, this fact does not as a matter of law establish title in her to the crop.

4. In such a case, on the trial of the son’s claim of title to the crop, filed after the crop had been levied upon as the property of the mother, under an execution against her, any issue as to fraud in the conveyance of title or the lease of the lands to the son was immaterial and irrelevant, and the trial judge did not err in not submitting such issue to the jury.

5. The true character of the mother’s reserved interest in the property, whether it be an estate for life or a mere usufruct of the property, is immaterial in determining the title to the crop. Whatever may be the character of the title reserved in her to the property, the agreement between her and the son under which the son conducted the farming operations, unless invalid for fraud, is otherwise valid, although it was in parol.

6. The court committed no error harmful to the defendant, and fairly submitted the contentions of both parties. The evidence authorized the verdict for the claimant, and no error of law appears.

Judgment affirmed.

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


text:
    17326.
    GISSENDANNER v. MACON, DUBLIN & SAVANNAH RAILROAD CO.
    That the plantiff’s husband was killed by the operation of the defendant’s train could be inferred from the evidence; and where such killing is shown, a presumption arises that the defendant was negligent as alleged in the petition. A nonsuit would not be authorized in the absence of conclusive evidence that the defendant was not negligent in any manner alleged in tlie petition, or that the decedent failed to exercise ordinary-care for his own safety. The evidence would have authorized a verdict for the plaintiff, and the court erred in granting a nonsuit.

      Railroads, 33 Cyc. p. 1068, n. 86; p. 1103, n. 29, 30; p. 1104, n. 32; p. 1105, n. 34, 36; p. 1108, n. 54.
    Trial, 38 Oye. p. 1557, n. 21; p.. 1558, n. 24; p. 1559, n. 35.

      Decided March 5, 1927.
    Action for damages; from city court of Macon — Judge Hall. April 5, 1926.
    Application for certiorari was made to the Supreme Court.

      R. D. Feagin, J. F. Urquhart, for plaintiff.

      Jesse Harris, Charles Akerman, for defendant.
   Stephens, J.

Mrs. Julia Gissendanner brought suit against the Macon, Dublin & Savannah Eailroad Company, to recover for the homicide of her husband, which she alleged occurred in the city of Macon, as a result of the alleged negligence of the defendant in running its train against him and throwing him under a train on a parallel track, which latter train, it was alleged, ran over and killed him. The petition alleged that it was a custom, well known to the defendant, for railroad employees, when coming off duty and going home, to ride upon freight-trains going from the railroad yards toward the city of Macon, and to.alight at various crossings, including the crossing at Elm street, at which it was alleged the plaintiff’s husband was killed; that he was a conductor in the employ of another railroad, and was, after coming off duty, riding toward his home in the city of Macon on a freight-train of the Georgia Eailroad, and when the train upon which he was riding reached Elm street he attempted to alight, by swinging from a ladder attached to the train, and was hit by an approaching train of the defendant, backing upon a parallel track, and was knocked under the 'train from which he was alighting and was killed. The allegations of negligence were: that the defendant’s train, just before it hit the deceased, was backing, in the dark, around a curve, with no light upon the rear end of the leading car, and with no lookout to give warning of danger and to enable the train to be stopped if any person happened to be on the track or in a position of danger; that the defendant had no back-up hose upon the train or upon the lead car in order to enable the train to be stopped instantly if an emergency should arise; that the defendant had no watchman at the crossing, and that the failure of the defendant to have a watchman at the crossing was in violation of an ordinance of the city of Macon requiring a watchman at the crossing; that the defendant was negligent in that its engineer

failed to comply with the act of the legislature (Ga. L. 1918, p. SIS, section S) which requires the engineer of a train, on approaching within four hundred yards of a crossing, to keep and maintain a constant and vigilant lookout along the track ahead of the train, and to otherwise exercise due care in approaching the crossing, in order to avoid injury to any person on the crossing or within fifty feet of the crossing; that the train was running more than fifteen miles an hour, which was in violation of an ordinance of the city of Macon limiting the speed of trains within the city to fifteen miles an hour, and that the train was also running in violation of an ordinance making it unlawful to move any train or car backwards over any street-crossing without having a guard placed upon the rear platform or the rear of the train, or without having the train furnished with proper means of giving an alarm or notice of the approach of the train when operated in such a manner; that the decedent failed to give any notice of the approach of the train to the crossing, and did not have any means provided upon'the. back of the train to give notice or warning, and failed to stop the train before hitting the plaintiff’s husband'; all of which alleged acts of negligence yere alleged as proximately contributing to his death; and that he was at the time in the exercise of ordinary care and diligence, and could not have avoided the consequences to himself of the defendant’s negligence.

On the trial -the court, at the conclusion of the plaintiff’s testimony, granted a nonsuit; to which the plaintiff excepted.

The evidence authorizes the inference that the defendant’s train hit the plaintiff’s husband. One of the plaintiff’s witnesses, who was an employee of the defendant and who was riding upon the train which was alleged to have hit the deceased, testified : “The reason we stopped [the train], we heard a rambling noise like tin or something like that, something like the train hitting tin;” that Mr. Priester, the other railroad man upon the train, and the witness “realized that something had come in contact with our train. We heard this noise and thought that something must be wrong with our cars, or something, and we stopped.” There was evidence that the deceased had in his possession a tin lunch-box. The train was stopped across the' Elm-street crossing. The evidence therefore authorized the inference that the deceased was hit at the crossing. This being true, the evidence of the employee of the defendant who was riding upon the rear end of the defendant’s backing train, that they did not hit any one at the crossing, and that if there had been any one at the crossing he would have seen him, does not conclusively establish as a fact that no one was at the, crossing and that the train did not hit any one at the crossing. A train of the Georgia Eailroad was approaching on the parallel track, and the evidence authorized the inference that the plaintiff’s husband rode on it to the Elm-street crossing. After the defendant’s train was stopped, the body of the plaintiff’s husband was found near the crossing, between the two tracks, and bore evidence of having been run over by a train. Blood was found upon a rail on the track over which the train of the Georgia Railroad had passed.

The evidence authorizes the inference that the plaintiff’s husband was killed by the operation of the defendant’s train, and there arises a presumption that the defendant was negligent as set out in the petition. In order to justify the grant of a nonsuit, the evidence must conclusively rebut the presumption of negligence. In so doing, the evidence must conclusively show that the defendant company was not negligent in any manner set out in the petition.

Some of the allegations of negligence the evidence conclusively rebuts. It conclusively appears, from the evidence, that the train was not exceeding • the speed limit fixed by the ordinance, and it conclusively appears that there was a guard or lookout upon the rear of the train, as provided by the ordinance.

There is evidence to the effect that the body of the deceased was found about tear or fifteen feet frona the crossing, in the directioaa iaa which the Georgia Eailroad train was going. There is evidence that betweeaa the place where the body was fouaad aaacl the crossing there was blood. One of the railroad meaa testified that bodies when hit by traiaas are frequently dragged some distaaace. The inference is authorized that the defeaadaaat’s train hit the deceased and knocked him under the approaching train, aaad that the latter train dragged his body to the place where it was' fouaad aaear the crossiaag. The evidence therefore authorizes the infereaace that the deceased was hit by the defeaad ant’s train at the crossiaag, or so near thereto as to reaader applicable the ordinances aaad statutes relative to the coaacluct of a railroad-traiaa approaching a crossing.

There is evidence to the effect that the custom of trainmen, after completing their work, to ride home from the yards upon freight trains, was well known to the defendant. The defendant should have anticipated that railroad employees would alight from other trains at the crossing; and therefore a failure of the defendant to give warning of the approach of its train to the crossing may, as a matter of fact, under the circumstances, have been negligence. The petition alleging negligence in failing to give such a warning, and it not appearing, from the evidence, that any warning was given on approaching the crossing, the inference is authorized that in this respect the defendant was negligent. There is no evidence that the train was equipped with means for giving notice of its approach to a crossing, as required by the ordinance. The jury could also have inferred that those operating the train did not use due care in approaching the crossing, as provided by the act of-the legislature referred to.

The evidence is not conclusive that the plaintiff’s husband failed to exercise ordinary care for his own safety. The jury could have inferred that the defendant had not rebutted the presumption of negligence, and it was therefore error to grant a nonsuit.

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.


text:
    17391.
    Georgia Railroad & Banking Company et al. v. Konkle.
    Negligence, 29 Cyc. p. 499, n. 92; p. 501, n. 13.
    Railroads, 33 Cyc. p. 1347, n. 68; p. 1351, n. 91.
   Stephens, J.

1. Where a railroad company, by the emission of sparks from one of its engines, negligently sets fire to a building near its tracks in a city, and where a city fireman, whose duty it is to extinguish fires in the city, enters the building, and, while he is attempting to reach the fire with a hose-line and water for the purpose of' extinguishing the fire, in the discharge of his duty, the floor upon which he is standing, as a result of an obscure and unobserved defect in its condition which renders it insecure and unsafe for a person to go upon, which defect is unknown to him, collapses and falls in with him and he receives injuries from which he dies, the falling in of the floor by reason of the defective condition alleged is an independent and intervening agency which the railroad company, while negligently setting out the fire, could not have reasonably anticipated and foreseen, and the defective condition of the floor, and not the emission of sparks from the engine, is to be regarded as the proximate cause of the injury. Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109).

Decided March 5, 1927.

Damages; from Fulton superior court — Judge Humphries. March 3, 1926.

Application for certiorari was made to the Supreme Court.

McDaniel & Neely, Rembert Marshall, for plaintiffs in error.

Hill & Adams, contra.

2. When the foregoing facts appeared from the petition in a suit by the widow of the fireman against the railroad company, to recover damages for the homicide of her husband, the petition failed to set out a cause of action, and it was error to overrule the general demurrer thereto.

3. The ruling here made is distinguishable from that in Wilson v. Central of Georgia Ry. Co., 132 Ga. 215 (63 S. E. 1121), where it was held that where a railroad negligently sets out fire which endangers the property of another, and he is injured by reason of burns received while fighting the fire in an effort to protect his property from it, the negligent setting-out of the fire may be regarded as the proximate cause of the plaintiff’s injury. In the instant case the deceased was not killed by the fire set out by the defendant, but was killed by the falling in of the floor of the building'.

Judgment reversed.

Jenlcins, P. J., and Bell, J., eoneur.


text:
    17415.
    Johnson v. Peoples Bank.
    Bills and Notes, 8 O. J. p. 344, n. 3; p. 717, n. 4; p. 1034, n. 54; p. 1054,-n. 68.
    Evidence, 22 O. J. p. 199, n. 36; p. 220, n. 26; p. 221, n. 27; p. 229, n. 56.
    Vendor and Purchaser, 39 Cyc. p. 1358, n. 50; p. 1928, n. 62; p. 1929, n. 67.
   Stephens, J.

1. Where a vendor of land is not insolvent, or where there is not some ground for equitable interference with the contract of sale, on the ground of fraud or otherwise, the vendee in possession of the land can not, in defense to a suit against him for the purchase-money, set up that the vendor has no title to the land. Puckett v. Jones, 36 Ga. App. 253 (136 S. E. 462).

2. Where a promissory note is acquired by a transferee after its maturity, the transferee does not take it subject to a defense by the maker against the payee arising after the transfer of the note; as, for instance, a rescission of the contract of sale by which the maker surrenders possession of the land to the owner. Georgia State Bank v. Harden, 32 Ga. App. 300 (3-a) (124 S. E. 68).

3. Where a bank as transferee of such a note brought suit on it against the maker, evidence to the effect that the cashier of the bank, after the maturity of the note, stated to the defendant that the bank held the note for collection, was proof of an admission in behalf of the bank, autliorizing the inference that at the time the admission was made, the bank had not acquired title to the note.

Decided March 5, 1927.

Complaint; from Wilkes superior court — Judge Perryman. May 6. 1926.

Application for certiorari was made to the Supreme Court.

M. L. Felts, Colley & Colley, for plaintiff in error.

Clement F. Sutton, contra.

4. The time when title to the note was acquired by the transferee suing thereon was not established, where it appeared that if the transferee acquired title, it was acquired after maturity, and there was no evidence as to the time when title was acquired.

5. A statement by the cashier, made after the maturity of the note, to the effect that the bank had traded for the note, was a self-serving declaration and mere hearsay, and had no probative value as tending to establish title to it in the bank.

' 6. It appearing that the note sued on by the bank as transferee was given for the purchase of land which the vendor held under a bond for title from his immediate vendor, and there being evidence that the bond for title was surrendered by the defendant’s vendor to his immediate vendor, the holder of the legal title, and the contract of purchase was thereby rescinded by them, and that the defendant surrendered the land to his vendor’s vendor and thereby rescinded his contract of purchase, and thus established a defense to a suit upon his purchase-money notes, as against the payee or one taking with notice, the evidence was insufficient to authorize the inference that the plaintiff acquired title to the note prior to the rescission by the defendant of his contract of purchase.

7. Applying the above rulings, it was error to direct a verdict for the plaintiff.

Judgment reversed.

Jenkins, P. J., and Bell, J., coneur.


author: Broyles, C. J.

text:
    17303.
    Central of Georgia Railway Co. v. Council Brothers.
    Carriers, 10 C. J. p. 108, n. 82; p. Ill, n. 14; p. 112, n. 18; p. 525, n. 18; p. 526, n. 42 New; p. 541, n. 56 New; p. 561, n. 90 New.
   Broyles, C. J.

1. The petition as amended ivas not subject to any ground of the demurrer interposed, and the overruling of the demurrer was not error.

2. The court did not err in sustaining the plaintiff’s exceptions of law, numbered 1 and 11, to the auditor’s report, or in overruling all the exceptions of law (except exceptions numbered 6 and 7) taken by the defendant to the auditor’s report; the exceptions numbered 0 and 7 having been sustained.

3. “Where by the terms of its bill of lading the initial carrier agreed to transport a car of peaches from a point in this State to a point 'in another State, the transportation to be made over its own lines and those of connecting carriers, the shipper, if the owner, had the right, as an incident to the contract of carriage, before the shipment reached the point of destination named in the bill of lading, to direct the terminal connecting carrier to divert the shipment to another place upon its lines; and if such terminal carrier failed to divert the shipment as directed by the shipper, in consequence of which the peaches were damaged, the initial carrier would be liable to the shipper for such damages, although no notice of the requested diversion was given to the initial carrier. Under the Carmack amendment to the interstate-commerce act, as amended by the Cummins act, any common carrier subject to the provisions of said act, receiving goods for transportation from a point in this State to a point in another State, is required to issue a receipt or bill of lading therefor, and is liable to the lawful holder thereof for any damage to such property caused by it or by any com-moil carrier to which such property may be delivered or over whose line or lines it may pass within the United States,' when transported on a through bill- of lading; and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such initial carrier from such liability. A rule of the initial carrier, which stipulated that it would not be liable for a failure to divert any shipment, where the shipment had passed beyond its own lines of railway, unless such failure was caused- by the negligence of its own employees, was void and illegal under the said Carmack amendment, notwithstanding its approval by the Interstate Commerce Commission.” Central of Georgia Ry. Co. v. Council, 163 Ga. 494 (136 S. E. 418), decided by the Supreme Court in answer to a certified question by this court.

Decided March 8, 1927.

Damages; from city court of Americus — Judge Harper. March 22, 1926.

Application for certiorari was made to the Supreme Court.

H. A. Wilkinson, for plaintiff in error.

James A. & John A. Fort, contra.

4. A common carrier is bound to use extraordinary diligence in transporting goods accepted by it. In case of loss or damage of such goods the presumption of law is against the carrier, and no excuse will avail it unless the loss or damage was caused by the act of God or the public enemies of the State. Civil Code (1910), § 2712. The act of God means any act produced by physical causes which are inevitable. In other words, unavoidable accidents are the same as the acts of God. Fish v. Chapman, 2 Ga. 349 (3) (46 Am. D. 393).

5. In the instant ease the plaintiff proved' damage to the shipments, and the defendant carrier failed to show that the damage was occasioned by the act of God, or by the public enemies of the State.

6. The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17680.
    HARTFORD ACCIDENT AND INDEMNITY COMPANY v. HALL, administrator.
    The award of the industrial commission was authorized, under the law and the evidence, except that it was erroneously- directed against the insurance carrier only. It should have been directed against both the employer and the insurance carrier. The judgment is affirmed, with direction that the award be amended to meet this ruling.
    Decided March 8, 1927.
    Workmen’s Compensation Acts, — C. J. p. 116, n. 52 New; p. 124, n. 63, 66 New,

      Appeal; from Fulton superior court — Judge Howard. September 15, 1926.

      P. J. Stoddard, T. E. Drake, Fred Stinchcomb, A. F. Burbage, for plaintiff in error.

      H. A. Allen, Culpepper & Murphy, contra.
   Broyles, C. J.

This was a claim arising under the workmen’s compensation act (Ga. L. 1920, p. 167). Only three questions are presented for the determination of this court: 1. Did the policy issued by the insurance carrier cover the injury to the employee in question which caused his death? 2. Was illegal and prejudicial evidence admitted on the hearing before the industrial commission ? 3. Was the award of the industrial commission invalid because it was directed against the insurance carrier only instead of against the employer and the carrier ?

1. As to the first question, the undisputed evidence showed the following facts: The insurance carrier issued to J. W. Maddox and H. M. Maddox a policy covering their employees under the following classification: “Grading land, excluding canal or cellar excavations, quarrying and street or road construction.” The Maddox firm was in the grading business. It cut down trees on lands that it was grading, and, after they were cut down, hauled them to a sawmill owned and operated by the firm, where the trees were sawn into lumber and made into wagon-beds and “dump” bodies to be used by the firm in its grading business. The sawmill was used for no other purpose, and was operated only on rainy days and at times when it was impossible to do grading work. No special hands were employed for the sawmill, but it was operated entirely, by the grading crews. The injured employee was a common laborer and was one of the grading gang, but when injured was working, by direction of his employer, at the sawmill. The commissioner hearing the claim found that under the above-stated facts the sawmill was incidental to and a part of the grading business of the Maddox firm, and that the injury to this employee was covered by the policy issued by the insurance carrier. That finding was subsequently approved by the full commission and by the superior court, and is now affirmed by this court. See, in this connection, Zurich General Accident &c. Co. v. Ellington, 34 Ga. App. 490 (130 S. E. 220).

2. Conceding, but not deciding, that the admission in evidence, over tlie objections of the-plaintiff in error, of a former policy of insurance (which had expired and which was issued by another insurance company), covering the employees of the Maddox firm, was error, the error, under the facts of the case, was harmless, and does not require another hearing of the case.

3. The award should have been directed against both the employer and the insurance carrier instead of against the insurance carrier only, but this error is one of form and not of substance. The claim was properly brought against both the employer and the insurance carrier, and both defendants were served and were represented by counsel in the hearing before the commissioner and on the appeal to the full commission. The inadvertent direction of the award against the insurance carrier only does not render the award invalid, and this technical error does not require a reversal of the judgment below and a retrial of the case.

It is hereby directed by this court, under the authority vested in it, that the award be amended and be directed against both the employer and the insurance carrier. The carrier will not be heard to complain of this direction, and the interests of the employer are not injuriously affected thereby, since under the provisions of the compensation act the insurance carrier is liable for any award found against the employer, provided, of course, that the award, if excepted to, be approved by the courts.

Judgment affirmed, with direction.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    17787.
    Dillard v. The State.
    Decided March 8, 1927.
    Indictment for possession of liquor; from Whitñeld superior court — Judge Tarver. November 8, 1926.
    A deputy sheriff testified, that, having got word that “they were selling liquor around the negro hall,” he and two other officers watched the hall for some time; that he saw negroes going from the hall to the house of Zora Dillard, the defendant, and back to the hall; that he saw two Avhite men sitting in front of Zora Dillard’s house, and saAV them go up to a ear that came up, and Avhen the officers came up on them they ran; that some liquor was found just inside the fence of Zora’s yard; some was “scattered around there;” some was “in the alley,” and a part of a jug was just in front of Zora’s house, which fronts “right on the street;” that “the white men threw the liquor away and ran,” and that he, the witness, did not see Zora with any liquor. Henry Eeece testified: “Me and Porter Eooker stopped in front of . . the colored barber-shop and we saw Zora Dillard coming up the street. Porter said, ‘What you got?’ And Zora said, ‘I ain’t got nothing. We might find something.’ Hé got in the car with us and we drove on down the street, . . and we saw two white men. When we stopped the car these white men came up, and we said we would take a half. Just as they started to hand it to us the law came up, and we let the liquor fall before they gave it to us. . . I didn’t see Zora Dillard with any liquor. The white men had the liquor, and they threw it down and ran when the law came up. No, sir, us niggers didn’t have any liquor.” Porter Eooker testified to the same effect. An officer testified that the officers searched the defendant’s house, but did not find any liquor. The defendant, in his statement at the trial, said that he did not have anything to do with any liquor, and did not know anything about the liquor found near the fence; that two white men, one of whom he named, had some liquor there, and they ran off “when the law come up.” There was no additional evidence as to possession of liquor.

      Intoxicating Liquors, 33 O. J. p. 761, n. 53.
   Bloodworth, J.

The evidence is not sufficient to support the verdict, -and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Ltike, J., concur.

William M. & Gordon Mann, for plaintiff in error.


text:
    17788.
    COCLIN v. TAYLOR.
    Construing against the plaintiff in certiorari the contradictions and uncertainties in the record, he does not show error in the judgment complained of; and the judge of the superior court did not err in overruling the certiorari.
    Decided March 8, 1927.
    Rehearing denied April 12, 1927.
    Certiorari, 11 C. J. p. 208, n. 10, 11.

      Certiorari; from Richmond superior court — Judge A. L. Franklin. October 23, 1926.

      W. Inman Curry, for plaintiff in error. John J. Jones, contra.
   Bloodworth, J.

The only assignment of error in the petition for certiorari is upon the entering of judgment against the defendant in the magistrate’s court. It is well established in this State that the presumption is always in favor of an unreversed judgment, and that the burden in certiorari proceedings is on the plaintiff in certiorari to plainly, distinctly, and affirmatively show error. The record in this case is confused and confusing, and contains irreconcilable contradictions. Uncertainties and ambiguities in a certiorari record must be construed favorably to a judgment refusing a new trial. Reese v. Miller, 33 Ga. App. 443 (4) (126 S. E. 904). The record in this ease does not plainly, distinctly, and affirmatively show error in the judgment of which complaint is made, and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    17789.
    MUTUAL LIGHT & WATER COMPANY v. CROSBY.
    From the evidence the jury were authorized to infer that the killing of. the plaintiff’s son by an electric shock when he put his hand on the electric milk-shake mixer was caused by negligence of the defendant in the construction, connection, or maintenance of the wires belonging to its plant. The doctrine of res ipsa loquitur applies, since the happening of the event established the existence of antecedent negligence which produced the result.
    Electrieity, 20 O. J. p. 381, n. 20, 23; p. 386, n. 49.
    Decided March 8, 1927.
    Damages; from Glynn superior court — Judge Reed. October 28, 1926.
    Application for certiorari was made to the Supreme Court.

      J. T. Colson, Conyers & Gowen, for plaintiff in error.

      J. T. Powell, Krauss & Strong, contra.
   Broyles, C. J.

1. The exception to the judgment overruling the demurrers to the petition is expressly abandoned in the brief of counsel for the plaintiff in error.

2. This case is controlled by the decision in City of Thomas- ville v. Jones, 17 Ga. App. 625 (87 S. E. 923). The two eases in all material respects are identical, and, under the rulings in the case cited, the plaintiff in the instant case proved that she was partially dependent upon her deceased minor child and that he contributed substantially to her support. The evidence for the plaintiff (the defendant introduced none) showed also that the deceased was a young, healthy, and vigorous man, with a strong body and heart; that in the performance of Ms duties in Ms father’s “soft drink” store he put his hand on an electrical milkshake mixer and was immediately electrocuted and killed; that, while no burn was visible on his hand, there were burned and blistered places on his left chest, over his heart, discolorations on both legs, and burns on the bottoms of both feet; that the proper and safe amount of electrical current to pass over the defendant’s wire into the store was 110 to 120 volts, and that the primary wires of the power plant of the defendant carried 2,300 volts. Under this evidence the jury were authorized to infer that a current of electricity of far greater voltage than 120 was passing over the defendant’s secondary wire into the store at the instant the deceased placed his hand upon the milk-shaker, and that his death resulted therefrom. And, as was said by this court in the City of Thomasville case cited, “since the evidence disclosed that a voltage of 110 to 120 only should have been permitted to circulate, or would have circulated through the secondary wires or circuit if no negligent contact between the primary and secondary wires had occurred, or if the electric-light plant had been properly constructed, the jury had the right to infer that the negligence of the defendant in the construction, connection, or maintenance of the wires belonging to its plant brought about the passage of the highly dangerous and unnecessary current over the secondary circuit, and thereby caused the death of the deceased. The doctrine of res ipsa loquitur applies, since the happening of the event necessarily established the existence of antecedent negligence which produced the result.”

The fact that the proof in the case just quoted from showed that a current of electricity of 110 to 120 volts “would be entirely harmless,” while in the instant case the evidence was that such a current might kill a person not physically strong and with a weak heart if he was standing in water or op a wet floor, is, under th§ undisputed evidence that the deceased was physically sound and had a strong heart, immaterial and does not affect the above-stated ruling.

3. The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.