text:
    15561.
    Hearn, administrator, v. Durrence.
   Jenkins, P. J.

1. “The liability of a person who is . . a surety for a bankrupt shall not be altered by the discharge of such bankrupt.” Bankruptcy Act, § 16 (a) (U. S. Comp. St. § 9600); Nat. Surety Co. v. Medlock, 2 Ga. App. 665 (3 a) (58 S. E. 1131). It makes no difference under this section whether the creditor proves his claim and gets his dividend, as was done here, or fails to do so. He may proceed and collect the debt from the surety. 1 Collier, Bkr. (13th ed.), 585.

2. “A creditor holding a debt against a principal and deceased surety is under no duty to give notice of the existence of his debt to the administrator of the surety. He must give notice when he seeks to hold the administrator personally liable for a wrong application of the assets to other claims, but need not do so in order to hold the estate liable for the debt.” Goodwyn v. Hightower, 30 Ga. 249 (2), 252. Nor will forbearance in the collection of the debt, “unless for a consideration, . . release the surety.” Civil Code (1910), § 3544; McMillan v. Heard, 19 Ga. App. 148, 151 (91 S. E. 235).

Decided December 17, 1924.

Complaint; from city court of Claxton—Judge Elmore. March 19, 1924.

J. Carl Hodges, P. M. Anderson, for plaintiff in error.

W. G. Wwrnell, R. M. Girardeau, H. H. Durrence, contra.

3. The averments merely to the effect that the plaintiff should in equity arid good conscience have informed the defendant of the indorsement by the surety,, and that her failure to do so amounted to a fraud upon defendant, and that the plaintiff and the principal on the note are “closely related, being brother-in-law and sister-in-law,” were wholly insufficient to show any fraud between the plaintiff and the principal toward the surety or the defendant as administrator of his estate. See Crawford v. Crawford, 134 Ga. 114 (67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932). The court, on motion, correctly dismissed the plea as failing to set up a legal defense.-

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15715.
    Scott v. Kelly-Springfield Tire Co.
   Bell, J.

1. “Generally, proof of an explicit voluntary admission by a person of a fact adverse to his own interest is, in any civil proceeding against him, prima facie evidence of the existence of that fact; and, unless explained or denied, such admission may, of itself, authorize a jury to find accordingly.” William Hester Marble Co. v. Walton, 22 Ga. App. 433 (4) (96 S. E. 269).

2. Where, in the trial of an action upon an open account, the evidence warrants the inference that on a demand for payinent the defendant had given to the plaintiff a check for the amount of the indebtedness claimed, but that the check was thereafter protested and never paid, if these circumstances are unexplained the jury would be authorized to conclude that the giving of the check was an admission of the justness and correctness of the account, and to render a verdict accordingly. White v. Crane, 62 Ga. 399; Burch v. Harrell, 93 Ga. 719 (20 S. E. 212); Bunn v. Atlantic Coast Line R. Co., 18 Ga. App. 66 (2) (88 S. E. 798); Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (5) (93 S. E. 511).

3. Under the rulings .in the two preceding paragraphs, the verdict found for the plaintiff in this case was authorized, irrespective of the probative value of any other evidence, and the court did not err in overruling the general grounds of the motion for a new trial.

4. “The declarations of an alleged agent, though made dum fervet opus, are not admissible to prove his agency.” Franklin County Lumber Co. v. Grady County, 133 Ga. 557 (1) (66 S. E. 264). “Before one can be bound by the acts of another who assumes to represent him, due proof of the agency must be made; and before one will be estopped by the act of an agent, it must be affirmatively shown that the agent was acting within the scope of his authority.” Decatur County v. Curry, 154 Ga. 378 (5) (114 S. E. 341).

5. “The fact of agency may be established by the direct testimony of the one who has assumed to act as agent (Friese v. Simpson, 15 Ga. App. 786 (4), 84 S. E. 219); and while the previous declarations of an alleged agent are not by themselves admissible to prove agency (Harris Loan Co. v. Elliott Typewriter Co., 110 Ga. 302 (1), 34 S. E. 1003; Americus Oil Co. v. Gurr, 114 Ga. 624 (1), 40 S. E. 780), after any such direct testimony has been admitted, or the fact of agency has been clearly indicated by proof of circumstances, apparent relations, and the conduct of the parties (Cable Co. v. Walker, 127 Ga. 65 (1), 56 S. E. 108), the declarations of the alleged agent, though inadmissible if standing alone, become admissible as a part of the res gestse of the transaction, and as such may be considered in establishing the fact of agency.” Render v. Hill, 30 Ga. App. 239 (1) (117 S. E. 258).

6'. Agency is a fact, and the testimony of a witness that a certain person was the defendant’s “duly authorized representative” was not subject to the objection that it was a statement of a mere conclusion. Whether the statement was well founded was a matter for cross-examination, or for determination by other facts in evidence, either from the -witness or other testimony. Sankey v. Columbus Iron Works, 44 Ga. 228 (3); Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240). Where, however, such testimony has been given, and it thereafter appears that the witness has answered without any personal knowledge of the fact about which he has testified, his testimony should be disregarded. Reaves v. Columbus Electric & Power Co., 32 Ga. App. 140 (5) (122 S. E. 824); Bull v. Carpenter, 32 Ga. App. 637 (4, 5) (124 S. E. 381).

7. Where, in order to prove liability of the defendant for a part of the goods charged to him, the plaintiff sought to show a delivery thereof by a receipt purporting to have been signed by one as the defendant’s agent, and on cross-examination the -witness who had testified as indicated in the preceding paragraph further testified that he “could not swear” that such alleged agent, to whom he had referred in his previous testimony, “was representing” the defendant, and did not mean to say that he know that such person “had any authority to sign the delivery receipts,” that ho did not know what became of the merchandise after the plaintiff’s truck left with it, “except that we got our . signatures,” that he rvas not present when the goods “were signed for,” but that he knew the signatures to be genuine and had known of the (mere) presence in the defendant’s place of business of the person who had signed the same, and where there was no other evidence whatsoever touching the question of the authority of such person to sign the receipts, they were not shown to have been executed by the defendant’s agent and for that reason were inadmissible in evidence, over appropriate objection. Otherwise as to receipts for another part of the goods, shown to have been signed by a different person, purport- . ing to act as the defendant’s agent, namely, “Raines,” or “R. Raines,” it appearing by the evidence that the defendant had admitted that “a man by the name of Raines” had charge of his business.

8. The court erred also in admitting, over objection, the testimony of a witness that a certain writing—one of those first referred to in the preceding paragraph—was a ticket “covering” certain goods “delivered” to the defendant, when the witness himself did not know of such delivery, and there was no other competent evidence thereof. Furthermore, the writing itself was the highest and best evidence of its contents.

Decided December 17, 1924.

Complaint; from city court of Decatur—Judge Daley. April 29, 1924.

Albert Kemper, for plaintiff in error.

9. It was error to admit the testimony of a witness introduced by the plaintiff, that he had copied from the plaintiff’s ledgers a list of the items of merchandise charged in the account, and had found corresponding- merchandise in the defendant’s place of business. The defendant’s purchase of these goods from the plaintiff could not be established by such reference, without more, to the plaintiff’s books. The evidence was subject to the objection that it was without probative value. Civil Code (1910), § 5769; Creamer v. Shannon, 17 Ga. 65 (63 Am. Dec. 226); Jenkins v. National Mutual Asso., 111 Ca. 732 (3) (36 S. E. 826); Southern Loan Asso. v. Butler, 111 Ga. 826 (1) (35 S. E. 679); Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (1) (97 S. E. 443).

10. If a party desires instructions to the jury touching- admissions made in the other party’s pleadings, he should present a proper request therefor. Georgia &c. Ry. Co. v. Lasseter, 122 Ga. 679 (2) (51 S. E. 15).

Judgment reversed.

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


text:
    15899.
    NEW AMSTERDAM CASUALTY COMPANY v. SUMRELL.
    The award of compensation by the Industrial Commission on the second hearing of this case was authorized by the evidence.
    Decided December 17, 1924.
    Rehearing denied January 17, 1925.
    Appeal; from Irwin superior court—Judge Eve. June 23, 1924.
    Application for certiorari was denied by the Supreme Court.

      Little, Powell, Smith & Goldstein, Madison Richardson, for plaintiff in error.

      Undenvood, Pomeroy & Haas, Herbert J. Haas, contra.
   Bell, J.

Assuming, without agreeing, that this court’s former decision in this case, fairly construed, had the effect of holding that the employer’s assent to the trip which was being made by the employee on the occasion of his death was essential to an award of compensation, the evidence upon the second trial, as upon the first trial, was sufficient to authorize the inference that the employer “was agreeable to such a course.” New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786). The evidence did not demand a finding that the employee’s death was due to his own wilful misconduct. Nor was there a total lack of sufficient evidence to show, in conformity with this court’s former rulings in the case, that the death of the employee arose out of and in the course of his employment. No other contentions by the plaintiff in error being made, the judgment of the superior court, refusing to set aside the award, must stand affirmed.

Judgment affirmed.

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


text:
    15832, 15833.
    WHEELER v. SALINGER; and vice versa.

    1. The so-called exceptions pendente lite filed by the defendant, the plaintiff in error in the main bill of exceptions, can not be considered, because it appears that the trial judge expressly “refused” the same. The case is not altered by the fact that the judge thereupon prepared and signed a statement setting forth his rulings, and provided therein that “such facts as the court has certified to be true may be entered upon the minutes.” Love v. Love, 146 Ga. 160 (9! S. E. 27) ; Watkins v. Stale, 29 Ga. App. 320 (114 S. E. 915).
    2. Although it is true that with such “exceptions pendente lite” eliminated there is in the record no assignment of error upon the action of the court in directing a verdict for the plaintiff, this is not cause for dismissing the bill of exceptions brought by the defendant, as suggested in the brief of counsel for the plaintiff, since error is duly assigned therein upon the overruling of the defendant’s motion for a new trial. Gray v. Phillips, 88 Ga. 199 (5) (14 S. E. 205) ; Oroueh v. Spooner, 8 Ga. App. 626 (1) (69 S. E. 1129).
    3. A provision in a promissory note, that the maker will pay “attorney’s fees” if the note is “placed in the hands of an attorney for collection,” constitutes a sufficient contract by the maker, in case of liability upon the note, to authorize the recovery of reasonable attorney’s fees against him in an action through an attorney upon the note, upon proof of a compliance with the Civil Code, § 4252, and of the reasonable value of the attorney’s services in the premises. Brooks v. Boyd, 1 Ga. App. 65 (6) (57 S. E. 1093) ; Proctor v. Orooker, 129 Ga. 733 (59 S. E. 781). It would be improper, in such a ease, to direct a verdict for the attorney’s fees, but, as indicated above, there is no proper exception to such direction in the present case.
    4. It would be immaterial that the plaintiff, who sued in his own name as an individual, alleged and failed to prove that he was a trader doing business under some other name stated, even though such averment was denied, provided the plaintiff otherwise established his title to the cause of action. “Where a promissory note is payable to a named person or order, or to the order of a named person, and is indorsed in blank, it is then, until the blank is filled, payable to the holder, and any holder may receive payment, or sue and collect.' The payee’s order to pay to any holder is not revoked or canceled by the order of some other person to pay a particular individual.” Haber-sham v. Lehman, 63 Ga. App. 380 (1), 383. Thus, whether the name appearing on the back of the note as that of an indorser to the order of another for collection, following certain blank indorsements, was shown to be the plaintiff’s trade name as alleged, it sufficiently appeared that the plaintiff, who was in possession of the note suing thereon, was the holder of the legal title thereto.
    5. In an action by an indorsee upon the note the indorsement need not be proved unless denied on oath. Civil Code (1910), § 4299. An averment in an answer to such suit, that the “defendant denies that the plaintiff is a bona fide holder and owner of the note sued upon, or any note executed by this defendant or that it has the right to sue the same,” does not amount to a denial of the genuineness of the indorsement, and hence does not call for proof of the same.
    6. The plea of non est factum as embraced in paragraph 6 of the defendant’s answer was not ousted as a pleading by other matter in the answer setting up additional separate and distinct defenses, although the inference of the execution of the note might have been drawn from such. other matter. The defendant may file inconsistent and contradictory pleas. Civil Code (1910), § 4649; While Sewing Machine Go. v. Horhan, 7 Ga. App. 283 (2) (66 S. E. 811) ; Jones v. Forehand. 89 Ga. 520 (1) (16 S. E. 262, 32 Am. St. Rep. 81); Kerr Glass Go. v. Americus Grocery Go., 13 Ga. App. 512 (2) (79 S. E. 381) ; Waters V. Freeman, 16 Ga. App. 595 (85 S. E. 931) ; Mendel v. Miller, 134 Ga. 610 (2) (68 S. E. 430); Wade v. Watson, 129 Ga. 614 (2) (59 S. E. 294).
    7. But the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made in one of the pleas, though in another part of the answer there is set up a contradictory state of facts. White Seioimg Machine Go. v. Horhan, supra. “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” Civil Code (1910), § 5775. Where matter is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in his favor. Hew Zealand Insurance Go. v. Brewer, 29 Ga. App. 773 (6) (7) (116 S. E. 922); Sims v. Ferrell, 45 Ga. 585 (3); Hickson v. Bryan, 75 Ga. 392 (2).
    8. Although it is true that, where the execution of a note is denied by a plea of non est factum, the note should not be admitted in evidence until some extrinsic proof of its execution has been submitted (Patton v. Bank of LaFayette, 124 Ga. 965 (5), 53 S. E. 664, 5 L. R. A. (2ST. S.) 592, 4 Ann. Cas. 639), and although it be conceded (no decision upon the point being here necessary) that, where the note is admitted in evi-' deuce without objection and the failure to object at the time does not appear to have been intended as an admission of its execution or as a waiver of the failure to supply the preliminary evidence, the defendant does not lose the right to move, at any time before the case is submitted to the jury, to have the note excluded from evidence, on motion then made (Patton v. Bank of LaFayette, supra; Blount v. Beall, 95 Ga. 182 (4), 22 S. B. 52), yet the defendant’s answer in the case now under consideration contained matter, especially in view of the contradictory and inconsistent nature of the defenses asserted, which could have been taken as sufficient extrinsic evidence of the execution of the note to warrant its admission in evidence, and also as evidence sufficient to authorize a verdict in favor of the plaintiff upon the issue of non est factum, when it was not met by any proof whatsoever in support of the plea. This latter is true notwithstanding that before a plaintiff will be entitled to prevail over-such defense, the burden ¿s upon him to prove the execution of the paper by a preponderance of the evidence: Bank of Norwood v. Chapman, 19 Ga. App. 709 (6) (92 S. B. 225). The court, therefore, did not err in overruling the motion to exclude the note from evidence, based upon the ground that no foundation had been laid for its introduction; and since the defendant offered no evidence whatsoever, either upon the issue of non est factum or otherwise, it can not be said that the verdict in favor of the plaintiff was without evidence to support it.
    9. “Before the trial judge is authorized to grant a new trial on newly discovered evidence, it must appear that the movant or his counsel could not," by ordinary diligence before, the trial, have discovered such evidence offered as newly discovered. Since a motion for a new trial upon the ground of newly discovered evidence, and the showing made in support of such motion, are addressed to the sound discretion of the trial judge (Burnell v. Naves, 82 Ga. 241, 9 S. E. 128; Fealherslon v. Bounsaville, 73 6a. 617; Exchange Bank v. Cone, 18 Ga. App. 432, 89 S. E. 489; Civil Code (1910), §§ 6085, 6086), a bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered ‘could not have been discovered by the exercise of ordinary care’ is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence. Taylor v. Stale, 132 Ga. 235, 237 (63 S. E. 1110) ; Patterson v. Collier, 77 Ga. 292 (3 S. E. 119).” Evans v. Grier, 29 Ga. App. 426 (3) (115 ° S. E. 921) ; Holders v. Farmers Exchange Bank, 30 Ga. App. 400 (6, 7) (118 S. E. 467).
    10. As indicated above, the onfy questions properly raised for decision are contained in the motion for a new trial; and, since there is no valid assignment upon the direction of the verdict, the record is to be taken as if the case had been submilted to the jury. Alley v. Candler, 155 Ga. 739 (1) (118 S. E. 354). The court did not err in overruling the motion upon any ground therein taken.
    Decided December 17, 1924.
    Complaint; from city court of Tifton—Judge J. H. Price. July 5, 1924.
    S. E. Salinger, “trading as S. E. Salinger and Company,” brought suit against Alonzo Wheeler, for principal, interest and attorney’s fees, upon a promissory note of which the following is a copy:
    “Post Office, Tifton, Ga., February 10, 1921.
    “$382.00. Twelve months after date I promise to pay to the order of 0. Bergersen three hundred eighty-two and no/100 dollars at Bank of Tifton, Tifton, Georgia, value received,.with eight (8) per cent, interest from date after maturity, and attorney’s fees if placed in the hands of an attorney for collection. (Signed) Alonzo Wheeler.”
    The note bore the following indorsements:
    “O. Bergersen,
    “A. S. Phelps,”
    “Pay any bank, banker, or trust company of Tifton, Georgia, or order, for collection and prompt returns. S. E. Salinger and Company, Bankers, Chicago, Illinois.”
    The defendant filed a sworn answer, which (omitting parts not here material) was as follows:
    “3. Defendant admits that the note is unpaid and he refuses to pay the same or any part thereof. The remainder of said paragraph is denied, for the good reason that this defendant does not owe and has never owed said note.
    “4. Fourth paragraph of plaintiff’s petition is denied.
    “5. Fifth paragraph of plaintiff’s petition is denied. Further answering said paragraph, defendant denies that there is a sufficient contract set out in the note attached to plaintiff’s petition as ‘Exhibit A’ as will entitle the plaintiff to recover attorney’s fees.
    “6. Further answering plaintiff’s petition, defendant says that he .never executed the note sued upon, the same is not his act or deed, neither did he authorize' any other person or persons to execute said note for him, neither has he ratified said note since its execution.

      “7. Defendant says that he is illiterate and can not read and write sufficient to understand the terms of a contract such as the note sued on. Defendant says that he did execute a note to 0. Bergersen, and said 0. Bergersen, after the.note was written by him, read said note to this defendant, because he could not read the same sufficiently to understand it, and in the note was written these words, or this substance: ‘That this note is not negotiable or to be traded. The purchaser is to have twelve months from the date of the execution, of the note to try out the light plant, and if the light plant is not satisfactory in every way at the expiration of this time, the said 0. Bergersen is to remove the plant at his expense or cost, and deliver to the maker of the note his contract and the noted And if these terms and conditions are not written in the face of the note, these terms and conditions have been erased or the said 0. Bergersen committed a fraud upon this defendant in the writing of the note. This defendant relied with explicit confidence upon said 0. Bergersen in the writing and reading of the note for the reasons herein stated, and if the terms and conditions herein stated are not as stated in said note, then said note was procured by a fraud from this defendant and is void.
    “•8. Defendant denies that the plaintiff is a bona fide holder and owner of the note sued upon or any note executed by this defendant, or that it has the right to sue the same.
    “9. For want of sufficient information, defendant can neither admit or deny that S. R. Salinger is trading as S. R. Salinger & Company whether it is a trade name or corporation. Defendant requires strict proof of said allegation. This defendant says that the note he executed to 0. Bergersen was for a light plant, that the note was executed before the installation of the light plant before this defendant had an opportunity to see the same, was then and now without consideration, and is void not only in the hands of the original payee, but in the hands of an innocent purchaser.
    “10, 0. Bergersen, the ¿payee of said note, guaranteed that the plant would be put in out of -the heaviest galvanized iron generator and galvanized piping. The light plant instead of being put in as guaranteed the cheapest grade of ungalvanized iron piping was used, the same was unfit for the purpose for which it is used, and is worthless. The plant was installed to be tested for a period of twelve months, that if the plant was not entirely satisfactory for every reason, at the expiration of twelve months the said 0. Berger-sen would take it out without one penny of cost to this defendant. The plant has not given satisfaction in any way, as it fails to burn, fails to operate, and fails to give light. The entire equipment is of the cheapest material, and is entirely worthless and unsuitable for the purpose for which the plant was installed for which it was to be used, all of which was known to 0. Bergersen at the time he induced the defendant to permit him to install said plant, that it is entirely worthless as a light plant, and is entirely worthless to this defendant for any purpose whatever. That as soon as this defendant could test the plant he immediately notified the said 0. Berger-sen that it was entirely worthless, unsuited for the purpose for which it was sold and installed, and to come and remove the plant, yet the said 0. Bergersen has failed and refused and continues to fail and refuse over the request of this defendant to remove said plant from the premises of this defendant.”

      B. A. Hendricks, for Wheeler.

      W. B. Bennet, contra.
   Bell, J.

(After stating the foregoing facts.) After verdict for the plaintiff for principal, interest, and attorney’s fees as sued for, the defendant filed a motion for a new trial, which was overruled, and he excepted. The facts, in addition to those contained in the statement above, are sufficiently indicated in the headnotes. It is not deemed necessary to elaborate any of the rulings therein made.

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

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


text:
    15836.
    BRIDGES v. HOME GUANO COMPANY.
    Considering it as a whole, the instrument relied on in the present action as embracing an enforceable agreement by the defendant for the sale of goods described therein was not fatally defective as such a contract because of the proviso which follows the semicolon in the stipulation here quoted: “In ease of destruction of our mills, in whole or in part, or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient;” but the' right of the defendant to ship only such part of the goods as it deemed expedient was dependent upon the existence of one of the conditions expressed in the stipulation, proof of which would be a matter of defense.
    Decided December 17, 1924.
    Action for breach of contract; from city court of Bainbridge— Judge Spooner. July 29, 1924.
    R. L. Z. Bridges brought an action for damages against Home Guano Company, for the breach of an alleged contract for the sale and delivery of twenty tons of fertilizer. A copy of the writing upon which the plaintiff relied as constituting the contract was annexed to the petition, and was as follows:
    “The Home Guano Company.
    “Dothan, Ala., Feby. 24, 1922.
    “To E. L. Z. Bridges, Brinson, Ga.
    “Dear Sir: We have this day agreed to ship to you, subject to the acceptance of the company, from Dothan office [variously described brands and grades of fertilizers aggregating twenty tons, at stated prices, to be paid for on May 1, 1922]. These goods are to be delivered f. 0. b. cars at Brinson, Ga., at above prices ($1 per ton for drayage will be charged on all lots less than car lots),- and are to be taken before June 1st next.
    “The company’s guaranty applies only to chemical composition of the goods, as expressed in guaranty printed on bags and filed with the different State departments. Purchaser may demand customer to weigh fertilizers at his depot, otherwise company will not be responsible for any difference in weights. Customer agrees that he or his agent will not claim that fertilizers were not branded and tagged in accordance to law, should he fail to notify company of such fact upon arrival and before removal of said fertilizers, also agrees that ownership of all unsold or undelivered goods remain with the company and is subject to its order. Customer must get consent of company before using any of these fertilizers shipped him under this contract. This contract not subject to cancellation without company’s consent.
    “For all goods shipped, customer is to give his or their notes at above-named prices on company’s regular form not later than May 1st next, or customer’s account or indebtedness shall become due and payable at once at the option of the company payable in cash, and it is further agreed to pay a reasonable attorney’s fee on said note or notes if process of suit is necessary. And you further agree to secure your note or notes by pledging and lodging with said company as collateral security not later than June 30th next (or this account becomes payable at once) all notes of purchasers from you of the goods of this company which customer absolutely guarantees, and if company requires it, all such notes or mortgages, open account, or other record of each sale shall be endorsed by customer and delivered to company; and you bind yourself to hold such notes, mortgages, open accounts, or other records of such sales for collection and subject to order of the company, and the accounts until the notes are taken, also the goods on. hand, in trust for said company, and will sign and return to company their regular-trust receipt covering said notes, mortgages, open accounts, or other records of sales until all your indebtedness is paid on your account or notes to said company; remitting the money on these collateral notes and accounts as fast as collected, and all money collected shall be kept subject to company’s order. You agree to pay said company at once for any portion of these goods you may sell for cash. Customer agrees that all expenses to collect notes or accounts of purchasers of said fertilizers shall be borne by customer. Upon failure of customer to comply with any of the agreements herein, said account or notes of customer, either or both, shall become at once due and payable at the option of the company.
    “We reserve the right to cancel this contract in case of any occurrence that we may regard as unfavorable to your credit. We are not responsible except for definite engagements for delays in transportation. In case of destruction of our mills, in whole or in part, or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient.
    “It is mutually agreed that the terms, conditions, and prices stated herein are in no way to be affected by any other contract customer or company may make, and that no verbal or written statement between customer and company’s salesman shall be binding on the company, unless confirmed and authorized by letter signed by the general manager of the company and it shall become a part of this contract.
    “The Home Guano Company,
    “By N. R. Graham, Salesman.” “The Home Guano Company, Dothan, Ala.
    “Dear Sir: We or I hereby accept this contract upon the terms and conditions stated therein.
    (Signed in duplicate.)
    “R. L. Z. Bridges, Customer.
    “Approved: M. L. Hanahan, Treas. & General Manager.”
    The defendant made an oral motion to dismiss the declaration, which the court sustained, rendering the following judgment: “It appearing to the court that the contract sued upon contains the following clause, to wit: The company reserves the right to ship all or any part of the contract as they may deem expedient/ and the court being of the opinion that the plaintiff has no cause of action against the defendant because of said clause contained in the contract sued upon, it is hereby ordered and adjudged that the declaration be and the same hereby is dismissed upon motion of defendant.” The plaintiff excepted.

      Harrell & Cusler, for plaintiff.

      Hartsfield & Conger, for defendant.
   Bell, J.

If the petition, for any other reason than that mentioned in the judgment of dismissal, had failed to set forth a cause of action, we possibly should affirm the judgment, even though we disagreed with the learned trial judge in the ground upon which the dismissal was based; but since counsel for both parties have devoted their arguments mainly to the point upon which the court below disposed of the matter, and since we are satisfied that whether the plaintiff was entitled to recover all of the damages for which he sued, his petition was good for a recovery of at least-a part of the same, and, therefore, not subject to be stricken in its entirety (Port Wentworth Terminal Corporation v. Leavitt, 24 Ga. App. 650 (1), 101 S. E. 766), unless it was fatally defective for the reason just indicated, we will limit this opinion to a consideration of that question alone.

The clause which was held by the trial court to be fatal to the writing as an enforceable undertaking oh the part of the defendant was as follows: “In case of destruction of our mills, in whole or in part, or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient.” Notice the semicolon. It is insisted, in effect, by the defendant that the clause following that mark of punctuation is to be considered independently of the preceding part of the sentence, and thus as attaching an unconditional reservation of the right to ship only such part of the fertilizers as it might deem expedient. On the other hand, it is contended by the plaintiff that this clause was limited by the language of the preceding clause, and reserved to the defendant the right to determine the quantity of fertilizers it would ship under the agreement, only in the event of the destruction in whole or in part of its mills, or of “stoppage by strikes or other causes.”

The writing itself would indicate that if a contract exists, the defendant was the party who proposed it, since it is in the form of a letter addressed to the plaintiff by one of the defendant's salesmen, with the plaintiff's acceptance and the defendant’s approval subsequently entered thereon. Buick Motor Co. v. Thompson, 138 Ga. 282 (75 S. E. 354). It is a well-settled rule that in the construction of a contract it is to be considered as a whole, and that no part of it is to be discarded if it can be avoided. “If the construction is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred.” Civil Code (1910), § 4268 (4). If a contract is so framed as to be susceptible of two constructions, that interpretation which is least favorable to the author or'party proposing it should generally be accepted. Candler Investment Co. v. Cox, 4 Ga. App. 763 (1) (62 S. E. 479); Ætna Insurance Co. v. Lipsitz, 130 Ga. 170 (2) (60 S. E. 531, 14 Ann. Cas. 1070); Moorefield v. Fidelity Mutual Life Ins. Co., 135 Ga. 186 (2) (69 S. E. 119). “When it is possible to do so without contravening any rule of law, the courts- will construe a contract as binding on both the parties, where, from the language of the contract, the conduct of the parties, and all the attendant circumstances, it appears that the intention of the parties was that both should be bound by the sale, and substantial justice requires that the contract be given effect. Civil Code (1910), § 4268 (3); Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636 (1), 637 (85 S. E. 943); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (3), 800 (69 S. E. 119).” Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (3) (93 S. E. 1018).

“The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” Civil Code (1910), § 4266. Every other rule is subservient to this one. “The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of [the instrument] together, and to consider this with the surrounding circumstances.” Shorter v. Methvin, 52 Ga. 225 (1), 230. The rules of grammatical construction usually govern, but even these may be disregarded in order to effectuate the intention. So, also,'“sentences and words may be transposed, and conjunctions substituted for each other.” Civil Code (1910), § 4268 (5).

The instrument here under consideration begins with the statement: “We [the defendant] have this day agreed to ship to you [the plaintiff], subject to the acceptance of the company,” twenty tons of fertilizer of various brands and grades at stated prices, to be paid for on a certain day named. Following these are sundry other provisions which it were idle to propose unless the defendant actually intended a contract of sale. Again, the right was reserved by the defendant to cancel the contract “in case of any occurrence” that it might regard as unfavorable to the plaintiff’s credit. This clause would appear to be wholly unnecessary if the provision, “the company reserves the right to ship all or any part of this contract as they may deem expedient,” established for it an avenue of escape from any obligation except to deliver such infinitesimal part of the goods as it might choose, in accordance with its own opinion of expediency. If this part of the instrument be given the effect which the defendant claims for it, it is sufficiently broad to render wholly superfluous the stipulation with respect to the cancellation of the agreement in the event of any happening that the defendant might have regarded as unfavorable to the plaintiff’s credit.-

We have already called attention to the punctuation. If in place of the semicolon in the sentence quoted at the beginning of this opinion there had been no mark at all, or if instead we had found a comma, we think it perfectly clear that the reservation of the right to ship all or any part of the goods, as the defendant might deem expedient, would have been subject to the conditions stated in the other part of the sentence. Shall we be persuaded to a contrary conclusion merely because of the semicolon, or more accurately, because of the difference between a comma and a semicolon? It might be possible for a case to arise in which all other considerations were evenly balanced and that the difference between these marks of punctuation might, like a feather’s weight, turn the scale to one side rather than the other; but this is not a case of that character. “The punctuation of an instrument may be considered when the meaning is doubtful, but-it can not control if the meaning otherwise plainly appears. In order to arrive at the meaning of the parties, proper punctuation marks may be inserted by the court in construing the instrument.” 17 Am. & Eng. Ency. Law 20; 13 C. J. 535, § 494 (b), and citations. In Holmes v. Phœnix Insurance Co., 98 Eed. 240 (2), 47 L. R. A. 308, the United States Circuit Court of Appeals said: “Punctuation is no part of the English language. The Supreme Court says that it 'is a most fallible guide by which to interpret a writing. Ewing v. Burnet, 11 Pet. 41, 54 (9th L. ed. 624). The'Century Dictionary tells us, what is common knowledge, that 'there is still much uncertainty and arbitrariness in punctuation/ It is always subordinate to the text, and is never allowed to control its meaning. The court will -take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly, without regard to the punctuation marks, or the want of them. The sense of a contract is gathered from its words and their relation to each other, and after that has been done, punctuation may be used to more readily point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words.” It is quite true that the meaning of isolated sentences may be changed most materially by a mere varying of the punctuation; but as each sentence of a contract must be studied in the light of all the others, so must its punctuation be subordinate to the effect of the whole instrument.

We think that the entire sentence under consideration, construed with reference to the other provisions of the writing, means substantially this: that in case of the destruction, either in whole or in part, of the defendant’s mills, or iirthe event of stoppage by strikes or other causes, the defendant reserved the right to cancel “all or any part of this contract,” and might exercise such right of cancellation according as it, and not others, might deem expedient; the latter portion of the sentence being inserted merely for the purpose of making clear that if either of the named conditions arose, the portion of the goods which the defendant might then supply, if it did not see fit to fill the contract in its entirety, was to be determined by the judgment alone of the defendant.

It is our opinion that the stipulation by which the defendant reserved the right to ship all or any part of the fertilizers is dependent upon the condition or conditions previously expressed in the same sentence, and that the existence of these conditions, or at least of one of them, would be a matter of defense. Buick Motor Co. v. Thompson, supra.

Judgment reversed.

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


text:
    15837.
    Knight Company v. Calhoun, for use, etc.
    Decided December 19, 1924.
    Complaint; from city court of Waycross—Judge Crawley. July 25, 1924.
    M. D. -Calhoun, for use, etc., brought suit against W. T. Caile, as drawer, and the Knight Company, as indorser, upon a certain draft. The Knight Company hied an answer, the material parts of which were as follows: 4th. For further plea and answer this defendant shows that said plaintiffs obtained possession of said draft without any consideration whatsoever flowing from plaintiffs to this defendant or to anyone acting for this defendant. That said draft was transferred by this defendant to plaintiffs merely as an accommodation and at the request of plaintiffs and that nothing whatever was paid to this defendant by the plaintiffs for said draft, and said draft was to be returned to defendant and not used by plaintiffs. 5th. Defendant shows that there was no consideration whatsoever for the transfer of this draft by itself to plaintiffs and that said draft is not the property of plaintiffs but is really the property of this defendant and was to be returned by the plaintiffs to this defendant according to the agreement had at the time said draft was secured from this defendant. 6th. Defendant shows that it is not liable to the plaintiffs for the payment of said draft nor on its indorsement thereof for the reason that same was without consideration and was a mere accommodation to plaintiffs, and said draft was to be returned to this defendant.
   Bell, J.

1. Where, without consideration, the payee of a draft indorses it over to another, who thereafter sues him on the indorsement, the want of consideration for the indorsement is a good defense. Each indorsement is a new contract, and, like other contracts, must be supported by a consideration. Cox v. Adams, 2 Ga. 158 (3); Civil Code (1910), § 4261.

2. While a consideration need not necessarily be a benefit accruing to the promisor (Civil Code of 1910, § 4242), and “if there be a valid consideration for the promise, it matters not from whom it is moved” (Civil Code of 1910, § 4249), and while the averments in paragraph 4 of the defendant’s answer perhaps did not negative the existence of a consideration, this was not" true of the general allegations of paragraphs 5 and 6, the same not being limited by any other matter contained in the answer, and being considered on a mere oral motion to strike in the nature of a general demurrer; and it was, therefore, error to strike the answer. The pleas did not attempt a violation of the parol-evidence rule. Mackin v. Blalock, 133 Ga. 550 (2) (66 S. E. 265, 134 Am. St. Rep. 220); Mimbs v. Stephens Hardware Co., 22 Ga. App. 88 (95 S. E. 377); Stewart v. Hardin, 24 Ga. App. 611 (1) (101 S. E. 716).

Judgment reversed.

Jenkins, P. J., and Stephens, J., coneur.

The court sustained an oral motion to strike the answer; and, after final verdict and judgment in favor of the plaintiff, the defendant sued out a writ of error.

Blaloclc & Blalock, for plaintiff in error.

Parker & Parker, contra.


text:
    15875.
    Elder v. Abel.
    Decided December 17, 1924.
    Certiorari; from Bibb superior court—Judge Mathews. July 19, 1924.

      Julian F. Urquhart, Hallie B. Bell, for plaintiff in error.

      Walter DeFore, James O. Fstes, contra.
   Bell, J.

This being a certiorari case in which exception was taken to a judgment rendered in the municipal court of Macon, and it not affirmatively appearing from the record, after the judge’s answer was in, that the writ was applied for within thirty days from the final determination of the case, the judge of the superior court did not err in'dismissing the certiorari. Sirmans v. Zucker Importing Co., 9 Ga. App 789 (72 S. E. 190).

Judgment affirmed.

Jenkins, P. J., cmd Stephens, J., concur.


text:
    15917.
    Strother v. Southern States Phosphate & Fertilizer Co.
    Decided December 17, 1924.
    Attachment; from Candler superior court—Judge Hardeman. August 7,1924.

      G. W. Turner, for plaintiff in error.

      Kimbrough & Brown, contra.
   Bell, J.

Where an attachment was sought by a creditor, by petition to the judge of the superior court, under § 5089 of the Civil Code, upon the ground that his debtor had made fraudulent liens on the debtor’s property, and where the writ issued after an order by the judge authorizing it, a demurrer to the attachment, on the ground that the affidavit verifying the petition had been subscribed before a commercial notary public, was properly overruled. Such an attachment may be issued upon the petition of the creditor, supported by “affidavit, or testimony if he can control the same.” Civil Code (1910), § 5088. If the affidavit was void as an affidavit verifying the petition, for the reason stated, the judge could consider it as sufficient “testimony” in support of the allegations of the petition, and grant the attachment. Price v. Cohen, 118 Ga. 261 (45 S. E. 225). See also Gazan v. Royce, 78 Ga. 512 (1) (3 S. E. 753); Loeb v. Smith, 78 Ga. 504 (3 S. E. 458); Enneking v. Clay, 79 Ga. 598 (7 S. E. 257).

Judgment affirmed.

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


author: Stephens, J.

text:
    14152.
    City of Brunswick v. Glogauer.
    Decided December 18, 1924.
    Action for damages; from Glynn superior court—Judge High-smith. October 14, 1922.

      B. D. Header, for plaintiff in error.

      Krauss & Strong, contra.
   Stephens, J.

The judgment of affirmance heretofore rendered by this court in this case (30 Ga. App. 727, 119 S. E. 420) having been reversed by the Supreme Court on certiorari (158 Ga. 792), the opinion rendered by this court in affirming the judgment of the court below is hereby withdrawn, and the rulings announced by the Supremo Court in its opinion reversing the judgment of this court are hereby applied.

Judgment reversed.

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


author: Bell, J. Bell, J.,

text:
    15456.
    SARMAN v. SEABOARD AIR-LINE RAILWAY CO.
    1. This was an action by a mother for the homicide of her minor daughter whoso death was alleged to have been caused at a public crossing by the negligence of the defendant in the operation of its train. The verdict found for the defendant was not demanded, but a finding for either party would have been authorized.
    2. Where a party to a cause on trial permits, without objection, the introduction of inadmissible testimony, the refusal of the court to sustain a subsequent objection to the admission of evidence substantially the same as that already admitted will not work a new trial. The failure to object sooner may be treated as a waiver.
    3. For the reasons stated in the third division of the opinion, it is not cause for a new trial that the court submitted to the jury the questions whether the mother was dependent upon the child, and whether the child contributed to her support, as alleged in the declaration.
    4. There was evidence to warrant the instructions whereby the court left to the determination of the jury the question whether the plaintiff should be barred from recovering because of the child’s negligence or failure to exercise proper care after the negligence of the defendant was known or should have been anticipated.

      (a) The plaintiff can not complain of a charge when she herself requested that a similar instruction be given to the jury, although the request was refused.
    5. While there was no evidence whatsoever that the child consented to the tort, it is not reversible error that the court charged, in substance, the entire first sentence of section 2781 of the Civil Code, referring to “negligence” and “consent” on the part of the person injured, the part of the charge as to negligence being applicable. The giving- of the inapplicable part as to consent was not prejudicial.
    G. The plaintiff was not harmed by the refusal of her request to instruct the jury upon the law in regard to apportionment of damages. Where the jury finds for the defendant, the plaintiff ordinarily can not have been hurt by any error in the court’s instructions as to the measure of damages. This general statement may bo subject to exceptions, but it is applicable here. Certain other requests were sufficiently covered by the charge of the court.
    7. Certain charges of the court assigned as error, examined and held not cause for a new trial.
    Decided December 18, 1924.
    Action for damages; from Camden superior court—Judge High-smith. February 23, 1924.

      B. A. Alicinson, Reuben R. & Lowry Arnold, for plaintiff.

      Conyers & Wilcox, for defendant.
   Bell, J.

Mrs. Elizabeth Sarman brought suit against Seaboard Air-Line Railway Company, a corporation, under the Civil Code, § 4424, for the homicide of her thirteen-year-old daughter Margaret. The homicide occurred at a public crossing at White Oak, a village in Camden county, when the defendant’s train collided with an automobile driven by a Mr. Prickett, in which the decedent was riding. The specifications of negligence were that the defendant failed to observe the requirements of the “blow-post law,” that the train was being run at an excessive speed, and that the defendant’s engineer and fireman failed to exercise ordinary care to cheek the speed or to give any signals of its approach even after the presence of the automobile, stalled on the track, was or should have been discovered. The defendant filed a plea denying all of the allegations of negligence, and further alleging that when the locomotive reached a point about 100 feet from the crossing the automobile suddenly appeared upon the track and stopped thereon directly in front of the train; and that upon discovering the same the engineer immediately “did everything within his power to bring said train to an immediate stop,” but that the distance was then so short that it was impossible for him to stop the train before it collided with the automobile; and that “everything was ¿lone that could be done by defendant’s employees to avoid” the collision. The trial resulted in a verdict in favor of the defendant, the plaintiff’s motion for a new trial was overruled, and she excepted.

The engineer testified that he approached the crossing at a speed of 45 to 50 miles per hour. Some witnesses estimated the speed to be higher and some lower. The evidence was in conflict as to whether the defendant’s servants in the operation of the train complied with the “blow-post law.” The railroad track at White Oak runs north and south. There are stores and residences on each side. The depot is on the west side. The public crossing was about 100 feet south of the depot. The train was approaching from the north. The automobile came from the south upon a road paralleling the track on the Avest side for a distance of about 300 yards, and turned to the right into the crossing. From the position of the automobile as it was traveling north before attempting to make the crossing, the occupants of the car had a view of the track north of the depot for some distance, but the depot and trees obstructed the view to some extent north of the crossing. The decedent and other children were on the rear seat. Their vision, it seems, would have been obstructed to some further extent by the two adults, Mr. Prickett and his wife, who occupied the front seat. The automobile was going at a very low speed, estimated by some witnesses at four or five miles per hour. As it turned to make the crossing, still more of the track to the north was obscured from the occupants, by the depot. It is inferable that none of them ever knew of the approach of the train until the automobile was within a few feet of the track, perhaps not until it was actually upon the track. Mrs. Prickett, the wife of the driver, testified that she looked for the train before they turned in to the crossing, but did not see it. Whether the decedent or the driver looked is unknown. The train was at this time but a short distance away, some of the witnesses saying from 90 to 100 feet, others more. Whether from excitement or other cause, the driver lost control of the automobile and it stopped upon the track. There was evidence that certain persons about the village saw the impending danger and voiced warnings in time for the automobile to be stopped short of the track, but it does not appear whether these warnings were heard by any of the occupants of the automobile. The engineer on discovering the automobile as it was about to go upon the track instantly applied the brakes, but it was then too late to avert the collision.

The decedent was nearly 14 years of age, and the evidence tends to show that she was an unusually bright girl. She had finished the eighth grade in school and had had considerable experience in housekeeping, selling goods, and bookkeeping. Her parents lived about 150 yards from the depot and their store was nearby. The train was a regular train and was running practically on schedule. The circumstances would justify the conclusion that the decedent was acquainted with the schedule."

The collision resulted in the instant death of the decedent and three others of the six who were in the automobile, only one other besides Mrs. Prickett surviving. Mr. Prickett appears not to have been thoroughly experienced in the driving of automobiles, but this was not known to the plaintiff. He was to her knowledge a little deaf in one ear. He had invited Mrs. Sarman to go to ride with them, but' she could not go. He then invited the little girl to go, and the mother permitted her to accept the invitation. The father was not at home. There was sufficient evidence to support the allegations of dependency and contribution.

The above is a fair resume of the evidence. The motion for a new trial contains • the usual general grounds and a- number 0 f special grounds.

If Mrs. Sarman had made Prickett the custodian of her child, any negligence on his part would have been imputable to her, she and not the father having permitted the child to go with him, and she being the plaintiff. Atlanta &c. Ry. Co. v. Gravilt, 93 Ga. 369 (3) (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145). But such was not the case; she did not submit the child to his custody but merely allowed it to accept his invitation. Compare Crook v. Foster, 142 Ga. 715 (3) (83 S. E. 670). His negligence was imputable neither to the child nor to the plaintiff mother merely because the child was riding as a guest in his automobile. Southern Railway Co. v. King, 128 Ga. 383 (1) (57 S. E. 687, 11 L. R. A. (N. S.) 829, 119 Am. St. Rep. 300); Mayor &c. of Savannah v. Waters, 27 Ga. App. 813 (1) (109 S. E. 918), and citations. Still the child, not being so young as to be as a matter of law incapable of negligence (Williams v. Jones, 26 Ga. App. 558 (2), 106 S. E. 616), was under a duty not to be negligent herself, but to exercise proper care for her own safety, although riding in the automobile as the guest of another. Powell v. Berry, 145 Ga. 696 (2), 700 (89 S. E. 753, L. R. A. 1917A, 306); Adamson v. McEwen, 12 Ga. App. 508 (77 S. E. 591). If she failed to do so and such failure was the proximate cause of her death, the mother was not entitled to recover. Linder v. Brown, 137 Ga. 352 (4) (73 S. E. 734); Elk Cotton Mills v. Grant, 140 Ga. 727 (4) (79 S. E. 836, 48 L. R. A. (N. S.) 656); Civil Code (1910), § 3474. Whether she exercised the proper care was a question for the jury. It was for them to say whether'she should have been on the lookout for the train or warned the driver, or what, if anything, she should have done in the exercise of proper care under the circumstances. Illinois Central R. Co. v. McLeod, 78 Miss. 334 (29 So. 76, 84 Am. St. Rep. 630, 52 L. R. A. 954); Dean v. Pennsylvania R. Co., 129 Pa. 514 (2), (18 A. 718, 15 Am. St. Rep. 733, 6 L. R. A. 143); Cotton v. Willmar &c. Ry. Co., 99 Minn. 366 (3) (109 N. W. 835, 8 L. R. A. (N. S.) 643, and note on p. 671); Colorado & Southern Ry. Co. v. Thomas, 33 Colo. 517 (3) (81 Pac. 801, 70 L. R. A. 681, 3 Ann. Cas. 700); Rebillard v. Minneapolis &c. Ry. Co., 216 Fed. 503 (2) (133 C. C. A. 9; L. R. A. 1915B, 953). Even if the jury had concluded that she was negligent, it was yet within their province to determine whether such negligence, or that of the railroad company, which some of the evidence tended to establish, was the proximate cause of her death. It is true that although negligence on the part of Priclcett was not imputable to her, yet oven that, if the sole proximate cause of her death, would bar the mother’s recovery.

But, again, the jury were the arbiters of the question of proximate cause. It was even for them to determine to what extent Prickett was negligent. In this State it is not negligence per se for one not aware of the approach of a train to attempt to cross the track at a public crossing without stopping, looking, and listening. Bryson v. Southern Ry. Co., 3 Ga. App. 407 (3) (59 S. E. 1124); Tennessee &c. R. Co. v. Neely, 27 Ga. App. 491 (2) (108 S. E. 629); Macon Railway & Light Co. v. Barnes, 121 Ga. 443 (2) (49 S. E. 282). Except where a particular act is declared to be negligence either by statute or a valid municipal ordinance, what acts would constitute negligence and what would not are questions ordinarily to be left to the determination of the jury, in view of all the evidence bearing upon the subject of time, place, and circumstances. Davis v. Whitcomb, 30 Ga. App. 497 (2) (118 S. E. 488).

In no view of the case was a verdict demanded for the defendant, but a verdict for the plaintiff would have been authorized. Louisville & Nashville R. Co. v. Stafford, 146 Ga. 206 (91 S. E. 29); Harris v. Southern Ry. Co., 129 Ga. 388 (2) (58 S. E. 873); Seaboard Air-Line Ry. v. Hood, 127 Ga. 206 (56 S. E. 303); Howard v. Savannah Electric Co., 140 Ga. 482 (79 S. E. 112); Georgia R. Co. v. Wallis, 29 Ga. App. 706 (1) (116 S. E. 883); Southern Ry. Co. v. Pair, 32 Ga. App. 378 (1) (123 S. E. 142). It thus becomes necessary to examine certain assignments of error upon extracts from the charge of the court and upon omissions to charge, which we will do beginning with the third division of this opinion.

In response to a question propounded by the defendant’s counsel to the engineer, “When you observed this automobile coming upon the track, was there anything left that you could do that you did not do to prevent this accident?” the witness answered, “Absolutely nothing.” Error is assigned upon the admission of this testimony over the objection of the plaintiff’s counsel that it was a conclusion and was argumentative.

The engineer had already testified that he first saw the automobile when it was 10 or 15 feet from the track, and at a) distance of 90 to 100 feet ahead of the engine, and that the bell was .ringing at the time; that he at once applied the emergency brake, and “that is the only thing that can be done on a locomotive to bring it to a sudden stop;” that he did not have time then to blow any signals, because he had to put on the emergency brake.

Irrespective of whether the testimony objected to ought to have been excluded (see Civil Code (1910), §§ 5874, 5876; Tennessee Coal Co. v. Georgia, 11 Ga. App. 221 (2), 75 S. E. 567; Macon &c. R. Co. v. Stewart, 125 Ga. 88, 54 S. E. 197), the testimony already given by him, without objection, to the effect that the only way suddenly to stop the train was to apply the brake, and that he had no time-to give signals, was, under the circumstances, considering that the bell was already ringing, the practical equivalent of the testimony objected to. Where a party to a cause on trial permits, without objection, the introduction of inadmissible testimony, the refusal of the court to sustain an objection subsequently urged to the admission of substantially the sainé evidence as that already admitted will not work a new trial. The failure to object sooner may be treated as a waiver. Cooley v. Bergstrom, 3 Ga. App. 496 (2) (60 S. E. 220).

Error is assigned upon an extract from the charge of the court by which were submitted to the jury the questions whether the mother was dependent upon the child and whether it contributed to her support within the meaning of the law, the complaint being that these essentials to a recovery were established without dispute, so that there was no issue in respect of these matters for the jury to determine.

The plaintiff testified that she and her husband and their five children lived together, and that she was dependent upon the labors of the whole family for a living. The children all did something. Her husband’s earnings were required to be supplemented by the labors of herself and the labors of the children in order to support the family. Her daughter Margaret, for whose death she sues, assisted materially in housekeeping, sewing, cooking, and also kept books and sold goods in the commissary operated by the plaintiff and her husband, the child’s services being of the value of $7 or $8 per week. The oldest child was 15 years of age, but was crippled and not able to do so much as Margaret. The husband worked for a salary of $'2400 per year, but after paying certain expenses with which he was chargeable had a net annual salary of about $900. Although the defendant offered no evidence in 'denial of the plaintiff’s testimony, we are nevertheless of the opinion that for three reasons the court did not err in the instructions complained of: (1) it is never error to refuse to direct a verdict; (2) whether the decedent contributed to her mother’s support and whether the mother was dependent thereon within the meaning of the law were necessarily questions involving a weighing and comparison of values, and these are peculiarly within the province of the jury (Louisville & Nashville R. Co. v. Lovelace, 26 Ga. App. 286 (6) 106 S. E. 6); Anderson v. Anderson, 27 Ga. App. 513 (4) (108 S. E. 907); (3) the plaintiff made a written request for a charge which would have submitted this very matter to the jury. A party can not complain that the court gave a certain charge to the jury when he himself requested that a similar instruction be given, although the request may have been refused. Conant v. Jones, 120 Ga. 568 (9) (48 S. E. 234); Columbus Mfg. Co. v. Gray, 9 Ga. App. 738 (1) (72 S. E. 273); Flemister v. Central Ga. Power Co., 140 Ga. 511 (11) (79 S. E. 148).

The court, in submitting to the jury the question as to whether the child was in the exercise of proper care, instructed them upon the law as to ordinary care, which he defined in terms of the Civil Code, § 3471, as' that care which every prudent person uses for his own safety under the same or like circumstances. Certain charges along this line are assigned as error: First, because there was no evidence tending to show that the child was negligent or lacking in ordinary care, and, second, because the law of ordinary care was inapplicable, but instead the court should have charged as to due care in a child as defined in the Civil Code, § 3474. There is also an assignment upon the omission to charge this section.

From what we have stated in the first division of this opinion, and in view of the fact that the child appeared to be well developed both mentally and physically, we can not say that the court was not warranted in submitting the question as to whethér the decedent was in the exercise of proper care. Ordinarily, the mother in suing for the child’s homicide would be entitled to have its conduct measured by the rule laid down in the Civil Code, § 3474. No reason appears why the plaintiff was not so entitled in this case (Savannah Electric Co. v. Thomas, 30 Ga. App. 405 (13), 118 S. E. 481), except that her request to charge upon the law of apportionment of damages conceded, by the language used, that the rule of ordinary care was the one to be applied to the child’s conduct. This request was refused, but under the authorities cited in the preceding division of this opinion, we could not in these circumstances reverse the trial court for submitting that rule in charge instead of the rule laid down in § 3474. It follows also that there is no merit in the assignment upon the omission to charge this section. We will discuss in a later division of this opinion the question .as to whether the court committed error in refusing the request to charge upon apportionment of damages.

What we have just said as to the sufficiency of the evidence to warrant the court in submitting to the jury the question as to whether the child was in the exercise of proper care will dispose in part of a further -assignment upon the charge of the court given substantially in the language of the Civil Code, § 2781, wherein it is provided that no person shall recover damage from a railroad company for an injury done by his consent or caused by his own negligence. The evidence being sufficient to warrant the charge upon “negligence,” the inapplicable reference to the child’s “consent” in the same connection does not require a new trial. “It was not cause for a new trial that the judge read in charge to the jury a code section part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable part was calculated to mislead the- jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.” Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405). See also Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (3), and citations on p. 438 (118 S. E. 452).

The charge was not argumentative, although it was prefaced by a statement that it was applicable in a case of this kind. Whether this could have been understood by the jury as an instruction that the rule was in fact applicable in the particular case, when it was their province to say whether it was applicable or not according to their view of the evidence, this question, that is, whether the court expressed an opinion on the facts, is not reached by the assignment that the charge was argumentative.

The plain tiff excepted to the refusal of a timely written request to instruct the jury upon the law of apportionment of damages. It has been repeatedly held that in a suit for a negligent tort, where the question of diminution of damages by reason of negligence on the part of the person injured is not raised by the pleadings of either party, it does not constitute reversible error for the judge, in the absence of a request, to omit to charge upon that subject, where he has charged fully upon the effect of the negligence of the injured person on the right to recover at all. Powell v. Berry, 145 Ga. 696 (5) (89 S. E. 753, L. R. A. 1917A, 306); Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (7) (80 S. E. 916); Central of Georgia Ry. Co. v. Hill, 21 Ga. App. 231 (2) (94 S. E. 50); Western & Atlantic R. Co. v. Jarrett, 22 Ga. App. 313 (3) (96 S. E. 17); Georgia Ry. & Power Co. v. Freeney, 22 Ga. App. 457 (2), 459 (96 S. E. 575); Savannah Electric Co. v. Crawford, 130 Ga. 421 (1) (60 S. E. 1056); Louisville & Nashville R. Co. v. Smith, 136 Ga. 455 (2) (71 S. E. 774); Alabama &c. Ry. Co. v. Brown, 138 Ga. 328 (7) (75 S. E. 330); Western & Atlantic R. Co. v. Smith, 145 Ga. 276 (5) (88 S. E. 983). It has also been held that in a proper case it was error for the court to refuse a request to charge upon that subject duly made by the defendant. Georgia &c. Ry. Co. v. Overstreet, 17 Ga. App. 629 (4) (87 S. E. 909). In the language of some of the decisions, there are intimations that such a charge should be given on request of the plaintiff, where the plaintiff was the losing and excepting party, and the evidence might have been taken by the jury as showing that the plaintiff was to some extent negligent but could not have avoided the injury by the use of ordinary care. Hill v. Callahan, 82 Ga. 109 (2) (8 S. E. 730); Ingram v. Hilton & Dodge Co., 108 Ga. 194 (6) (33 S. E. 961); Glaze v. Josephine Mills, 119 Ga. 261 (46 S. E. 99); Southern Cotton Oil Co. v. Skipper, 125 Ga. 369 (12) (54 S. E. 110); Holland v. Durham Coal Co., 131 Ga. 715 (2), 722 (63 S. E. 290). No ease has been called to our attention, however, and we have been unable to find any, in which the trial court was reversed for the refusal of such a request made by the plaintiff. Although it would not have been improper to give the request (Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (4), 70 S. E. 234), we are unable to see that the plaintiff was harmed by its refusal, she having asked for full damages, and the court having instructed the jury that she was entitled to recover provided the defendant was negligent, unless she was barred by the failure of the child to exercise proper care, or unless the negligence of Priekett, the driver of the automobile, was the proximate cause of the child’s death.

If the jury found for the defendant on the theory that the plaintiff did not sustain the allegations of dependency and contribution, it matters not what the court may have charged upon the subject of damages. So also if the verdict was predicated upon a finding that either the negligence of the child or that of Priekett was the proximate cause of the homicide. The failure to charge upon apportionment of damages would seem to be favorable to the plaintiff, because in the absence of such charge the plaintiff, if entitled to recover at all, might receive a verdict for the full value of the decedent’s life without deductions. How could it have harmed the plaintiff that the court did not instruct the jury upon a matter purely defensive? '

It is the general rule that where the jury have found for the defendant the plaintiff can not have been hurt by any error in the court’s instructions as to the measure of damages. "While this general rule may be subject to exceptions, it is not apparent that there probably would have been a finding in favor of the plaintiff even if the trial judge had given the charge requested. Compare Carstarphen v. Central of Georgia Ry. Co., 8 Ga. App. 162 (2) (68 S. E. 848); Conant v. Jones, 120 Ga. 568 (12) (48 S. E. 234); Binder v. Georgia Ry. & Electric Co., 13 Ga. App. 381 (2) (79 S. E. 216).

Nor did the court err in refusing a request to give in charge the “blow-post law,” the same having been covered in the general charge substantially in terms of the act, and practically in the language of the request.

Certain other excerpts from the charge of the court, assigned as error, will now be considered together:

After giving the contentions of the plaintiff the court proceeded to state the defendant’s contentions as follows: “The defendant, as of course you gentlemen understand, denies these contentions made by the plaintiff, denies that the railroad or the employees of the railroad were negligent in respect to the matter under investigation, and claims that the railroad not only exercised all of the care required of it by the law, but that through its employees it exercised all of the care within its power; claims that it Las been made to appear that it exercised even a greater degree of diligence than the law requires, and that the plaintiff is not entitled to recover under the allegations of her petition, and under the evidence, and that the verdict of the jury should be in favor of the defendant.” One of the assignments is that the language, “but that through its employees it exercised all of the care within its power; claims that it has been made to appear that it exercised even a greater degree of diligence than the law requires,” was argumentative, “tended to magnify the defense, and tended to unduly impress the jury with the strength of the defense.” It is alleged further that the defendant filed no plea setting up such contention. Whether the plea should be so construed or not, the defendant could have made the contention through its counsel in the argument. Autrey v. State, 24 Ga. App. 414 (2) (100 S. E. 782). The assignment does not deny that this was done. The charge is understood as referring to the defendant’s contentions at the trial. Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50 (2) (12 S. E. 216). “Where the trial judge, in his charge, informs the jury that the contentions of the parties made during the trial are so and so, it will, in the absence of a certificate by him to the contrary, be presumed that his statement of such contentions was correct.” Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (2) (58 S. E. 769).

After the court had concluded instructions upon the subject of contribution and dependency, the charge upon the subject of negligence and diligence of the parties was begun, as follows: “Now, if you find, so far as this phase of the case is concerned [referring to the questions of dependency and contribution], that the plaintiff, Mrs. Sarman, is entitled to recover, then you would proceed to determine whether or not the defendant is liable, and whether or not, under the evidence, the plaintiff is entitled to recover, and in that connection I charge you as one of the very first propositions in a case of this kind, and that the law to be, that one who could avoid the consequences of another’s negligence, if any, after such negligence became known or anticipated,—where by the exercise of ordinary care the consequences of such negligence could have been avoided, plaintiff is not entitled to recover.” One of the assignments is that this was “an argumentative way of charging the law of the case, to submit as the very first proposition to the jury that the plaintiffs want of ordinary care would have defeated a recovery.”

The court further charged the jury as follows: “In other words, a question that would present itself to your minds as laymen, who do not understand the law hut are desirous of knowing just what the rules of law applicable to a ease of this sort may be, a question that will present itself to your minds is whether or not, if this child was killed by the operation of the trains of the defendant, whether or not the defendant, under any and all circumstances, would be liable for such killing or for such death. That I charge you is not the rule of law in this case or State, is not the rule of law applicable in this case.” This is also assigned as error as being argumentative and a misstatement of the plaintiff’s contentions.

While the second of the three excerpts above would have required an illogical consideration of the evidence, because the first thing to be considered was whether there was negligence on the part of the defendant, and while all of them were inapt, we can not hold that they probably resulted in prejudice to the plaintiff.

Error is also assigned upon the following charge: “The court would be glad if the court’s duties were over with, but it will be necessary for the court to give you further instructions. I am possibly tiring your patience somewhat, and yet this matter necessitates some little time being given to the rules applicable to it.” It is alleged, and the record shows, that this charge immediately followed the instructions upon the rules of law touching liability and nonliability, and immediately preceded the charge on the measure of damages. It is assigned that this charge was argumentative and prejudicial in that it tended to impress the jury that the plaintiff ought not to recover, that instructions on the measure of damage were useless, and that the judge was merely giving them because he had to, under the law. We can not agree that the charge is reasonably susceptible to the construction the plaintiff in error places upon it.

Lastly, error is assigned upon an instruction that the defendant was not under a duty to stop the train unless the circumstances were such as to indicate to an ordinarily prudent person that the vehicle (which here would be the automobile) is in, or is about to get into, a place of danger.. While this charge does not appear to have been pertinent to any contention made by either party upon the trial, it is not subject to the exception made, that it was an expression of opinion upon the facts and invaded the province of the jury as to what or what would not be negligence, under the circumstances, since it submitted the standard of an ordinarily prudent person.

Judgment affirmed.

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

Bell, J.,

dissenting. I dissent from the rulings made in the seventh headnote and in the corresponding division of the opinion, in so far as they relate to the charges designated as a, b, and c. What is said above in that connection I have stated merely as the views of the majority, and not as representing my own opinion. I think these three charges were error and prejudicial, and that because of the same the judgment refusing a new trial should be reversed.


text:
    15536.
    PATTERSON v. LEGGETT.
    ' 1. Assuming that one who has signed a note in such position upon the paper that he appears as a joint maker with another or others might, in a suit against him by one who was not an innocent holder for value, set up as a defense that he signed in that position by ignorance and mistake, and intended to subscribe his name only as a witness to the signature of the maker under whose name he signed, he would have the burden of proving that the plaintiff was not a holder bona flde, or not a holder for value, before he could be let in to the defense.
    2. While it is true that “any circumstances which would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due” (Civil Code of 1910, § 4291), still the evidence in this case, as summarized ' in the opinion, without more, was insufficient to show that the plaintiff, who was a holder for value, took the note with knowledge that the defendant, in signing it as an apparent joint obligor, nevertheless intended only to become a subscribing witness to. the signature of one of the makers. The verdict found for the defendant was unsupported and unauthorized, and it was error to overrule the plaintiff’s motion for a new trial.
    Decided December 18, 1924.
    Complaint; from city court of Baxley—Judge Speer. March 8, 1924.

      V. E. Padgett, for plaintiff.

      Wade H. Watson, for defendant.
   Bell, J.

This was an action by Patterson against J. H. Yawn, M. L. Hardin (Yawn’s mother), and Mrs. Addie Leggett (his sister), upon a promissory note. Mrs. Leggett alone defended, pleading that she signed the note not intending to become bound as a party, but intending merely to witness the signature of her mother, who signed by mark, and that it was the result of ignorance and mistake on her part that her signature was placed in such position upon the paper as .to make her appear as one of the obligors. A verdict was found in her favor, and the plaintiff has excepted to the refusal of his motion for a new trial. There was no demurrer to. the plea and no ruling has been invoked as to the validity thereof, but a new trial is sought upon grounds going solely to the sufficiency of the evidence to let in the defense pleaded. We will, therefore, assume, without an adjudication, that the plea set forth a valid defense. On this question see Barco v. Taylor, 5 Ga. App. 372 (63 S. E. 224); White v. Stallings, 24 Ga. App. 314 (100 S. E. 761).

The only facts and circumstances relied upon to show that the plaintiff took the note with’ knowledge of the purpose and intention with which the defendant signed it were as follows: The plaintiff agreed to sell a mule to Yawn at a certain price, provided he would give a note with good personal security. On the note being prepared and delivered to him for the purpose of having it executed, he inquired of the plaintiff if his mother or an uncle would be satisfactory. The plaintiff, after first being advised by another person present that “either one was good,” replied to Yawn, “All right, just get me a good note.” On being informed by Yawn that his mother could not write, the plaintiff told him that if he got his mother to sign he should get some one to witness her signature. Subsequently Yawn returned to the plaintiff’s office with the note signed by himself, his mother (by her mark), and Mrs. Leggett, all apparently as joint obligors, but with no signature purporting to be that of a subscribing witness. The plaintiff then suggested that Yawn take the note to a certain notary public and have him “witness” it. The notary public subscribed his name as a witness as requested, though it is apparent that he had not seen any of the parties execute it. The note was then brought back and delivered to the plaintiff, whereupon the plaintiff delivered to Yawn the mule.

It was the defendant’s burden, of course, to rebut the presumption existing in the plaintiff’s favor under the Civil Code, § 4288, before she could be let in to her alleged defense. Thompson v. Bank of Chatsworth, 30 Ga. App. 443 (5) (118 S. E. 470). There can be no possible contention that the plaintiff did not take the note for value.

On the question of notice, it is true that “any circumstances which would place a prudent man upon-his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due” (Civil Code of 1910, § 4291). Still the evidence in this ease as summarized above, without more, was insufficient to put the plaintiff upon notice that the defendant in signing the note did so with the purpose only of becoming a subscribing witness to the signature of her mother. Thus, whether the plea set forth a valid defense or not, it was not available, because it conclusively appeared that the plaintiff was a holder for value, and the circumstances in evidence were not sufficient to charge him with notice. The verdict found in the defendant’s favor having been unauthorized, the judge erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

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


text:
    15553.
    ALFORD v. YOUNG.
    The testimony of a party to the ease must be construed most strongly against himself; and where he in his testimony furnishes accurate data, from which it follows that the amount due is less than an amount given by him in his testimony as a general conclusion, the former will prevail.
    Decided December 18, 1924.
    Rehearing denied January 17, 1925.
    Lien foreclosure; from Floyd superior court—Judge Wright. March 1, 1924.

      M. B. Bubariks, for plaintiff in. error.

      Porter & Mebane, contra.
   Stephens, J.

ET. L. Young sued P. E. Alford for an alleged balance due for services performed by the plaintiff in cutting and sawing timber for the defendant, under an alleged contract with the defendant. Although the plaintiff had testified that “all the balance had been paid except 49,000 feet,” and that the defendant was due him $366 and some cents for sawing in excess of 49,000 feet, he further testified in detail that after the defendant had paid him the sum of $470 upon an accrued indebtedness of $600, he cut in addition “something like 18 or 20 thousand feet.” This, at the contract price of $7.50 per thousand, would make an additional indebtedness in an amount not exceeding $150. It appears, therefore, that the balance due by the defendant to the plaintiff, under the plaintiff’s own testimony, could not exceed $280.

The plaintiff’s evidence- must be construed most strongly against him. It follows that where his evidence, as above, arithmetically establishes that the indebtedness to him does not exceed a certain amount, his testimony by way -of a general conclusion, that the indebtedness was much larger, must yield to the -lesser amount established arithmetically by the plaintiff in his testimony.

A verdict in the amount of $331 principal is therefore unsupported by the evidence.

Judgment reversed.

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


text:
    15690.
    CALLAHAN v. ATLANTIC ICE & COAL CORPORATION.
    1. A master is bound to exercise ordinary care in furnishing to his servant a safe place in which to work, but the servant must exercise a like care in discovering- any patent or obvious defects therein.
    (ft) The master will not be liable for an injury to his servant resulting from a defect or danger which was obvious, and as easily known to the servant as to the master.
    (6) In an action to recover for such injury, the burden is upon the plaintiff to show that the servant did not have equal means with the master of knowing of the defect or danger, and could, not have known of the same by the exercise of ordinary care.
    (c) The plaintiff in this case having failed to show that the defect complained of, namely, the rotten condition of a plank, was not obvious, and, therefore, not as easily known to her husband, whose death is alleged to have been caused thereby, as to the defendant master, she was not entitled to recover.
    2. Assuming that the plaintiff would have been entitled to a nonsuit upon making a motion therefor, or could have voluntarily dismissed her case without prejudice, she made no such motion, so far as appears from the record, but submitted to the direction of a verdict against her after evidence had been offered by both sides. Having thus allowed the verdict to be directed, without moving to dismiss her case or to. be permitted to take a nonsuit, when under the evidence she was not entitled to recover, she can not now be heard to complain of the method by which her case was disj>osed of.
    Decided December 18, 1924.
    Rehearing denied January 17, 1925.

      Action for damages; from Fulton superior court—Judge Ellis. April 16, 1924.
    Application for certiorari was denied by the Supreme Court.

      George & John L. Westmoreland, for plaintiff.

      Spalding, MacDougald & Sibley, McDaniel & Neely, for defendant.
   Bell, J.

Mrs. Elizabeth Callahan brought suit against Atlantic Ice and Coal Corporation for the death of her husband, alleged to have been caused by the defendant’s negligence as his master or employer. It is averred that on or about November 4, 1920, while her husband was employed at the defendant’s West End plant in the city of Atlanta, he was wallring in the engine-room, “attempting to cross over a wooden floor that protected the top of a hot oil vat, and, as he stepped upon it, the same broke through, precipitating his leg into the boiling oil, thereby burning him so severely that he lingered until July 1, 1921, at which time he died as a result of said burn.” It is further alleged, among other things, that “it was the defendant’s duty to provide a safe flooring for the use of all its employees in said engine-room; that the defendant negligently failed to do so, and allowed the planks to remain in place a very long time and until they had rotted and become insecure for the purpose for which installed; that [decedent] was ignorant of the rotten condition of said planks and he did not have equal means with the master in ascertaining said defects; that said rotten planks constituted a concealed danger that could not have been discovered by the exercise of any degree of care chargeable to her husband under the law;” and that the defendant was “negligent in the failure to provide her husband with a safe place to work.”

The answer contained a general denial of the plaintiff’s averments. Upon the trial the plaintiff offered evidence and rested. Evidence was then introduced by the defendant, followed by rebuttal testimony in behalf of the plaintiff. After hearing all the evidence by both sides the court directed a verdict in favor of the defendant. The plaintiff brings a bill of exceptions complaining of this ruling, with reference to which the only assignment of error is as follows: “Plaintiff then and there excepted, and now excepts, and assigns the same as error, and says, that, und,er the evidence introduced, the said case should have been submitted to the jury, to pass upon the issues of fact thereof under the charge of the court.” There were other proceedings in the court below, and error is assigned upon other rulings, but, in our view of the case, further reference to these is unnecessary, because, assuming that all other questions except those hereafter discussed should be decided in favor of the plaintiff in error, we should still think that the direction, of the verdict in favor of the defendant should be affirmed, for the reasons given in the opinion below.

The master is bound to exercise ordinary care in furnishing to his servant a safe place in which to work, but the servant must exercise a like care in discovering any obvious defects therein. It is the servant’s duty to observe every visible and manifest defect which would render his work dangerous. If his opportunity to make discovery of a defect in the place of work is equal to that of the master, the master is not liable for injuries caused thereby. The burden was upon the plaintiff to show that her husband, as alleged, did not have equal means with his master of discovering the rotten condition of the plank, and that by the exercise of ordinary care he could not have known thereof. Chenall v. Palmer Brick Co., 117 Ga. 106 (4) (43 S. E. 443); Beck v. Albert N. Tumlin Co., 13 Ga. App. 618 (2) (79 S. E. 587).

The strongest, if not the only, evidence by which the plaintiff could possibly claim to have carried this burden was the testimony of Bob Smith, one of the defendant’s employees, who happened to lie present at the time the decedent was injured. This witness testified: “I remember when Mr. Callahan got hurt, and I was there. He was burned in that hole in the boiler-room. • • The plank broke, is what caused him to get down into that hole. He stepped on the plank like he had always been doing, and it broke, and he fell in the hole. . . I had seen that plank there before. It was rotten, not sound, and I didn’t know it was rotten. It had been there so long it was rotten. . . I seen the plank after it broke. It was a long plank, right over the hole, and when he stepped on it, it gave way. It was a rotten plank.”

“Whether the plaintiff had the same opportunity as the defendant of knowing of the defects alleged and proved would depend upon the character of such defects—whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. • In a case of latent defects—those which are only discoverable by proper inspection—the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223 (62 S. E. 1018); Cedartown Cotton Co. v. Miles, 2 Ga. App. 83 (58 S. E. 289).” Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244); Rountree v. Seaboard Air-Line Ry., 31 Ga. App. 231 (120 S. E. 654).

There is no evidence whatsoever that the defect was not obvious and not as easily known to the servant as to the master. It is merely shown that the plank was rotten and that the witness Bob Smith, who it appears was employed in another department, did not know it was rotten. The plaintiff was not entitled to a verdict in the absence of proof that the defect was not discernible by a superficial observation,—that it was not obvious—in the ordinary use to which the plank was put. See International Cotton Mills v. Carroll, 22 Ga. App. 26 (1 b) (95 S. E. 472); Crown Cotton Mills v. McNally, 123 Ga. 35 (3) (51 S. E. 13); Holland v. Durham Coal & Coke Co., 131 Ga. 715 (2) (63 S. E. 290); Western & Atlantic R. Co. v. Bradford, 113 Ga. 276 (38 S. E. 823); Short v. Cherokee Mfg. Co., 3 Ga. App. 377 (59 S. E. 1115); Jellico v. White, 11 Ga. App. 836 (76 S. E. 599); Walker v. Atlanta & West Point R. Co., 103 Ga. 820 (1) (30 S. E. 503); Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225); Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (4, 5) (86 S. E. 82).

Moreover, it appears, without dispute, that plaintiffs husband was employed by the defendant as the keeper of its barn, in its delivery department, with duties appertaining to its vehicles and stock. The evidence shows that the scope of his employment did not extend to the performance of any duty in the engine-room unless the sphere of his labors was extended thereto by implication by reason of the fact that for a long period of time he was accustomed to go to the engine-room for nails, electric-light globes, oil, tools, or other things kept therein which were needed by the decedent in the proper pefformance of his duties at the barn, and except as he may have passed through the engine-room in going to and from the place of his general employment. It does not appear that any officer or agent of the defendant had knowledge that the decedent frequented the engine-room for either purpose. Assuming, however, that knowledge by the defendant might be inferred from'the long continuance of the decedent’s custom to visit or pass through the engine-room for one or both of the purposes indicated above, and assuming further that the scope of his original employment was thereby impliedly enlarged so as to require his presence there in certain instances, it would seem that the burden would have rested upon the plaintiff to show that her husband, at the particular time of his injury, was in the engine-room for one of the special purposes which on occasion would necessitate his presence there. Upon this point there is a total absence of evidence. Witnesses were interrogated with reference thereto, but no one was able to say why the decedent was in the engine-room at the particular time in question. See Atlanta & Charlotte Air-Line Ry. Co. v. Ray, 70 Ga. 674. See also Strange v. Wrightsville & Tennille R. Co., 133 Ga. 730 (66 S. E. 774); Manchester Mfg. Co. v. Polk, 115 Ga. 542 (3) (41 S. E. 1015).

Ordinarily, when at the conclusion of the evidence offered by the plaintiff, there is merely a failure to make out a. prima facie case, it is error to direct a verdict for the defendant, but the court should award a nonsuit, thereby reserving to the plaintiff the right to institute a subsequent action for the same cause if he so desires. Hines v. McLellan, 117 Ga. 845 (1); Barnes v. Carter, 120 Ga. 895 (2); Zipperer v. Mayor &c. of Savannah, 128 Ga. 135 (4) (57 S. E. 311); Equitable Mfg. Co. v. Davis, 130 Ga. 67 (4) (60 S. E. 262); Williams v. Perry, 136 Ga. 453 (2) (71 S. E. 886); Atlantic Ice & Coal Corporation v. Town of Decatur, 154 Ga. 882 (5) (115 S. E. 912); Decatur County Bank v. Thomason, 31 Ga. App. 299 (3) (120 S. E. 642); Gowen v. New Orleans Naval Stores Co., 157 Ga. 107 (2) (120 S. E. 776). But where, as in this case, the plaintiff offered evidence and rested, and evidence was then introduced by the defendant, followed by rebuttal testimony on behalf of the plaintiff, this court, under repeated rulings, will not interfere with the judgment of.the trial court in directing a verdict for the defendant merely because a nonsuit at the close of the plaintiff’s evidence would have been the proper disposition of the case. It is to be inferred that the plaintiff would not have favored a nonsuit. She was seeking a verdict in her behalf at the hands of the jury, and was pressing her case to that end. The jury, however, could not have found in her favor under the evidence, but would have been obliged to find for the defendant. She is in no worse position on account of the judge’s direction than she would have been if the case had gone to the jury and they had found as they should have found under the evidence. “ Conceding that the plaintiff ‘would have been entitled to a nonsuit upon making a motion therefor, or could have voluntarily dismissed her case without prejudice, she made no motion to that effect [so far as appears from the record], but submitted to the direction of a verdict against her; and, having allowed the verdict to be thus taken against her without moving to dismiss her case or to be permitted to take a nonsuit, she can .not now be heard to complain of the method in which her suit was disposed of. Thompson v. Etowah Iron Co., 91 Ga. 538 (2). See also Grand Rapids Furniture Co. v. Morel, 110 Ga. 321 (2).’ Watson v. Barnes, 125 Ga. 773, 775 (54 S. E. 723).” Williams v. Farmers State Bank, 22 Ga. App. 656, 660 (97 S. E. 249).

While we do not place our ruling upon this ground, it is noticed that the assignment of error merely complains “that under the evidence introduced the'said case should have been submitted to the jury;” not that the case should have been nonsuited instead. See Small v. Cohen, 102 Ga. 248 (3) (29 S. E. 430); Poole v. Trimble, 102 Ga. 773, 775 (29 S. E. 871), and the dissenting opinion of Chief Justice Bussell in Atlantic Ice & Coal Corp. v. Town of Decatur, supra.

Judgment affirmed.

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