author: Luke, J. Luke, J.,

text:
    19107, 19108.
    EXECUTIVE COMMITTEE OF THE BAPTIST CONVENTION etc., et al., v. SMITH et al. (two cases).
    Decided March 6, 1929.

      Jones, Evins, Powers & Jones, for plaintiffs in error.

      J. Caleb Clarice, Little, Powell, Smith £ Goldstein, Howell, Hey-man £ Bolding, Herman Heyman, contra.
   Luke, J.

On May 29, 1926, Mrs. L. M. Smith brought her action for damages against “ Georgia Baptist Hospital, a corporation,” for injuries alleged to have resulted from the negligence of an employee of the hospital in administering ether to her on October 15, 1925. The jury rendered a verdict for $8,000 for Mrs. Smith, and on February 25, 1927, a judgment was rendered accordingly. That judgment was affirmed by this court. See Georgia Baptist Hospital v. Smith, 37 Ga. App. 92 (139 S. E. 101). On November 3, 1927, Mrs. Smith made affidavit that “Georgia Baptist Hospital” was indebted to her in the sum of $8,000 on said judgment, and on the following day summons of garnishment was served on Citizens and Southern National Bank. The bank denied that it had any money belonging to “said defendant,” and further answered that it did have $6,007.82 in an account known as “Georgia Baptist Hospital,” but that said money was the property of the Executive Committee of the Baptist Convention of the State of Georgia.

On November 5, 1927, Arch C. Cree filed for the plaintiff in error a claim which is substantially as follows: 1. “That he is Executive Secretary and Treasurer of the Executive Committee of the Baptist Convention of the State of Georgia, a corporation organized under and by virtue of an act of the General Assembly of Georgia.” 2. “That said corporation owns and pperates . . a hospital in the City of Atlanta, known as the Georgia Baptist Hospital, having purchased the same from the Georgia Baptist Hospital, a corporation, by deed dated the 31st day of March, 1925, and having continuously operated the same since said date.” 3. “That solely for convenience in bookkeeping, the moneys derived from the operation of said hospital have been deposited in bank under the name ‘Georgia Baptist Hospital/ but that same are solely the property of the Executive Committee of the Baptist Convention of the State of Georgia.” 4. This paragraph recites the rendition of said $8,000 judgment against “Georgia Baptist Hospital,” and the issuance of summons of garnishment thereon directed to Atlanta and Lowry National Bank and Citizens and Southern National Bank. 5. That Atlanta and Lowry National Bank had in its hands $546.54, and Citizens and Southern National Bank had in its hands $6,007.-82, — all deposited to the account “Georgia Baptist Hospital,” and all the property of said Executive Committee of the Baptist Convention of the State of Georgia. 6. “That said money and property is not the money and property of said defendant in fi. fa. the Georgia Baptist Hospital, a corporation, but is the property of the Executive Committee of the Baptist Convention of the State of Georgia.” 7. “That all money and funds belonging to said Executive Committee of the Baptist Convention of the State of Georgia, whether derived from the operation of said hospital, or otherwise, are used solely and exclusively for charitable and religious purposes.”

The answer to the garnishment was duly traversed by Mrs. Smith, and, at the direction of the court, the jury found that the traverse be sustained. On February 18, 1928, the court rendered a judgment finding the funds, amounting to $6,007.82, subject to process of garnishment, and subject to the original judgment in the damage suit brought by Mrs. L. M. Smith against Georgia Baptist Hospital.

The motion for a new trial filed by the Executive Committee of the Baptist Convention of the State of Georgia, and Fidelity & Deposit Company, surety on the garnishment dissolution bond, was overruled, and the movants excepted.

The original damage suit was served “by serving Arch C. Cree, Secretary in charge office,” etc. The answer of Georgia Baptist Hospital to said suit was simply a denial of the material paragraphs of the petition.

On the trial of the case sub judice, Dr. Arch C. Cree testified that he was executive secretary of the Baptist Convention of the State of Georgia, “which owns and operates*the hospital now known as the Georgia Baptist Hospital,” and was treasurer of the hospital itself; that he was not an officer of “Georgia Baptist Hospital, a corporation;” that the Executive Committee of the Baptist Convention took over the hospital from the old corporation in May, 1922, and his relationship to the hospital and the committee was the same as in 1922; that the hospital was operated under the same name; that “Georgia Baptist Hospital” was over the door, and that “our money” was deposited in that name; that diplomas were issued in the name “Georgia Baptist Hospital,” and signed “Arch C. Cree, General Superintendent of Hospital;” that for a short time he was general superintendent; that hospital bills .were sent out in the name “Georgia Baptist Hospital,” and that checks attached to the bills were payable to “Georgia Baptist Hospital;” that the two corporations were separate and distinct; that he was not present when Mrs. Smith’s damage suit was tried; that a paper was presented to him, but he never read it through — “told the gentleman that he had. come to the wrong man, that Mr. Carlton Binns was secretary of the Georgia Baptist Hospital, a corporation;” that he was a member of the special committee known as the “Hospital Commission,” and was also a member of the “Executive Committee;” that he never appeared in court in connection with the damage suit; that some of the funds garnished were derived from the operation of the hospital, and that, under the witness’s direction, they were put in the bank each day; that he had no definite knowledge as to that fact, but was of the opinion that Georgia Baptist Hospital, corporation, had not been dissolved; that Dr. E. B. Elder was hired by witness to do the actual work in the hospital —knew more about running the hospital than the witness did, and was called “Besident Superintendent;” that the Executive Committee *had a special committee known as the “Hospital Commission,” to look after the hospital; and that three members of that commission, including witness, were members of the “Executive Committee.”

A suit can only be brought by or against a legal entity, and, under the Civil Code (1910), § 5683, no amendment adding new and distinct parties is permissible unless allowed by law. See also White v. Brown, 10 Ga. App. 530 (73 S. E. 853). However, a judgment rendered against a person in his assumed or trade name is not void. Eslinger v. Herndon, 158 Ga. 823 (124 S. E. 169). In the case last cited Herndon did business under the trade-name of Herndon Motor Company. A summons of garnishment, directed to Herndon Motor Company, was served personally upon Herndon, and he made no answer thereto. A default judgment was rendered against Herndon Motor Company, and the execution issued thereon was levied on goods belonging to Herndon. The Supreme Court, in holding that the trial judge erred in holding that the judgment was a nullity, said: “In the instant case the defendant was a real person doing business under a trade name. When he was sued under his assumed or trade name, the suit was brought against a legal entity and natural person; and the fact that he was sued under his trade name, and not by his proper name, does not render the judgment void. . . This proceeding could have been amended by inserting the name of “Herndon doing business as Herndon Motor Company.” This would not have been the making or substituting of a new party, which is condemned by section 5683 of the Civil Code, but would be the mere correction of a name, which is permissible under section 5686. The section last cited permits the correction of misnomers instantly.

If the original damage suit referred to in the case at bar had been brought against “Georgia Baptist Hospital,” without more, it would have been more analogous to the Herndon case; but it was not. The petition alleges that “the Georgia Baptist Hospital, a corporation having officers and agents in said county upon whom process may be served, has injured and damaged your petitioner,” etc. We have deemed it unnecessary to state all the evidence adduced at the trial. However, we think it fairly appears from the record that Georgia Baptist Hospital was a corporation, and the Executive Committee of the- Baptist Convention of the State of Georgia a corporation, and that Mrs. Smith sued, and procured her judgment against, a separate and distinct corporation from the one whose funds she seeks to subject. In short, it was a case of mistaken identity, and not of misnomer. In this connection see Gear gia Motor Sales Inc. v. Wade, 37 Ga. App. 34 (138 S. E. 797), and the eases there cited, especially Neal-Millard Co. v. Owens, 115 Ga. 959 (43 S. E. 366).

It follows that the trial judge erred in directing the verdict, and erred in overruling the motion for a new trial, and that the judgment must be reversed. While there are two separate cases here, to wit, No. 19107 (traverse), and No. 19108 (claim), the same question is involved in both) and they were tried together by agreement in the superior court. Therefore, what has been said in this decision applies to both cases, and the judgment of the trial court overruling the motion for a new trial is reversible error in both cases.

Judgment reversed in each case.

Broyles, G. J., and Blood-worth, J., concur.

Luke, J.,

concurring specially. I recognize the necessary and salutary rules of law which compel a reversal in this case. However, the facts of the case, to my mind, fully warrant the remarks I now make. It is undisputed that the Executive Committee of the Baptist Convention of the State of Georgia owned and operated the hospital when Mrs. Smith was injured, and has ever since owned and operated it. Mrs. Smith was a “pay patient” in the hospital. “Georgia Baptist Hospital” was over the door of the hospital. Bills were presented in that name; checks were made payable in that name; diplomas were given in that name; and all money coming from the hospital was deposited in that name. Mrs. Smith was compelled to contest her damage suit in both the superior court and in this court before it was finally won. It is inconceivable that the corporation which owned and operated the hospital took no part in defending the damage suit. Yet the only defense filed in that suit was a denial of the paragraphs of the petition, which in no way indicated that the defense now made in these cases could, or ever would, be made. Now the Executive Committee lies safely entrenched behind the statute of limitations in so far as" legal liability for Mrs. Smith’s injuries is concerned. To my mind it is unthinkable that the offspring of a great Christian denomination should seek to avoid the payment of the judgment.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    19118.
    DAVIS v. STARRETT BROTHERS INC.
    Decided March 6, 1929.

      G. Seals Aiken, for plaintiff.

      Harold Hirsch, W. B. Gody, for defendant.
   Luke, J.

Lyle C. Davis brought his action for damages against Starrett Brothers Incorporated, alleging that while working in an elevator shaft on the first floor of a certain building in Atlanta as the employee of the Tyler Company, a carpenter who was in the employ of Starrett Brothers Incorporated and was working in the shaft five floors above him negligently dropped a hammer down the shaft and it fell upon him .and seriously injured him. The defendant was alleged to be negligent because it did not place something underneath its carpenters to prevent anything from falling down the shaft and injuring him, and for various other reasons which need not be stated here. After the plaintiff had rested his case and the defendant had submitted a part of its evidence, the defendant offered to amend its answer by pleading that the plaintiff was barred by reason of the fact he was working under the workmen’s compensation act, and was, under an agreement with the Tyler Company and a named insurance carrier, which had been approved by the industrial commission, receiving $15 a week for the injuries alleged in the petition. The plaintiff objected to the allowance of the amendment, moved to strike it, and demurred to it.'- The said objection, motion to strike, and demurrer were all overruled, and the plaintiff excepted pendente lite. The court then directed a verdict for the defendant, and a verdict was rendered accordingly. The plaintiff’s motion for a new trial as amended was overruled, and he excepted.

The motion for a new trial contains several special grounds which disclose no reversible error and warrant no special consideration. The remainder of the special grounds are governed by the controlling question raised by the record, which is this: Was, or was not, the Tyler Company an independent contractor ? If it was, the plaintiff was entitled to go to the jury, and the direction of the verdict was error. If it was not, the direction of the verdict was proper. Before discussing the main question in the case, we deem it proper to say that the amendment to the answer was properly allowed. “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by. The defendant after the first term can not set up new matter by way of amendment, except as provided in section 5640.” Civil Code (1910), § 5681. The affidavit to the plea that “the new facts or defense were not omitted from the original answer for the purpose of delay, and the same is now filed in good faith and not for the purpose of delay,” meets the requirements of the Civil Code (1910), § 5640. We hold also that the court properly overruled the demurrer to the amendment, and the motion to strike it. Attached to the amendment as “Exhibit A” was- a copy of the contract between Asa G-. Candler Incorporated and Starrett Brothers Incorporated, providing for the erection of a building by the latter for the former on a plot of ground on Peachtree and Ellis streets- in the City of Atlanta. Starrett Brothers Incorporated was to provide labor, equipment, and materials, and erect the building according to plans and specifications, and negotiate all employment and purchases and let all subcontract work. It agreed also to provide workmen’s compensation, public liability, and contingent insurance. “Exhibit B,” attached to the plea, is the contract between Starrett Brothers Incorporated and the Tyler Company. This contract covers twelve pages and is too long to -be set out fully here. However, since by it the relationship of the parties thereto is to be determined, and that relationship controls this case, this contract demands very careful consideration.

The salient features of the latter contract appear from the following: Starrett Brothers Incorporated is designated “Builder,” and the Tyler Company “subcontractor.” The contract provides: 1st. That “to the satisfaction of the Builder and the Architect,” the Subcontractor shall provide all materials and perform all work mentioned in the specifications (and addenda thereto, if any), and shown on the drawings prepared by the Architect. 2d. The Subcontractor shall abide by the general conditions in the specifications of the Architect in so far as they apply to the work. And where the contract is at variance with the plans and specifications it controls. 3d.. “The Builder shall furnish the Subcontractor such further drawings or explanations as may be necessary to detail and illustrate the work to be done, and the Subcontractor shall conform to the same as part of this contract, as far as may be consistent with the original drawings and specifications. . . ” “The Subcontractor shall exercise the utmost diligence to obtain the drawings and information necessary to fulfill the work herein contemplated,” and “shall, from time to time, and at frequent intervals, inform the builder in writing as to what drawings or information may still be required. . . ” 4th. “All workmanship and material . . shall be subject at all times to the inspection and approval of the Architect, to whom the same shall be made satisfactory within the meaning of the plans and specifica7 tions and this contract;” and the subcontractor shall provide facilities at all times for the inspection of the work by the Architect, the Builder, or the authorized representative of either or both. Within twenty-four hours after receiving written notice to that effect, the subcontractor shall proceed to remove all material condemned by the Builder as unsound or improper, and to take down all portions of the work so condemned as unsound or improper, or in any way failing to conform to the drawings and specifications, replacing same, without extra expense, with material and workmanship satisfactory to the Architect or Builder, or both. 5th. “Should the Subcontractor at any time refuse or neglect to supply a sufficient number of properly skilled workmen, or sufficient materials of the proper quality, or fail-in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, the Builder shall be at liberty to provide any such labor and materials, and deduct the cost thereof from any money then due or thereafter to become due the Subcontractor;” and the builder shall have the right to cancel the contract and complete the work under it, paying the subcontractor the excess, if any, of the unpaid balance due it over the expense incurred by the builder in completing the contract: if the balance be against the subcontractor, it shall pay the builder the difference. 6th. “Should the Owner or Architect make changes in the plans and specifications which would decrease the amount oí work to be performed or materials furnished under this contract, the Builder shall have the right to order curtailment in conformity therewith, and the Subcontractor shall make proper allowance to the. Builder to the value of the work and materials so omitted.” 7th. An officer of the builder must sign confirming orders for any overtime, extra work, or materials furnished under any order from the Builder’s job representative, to enable the subcontractor to collect for any amount in excess of that stated in the contract. 8th. This paragraph, after providing for the allowance of additional time for the completion of the work in the event delay is caused by fault of the architect or the builder, or by providential causes or strikes, stipulates that if the Builder is prevented by any strike, lockout, fire, lightning, storm, or any other cause beyond its control, from “performing any work related to the work of this Subcontractor on said building, and considers it inadvisable to receive materials therefor, then the Subcontractor shall, upon notification from the Builder, cease deliveries to and performance of any work hereunder at the building until such time as, in the option of the Builder, the condition's are such that it is advisable to resume operations on said building.” If the parties can not agree as to the extension of time herein above mentioned, or if either claims damages on account of cessation of work, such matters shall be subject to arbitration, as hereinafter provided. 9th. This paragraph is not material to the question under consideration. 10th. “The Subcontractor hereby agrees to repair and make good, free of charge to the Owner and Builder, and at the convenience of either or both, any damages or fault in the building that may appear within the period after its completion as called for by the specifications, as a result of imperfect or defective work done or materials furnished by the Subcontractor, or of plant or equipment provided for hereunder, which shall not operate to the satisfaction of the Architect or Engineer, the same being certified by said Architect or Engineer as being due to one or both of all these causes.” 11th. Under this paragraph the subcontractor agrees to indemnify the builder and owner for damages arising out of the negligence of its agents and employees; and also agrees to carry liability insurance and workmen’s compensation insurance. 12th. This paragraph throws no light upon the question under consideration. 13th. “The Subcontractor agrees not to sublet this contract, or any portion thereof, without the written consent of the Builder, and that in the performance of all work herein contemplated, the Subcontractor shall employ.labor under conditions-satisfactory to the Builder. The Subcontractor agrees to discontinue the employment on this work of any of its employees who may be unsatisfactory to the Builder.” 14th. “The Builder, through its representative, shall have full and free access to the shops, factories, or other places of business of the Subcontractor, or the subcontractors of this Subcontractor, in order that it may inform itself as to the general condition and progress of the work herein contemplated.” 15th. “No alteration shall be made in the work shown or described by the drawings and specifications, except upon written order signed by an officer of the Builder, and when so made, the value of the work added or omitted shall be computed, and the amount so ascertained shall be added to or deducted from the contract price.” 16th. This paragraph provides for the arbitration of differences between the parties as to the value of work to be added or omitted, or as to the amount of damages resulting from the default of the subcontractor, or as to the interpretation of the contract. 17th. “If through the abandonment or modification of the work by the direction of the Owner or Architect or Engineer, the work hereunder is not required by the Builder, the Builder may terminate the employment of the Subcontractor, even though the Subcontractor may not be in default.” And in such event the builder shall only be liable to the subcontractor in the proportion that such work performed and materials prepared bears to the total amount of the contract, plus a reasonable profit to the subcontractor: The amount to be paid the subcontractor to be submitted to arbitration, if it is not agreed on by the parties. 18th. The subcontractor is to deliver the work and materials free from all liens, etc. 19th. If the materials called for under the contract are not promptly delivered in accordance therewith, “the Builder shall have the right to investigate the cause of said delay and expedite deliveries; and if the Subcontractor be in default, the cost of such expediting may be charged against the Subcontractor.” 20th. This paragraph throws no light upon the question under consideration. 21st. When the builder requests the subcontractor so to do, it shall work overtime, and shall be remunerated by the builder as set out in the contract. If the subcontractor, “in the opinion of the Builder, delays the progress of the work necessary to complete the building, then, if requested in writing by the Builder, the Subcontractor shall employ such overtime as may be necessary to keep up with the progress of the work; and the cost incurred by the use of said overtime shall be borne entirely by the Subcontractor.” 22d. “Should the Builder, during the execution of this contract, require the Subcontractor to perform any additional work under this contract (except overtime), upon the basis of the cost of labor and material,” the subcontractor shall do so, and shall be paid therefor the cost of labor and material, plus ten per cent, for overhead, plus an additional ten per cent, for profit, etc. 23d. This paragraph sets out the price to be paid for the work and the time and manner of payment, and sets out other matters not necessary to be stated here. 24th. This paragraph sets out that time is of the essence of the contract, and that it is to be completed on or before February 1, 1927. 25th. “The drawings and specifications referred to herein are the following: All the Architect’s (and/or Engineer’s) drawings, specifications, and addendum No. I thereto, including all general conditions.” 26th. This paragraph names the parties and architects, states what the contract covers, and specifies some of the material to be used. 27th. “No assignment of this contract or any money due, or which may become due hereunder, shall be made without written consent of the. Builder.” It is provided on the back of the contract that all questions in dispute be submitted to arbitration, and that the general procedure as to arbitration shall conform to the laws of this State.

We are aware that the jury might have concluded from some of the testimony that Starrett Brothers Incorporated did not attempt to exercise authority over the work being done by the Tyler Company. This, however, is not decisive of the issue. The question is whether or not the builder retained the right to direct and control the work. Under the contract the builder could detail the manner in which the work was to be done by furnishing additional plans and specifications. It could increase the work or reduce it. It could, in certain instances, have the work stopped and recommenced at its pleasure. It could determine that there were not enough skilled workmen on the job and put more on it. It could cause the subcontractor to discharge any of its employees who were not satisfactory to the builder. It could terminate the contract and do the work itself. The contract was so shaped that the builder could exercise extensive and intimate authority over the doing of the work, and we are of the opinion that the Tyler Company was not an independent contractor. We quote from the case of U. S. Fidelity &c. Co. v. Corbett, 31 Ga. App. 9 (119 S. E. 921) : It has been said that “The relation of master and servant exists whenever the employer retains the right to direct the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done.” Singer Mfg. Co. v. Rahn, 132 U. S. 518 (10 Sup. Ct. 175, 33 L. ed. 440); 26 Cyc. 966. It was stated in Lampton v. Gedartown Co., 6 Ga. App. 149 (64 S. E. 495), that “independence of control in employing workmen and in selecting the means of doing the work is the test usually applied by the courts to determine whether a contractor is an independent one or not; and this is the test applied by the statute of this State, supra.” That statute is section 4414 of the Civil Code (1910), which is as follows: “The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and is not subject to the immediate direction and control of the employer; and see § 4415.” We next quote from 14 R. C. L. 71, § 8, the rule cited approvingly in the Corbett case, supra: “The control of the work reserved in the employer which makes the employee a mere servant is a control not only of the result of the work, but also of the means and manner of the performance thereof; where the employee represents the will of the employer as to the result of the work, but not as to the means or manner of accomplishment, he is an independent contractor.” In the case of Maryland Casualty Co. v. Badney, 37 Ga. App. 286 (139 S. E. 832), this court approved this rule: “The true test in determining whether one is engaged as a servant or occupies the status of an independent contractor ordinarily lies in the answer to the question whether or not the work is to be’done according to the workman’s own methods, without being subject to the employer’s control except as to results to be obtained.” See also Zurich General Accident & Liability Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173); Ocean Accident & Guarantee Corporation v. Hodges, 34 Ga. App. 587 (130 S. E. 214).

Construing the contract between the parties in the light of the law, the Tyler Company was not an independent contractor, and the court did not err in so holding and in directing the verdict for the defendant. No reversible error appears in the record, and the judgment of the trial court is affirmed.

Judgment affirmed.

Broyles,G. J., and Bloodworth, J., concur.


text:
    19126.
    PENN MUTUAL LIFE INSURANCE CO. v. BLOUNT et al., trustees.
    Decided March 6, 1929.
    Rehearing denied April 9, 1929.

      Gdllaway & Howard, Fullbrighl & Burney, for plaintiff in error.

      Fleming & Fleming, contra.
   Luke, J.

In 1923 E. Hosea Blount et al., as trustees, brought their action against the Penn Mutual Life Insurance Company on a $5,000 policy written on the life of Eansom A. Bell. The trial judge overruled the defendant’s demurrers to the petition, and it excepted. In 33 Ga. App. 642, this court affirmed the judgment overruling the general demurrer and certain special demurrers, but reversed the judgment overruling other special demurrers. When the case was tried the jury rendered a verdict for the plaintiffs. The defendant’s motion for a new trial was overruled, and it excepted. The Court of Appeals certified certain questions deemed necessary to the decision of the case, and these questions were answered in 165 Ga. 193 (140 S. E. 383). On February 28, 1928, this court rendered its decision, reported in 37 Ga. App. 756 (142 S. E. 183), reversing the judgment of the trial court refusing a new trial. The case came on for trial again, and on April 24, 1928, the jury found for the plaintiffs. The insurance company made a motion for a new trial, based upon the general grounds and upon certain special grounds complaining of the charge of the court and its rulings upon the evidence. The court overruled the motion for a new trial, and the case is again here for review.

The crucial question in this case is now reduced to this: Did the insurer ratify its agent’s unauthorized delivery of the policy to the insured? Through their counsel, the parties to the case agreed “that the evidence used in a former trial of this case be read into the record of this case, .with the right to either party to introduce said former testimony in whole or in part, with the further right.to either party to interpose objections to the introduction of any part of said former testimony and have the court’s rulings on such objections entered in the record.” Under the foregoing agreer ment, the testimony of P. W. Thompson, which was substantially as follows, was offered in evidence: On October 1, 1922, P. W. Thompson, local agent for the insurance company at Waynesboro, Ga., delivered to Bansom A. Bell, the insured, a $5,000 life-insurance policy dated September 25, 1922, upon condition that the insured would pay Thompson the premium “at a future date.” On October 7, 1922, Bell returned the policy to Thompson with a request that the beneficiary be changed; and on the same day Thompson sent the policy in a letter to I. T. Heard, general agent of the insurer. In the letter this language was used: “I am returning the policy for Mr. B. A. Bell so that you can have the beneficiary changed as per his request. . . On receipt of this policy with the above correction, he will pay the same. You will note the en-. closed paper that he gave me, the same being signed by him.”

Mr. I. T. Heard transmitted the policy to the home office in a letter dated October 10, 1922, addressed to Harrison S. Gill, supervisor, at Philadelphia. In this letter was a request that the policy be rewritten and made payable to named beneficiaries. That letter also contained the following language: “It seems to us that a simpler way would have been to have the actuary prepare an assignment as above, but we leave the matter to your good judgment. Mr. Bell will pay the first premium as soon as this change is made.” On October 10, 1922, I. T. Heard wrote P. W. Thompson as follows: “Policy No. 1030617, Ransom A. Bell, has been sent to our home office in order that the company may make the changes requested in your letter of the 7th,” etc. A letter from Harrison S. Gill, supervisor of applications and death claims, addressed to I. T. Heard, General Agent at Augusta, Ga., and dated October 22, 1922, acknowledged receipt of 'said policy “to be rewritten with change of beneficiary,” and stated that a policy was being written as desired. Under date of October 25, 1922, Thompson wrote Heard as follows: “Mr. Ransom A. Bell, insured under policy No. 1030617, died on Saturday night, October 21, 1922, and we have been requested by Mr. E. H. Blount, trustee, to make request for forms so that we can send in proof of death. Please give this your prompt attention.” A letter from I. T. Heard, general agent, to Harrison S. Gill, supervisor, dated September 23, 1922, contained the following language: '“Enclosed find application of Ransom A. Bell, of Waynesboro, Georgia, for $5,000 on the five year T. A-C to O. L. We are informed that the applicant is a good reliable planter and can well afford to pay for this protection. His habits are good, he enjoys the best of health, and is happily married; and should make us a safe and persisting member.”

The rules of the insurer did not permit a policy to be left with an applicant for inspection in advance of the payment of the premium, unless he signed a written form stating that the policy was so delivered. Thompson, the local agent, did not take such writing when he delivered the policy to the insured. The premium was never paid on the policy. The trustees for the beneficiaries in the policy called on Thompson before the insured died and offered to pay the premium, but he refused it on the ground that Bell was not then in good health. (Bell had suffered burns from which he afterwards died.) The trustees then asked Thompson if he considered the policy delivered, and he replied that he did, “with the exception of the premium.” Thompson testified: “I don’t think that I had any correspondence with the company at Philadelphia directly, nor that they ever communicated or corresponded with me directly.. As far as I remember, my communications in connection with this business were with Mr. Heard, and were either in writing or by conversation.”

When Heard received the new policy with change of beneficiaries, ready for delivery to the insured, Thompson talked over the entire matter with Heard, beginning with his delivery of the first policy to the insured, telling him, among other things, of his refusal to accept the premium from the trustees after the insured had been burned. During this conversation Thompson told Heard, in reply to Heard’s question as to the circumstances under which the first policy'had been delivered, that it was delivered to Bell on condition that he would pay for it on the 14th or 15th, but that he had not done so. This conversation was after these dates. Heard requested Thompson to write him a letter setting out the facts connected with the delivery of the policy, and he wrote that letter on November 7, 1922. The said conversation with Heard while the insured was sick was the first statement made by Thompson of the delivery of the policy to the insured, and the said letter written to Heard at his request was the second. The insured was injured on October 19, 1922, and died on the night of October 21, 1922. Thompson did not know the conditions of the policy, and thought he had a right to deliver the first policy as he did. The second policy was never delivered. It was dated September 25, 1922, which was the date of the original policy. Thompson did not know that the contract of insurance contained this provision: “The contract of insurance shall not be enforced unless the first premium thereon is actually paid during the lifetime and good health of the insured.” Thompson testified in this language: “The premium rate for this policy was .fixed according to the rules of the company, which require that the rate of premium charged will be that corresponding to the age of insured nearest to the premium date of the policy, which in this case was September 25, 1922, the ■nearest birthday of the applicant being October 22, 1922.

Besides the foregoing evidence, the plaintiffs introduced policy No. 1030617, issued by the Penn Mutual Life Insurance Company on the life of Bansom A. Bell for $5,000, and dated September 25, 1922, together with the attached written application for the policy. The following testimony of Pierre Heard was also offered by the plaintiffs: “It is a custom with, us, under our practice and rules, to make delivery of a policy by taking a check. We would take a check ón New York, New York exchange, when the party is considered good. As to how many days it takes to get a report that the check has been paid, I deposit it and get credit for it the next morning. I would not send it through any mails to New York. It would be deposited in Augusta. I have been doing this for a great many years. Of course, some of the agents know about our accepting á cheek on premiums. The agents know that we take checks, notes and cash.” The defendant introduced certain documentary evidence, the first paper being a letter from Harrison S. Gill, supervisor of applications and death claims, to I. T. Heard, dated September 25, 1922, and reading as follows: “The papers in case of. Ransom A. Bell have been approved and policy for $5,000'. It is going forward to you promptly. . . I trust policy will be satisfactory and that you will have no difficulty in effecting its delivery.” The enclosure referred to in the foregoing letter was as follows: '“We herewith transmit, together with first receipt, Policy No. 1030617, on the life of Ransom A. Bell, which by its terms is not to be delivered unless the insured continues in good health.” Next' was introduced a letter dated October 24, 1922, from I. T. Heard to Harrison S. Gill, which follows: “Enclosed find policy No. 1030617, Ransom A. Bell, with his first receipt attached. Mr. P. W. Thompson, the sub-agent, called at our office today and told us that Mr. Bell died on October 19 as a result of burns sustained in a fire on or about October 19. When this policy was first issued we had just registered it and were about to mail it to Mr. Thompson, when he came in our office and we handed the contract to him. He said that he would have to hold it until October 15, as Mr. Bell had told him that he would not be able to pay for it prior to that time. To-day he tells us that he handed the policy to the applicant and he kept it in his possession four or five days and then asked Mr. Thompson to return it to the company, so that the beneficiary clause could be changed, as requested in our letter of October 10 to you. Mr. Thompson says that he told Mr. Bell that he would have to pay us on October 15, and Mr. Bell then told him he would send him a check on October 14. He failed to do this, however, and died without having given a check, note or any other evidence of indebtedness in settlement of the first premium. We told Mr. Thompson, to-day that he had better write us a letter stating full particulars, so that we could forward it to your department. We hope to receive it to-morrow, and will mail it to you without delay. . . P. S. We infer from our talk with Mr. Thompson that the family expect us to pay this claim. They have offered him the premium which he refused to accept.” Next, the defendant introduced a letter from Harrison S. Gill to I. T. Heard, dated October 27, 1922, in which it was said: “Your letter of the 24th inst. returning policy No. 1030617, Kansom A. Bell, is received. As the policy was not delivered nor the premium paid in accordance with its terms, I have to advise you that the company has no liability under same, and we have therefore cancelled it upon our records.”

Sidney A. Smith’s testimony, taken by depositions, is substantially as follows: Witness had been secretary of the insurance company since January, 1921. He had no personal knowledge of the insurance matter under consideration. Harrison S. Gill had supervision of the issuing of and pajdng for all policies. Witness knew nothing of Thompson’s extending credit for the first premium of the policy. Neither local nor general agents had authority to write policies or “bind risks.” If a policy is in force and the insured wishes to change beneficiaries, the company requires him to sign a written request to that effect. The “Actuarial Department” would handle the matter, and neither Mr. Gill nor any one in his department would know of it. Mr. Gill handled this case throughout. Smith did not instruct the local agent to make a reduction in the premium proportionate “to this period of twenty-two days from September 25 to October 17. The witness said in this connection: “It is customary with our company to require its patrons to pay premiums for a time when they are getting no protection, as in this case, — for instance, a period of twenty-two days.”

Harrison S. Gill, sworn for the defendant, testified substantially as follows: He had been supervisor of applications and death claims for the company since February, 1921, and his general duties were to pass upon applications and take charge of death claims and the correspondence relating thereto. The procedure followed is this: The application is matched with the medical examination and sent to the medical department. The papers are then returned to Gill’s department for final action, and, if approved, the policy is written in said department and mailed to the general agent. The course generally followed by this witness when the death of a party is reported is stated by him in this language: “We ascertain from our records whether or not the premium has been paid, and all the facts with reference to the causes of death which in any way may pertain to the payment of the claim, and if any question arises” as to the company’s liability, the entire matter is referred to the insurer’s general counsel for advice. Then the matter is referred to a committee for final action. Gill testified further that Bell’s application for insurance was received at the home office on or about September 25, 1922, and was approved by-his department; and that the policy was written and mailed to I. T. Heard, the company’s general agent at Augusta; that nothing further was done in connection with this application until October 13, 1922, when witness received a letter from Heard requesting that the beneficiaries be changed; that this letter did not contain any formal request signed by Mr. Bell, but stated that he would pay the first premium as soon as the change was made. Witness acknowledged receipt of this letter on the 17th. “A new policy was written and given the same number as the one returned. Since our records did not show that the premium had been paid or that the policy had actually been delivered to the insured, the original document was, in accordance with our regular practice, destroyed, as we did not consider that the interest of the original beneficiary had vested, and there was no reason for the company to require the execution of a formal request for change of beneficiary. Changes of this kind are frequently made before the policies are paid for and delivered and put in force; and we regard such changes as we would regard an error that had been .made when the policy was actually being typed. . . Had our records shown that the premium had been paid and the interest of the beneficiary had vested, then the company’s formal requirements for a change of beneficiary would have been insisted upon, and such a change would have come through the actuary department, and not this department. Further, such change would have required the signature of the insured to the formal request for change.” Gill further testified that he knew nothing about the delivery of the policy and the extension of credit to Mr. Bell until October 27, 1922, when he received Heard’s letter of October 24, 1922, advising him that Bell had died without having paid the premium. On October 27, 1922, Gill advised Heard that the policy was canceled, and on November 7 Heard transmitted a letter purporting to have been written by Thompson, setting out the facts concerning the alleged delivery of the policy.

Since the policy had never been delivered, as the company understood the situation, and the premium had never been paid, the insurer thought that no liability attached in so far as the policy was concerned; and when Joseph S. Conwell, the company’s counsel, reached the same conclusion, the insurer denied liability under the contract.

Gill testified further that he was familiar “with all phases of this case,” and that neither he nor any officer of the company had any knowledge that Thompson was alleged to have extended credit to the insured, and that no officer of the company waived the requirements of the policy “with reference to the payment of the premium during the insured’s good health, either by writing or orally.” Gill stated that he did not receive “a paper which Mr. Thompson said was signed by Mr. Bell, requesting the change of beneficiary.” Gill did not comply with the suggestion in Heard’s letter dated October 10, 1922, that the actuary prepare an assignment of the policy, “for the reason that this is a department of original issue, and, so far as our records showed, the policy had never been delivered.” When a policy is canceled it is not customary to preserve the first policy. Gill had made a search for the original policy issued to Bell, but it had been destroyed by some of the clerks in the department. As to the time when Bell was getting no protection, Gill testified as follows: “When I rewrote the policy on October 17, 1922, it was dated back to September 25, 1922, because it retained the original number, and the only change that was made was the beneficiary, and it is our custom to follow the same date as the original policy. I did not instruct our local agent to make a reduction in the premium proportionate to this period of twenty-two days from September 25 to October 17. Hnder such circumstances as these it is customary with our company to require its patrons to pay premiums for a time when they are getting no protection, as in this case, for instance, a period of twenty-two days.”

Joseph S. Conwell testified that he was connected with the law firm which was general counsel for the insurer; that the Bell case had been referred to him and that he had no personal knowledge of the actual happenings in that case.

In special ground 1 the plaintiff in error complains that the testimony of P. W. Thompson, its local agent, was illegally admitted “as a circumstance to show . . ratification,” over the objection that it was admissible only for the purpose of showing “the state of facts which respondents claim movant ratified.” The evidence referred to covers eight pages, and includes several letters. The court properly refused to accede to the requst so to limit the jury in its consideration of this evidence.

Special ground 2 complains that the court erred in admitting the testimony of Pierre Heard as a circumstance to show ratification, for the reason that it was irrelevant and immaterial to any issue in the case, and was “not shown by any evidence to have been brought to the notice of the company . . so that it could have any operation on the question of ratification.” The testimony objected to has been hereinbefore given. The gist of it is that the agents were accustomed to take notes, checks, and cash in payment of premiums, and that “some of the agents” knew about this. We think that the objection was good.

In special ground 3 the following excerpt from the charge of the court is alleged to be error: “Actual notice of the unauthorized act may be divided into express and implied. Express notice embraces not only what may fairly be called knowledge, from the' fact that it is derived from the highest evidence to be communicated by the human senses, but also that which is communicated by direct and positive information, either written or oral, from persons who are personally cognizant of the fact communicated. Notice by implication arises when the party to be charged is shown to have knowledge of such facts and circumstances as would lead him by the exercise of due diligence to a knowledge of the principal fact.” While the foregoing excerpt is quoted from McLean v. Camak, 97 Ga. 812, the last sentence thereof, which has reference to notice by implication, is not, under previous decisions of this court and of the Supreme Court, applicable to this case. In Penn Mutual Life Ins. Co. v. Blount, 165 Ga. 193 (2) (supra), this language was used: “The unauthorized act of an agent, done in the principal’s behalf, can not be ratified by the principal without actual knowledge of the act. The provisions of the Civil Code (1910), § 4530, have no application to the subject of waiver as related to conditions imposing forfeitures in contracts of insuranee.” In this same case, after stating that there could be no ratification by the company of the unauthorized delivery of the policy “without actual knowledge of the agent’s act,” this court, in 37 Ga. App. 756 (supra), said: “It follows that in a suit against the company in behalf of the beneficiaries named in the policy, to recover under the policy, a charge, with reference to knowledge by the defendant of its agent’s act in delivering the policy to the applicant without collecting the initial premium, that the knowledge of facts by the defendant which would put a reasonable person on inquiry is notice of facts to which such inquiry might have led, is an incorrect statement as to the law applicable to the case, and necessitates the grant of a new trial to the defendant.” In this connection see Wiley v. Borne Ins. Co., 12 Ga. App. 186 (76 S. E. 1067). Under the law of this case, therefore, implied notice did not properly have a place in the charge, and the last sentence of the foregoing excerpt was erroneous and cause for a new trial.

4. We now turn our attention to the main question in the case, to wit, ratification. We quote from Penn Mutual Life Ins. Co. v. Blount, 33 Ga. App. 642 (127 S. E. 892) : “The actual payment of the first premium during the lifetime and good health of the assured was a condition precedent to the liability of the insurer, and neither a local agent nor a general agent of the company could waive such condition.” Of course knowledge of such agents as to the unauthorized delivery of the policy would not be imputed to the company. The company, however, would be bound by the unauthorized act of its agent if it subsequently ratified the act. See 33 Ga. App. 642 (1-c), supra. This ratification must be based upon actual knowledge of the agent’s act, but such knowledge may be shown by either direct or circumstantial evidence. See this same case, 37 Ga. App. 756 (2) (supra). The question presented here then is this: Does the circumstantial evidence sustain the verdict finding ratification by the company?

We shall now advert to some of the evidence most strongly relied upon to show ratification. The local agent, Thompson, testified that he knew of no instructions as to the delivery of policies except those appearing in the pamphlet of rules issued by the company. On page 36 of that pamphlet the following appears: “Policy must not be delivered by an agent unless the insured be alive, in good health, and in insurable condition at the time of delivery, which must be within sixty days from the date of the examination. If doubt exists the agent must return the policy and receipt at once with full statement of facts.” Only thirty-three days had elapsed between the medical examination on September 21 and the return of the policy to the home office on October 24. The application for insurance, which is a part of the insurance contract, stipulates as follows: “The contract of insurance shall not be in force unless and until a policy shall be issued and delivered to me and the first premium thereon actually paid during my lifetime and good health.” In the light of the foregoing rule and the provision of the contract, the agent’s delay in returning the policy delivered to him on October 1 could not be held to be a circumstance showing notice to the company of the unauthorized delivery of the policy. It appears more reasonable to conclude that the company thought its agent was acting within its rules than that it was acting in violation of the contract of insurance.

True, the instructions did not require the agent to exact prepayment of the premium, and the agent testified that he did not know that prepayment was necessary. That requirement, however, was in the application, the application was 'a part of the contract, and the agent, the insured, and the insurer were all bound by it. Why should the insurer be held to know, or even to suspect, that the provisions of its contract were being violated because the instructions to the agent did not inhibit such violation?

But it is insisted that the second policy retained the date of the original policy and was practically a duplicate of it, except as to beneficiaries, and that if the original policy was never in force the insurer was undertaking to charge a premium for twenty-three days during which the insured had no protection. In this connection we quote the following testimony of Harrison S. Grill, who was supervisor of applications, and had charge of the matter of issuing policies at the home office of the company: “A new policy was written and given the same number as the one returned. Since our records did not show that the premium had been paid or that the policy had actually been delivered to the insured, the original document was, in accordance with our regular practice, destroyed, as we did not consider that the interest of the original beneficiary had vested, and there was no reason for the company to require the execution oí a formal request for change of beneficiaries. Changes of this kind are frequently made before policies are paid for and delivered and put in force; and we regard such changes as we would regard an error that had be.en made when the policy was actually being typed. . . When I rewrote the policy on October 17, 1922, it was dated back to September 25, 1922, because it retained the original number, and the only change made was the beneficiary, and it is our custom to follow the same date as the original policy. I did not instruct our local agent to make a reduction in the premium proportionate to this period of twenty-two days. Under such circumstances as these, it is customary for our company to require its patrons to pay premiums for a time when they are getting no protection, as in this case, for instance, a period of twenty-two days.” If the insured paid the premium when the policy was delivered, the policy would have been in force, the change in beneficiaries could have been readily made upon proper application therefor by the insured, there would have been no occasion for issuing another policy, and the situation under consideration would never have arisen. We see nothing here to show ratification by the insurer.

But it is said that the' agent was instructed to make prompt delivery of the policy. Surely this fact would not be notice to the company that the agent had acted contrary to the contract itself and made the unauthorized delivery of the policy that he did.

We shall now consider the effect of the most important of the letters in. the case. The letter of October 7, 1922, written when Thompson, the local agent, sent the policy to Heard, the general agent, in order that it might be sent to the home office for change of beneficiaries, contained this expression: “I am returning policy for Mr. Bell.” This letter stated also that when the policy was returned, Bell would pay. We do not think that this letter apprised Heard of the circumstances attending the delivery of the policy. There is nothing especially significant in the expression, “for Bell,” or in the statement that Bell would pay the premium when the policy was returned.

Much stress is placed upon certain expressions in the letter of October 10, 1922, wherein Heard sent the policy to Harrison S. Gill, supervisor,, at the home office, in order that the beneficiaries might be changed. Among other things, the letter said: “You will please rewrite the policy. . . It seems to us that a simpler way would have been to have the actuary prepare an assignment as above, but we leave the matter to your good'judgment. Mr. Bell will pay the first premium as soon as this change is made.” It is said that “If there had been no existing contract, there would have been nothing to assign.” Quite true. But, as appears from the testimony of Mr. Gill hereinbefore quoted, he swore in substance that where a policy of insurance is in force and the insured desires a change of beneficiaries, he is required to sign a formal request to that effect, and in such case the matter would be handled through the actuary department and not his department; and that since the company’s records did not show that the premium on the Bell policy had been paid, or that the policy had been delivered, he did not consider the policy in force, and, as was customary in such cases, his department handled the matter, and issued another policy. We do not see where the letters referred to, or any other letters in the record, were enough to put the company on notice that the. policy had been delivered without payment of the premium, or to show ratification of the unauthorized delivery of the policy.

We see nothing in the testimony of Pierre Heard (hereinbefore quoted in full) that would put the company upon notice that an agent had delivered a policy entirely on credit, or that would indicate that the company had ratified such delivery. We here call attention to the following facts appearing from the record: Thompson, the local agent, testified in substance that he only disclosed his unauthorized delivery of the policy to Heard, and that this information was imparted after the second policy had been issued and received by Heard. Heard, the general agent, testified in substance that he knew nothing of the unauthorized delivery of the policy to the applicant until the new policy had been sent him ready for delivery. Smith, secretary, testified that he knew nothing about the delivery of the policy, and that Harrison S. Gill had supervision of the writing and issuing of all policies and the delivery of them to the agents, and that “Mr. Gill handled this case throughout.” Gill, whose duty it was to handle the Bell matter, and who actually did so, testified that he knew nothing about the delivery of the policy and extension of credit to Bell until October 27, 1922, when he received Heard’s letter advising him that Bell had died without having paid the premium on the first policy.

In short, with the exception of Thompson, who actually delivered the policy to Bell, every witness in any way connected with the company denied knowledge of the unauthorized delivery of the policy until after the new policy had been issued. In the interesting case of Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076), Judge Powell, speaking for the court, gave a very lucid discussion of the province of the court and jury in dealing with circumstantial evidence in civil cases. We quote the first headnote of that case: “Where a plaintiff in a civil case supports his action solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis, (a) While in such cases the sufficiency of the evidence is for the jury, yet before there is, in legal contemplation, any evidence for their consideration, the circumstances shown must in some appreciable degree tend to establish the conclusion claimed. (6) A mere scintilla of inconclusive circumstances, giving no scope for legitimate reasoning by the jury, does not carry the burden of proof.” In Neill v. Hill, 32 Ga. App. 381(2-5) (123 S. E. 30), it was said: “A fact can not be established by circumstantantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact' does not exist.” The same rule is stated in Frazier v. Ga. R. &c. Co., 108 Ga. 807 (33 S. E. 996), as follows: '“When a plaintiff’s right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but - which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affimatively shown that no such fact existed.”

In the case at bar, every circumstance relied upon to show actual knowledge on the part of the insurer of -the unauthorized delivery of the policy and ratification of that delivery is perfectly consistent with the direct, reasonable, and unimpeached testimony of every witness testifying that he had no such knowledge. The court erred in overruling the general grounds of the motion for a new trial.

Judgment reversed.

Broyles, G. J., concurs, Bloodworth, J., dissents.


author: Bloodworth, J.

text:
    19153.
    WYNN v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
    Decided March 6, 1929.
    Rehearing denied April 9, 1929.

      R. B. Blackburn, Hewlett & Dennis, for plaintiff.

      McDaniel & Neely, W. O. Wilson, for defendant.
   Bloodworth, J.

(After stating tbe foregoing facts). This is a suit which grew out of an injury claimed to have been sustained by the plaintiff in Mobile, Alabama, on May 14, 1919. The allegations of her petition and the answer of the defendant as amended are substantially set out in the foregoing statement of facts. It is not denied that the injury occurred during Federal control. The authority of the United States government to take over the said telephone system and the said building as a part thereof will be found in the resolution of Congress approved July 16, 1918, 40 Stat. p. 904, chap. 154 (47 U. S. C. A. § 63), and the proclamation of the President of the United States, dated July 22, 1918, 40 Stat. No. 2, p. 1807. The evidence in this case shows that the building in which the injury is alleged to have occurred was at that time used exclusively for telephone purposes, and that it was in the exclusive control and possession of the United States government, under the authority of the acts of Congress and the proclamation of the President of the United States to which reference is made above. In Baggott v. Southern Railway Co., 300 Fed. 338, it was held: “The law is now .settled that suits for injuries to the person or damage to property by railroads while under Federal control can not be brought against the railroad corporation owning the railroad, but must be brought against the director-general, if the suit is instituted during Federal control.” In Western Union Telegraph Co. v. Poston, 256 U. S. 662, 664 (41 Sup. Ct. 598, 65 L. ed. 1157), Mr. Justice Brandéis, who delivered the opinion, said: “In conferring upon the President power ‘to take possession and assume eontroP of the telegraph systems the resolution adopted language identical with that which had been employed in the act of August 29,1916, c. 418, 39 Stat. 619, 645, pursuant to which the railroads were brought under Federal control. See Missouri Pacific E. E. Co. v. Ault, ante, 554. We held there that the supplementary legislation known as the Federal control act did not impose liability upon the company, and that, since the'government was operating the property, the railroad company could not be held liable under the established principles of the common-law governing liability. These principles are equally applicable here.” In the opinion in that case it was further held (p. 666) that while “the companies were not made the operating. agents of the United States, the officers of the companies were to operate the properties for the United States and it was to be done in the names of their respective companies/” It thus appears that the rulings of the courts relating to suits for damages against railroads during governmental control, are applicable to such suits involving telephone companies during the same period. This whole subject has been so fully considered, and disposed of by the decisions of the courts, that it is necessary to refer only to some of them. See N. C. Railroad Co. v. Lee, 260 U. S. 16 (43 Sup. Ct. 2, 67 L. ed. 104); Mo. Pacific R. Co. v. Ault, 256 U. S. 554 (41 Sup. Ct. 593, 65 L. ed. 1087); Northern Pacific R. Co. v. North Dakota, 250 U. S. 135, 148 (39 Sup. Ct. 502, 63 L. ed. 897); Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163 (39 Sup. Ct. 507, 63 L. ed. 910, 4 A. L. R. 1623); Va. Ry. Co. v. Mullens, 271 U. S. 220 (46 Sup. Ct. 526, 70 L. ed. 915); Lane v. So. Ry. Co., 182 N. C. 774 (109 S. E. 87); Castle v. So. Ry. Co., 112 S. C. 407 (99 S. E. 846, 8 A. L. R. 959). However, counsel for the plaintiff in error insist in their brief that “the control of the government was not so exclusive as to prevent the telephone company from correcting any existing defects,” and that “the defect in the steps was one of original construction.” Both of these arguments are answered by those decisions of the Supreme Court which hold that “no divided but a complete possession and control were given the United States for all purposes as to the railroads in question.” See Northern Pacific Railway Co. v. North Dakota, supra. In Va. Ry. Co. v. Mullens, supra, after quoting Northern Pacific Ry. Co. v. North Dakota, supra, Mo. Pacific R. Co. v. Ault, supra, Wabash Railway Co. v. Elliott, 261 U. S. 457, 462 (43 Sup. Ct. 406, 67 L. ed. 743), N. C. Railroad Co. v. Lee, supra, and Dupont de Nemours & Co. v. Davis, 264 U. S. 456, 462 (44 Sup. Ct. 364, 68 L. ed. 788), Mr. Justice Yan Devanter said: “In principle these decisions are determinative of the question here presented. They show that Federal control did not rest on a conventional arrangement with the owner-companies, but on an exertion of supreme governmental power, and that the legislation, proclamation and order before recited contemplated a complete separation of the companies from the roads while under such control, and an absence of responsibility by the companies for losses and injuries resulting from the use, operation and maintenance of the roads during that period. When the United States took over this road the embankment and track in the bed of the stream were taken over as part of it; and the defendant was deprived of all power over them while they remained under Federal" control. Their maintenance and use during that period were exclusively in the hands of Federal agents. If a duty rested on any one to make any change in them it rested on the Federal agents; and if maintaining and using them without change was a wrong against the plaintiff it was a wrong committed by those agents, for which no liability attached to the defendant. The plaintiff relies on cases holding the creator of a nuisance liable for injuries resulting therefrom after he had transferred the premises to another by deed or lease; but they are not in point. They proceed on the theory that by such a transfer the creator expressly or impliedly affirms the right of the transferee to continue the prior situation or use, and also voluntarily disables himself from correcting or abating the same. . . The United States, as we have seen, came into possession, not as a conventional transferee, but by an exercise of governmental power in which the defendant had no voice.” In Baggott v. Southern Ey. Co., supra, it was held that “suits for injuries to the person or damage to property by railroads while under Federal control, if instituted during such control, were required to be brought against the director-general, and if since such control ceased must be brought against the Federal agent, and in neither case can such suit be maintained against the railroad company.” And in that case Judge Cochran said: “When the government took charge of the railroads by the orders and acts of Congress referred to, it waived its immunity from suit for all claims or causes of action arising or growing out of the possession, use, control or operation of the railroad property and instrumentalities.” Applying the ruling in the foregoing cases to the facts of this case, it is clear that the trial judge did not err either in overruling the demurrer to the amendment to the answer or in directing a verdict for the defendant.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    19301, 19802.
    HARRIS v. REEVES et al., executors.
    Decided March 6, 1929.
    Rehearing denied April 9, 1929.

      John B. L. Smith, Joseph LeConle Smith, George A. Pindar, for plaintiff in error.

      G. L. Shepard, Hall, Grice & Bloch, contra.
   Bloodworth, J.

The facts in these two cases are practically the same and are substantially as follows: The executors of the estate of W. R. Brown sued W. H. Harris on a promissory note for the principal sum of $8,500 and interest thereon from April 2, 1918, at the rate of- eight per cent, per annum, payable annually, and for ten per cent, of the principal and interest as attorney’s fees. The defendant filed an answer, to which the plaintiff demurred, generally and specially. The defendant thereupon amended by striking out all the defensive part of his answer, and substituting other defensive parts, to which amendment the plaintiff demurred generally and specially. The questions arose on the sufficiency of the amendment as against the demurrers. The amendment to the answer admitted that the defendant executed the note declared on, and that the plaintiffs were the lawful holders of it, but averred that the defendant was not indebted to the plaintiffs in any amounts whatever on account of said note, by reason of the following facts, to wit: On March 1, 1904, the defendant borrowed from the plaintiff’s testator $15,300, which by contract between them was payable as follows: $73.31 on that date, $200 on the first of each successive month thereafter until and including March 1, 1909, and $10,250 on March 1, 1909. On or about January 22, 1909, by mutual agreement, the method and terms of repayment were changed so as to be, as follows: From and after March 1, 1909, $100 on the first day of each successive month up to and including March, 1914, and $12,500 on March 1, 1914. Pursuant to said agreements, defendant paid said testator $73.31 on March 1, 1904, $200 on the first day of each successive month from April 1, 1904, to March 1, 1909, both inclusive, and $100 on the first day of each successive month from April 1, 1909, to December 1, 1912, both inclusive, aggregating $16,573.31. Meantime the interest on the balances after these payments respectively aggregated $7,317.71; so that on December 1, 1912, the defendant owed said testator $6,044.40, though said testator still held and claimed the right to collect the defendant’s fifteen monthly notes of $100 each and the defendant’s note for $12,500 on account of said loan. On December 11, 1912, said testator paid over to the defendant the sum of $5,000, defendant agreeing to repay the same at the end of five years from that date with interest at the rate of ten per cent, per annum, payable at the end of each successive year thereafter, and further interest at the rate of two and a half per cent, per annum, payable at the end of five years thereafter. Thereupon the defendant owed said testator $11,044.40. The interest on the balances aggregating the said $11,044.40, to April 22, 1913, at the rate of eight per cent, per annum, amounted to $334.94, so that on April 22, 1913, the defendant owed said testator, principal and interest, $11,379.34. On April 22, 1913, defendant paid over to said testator the further sum of $12,500, being $1,120.66 more than the defendant obtained from said testator plus interest thereon at the rate of eight per cent, per annum. Defendant paid also the remaining fifteen monthly notes of $100 each due to said testator on the first day of each month from January 1, 1913, to March 1, 1914, both inclusive, aggregating $1,500, and on the 10th day of each successive December for five years from December 10, 1913, to December 10, 1917, both inclusive, defendant paid said testator $500 as agreed between them on December 11, 1912, as aforesaid, aggregating the further sum of $2,500. So that by December 17, 1918, the defendant had so overpaid said testator to the amount of $5,120.66. On the day last aforesaid said testator paid over to the defendant $\,000, being the tímouni represented by the three notes which are the basis of the suit of plaintiffs against defendant, numbered 640 Peach superior court, to the same term of court. Thereupon there was still an overpayment to said testator aggregating $1,120.66. Nevertheless, on April 2, 1918, the promise of the defendant to pay said testator $5,000 plus interest thereon at the rate of two and one half per cent, per annum in addition to the interest thereon at the rate of ten per cent, per annum, which the defendant had paid, as aforesaid, was renewed and extended by the giving and taking of the note herein sued upon. There was, therefore, no lawful consideration for the note sued upon. Thereafter, on February 8, 1922, the defendant paid said testator the further sum of $200, and has made to said testator and to the plaintiffs'as his executors further payments, to wit: April 30, 1923, $100, January 1, 1924, $100, April 11, 1924, $500, December 17, 1926, $540. So that said testator and the plaintiffs as his executors, have taken from the defendant $2,560.66 over and above all sums and things of value received by the defendant from said testator or from the plaintiffs plus interest thereon at the rate of eight per cent, per annum. The payments by the defendant herein mentioned were made and ■ accepted without ahy agreement or direction as to the application of the same, and there has never been any settlement between the defendant and said testator or the plaintiffs concerning the same. The defendant attached to his amended answer a detailed statement showing in tabulated form all amounts received by him from said testator and all amounts paid by him to said testator as hereinabove mentioned. The plaintiffs, now the defendants in error, demurred to this amended amendment on the grounds that it set up no defense to the note sued on; that it affirmatively showed that the alleged usurious payments by the defendant to the plaintiffs’ intestate were paid and applied as a credit on amounts alleged to have been usurious, and the action for recovery thereof was not brought within twelve months from the date of the payments, and is therefore barred by the statute of limitations; that at the time of the execution of the note sued on, April 22, 1918, it affirmatively appeared that the defendant was cognizant of all the facts now set up in his plea, and he is estopped from now setting them up as a defense to the note sued on; that it affirmatively appeared 'from the amendment that in executing the note sued on on April 22, 1918, the defendant recognized that the amounts which he had heretofore paid were paid and received as usury, if there was any usury, under the contract, and his right to recover such payments and apply them on the note sued on is barred by the statute of limitations. The plaintiffs demurred also to this amendment and specially to the paragraph on page 3 of the plea, beginning with the word “nevertheless,” for the reason that it is not shown therein why the note was renewed and extended for $8,500. The plaintiffs demurred also to the amendment because the amount sought to be set off arose out of separate and independent transactions. These demurrers were sustained, and the amended answer stricken; and judgment was thereupon rendered in favor of the plaintiffs.

The issues in the cases will be understood when the headnotes to this decision are read in connection with the foregoing statement of facts. See McIntosh v. Thomasville Real Estate &c. Co., 141 Ga. 106 (80 S. E. 629).

Judgment affirmed.

Broyles, O. J., and Buhe, J., concur.


author: Blood worth, J.

text:
    19349.
    LANGFORD v. BANK OF STATHAM.
    Decided March 6, 1929.

      James TF. Arnold, for plaintiff in error.

      Biphard B. Bussell Jrv contra,
   Blood worth, J.

(After stating the foregoing facts.) The 4th ground of the motion for a new trial alleges that “the court erred in sustaining the objections of the plaintiffs counsel tó the following evidence offered by the defendant: W. Grady Griffith testified for defendant: Q. Do you know of your own knowledge that that note was given to take up the mortgage note of her husband? Movant insists that if the witness had been permitted to answer he would have answered as follows: A. Yes, I do.” The 5th ground of the motion alleges that “the court erred in withholding the following evidence from the jury: Mrs. C. B. Langford testifying. Q. Did you sign those papers of your own free will and accord? A. No, sir, I did not.” The 6th ground alleges that the court erred “in withholding the following evidence from the jury: Mannie Griffith testifying for the defense. Q. Have you ever had any transaction with Mr. Burson? A. Yes, sir. Q. Where were they held? A. In the bank.” Neither of these grounds is complete within itself, because it requires reference to the brief of evidence in order to determine what was the alleged error and whether such error was material. Who is W. Grady Griffith, and what connection, if any, did he have with the case? What “note” is referred to in ground 4? What “papers” are referred to in ground 5 ? Who is Mannie Griffith, referred to in ground 6? No “transaction” with Burson could be considered unless it was shown by the ground itself that the transaction was relevant and an issue in the case. Cathey v. State, 28 Ga. App. 667 (4) (112 S. E. 915) ; Watkins Co. v. Mims-, 35 Ga. App. 171 (3) (132 S. E. 241), and cit. See also Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523).

In the brief of the plaintiff in error it is insisted that it was error for the court to direct a verdict, '“for the reason that there was plenty of evidence to show the bank a party to the whole transaction,” and “because there was direct evidence to show a connection between the bank and Burson, that should have been submitted to the jury.” In Garrett v. Thornton, 157 Ga. 487 (121 S. E. 820), it was held: “A married woman may borrow money for the purpose of paying debts of her husband, and give her note and mortgage therefor, and such a contract will be binding upon her, although the lender may know, at the time the loan is made, that she is borrowing it for this purpose, if he is not the husband’s creditor who is to be thus paid, aud is no party to any arrangement or scheme between the husband and wife of which the borrowing pf the money by her for that purpose is the outcome. Chastain v. Peak, 111 Ga. 889 (36 S. E. 967); Rood v. Wright, 124 Ga. 849 (53 S. E. 390); Ginsberg v. Peoples Bank of Savannah, 145 Ga. 815 (89 S. E. 1086).” See also Swint v. Milner Banking Co., 30 Ga. App. 733 (119 S. E. 336); Third National Bank v. Poe, 5 Ga. App. 113 (62 S. E. 826). The evidence does not show that the bank was a creditor of the husband who was to be paid with the money borrowed, or that the bank was “a party to any arrangement or scheme between the husband and wife of which the borrowing of the money by her for such purpose is the outcome.”

The court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Broyles, C. J.

text:
    19350.
    Southern Flour & Grain Co. v. Central of Georgia Railway Co.
    Decided March 6, 1929.

      George II. Perry, Max Harris Wilensky, for plaintiff.

      Pottle & Hofmayer, Howell Cobb, for defendant.
   Broyles, C. J.

1. Grounds 1, 2, and 3 of the amendment to tlie motion for a new trial, complaining of the admission of certain specified evidence, do not raise any question for the consideration of this court, as it does not appear from the grounds that any objection to the evidence was made at the time of its admission or that any motion to exclude it was subsequently offered.

2. In the light of the charge as a whole 'and the facts of the case none of the exceptions to the charge require a reversal of the judgment.

Judgment affirmed.

Lulce and Bloodworth, J.J., concur.


text:
    19356.
    GEORGIA RAILWAY & POWER COMPANY v. BONE.

      Decided March 6, 1929.

      Sidney Smith, Colquitt & Conyers, for plaintiff in error.

      Branch <& Howard, Bond Almand, contra.
   Bloodworth, J.

The issues in this case will be understood when the headnotes are read in connection with the following statement : W. J. Bone brought suit against the Georgia Bailway and Power Company, alleging in part that the defendant was engaged in manufacturing and selling gas for heating and illuminating purposes in the city of Atlanta; that as a tenant he was occupying a house in which were gas-fixtures and appliances used in furnishing gas to the plaintiff; that on the early morning of June 23, 1925, the plaintiff and others noticed a strong odor of escaping gas; that this was reported early in the morning and again during the day to the complaint department of the gas company, which department the gas company maintains and to which its customers can make complaint ; that each time aiter the leaking gas was reported the complaint department promised that' some one would be sent to remedy the trouble; that when the plaintiff returned to his home in the afternoon he found that the company had not complied with its promise and had sent no one to remedy the defect; that the plaintiff then undertook to locate the leak, with the idea of adopting some temporary means of preventing the gas from escaping into the house; that in the basement of the house was a servant’s toilet, and that in said room there was a gas-jet for furnishing light for the room; that “the said gas-jet was located about five or five and a half feet above the floor of said room, and the gas was supplied thereto by a small pipe which ran down the side of the wall of said room and formed an elbow, then ran out from the wall toward the center of the room;” that “there was located in said room a window, the top of which was about on a level with the said gas-jet, and this window at said time was open;” that “on account of the fact that said window was open at said time, and on account of the fact that gas is lighter than air and rises and settles in the top of a room, when petitioner entered said servant’s toilet the smell of gas, while present in said room, was not materially stronger therein than in other parts of the house, and petitioner therefore did not know that the gas was escaping in said room;” that “as petitioner was endeavoring to make a careful investigation of all the pipes where the same were exposed in said house, he struck a match and held the same over the gas-jet to ascertain if there was any gas escaping through the pipe; and, finding that there was no gas escaping through said gas-jet, he then passed the lighted match along the pipe leading from the wall out to the gas-jet. When he did this there was a terrific explosion in said room, which resulted in injuries to the petitioner, as will hereafter be set out;” that, “as it was afterwards discovered upon investigation, the said pipe leading to said gas-jet had a small crevice or split therein, and it was through this crevice that the gas had been escaping,” that “gas such as was supplied by the defendant in the said house is highly inflammable and explosive, and, when not properly confined, is very dangerous to the occupants of the house in which it is allowed to escape; and this fact was well known by the defendant.” “Petitioner shows that there was a valve or stop cock in the defendant’s pipe through which the gas was conveyed from its main into said house, where the gas could be shut off before the same could reach the meter and thence into the fixtures of said house, and by means of this valve or stop-cock the gas 'could be shut ofi when it became desirable or necessary to do so.” The acts of negligence alleged were: “that under the circumstances herein related it was the defendant’s duty to shut off the gas or adopt such means as was necessary to stop the gas escaping in the said house and thereby endangering the lives of the occupants thereof,” and “that defendant was negligent in not sending some one to said house in response to the repeated reports and requests made to the defendant, as hereinbefore set out, and in not shutting off said flow of gas so as to prevent the same from escaping in said house as hereinbefore alleged.” The evidence for the plaintiff substantially supported the allegations of the petition. Upon the trial the jury returned a verdict in favor of the plaintiff for $2,000, and the defendant made a motion foj a new trial.

Special grounds 5 and 6 of the motion complain that the court erred in admitting the evidence of the plaintiff that “he. did not believe that the gas was strong enough to explode in any part of the house,” and that “he had seen gas people look for leaks with a match.” The other special grounds of the motion are based upon alleged errors in the charge of the court. The motion for a new trial was overruled, and the defendant excepted.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    19363.
    NOBLE MACHINE COMPANY v. WOOLVIN STAVE COMPANY.
    Decided March 6, 1929.

      O. O. Crockett, W. W. Larsen Jr., for plaintiff in error.

      B. L. Stephens, T. B. Hightower, contra.
   Luke, J.

Noble Machine Company sued E. B. Woolvin Stave Company (which was the trade name of E. B. Woolvin) for $350 on a promissory note given for the balance of the purchase-price of certain machinery described in the cohtract of sale as, “One rebuilt Ober No. 10 broom-handle lathe complete with countershaft,” and, “One rebuilt Ober belt auto handle sander.” This contract of sale, dated (as was the note) on September 27, 1927, contained the following provisions: “It is further agreed that in case of rejection I, or we, will promptly deliver the above- mentioned property to the Noble Machine Company, f. O. b., where directed by you, and that this contract is not modified or added to by any agreement not expressly stated herein; and a retention of the property after thirty (30) days from date of shipment shall constitute an acceptance, to be conclusive admission of the proof of all representations made by or for the Noble Machine Company,, and void all its contracts of warranty, expressed or implied.” After setting out in the petition the above-quoted part of the contract-quoted, Noble Machine Company pleaded that the said property was shipped by it to the defendant on October 6, 1927; that said note was unpaid; and that the “defendant has retained the property for thirty days from date of shipment, thereby accepting the same, and conclusively admitting that all warranties, expressed or implied, in connection with the property are void.”

In his answer, the defendant admitted a prima facie case, and further pleaded that the said machinery was worthless, and that immediately upon discovering that fact “he tendered same back to plaintiff, and now holds same as the property of plaintiff,” subject to his order; that when he signed said note and contract said machinery was in Indiana, and the defendant was in Georgia and had no opportunity to examine it; that the plaintiff falsely represented to him that said machinery would be “thoroughly reconditioned from the bare frame up in plaintiff’s machine shop in Fort Wayne, Ind.,” and “guaranteed it to be in first-class mechanical operating condition;” that the plaintiff knew said machinery was worthless and had not been reconditioned, and was not in first-class mechanical operating condition, and that these facts could not be discovered by the defendant within thirty days from its shipment; “that defendant upon receipt of said machinery set same up, and undertook to operate it, and then found same had not been rebuilt, and was not in first-class mechanical operating condition, and could not be used for any purpose, same being worn out and of no value or service whatever;” and that the defendant should have a verdict for $350, which lie paid in cash as a part of the purchase price of said machinery.

The jury returned a verdict for the defendant in the sum of $350, the court overruled the plaintiff’s motion for a new trial, based upon the general grounds and certain special grounds, and the movant excepted.

In special ground 1 it is complained that the court, “in connection with the proper charge concerning the rights of the defendant as to concealed defects in the machinery,” failed to give a requested charge to the effect that if defendant retained the property for thirty days after shipment the seller would not be liable. A part of the charge referred to in this exception is as follows: “But before the defendant can prevail, you must find that the defendant did not, and could not, discover the defects and shortcomings of the machinery about which he complains, and which the seller had represented to be otherwise, within the period of thirty days from the date of the shipment of the machinery.” It is evident that the requested charge is contrary to the charge of the court from which we have just quoted, that it would have eliminated the defense pleaded, and it was properly refused.

In special ground 2 complaint is made that the court did not, in connection with the charge as to concealed defects not discoverable within “the thirty-day period,” charge the jury that what the court had said was “true though the vendee claimed that the seller had perpetrated a fraud upon him by falsely representing the quality of the property sold.” This requested charge, if given as requested, would have confused the jury, and the. court properly refused to give it.

Special ground 3 discloses error in the court’s instructing the jury that if the defendant did not discover the alleged defects in the machinery “within the thirty-day period from the receipt of the machinery ” etc. According to the contract, the time limit ran from the shipment of the machinery. In other parts of his instructions the judge followed the contract, but this was error.

In special ground 4 the plaintiff in error admits that the court’s charge upon fraud was a correct statement of law, but insists that it was not adjusted to the pleadings and evidence, and was calculated to mislead the jury, to the prejudice of the plaintiff. This ground fails to point out any error with sufficient certainty, and will not be considered. Blaylock v. Walker County Bank, 36 Ga. App. 377 (3) (136 S. E. 924).

. In his brief counsel for the plaintiff in error says: “The defendant’s plea was evidently drawn in line with the case of Tinsley v. Gullett Gin Co., 21 Ga. App. 513 (94 S. E. 892). We recognize the validity of the plea, but the defendant’s evidence wholly failed to sustain his plea.” It appears, from letters introduced in evidence, that the seller did represent that the machinery would be thoroughly reconditioned from the bare frame up, and that it was in first-class mechanical operating condition. The evidence warranted the jury in concluding that the machinery was thoroughly defective, had never been reconditioned, was not in first-class operating condition, and was unsuited for the purpose for which it was designed, to wit, to make handles for brooms, etc. The controlling factor in the case is this: Did the defendant sustain his plea that he could not discover the defects in the machinery in “thirty days from date of shipment ?” The plea alleges, and the answer admits, that the machinery was shipped on October 6, 1927. From the defendant’s testimony it appears that he received the machinery “around October 20,” first attempted to operate it on November 11, and first notified the seller of the alleged defects on December 8, 1927. Why did he wait until after the expiration of thirty days from the date of shipment to try out the machinery ? It may be inferred, from his testimony, that this delay was at least partially caused by the fact that the place where the machinery was to be installed was not ready; but Peyton Towns, testifying for the defendant, is more definite,, and swears: “It was something like two or three weeks after we took it down to the place before we tried to operate it. We did not try to operate it sooner because we had to get some parts before we could try it.” These parts were ordered from the factory, not from the seller, and the factory did not have them in stock when the order reached it.

But could the purchaser have discovered the defects in the machinery within thirty days from the time it was shipped to him? The machinery was in transit eighteen days, and, having only twelve days left, he had to act promptly. The defendant testified: “As far as I know, it was properly installed. There was nothing to do but put it on the floor, and take measurements, and cut the belts and put them on. . . The first day that we tried to operate this machinery, I knew that there was something wrong with it; I knew it was not right.” Towns, sworn for the defendant, testified: “We found out the first day that we tried to operate it that it would not operate properly. It would not take a mechanic to tell that there was something wrong with the machinery if he would stand there and watch it operate for a few minutes.” R. E. Ladson, the expert mechanic sworn for the defendant, who testified to the manifold imperfections of the machinery, testified: “I suppose I was there an hour. I had to take down this machine and get on the inside before I could tell anything about it. . . Most any mechanic as good as I am could have found the trouble. I do not think it would be hard to find out. Any good mechanic could not help finding the defects in the machinery.” This witness further swore: “I did not try to operate it. I just merely looked over the machinery to try to find out what the trouble was. . . That was some time after Captain Woolvin had received the machinery.” R. R. Gentry, sworn for the defendant, testified that he had worked at the handle and stave business twenty-five years and that he had had ten years experience in operating such machines. This witness further swore: “I helped to install that machinery, and know that it was correctly and properly installed. . . As soon as I tried out the machinery I found that it would not make the handles like it was recommended. Captain Woolvin was there and found out the condition of the machinery, and I told him about it.”

If the machinery would not operate from the first without new parts, how could the purchaser have suspected that it was in good condition? If Ladson could swear to the many defects in the machinery after an hour’s examination of it, and without seeing it tried out, how can it be said that such defects could not have been discovered in ten or twelve days? Furthermore, it appears from the testimony of the defendant that the installation of the machinery was a very simple matter; and, from the testimony of the witnesses who saw the machinery tried out, including the defendant, it was perfectly obvious that something was¡ radically wrong with it.

The testimony offered in behalf of the defendant in error not only failed to sustain his plea, but refuted it; and the -judgment is reversed because the court erred in overruling the general grounds' of the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur..


text:
    19366.
    Guy v. The State.
    Decided March 6, 1929.

      R. G. Price, for plaintiff in error.

      M. L. Fells, solicitor-general, contra.
   Broyles, C. J.

1. “Where the statement of a defendant in a criminal case is in direct conflict with the testimony of the State’s witnesses, and the statment, if true, demands his acquittal, it is reversible error for the court, even in the absence of a written request, to fail to instruct the jury that they may believe the statement in preference to the sworn testimony in the case.” Bullard v. State, 31 Ga. App. 559 (121 S. E. 130), and cit.

2. Under the above-stated ruling and the facts of the instant case, the failure of the court to instruct the jury that they could believe the statement of the accused in preference to the sworn testimony in the case requires a new trial.

Judgment reversed.

Luke and Bloodivorlh, JJ., eoneur.


text:
    19369.
    Bragg v. Ellison.
    Decided March 6, 1929.

      F. A. Tulen, for plaintiff.
   Broyles, C. J.

Under the facts of the case as disclosed by the record the court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.