text:
    17247, 17248.
    Meredith v. Fay & Egan Company; and vice versa.

    Sales, 35 Cyc. p. 74, n. 67; p. 185, n. 67; p. 432, n. 38; p. 574, n. 83.
   Stephens, J.

1. Where a written contract for the sale of particularly described machinery, generally referred to in the contract as a “planer and matcher” and a “trimmer,” expressly provides that in case of rejection of the property the purchaser will deliver it to the seller f. o. b. Cincinnati, and that this contract “is not modified or added to by any agreement not expressly stated herein, and that a retention of the property forwarded, after thirty days from its arrival at destination, shall constitute a trial and acceptance, [and?] be a conclusive admission of the truth of all representations made by or for the consignor [seller], and a fulfillment of all its contracts of warranty expressed or implied,” the purchaser, who has retained the property for more than thirty days after its arrival at destination, although in the meantime he may have given to the seller notice of certain alleged defects in the property and of his dissatisfaction with the property by reason of such defects, has, by the terms of the contract, accepted the property and waived any right to call upon the seller for damages for a breach of any of the warranties, express or implied. Fay & Egan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826).

2. The terms of the contract govern the rights of the parties, and any efforts made by the seller to remedy the alleged defects pointed out by the purchaser will not amount to a waiver by the seller of his rights under the contract to hold the purchaser to an acceptance of the property sold, upon failure to return it within the thirty days stipulated in the contract. The failure of the purchaser to so return the property will amount to a waiver of any right to call upon the seller for damages for breach of warranty.

3. Where the defects in the machine are patent and are easily discoverable when using the machine, the purchaser can not defend against a suit on the contract by the seller on the ground that the seller’s express or implied representations as to the character of the machine constituted a fraud.

4. Where the delivery of the property sold was made by the seller beyond the time contracted for, an acceptance of the property by the purchaser, without protest upon the ground of delay, and the execution by the purchaser of the purchase-money notes, upon delivery of the property, and a payment by the purchaser of one of the purchase-money notes after delivery of the property, amount to a waiver by the purchaser of any right to damages against the seller for delay in delivery. Moore v. Smith Machine Co., 4 Ga. App. 151, 153 (60 S. E. 1035); Lingo v. Phœnix Hermetic Co., 31 Ga. App. 547 (4, b) (121 S. E. 253).

Decided February 28, 1927.

Complaint; from Fulton superior court — Judge Bell. January 26, 1926.

STATEMENT OE EACTS BY STEPHENS, J.

J. A. Fay and Egan Company sued Meredith upon his notes given for the purchase of machinery under a contract containing provisions set out in the foregoing decision. The defendant pleaded fraud and breach of warranty, and alleged that the plaintiff’s conduct in undertaking to repair defects in the machinery amounted to a waiver of its rights under the contract. He prayed for damages for an alleged delay in delivery of the machinery after the date for delivery specified in the contract. The court directed a verdict for the plaintiff.

It appears from uncontradicted evidence that on delivery of the machinery the defendant signed the purchase-money notes, without objection as to delay in delivery, and that he afterwards paid one of the notes. He testified as follows: “They shipped the planer and matcher approximately 90 days after they promised them, and did not ship the double end trimmer with it. The contract I had was to double end trim the lumber before it was dressed. Well, I didn’t have the saws to do this, and I had to hold on approximately six weeks, my recollection is, before the saw came to test it out. The clause in the contract was 30 days, and you see I went by the board on that, the 30-day clause, and I didn’t test it out; I was waiting for the saw, and as soon as I began to run it the defect began to show up. The first defect I discovered was when I went to change the knives, it was galded in the set screws that hold the knife in the cylinder head. By ‘galded’ I mean it was stuck there; you couldn’t move it, couldn’t get it out, couldn’t loosen it. This head revolving 4,000 revolutions a minute, it is necessary to have it correct, to hold these knives in there. And there were some set-screws that we couldn’t move to get the knife out. There were six knives in the'head, and when I went to move the set-screws they were stuck. The knives had to .be taken out to sharpen them, to keep them sharp, so they would dress your lumber smooth. That was a mechanical defect through mere carelessness in the factory in not doing it properly. Either the setscrew was too large or the hole was not shaped out for the size, and it jammed in there and knitted the metal together, and you couldn’t get it out. As to being able to discover that defect in the 30 days from the time the machine arrived, I didn’t operate the machine for 30 days, didn’t start it off. The machine waited for the other equipment. After I began to operate I discovered that, — I think, the next day. We ran some lumber through it, and when the knives got dull and I wanted to change them, that was when I discovered the set-screws. . .. I ran the machine some, but very little. . . There were a number of other defects; it would take me some time to go over them. That planer has what you call a top and bottom head and two side heads. In dressing timber and lumber, you dress four sides at one operation. The machine, if it did operate at all, would in fact plane two sides and two edges. 'Matching’ is a term we use in the shop. We dress two sides and match two edges, and dress it off and make it absolutely square, so when the timber is used • in a building it will match up and be square, finished. 'Matching’ means finished as well as dressed. All four sides would be dressed by the planer in one operation. This machine was not intended or designed to plane two sides by one operation and then two more sides by another operation. If you are going to buy a planer for two sides, you would buy what they call a two-head plane. This is a four-head machine; dresses all four sides at one operation; it has two heads, and two on the side.

5. In a suit by the seller against the purchaser to recover for the unpaid purchase-money of the machinery delivered under the contract, applying the above rulings to the undisputed evidence, the court did not err in directing a verdict for the plaintiff.

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

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

“The capacity of the machine that was sent did not conform to the size in the contract here. The size I have got there will dress 14= inches wide and six inches thick. The reason it won’t dress 8 inches thick is because it has got 6-inch heads on it. It lacks two inches of reaching to the top of an-8-inch timber. The head or cylinder is the part that the knives are fastened to, that revolves as the timber passes, and they cut the timber as it passes by. The side heads are six inches high. It lacks two inches of reaching to the top of an 8-inch timber. You can not get 15 inches through it unless you fix the machine different. Along the side of the machine is a guide to guide the timber straight through, so as to make it true, and to get 15 inches you have to throw it off the body, that is out from the roll. There is a feed-roll that feeds the timber through; and when you make that adjustment it wouldn’t be practical to operate the machine in that condition. To line it up like the machine should run, it is impossible to get over 14 inches in width. I don’t recall any other defect in the machine right now but the top cylinder — the size of it, it won’t take the size the contract calls for; I couldn’t use it. . .

“I received this machine in good faith, thinking that I had what I had bought, having no idea there were any defects in it of faulty workmanship. I didn’t go and inspect it; I started it up and began to run it, and these defects would develop, and as I would change the machine and change from one size to another, and change the knives and replace them, — in other words, the defects developed as we worked with the machine from time to time. . . The machine was a different size, and besides being smaller than what I bought, it was defective in a number of ways. . . The machine was bought in one contract, to be shipped in one car, and they shipped it in piecemeal, the planer and matcher and then the saw, and the pulley came along later. As to the necessity of that pulley, it was one of the pulleys, the feed pulleys for operating the machine. . . I did not particularly object to it being a different machine, or where it came from, but, what got me in Dutch, they didn’t ship me anything. I have never raised any particular objection to the trimmer, except that they didn’t ship it; that is, they didn’t ship it when they said they would ship it. They shipped both finally. . . If T bought new chip-heads and knives and the set-screws were not galded, that would overcome my objection to the galded set-screw. . . When that planer and matcher came, there were pulleys on it, but not complete; there were quite a number of pulleys on it, but there was one feed pulley they didn’t send, and that record there will show when they shipped it and why they left it off. When the machine came, there were pulleys, but it was not in such condition that I could have tested it out the day it came if I had set it up, not according to the contract and according to the agreement I had with Mr. Stewart. I could not have tested that machine the morning it came, if I had installed it, for you know a machine of that size weighs about fourteen or fifteen thousand pounds, and I could not have built a foundation to install it and got the blow-pipe system up. I could not have made a test without this particular pulley. I might have tested it and inspected it all over if I had had any idea that it was not what I bought, but the machine, from general appearances, looked to me like what the contract called for. I didn’t know it was wrong. I didn’t tear it up. When I received the planer and matcher on May 15, 1923, the first thing I did was to put it on the foundation, and the next was the blow-pipe to put in the fan. As I say, I thought, from the general appearances, that I had received what I had bought. The double-end trimmer had not come. The contract I had, and the lumber I had on the yard, called for a double-end trimmer. My contract called for a double-end trim, and I couldn’t ship out that order, because I had no way to get it oil and hence I couldn’t test the machine, couldn’t run it. By testing it, I mean operating it as I wanted to operate it. . . I could have tested it without a trimmer at all, I could have fitted it up and monkeyed with it, but that is not good business for a fellow to ship you a machine and then you commence fooling with it.

“I bought the machine to do certain work which I had a contract for, and I didn’t operate that machine, never ran it, never put the belt on; didn’t test it until the other machine came, and tested it on the actual work I was.going to do. . . There were two pulleys came with the planer and matcher on May 15, 1923. There was no reason why that planer and matcher should not have been tested as soon as they were installed, except that the reason I didn’t test it was it would have cost me money to run an experiment. I did have the money to spend on experimenting on a machine that I had bought to be what the contract called for; that is the reason. . . When I refer to experimenting on the machine, I mean testing it. Experimenting or testing it to see if it was what it should have been. Within 30 days after I received the planer and matcher I could have tested it, except for the fact that I didn’t want to spend the money, didn’t want to rig up and run some tests there; in other words, in my business I contract to dress certain sizes and quantities of lumber, and to run an experiment would have cost quite a lot of money for labor and- lumber. When you go to experimenting with different sizes of lumber, you have got no sale for it, nobody wants those different sizes; so what I did was to wait until I got started and start on my contract. This pulley that I refer to came along about July 1, was one of the feed pulleys. . . I did not write for a set-screw. I reported the set-screws galded, and they wrote me they would send a tap and some set-screws to replace the ones that were bad. I received the tap, but I never did receive the set-screws; they never showed up, though I waited some time for them; they never came.”

Walter S. Dillon, for Meredith.

J. Cassidy Grimes, Bryan & Middlebrooks, contra.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17316.
    Dobbs v. Conyers et al.

    Brokers, 9 C. J. p. 623, n. 63 New; p. 656, n. 44; p. 657, n. 57; p. 660, n. 65.
    Time, 38 Cyc. p. 318, n. 65; p. 320, n. 78, 80; p. 321, n. 81.
   Stephens, J.

1. A contract by which the owner of real estate lists the property with a real-estate agent for sale “exclusively for thirty days from date” will be construed as giving to the agent the right to. an exclusive listing for thirty full days exclusive of the day upon which the contract is executed. 26 R. C. L. 740-742; 38 Cyc. 320, 321; Allen v. Effler, 144 Tenn. 685 (235 S. W. 67, 68); Lowman v. Shotkoski, 106 Neb. 540 (184 N. W. 107 (3). Where such a contract is executed on April 2, the last day upon which the agent can exercise the right therein given for an exclusive handling of the property is the 2d day of May.

2. Where such contract of exclusive listing provides that the owner agrees to pay to the real-estate agent the “regular real-estate commission if sold by [the agent] or any one else during that time,” the word “sold” has reference, not only to an executed sale by the owner whereby a bond for title or a deed of conveyance is executed and delivered by the owner, but also to an executory contract of sale of the property made and entered into by the owner.

3. Where, during-the term of the exclusive listing of the property and on the last day of that term, which was Saturday, May 2, the owner signed and accepted a written proposal to purchase the property, made by a purchaser through another real-estate agent, with whom the purchaser had made a deposit of a certain sum as earnest money, and where on that date the owner executed a deed of conveyance to the purchaser, and the purchaser executed notes payable to the owner for the balance due upon the agreed purchase-price, and also executed to the owner a deed to the property to secure the notes, but where all the papers bore date of May 4, which was Monday and two days after the expiration of the period of exclusive listing, and where it was agreed between the owner and the purchaser and the real-estate agent handling the transaction that all the papers, together with the earnest money paid, should remain in the possession of the agent until the following Monday, and that on that day the papers would take effect and the trade be completed, if the agent having the exclusive listing had not sold the property to some one before the expiration of his contract on Saturday, and that if he did sell the property upon that day all the papers were to be turned back and cancelled, and where such agent did not in the meantime sell the property, and the sale of the property by the owner to the purchaser was executed, the inference is authorized that, although the papers were dated Monday, May 4, the owner and the purchaser entered into a valid agreement of sale upon Saturday, May 2, which would be automatically rescinded should the agent having the exclusive listing make a sale of the property in the meantime, but which would have full force and effect in the event such agent did not in the meantime make a sale of the property. It can not be said, as a matter of law, that the sale was not made upon Saturday, May 2, during the 'term of the exclusive listing of the property. Nor can it be said, as a matter of law, that the agent having the exclusive listing of the property was, in a suit by him against the owner for a breach of the contract, not entitled to the commission provided for in the contract.

Decided February 28, 1927.

Rehearing denied March 5, 1927.

Certiorari; from Fulton superior court — Judge Humphries. March 4, 1926.

Bryan & Middlebrooks, John A. Dunaway, for plaintiff in error.

J. Lon Duckworth, McElreath & Scott, contra.

4. Where the person who purchased the property first had her attention called to its being for sale by an advertisement of the reaí-estate agent who had the exclusive listing of the property, and where she made an appointment with 'that agent to inspect the property with a view to buying it, but the appointment was not filled, and where she afterwards, but during the period of the exclusive listing, dealt with another agent, and through him, during that period, made a proposal to buy the property, which proposal the owner afterwards accepted (whether during or after the period of exclusive listing is immaterial), the evidence is not sufficient to authorize an inference that the agent having the exclusive listing procured the purchaser.

5. In a suit by the agent having the exclusive listing, brought in the municipal court of Atlanta against the owner of the property, to recover the commission claimed under the contract, a verdict for the defendant was not as a matter of law demanded, and the direction of a verdict for the defendant by the judge of the municipal court was error. The appellate division of the municipal court therefore erred in not setting the verdict aside and granting a new trial. The judge of the superior court did not err in sustaining the certiorari and reversing the judgment of the appellate division of the municipal court.

Judgment affirmed.

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


text:
    17356.
    Louisville & Nashville Railroad Company et al. v. Maffett.
    Appeal and Error, 4 O. J. p.' 1068, n. 16.
    Commerce, 12 C. J. p. 45, n. 22.
    Damages, 17 C. J. p. 924, n. 60; p. 925, n. 61, 71; p. 1064, n. 1; p. 1065, n. 15; p. 1076, n. 11, 13; p. 1080, n. 54.
    Master and Servant, 39 C. J. p. 916, n. 15; p. 923, n. 62; p. 1220, n. 71; p. 1222, n. 87; p. 1225, n. 19; p. 1241, n. 26.
    Pleading, 31 Cyc. p. 120, n. 84.
   Stephens, J.

1. Where one’s duty requires him to act as hostler and to take an engine from the roundhouse through the railroad yards and leave it upon a track in readiness to be taken charge of by an engineer and used for'the purpose of drawing a train of ears from this State into another State, and where his duty also requires him, after so doing, to return by foot through the yards across the tracks to the roundhouse for tlie purpose of receiving further orders, both the act of taking out the engine and depositing it where required, for the purpose of being used in interstate commerce, and the act of returning to the roundhouse, are inseparable and indivisible and constitute one task, and he, when returning from the round-house, is engaged in interstate commerce. This ruling is not in conflict with the ease of Erie Railroad Co. v. Welsh, 242 U. S. 303 (37 Sup. Ct. 116, 61 L. ed. 319), where it was held that the determination of the question whether a conductor was engaged in interstate commerce when, after having taken a car and left it on a track in the yard for the purpose of being taken and used in interstate commerce, he was returning on the engine, which after-wards went to take water and then slowed down near the yardmaster’s office. so as to enable him to report for further orders, depends upon whether, when returning, “he was performing an act so. directly and immediately connected with his previous act of placing the interstate car in the . . yard as to bé a part of it or a necessary incident thereto,” and “whether the series of acts that he had.last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task.” In support of this ruling, see Erie R. Co. v. Winfield, 244 U. S. 170, 173 (37 Sup. Ct. 556, 61 L. ed. 1057); Director-General of Railroads v. Bennett, 268 Fed. 767; Van Buskirk v. Erie R. Co., 279 Fed. 622; Anderson v. Director-General of Railroads, 94 N. J. L. 421 (110 Atl. 829).

2. A petition which alleges that a. certain practice on the part of the defendants was customary, and that ordinary care on their part required the performance of the acts which were practiced and which were customary, is not duplicitous. In a suit against railroad companies to recover damages for personal injuries alleged to have been received by the plaintiff, a paragraph of the petition wherein it is alleged that it was the custom and the practice in the defendants’ yards that, before an engine should move or couple up cars upon the track on which the plaintiff was injured, an employee of the switching crew about to move the cars should notify all persons about to cross the tracks that the cars were about to be moved, and that ordinary care on the part of the defendants required that such practice and custom be maintained, is not duplicitous.

3. Where the petition in such a case alleges that the plaintiff, while in the discharge of the duties of his employment, working in a railroad-yard, when crossing a track behind some cars, was injured by the ears being suddenly kicked upon him and mashing him against a stationary object on the track by the impact of an engine at the other end that was endeavoring to make a coupling, an allegation that the crew of the engine that moved the cars that hit the plaintiff was negligent as respects signalling to the engineer before the train hands had arranged for the coupling, was, when taken in connection with the other allegations in the petition, a relevant and material allegation of negligence. The facts alleged could be considered by the jury, not only as constituting proximate cause of the plaintiff’s injury, but also as illustrating the degree, of care exercised by the plaintiff in going behind the cars, which, according to the other allegations of the petition, the plaintiff was authorized to believe would not, in view of the customary manner employed by the defendants in coupling cars, be kicked back upon him.

4. Where the court in his charge clearly instructed the jury that what constituted negligence on the part of the defendants, and what constituted the proximate cause of the injury, were questions of fact for the jury, a charge to the effect that the law requires the defendants, through their servants, agents, and employees, to be in the exercise of ordinary care “in so far as the particulars charged are concerned,” was not error.

5. The charge of the court is not subject to the objection that it instructed the jury that the plaintiff did not assume extraordinary or unusual risk connected With his employment. The court charged the jury that a servant “is not required to assume extraordinary or unusual risk, nolis he required to assume the risk of the negligence of the employer or its agents and employees, unless he knew of it, or it was so obvious and so plainly observable that every man, in the exercise of ordinary care, would know and appreciate it.”

6. Since one’s impaired bodily health and vigor may cause him pain and suffering (Powell v. Augusta & Summerville R. Co., 77 Ga. 192, 200, 3 S. E. 757; Atlanta Street R. Co. v. Jacobs, 88 Ga. 647 (2), 652, 15 S. E. 825), a charge to the effect that if the plaintiff is entitled to recover he should be given fair compensation “for the pain and suffering he endured, and for the impairment, if any, to his bodily health and vigor, due to the injury,” and that the-amount so recovered would be measured by the enlightened consciences of impartial jurors, was not siibject to the objection that the court gave in charge the wrong measure of damages for determining the compensation to be given for impaired bodily health and vigor. And since the plaintiff’s petition in effect alleges an impairment of bodily health and vigor, and since the evidence authorizes the inference that, from the nature of the plaintiff’s injuries, his.bodily health and vigor were impaired, the charge is not subject to the objection that in this respect it was not adapted to the issues made by the pleading and the evidence.

7. “Rain and suffering not having any marketable value, and money compensation therefor not being susceptible to mathematical determination, but the amount of recovery therefor being left to the enlightened consciences of impartial jurors (Civil Code (1910), § 4504; Linder v. Brown, 137 Ga. 352 (6) (73 S. E. 734); Betts Co. v. Hancock, 139 Ga. 198 (6) (77 S. E. 77), a jury in a personal injury suit, where damages for future pain and suffering are sued for, should not be instructed that the amount representing the monetary compensation for future pain and suffering should be reduced to its present worth.” Southern Ry. Co. v. Bottoms, 35 Ga. App. 804 (134 S. E. 824). While it would have been proper, as was held in that ease, for the court to instruct the jury that, in awarding damages for future pain and suffering, they should give consideration to the fact that the plaintiff is receiving a present cash consideration for damages which have not yet been sustained, a failure so to charge was not error, especially since the court elsewhere in the charge clearly instnxcted the jury that the amount representing the plaintiff’s future damages should be reduced to a present cash valuation.

Decided February 28, 1927.

Damages; from Fulton superior court — Judge E. D. Thomas. March 31, 1926.

Application for certiorari was made to the Supreme Court.

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

Reuben R. & Lowry Arnold, contra.

8. Where the court in his charge illustrated the use of the annuity table by calling attention to the seven per cent, column, and illustrated the cash valuation of certain hypothetical figures, and further instructed the jury that they were not obliged to use the annuity table unless they saw fit, and did not instruct them that they should compute the px-esent cash value of the plaintiff’s future damages at seven per cent., such charge was not error upon the ground that it instructed the jury that in computing such present cash value of the plaintiff’s future damages they should do so upon a basis of seven per cent.

9. Where the court clearly and elaborately instructed the jury with reference to the defense of the assumption of the risk of the employment by the plaintiff, a charge specifically referring to and quoting from the Federal employer’s liability act, which instructed thé jury that the contributory negligence of the employee would not bar recovery, is not subject to the objection that, in failing to make reference to the defense of the assumption of the risk, it was calculated to impress upon the jury that such defense was not available to the defendants under the act. .

10. The trial 'judge properly held that the plaintiff, when injured, xvas employed in interstate commerce, and that a reeovei-y, if any, should be under the Federal employer’s liability act.

11. The general grounds of the motion for a new trial are not insisted upon by counsel for plaintiffs in error.'

12. The petition set out a cause of action and was good against the demurrers interposed, and none of the grounds of the motion for a new trial filed by the defendants presents any merit.

Judgment affirmed.

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


text:
    17343.
    Western & Atlantic Railroad v. Dobbs.
    Appeal and Error, 4 O. J. p. 851, n. 53.
    Damages, 17 C. J. p. 924, n. 60; p. 925, n. 61, 71; p. 1066, n. 19; p. 1067, n. 22; p. 1075, n. 99, 5; p. 1076, n. 13.
    Master and Servant, 39 O. J. p. 1005, n. 92; p. 1224, n. 6, 7.
   Stephens, J.

1. Under section 2780 of the Civil Code (1910), which provides that “a railroad company shall be liable . . for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company,” there arises, upon proof of injury to a person by a servant of a railroad company, not only a presumption of negligence of the company, but a presumption that the company’s negligence was the proximate cause of the injury. In a suit against a railroad company to recover for alleged damage from negligence of an employee, a charge of the court to the effect that where it is made to appear that the plaintiff was injured by an employee of the defendant company, there arises a presumption that the defendant was negligent as alleged in the petition, and that unless it is made to appear that the defendant exercised all due care and diligence as respects the acts alleged in the petition as negligence, the plaintiff would be entitled to recover, and that in the absence of such due care and diligence on the part of the defendant the plaintiff could recover, is not error upon the ground that it amounted to an instruction that the jury could, without evidence, find that the alleged negligence of the defendant was the proximate cause of the injury.

2. In such a case a charge that where it is made to appear that the plaintiff was injured by an act of an employee of the defendant, there arises a presumption of negligence against the defendant railroad company, as provided in section 2780 of the Civil Code (1910), is not error upon the ground that the court did not instruct the jury that, the injury must be made to appear from the evidence; and it is not error upon the ground that the court did not charge that it must be made to ap.pear from the evidence that the plaintiff was injured as alleged in the petition. The jury doubtless understood that where there was an issue of fact as to whether or not the plaintiff was injured by an employee of the defendant as alleged, the existence of such injury alleged in the petition must be made to appear from the evidence.

3. In a suit against a railroad company by a married woman to recover damages because of the alleged negligent act of the defendant’s flagman, causing her to be injured by coming in contact with a lantern in his hands while she was attempting to board a train of the defendant, a charge that if the plaintiff is entitled to recover she will be entitled to recover “for the injury sustained, and as an element of recovery would be included pain and suffering which she may have endured, or may hereafter endure, because of the alleged injury,” is not an instruction that the plaintiff would be entitled to recover all the general and special damages resulting from the physical or bodily injuries inflicted upon her by the negligent act of the defendant, but is an instruction to the effect that if she is entitled to recover, she is entitled to recover only the damages legally flowing from the injuries sustained, whatever they might appear to be from the evidence. Nor is the charge subject to the objection that “it authorized the jury to award the plaintiff damages on the mere imaginary possibility that she may or might endure such future pain and suffering because of the alleged injury, and further because said instructions failed to require that the jury should determine from the evidence whether there was or was not reasonably probability that plaintiff would or would not endure future pain and suffering because of t'he alleged injury.” The charge is an instruction to the effect that the plaintiff would be entitled to recover damages for whatever pain and suffering, whether past or future, it might appear from the evidence she has endured or may endure in the future.

Decided February 28, 1927.

Rehearing denied March 8, 1927.

Damages; from Bartow superior court — Judge Tarver. February 8, 1926.

Application for certiorari was made to the Supreme Court.

Tye, Peeples & Tye, Neel & Neel, for plaintiff in error.

Branch & Howard, C. C. Pittman, contra.

4. The court, when instructing the jury that the plaintiff could recover damages for pain and suffering sustained, did not err in failing to instruct the jury that the amount found for future pain and suffering should be reduced to .a present cash valuation. Southern Ry. Co. v. Bottoms, 35 Ga. App. 804 (134 S. E. 824); Louisville & Nashville R. Co. v. Maffett, 36 Ga. App. 513 (137 S. E. 404). A charge that the amount to be found for pain and suffering, including future pain and suffering, is left to the enlightened consciences of impartial jurors, was correct.

5. The evidence authorized the verdict found for the plaintiff. The court in the charge to the jury, fairly to the defendant, submitted all the issues presented. None of the grounds of the amendment to the motion for a new trial shows error.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    17344.
    Western & Atlantic Railroad v. Dobbs.
    Decided February 28, 1927.
    For description of case and names of counsel, see the preceding case.
   Stephens, J.

This case is controlled by the decision in the case of Western & Atlantic Railroad v. Dobbs, ante, 516.

Judgment affirmed.

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


text:
    17483.
    Simon v. Simmons.
    Landlord and Tenant, 36 O. J. p. 253, n. 47; p. 254, n. 63.
    Negligence, 29 Oye. p. 657, n. 54.
    Trial, 38 Cyc. p. 1520, n. 76; p. 1521, n. 89; p. 1612, n. 13, 14; p. 1618, n. 35; p. 1693, n. 55.
   Stephens, J.

1. In a suit against a landlord by one lawfully using the rented premises,- to recover for alleged injuries to the plaintiff by the giving way of the tread of the step upon which she had placed her foot when using the steps to a house on the rented premises, which it was alleged was, through the negligence of the defendant, in a condition dangerous to persons using the steps, where the court charged the jury that “if the' plaintiff was injured, as alleged, and if it was due to the alleged defect in the condition of the steps, and this was observable by the plaintiff, then the plaintiff could not recover for any injury due to this condition of the steps, if one in the exercise of ordinary care and diligence would not have used them, with her knowledge or opportunity of knowledge,” the charge was not subject to the objection that the court failed “to charge the jury that if the defendant, by the exercise of ordinary care, could not have discovered any defect existing in the said step, the plaintiff would not bo entitled to recover.”

2. Where in such a casé the evidence for the plaintiff was clearly to the effect that the tread of the step upon which she placed her foot was constructed of thin and weak strips of wood not suitable for the construction of a tread safe for use, and such condition was therefore patent to any one who might inspect the steps for defects, and the evidence for the defendant was to the effect that there was no defective condition whatsoever in the steps, an issue as to the defect being a latent one, and not discoverable by the defendant having a duty to inspect the steps in the exercise of due care, was not presented, and failure to give to the jury a charge adjusted to that issue was not error.

3. A charge to the effect that if both parties were negligent, the amount of the damages recoverable by the plaintiff would “be diminished in proportion to the amount of default that might be attributable to the plaintiff,” was an instruction that if the negligence of both the plaintiff and the defendant was equal, there could be no recovery. Besides, if counsel for the defendant had desired that the court be more specific and expressly charge that if the negligence of the plaintiff were equal to that of the defendant there could be no recovery, the court should have been requested so to charge. In the absence of such a request, the omission of such an instruction was not error. See, in this connection, Central of Ga. Ry. Co. v. Gill, 136 Ga. 240 (2) (71 S. E. 166); Georgia Southern &c. Ry. Co. v. Thornton, 144 Ga. 481 (5 b) (87 S. E. 388).

4. As the pleadings and the evidence presented no issue as to whether the injuries were caused by accident, and there was no request to charge the law relative thereto, a failure so to charge was not error. Savannah Electric Co. v. Jackson, 132 Ga. 559 (4), 563 (64 S. E. 680); Atlanta Ry. & Power Co. v. Gaston, 118 Ga. 418 (45 S. E. 508).

5. Whether a contract between a landlord and his tenant, by which the tenant relieves the landlord from any duty to make repairs upon the rented premises, would preclude a recovery against the landlord for injury, by reason of a defective condition in the premises, to one other than the tenant living on the premises, such a'contract is not conclusively established by the evidence, although its existence may be established by undisputed testimony, where the sole witness who testified to the existence of such a contract is contradicted in other material portions of his testimony by conflicting evidence, and his entire testimony, by reason of impeachment, may be rejected by the jury.

Decided February 28, 1927.

Damages; from city court of Savannah — Judge Freeman. May 17, 1926.

Oliver & Oliver, for plaintiff in error.

McIntire, Walsh & Bernstein, contra.

6. The evidence authorized the inference that, although the damaged condition of the tread of the step which caused the plaintiff’s injury was patent and could have been discovered in the exercise of due care by a person whose duty it was to inspect the steps, the plaintiff could not by due care have discovered the dangerous condition of the tread of the step, and the evidence further authorized the inference that the plaintiff, by th'e exercise of due care, could not have avoided the injury which she sustained, and that her injuries were due to the defendant’s negligence in failing to discover the dangerous condition of the tread of the step after notice to him of the defective condition of the flight of steps containing the tread, and in' not repairing the tread.

7. The evidence authorized the verdict for the plaintiff, and no error of law appears.

Judgment affirmed.

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


author: Per Curiam.

text:
    17501.
    17502.
    17503.
    17504.
    17505.
    17506.
    17507.
    ELLIS v. GEER, receiver, et al. ELLIS v. BANK OF KESTLER et al. ELLIS v. FEDERAL RESERVE BANK OF ATLANTA et al. ELLIS v. HADDOCK & COMPANY et al. ELLIS v. HIGHTOWER et al. ELLIS v. SWIFT & COMPANY et al. ELLIS v. VANN, receiver, et al.

    1. Where after several suits are separately filed by judgment creditors of the estate of a decedent against the administratrix and the sureties on her bond, a receiver is appointed, under another proceeding, to take charge of the estate, and where, after his appointment the court, by consent of parties, passes an order consolidating all the cases pending against the administratrix and the sureties on her bond, directing that they shall all proceed in the name of the receiver as plaintiff, there is but one ease for trial. Civil Code (1910), § 5520. In the selection of a jury in the trial of such a ease, the defendants would be entitled to only six strikes. Penal Code (1910); § 857. After final disposition, in the 'court below, such a case may be brought to thjs court for review by a single bill of exceptions; and this is true though after the consolidation in the court below the defendant may have filed separate proceedings on the theory that separate units were pending, and though separate verdicts may have been rendered, under the direction of the court, in favor of the receiver for the use of each of the creditors.

      Abatement and Revival, 1 C. J. p. 161, n. 4; p. 163, n. 11.
    Actions, 1 O. J. p. 1135, n. 80; p. 1136, n. 86.
    Appeal and Error, 3 O. J. p. 354, n. 55; 4 O. J: p. 649, n. 36.
    Executors and Administrators, 24 O. J. p. 131, n. 15; p. 139, n. 90; p. 142, n. 17, 18; p. 1058, n. 9; p. 1062, n. 69, 71; p. 1064, n. 4 New; p. 1066, n. 26, 27; p. 1067, n. 47, 49; p. 1077, n. 93; p. 1078, n. 7.
    Juries, 35 O. J. p. 411, n.'25.
    Principal and Surety, 32 Cyc. p. 220, n. 11.

      (a) It follows from these rulings that the motion to dismiss the writ of error in case No. 17501, Ellis v. Geer, receiver', et al., should be over- . ruled and that the writs of error in cases numbers 17502, 17503, 17504, 17505, 17506, and 17507, should be dismissed.
    2. The obligation of an administrator and the sureties on his bond being joint and several (Civil Code of 1910, § 3974), the death of one of the defendant sureties after the filing of a suit against principal and sureties on an administrator’s bond, and after a reference of the case to an auditor, but before the hearing by the auditor, does not abate the suit or deprive the auditor of jurisdiction, since “in all cases which have been or may be commenced in any of the courts of this State against two or more defendants, one dr more of whom have died or may die pending said case, it shall and may be lawful for the plaintiff or complainants-to suggest said death of record, and to proceed, in the trial of said case or cases, against the surviving defendant, to the extent of their respective liabilities” (Civil Code of 1910, § 5623), and since the auditor was authorized, on suggestion of the death of one of the sureties, to allow an amendment to the petition, striking such deceased surety as a party defendant. Civil Code (1910), § 5129. Nor does such voluntary dismissal of the action as to the deceased surety ipso facto discharge the cosurety from liability. McMillan v. Heard National Bank, 19 Ga. App. 148 (91 S. E. 235), and cit.
    3. The condition of the bond of an administrator shall be “for faithful discharge of his duty as such administrator, as required by law.” Civil Code (1910), § 3971. Such a condition requires the administrator to account for all the money and property belonging to the estate he administers and coming into his hands as such administrator, and to distribute such money and the proceeds of such property in accordance with law. The sureties on the bond of such an administrator are liable for any breach of the condition of the bond, including any failure of the administrator to discharge faithfully his duty in collecting and preserving and distributing the assets of the estate.

      (a) “Where one'owning real estate dies, the title to the real estate passes to the heirs; and it is not the duty of the administrator, as such, to collect rents accruing after the death of an intestate; and if he does so, it is not in his capacity as administrator, and he is not liable to the heirs for the amount of the rents, as administrator-, nor is the surety on his bond as administrator" liable.” Hoyt v. Ware, 156 Ga. 98 (118 S. E. 734) ; Johnson v. ¡7. $. Fidelity & Guaranty Oo., 35 Ga. App. 100 (132 S. E. 130) ; Roberts v. j[Cite, 33 Ga. App. 91 (125 S. E. 719).

      (b) “Where realty belonging to an estate is sold by an administrator under an invalid order, title to the property does not pass from the estate; it still remains a part thereof.” Hoyt v. Ware, supra. Accordingly, where the equity of a decedent in a tract of land held under a contract of purchase was privately surrendered to the vendor by the administrator, without order of court, the transfer thus made did not operate to divest the estate of its equitable title to the land, and the same still remains a part thereof, and the sureties on the. administrator’s bond are not liable for the amount received in consideration of such transfer, nor for the real value of the decedent’s equity in the land. Hoyt v. Wore, supra.
    (c) Applying the foregoing rulings to the facts in the instant case, as found by the auditor in findings approved by the court and jury, it appears that the sureties on the administrator’s bond are properly chargeable with $6,164.10, the amount reported by the administratrix as having been received, from which should be deducted the amount of $550 received from the illegal sale of the decedent’s equity in the land, thus leaving $5,614.10, to which should be added the proceeds of certain property sold by her and unaccounted for, including the crop received from tenants of the decedent, and the money withdrawn from the bank, amounting to $975.22, making a total of $6,589.32. From this amount should be deducted the further sum of $4,303.19, which the jury, in sustaining the report of the auditor, found had been properly and legally disbursed by the administratrix, leaving a balance to be accounted for by the administratrix, for which her sureties are liable, of $2,286.13. As it appears from the report of the auditor, without dispute, that $1,833.97 of this amount has been accounted for by the administratrix and is in the hands of the receiver, it follows that the net liability of the sureties on the administratrix’s bond, under the facts as found by the auditor and approved by the court and jury, could not, under the facts indicated in the present record, exceed the sum of $452.16. Accordingly, the verdict and judgment finding against the surety to the extent of the full amount of the bond are not authorized by the evidence, and must be set aside.
    4. It appears from the record that certain of the moving creditors had filed a petition for settlement before the ordinary, and were present in the court of ordinary' when the returns of the administratrix, as allowed by the ordinary, were admitted to record, and that the auditor held these creditors bound by that return, to which ruling no exception was taken; but since this ruling of the auditor, under the facts of the instant case as disclosed by the record, could not reduce the liability of the surety, but only affects the distribution of the fund as between the creditors, it is not necessary to adjudicate in this proceeding the rights of the creditors as between themselves.
    Decided March 2, 1927.
    Action on bond; from Miller superior conrt — Judge Yeomans. April 22, 1926.

      W. I. Geer, for plaintiff in error.

      P. D. Rich, N. L. Stapleton, contra.
   Per Curiam.

Mrs. Sallie Mae Cook (King) qualified as administratrix of the estate of J. C. Cook, her deceased husband, and gave bond in the sum of $5,000 with J. G. Ellis and J. T. Arnold as sureties. The widow applied- for dower and year’s support, and the sum of $3,500 was set apart to her as a year’s support. She sold the land belonging to the estate and various personal property, amounting to $5,514.10. Her husband, at the time of his death, was in possession of a tract of land held under a bond for title, with a portion of the purchase-price paid; this bond for title was surrendered, and possession of the land relinquished to the vendor in consideration of his paying to the administratrix $550. Haddock & Company, Swift & Company, Federal Reserve Bank of Atlanta, H. E. Hightower, J. R. Yann, as receiver of the First National Bank of Colquitt, and Bank of Kestler, creditors of the decedent, filed suits against the administratrix on their claims, and obtained judgments against her and the estate amounting to $2,-746.76. Thereafter H. E. Hightower, Yann as receiver, and the Bank of Kestler, filed a petition in the court of ordinary, praying for a settlement of their claims, upon which petition the ordinary cited the administratrix to a settlement. Pursuant to this citation the administratrix filed a return showing receipts, including the amount received for the surrender of the decedent’s bond for title interest in the land mentioned, aggregating $6,164.10, and showing expenditures, including the payment of a fee of $850 to. her attorney, of the entire amount received, leaving nothing on hand. The ordinary disallowed certain claimed expenditures of the administratrix, including a reduction in the amount of attorney’s fees to $350, thus reducing the amount of allowed disbursements from $6,164.10 to $4,504.37, the return as allowed and ordered filed by the ordinary showing a balance on hand of $1,659.73. Thereafter each of the named judgment creditors of the estate filed a separate suit against the administratrix and the sureties on her bond, alleging a breach of the bond, and that funds sufficient to pay their claims had come into the hands of the administratrix and had not been accounted for. After the filing of these suits the named judgment creditors, together with another creditor, joined in an action in equity against the administratrix and her attorney at law, alleging waste and mismanagement of the estate, and praying for the appointment of a receiver. On this petition P. Z. Geer was appointed receiver of the estate, and an order was passed providing that “all of the pending suits against Sallie Mae Cook King, and her sureties on her bond as administratrix of the estate of J. C. Cook, deceased, be and the same are hereby consolidated, and the receiver, P. Z. Geer, is hereby made a party plaintiff in said cases. . . And said cases are hereby ordered to proceed in the name of said receiver with full power and authority in said receiver to proceed with said suits as party plaintiff.” It appears from the record that this order was passed by the consent of all parties. Thereafter a further order was passed, referring the consolidated cases-to an auditor for hearing. Before the auditor an amendment was filed by the receiver setting up various specific illegal disbursements of funds belonging to the estate, and various items of property and money which it was alleged were received by the administratrix and were not accounted for, and a further admendment was filed setting up that the return made by the administratrix, as allowed by the ordinary, was fraudulent, and that the judgment of the ordinary admitting the return to record was obtained by fraud, in that the administratrix had testified falsely with reference to certain disbursements set out in the return, and praying that the judgment of the ordinary be set aside and vacated. The defendant interposed a demurrer to this amendment, which was sustained by the auditor, who ruled, in effect, that the moving creditors before the ordinary were bound by the judgment admitting the return to record. After the reference of the case to the auditor, and before the hearing, Arnold, one of the sureties, died. At the hearing before the auditor, upon his death being suggested, the plaintiff Geer, as receiver, by amendment struck Arnold as a defendant, and the cause proceeded against the principal and the remaining surety.

The findings of fact of the auditor are in substance as follows: that the widow had received $3,500 as a year’s support; that tfce receiver appointed by the court had received from the clerk of the superior court $1,833.97, representing assets belonging to the estate and paid into the hands of the clerk by the defendants' in the petition for receiver; that the decedent had purchased a tract of land, which he held under a bond for title, at a price of $1,200, on which he paid approximately $1,000, and that after his death the administratrix, without any order of court or other authority, surrendered the bond for title and possession of the premises to the vendor on payment to her of $550, and that the decedent’s equitable interest in the land was worth at least $1,000; that the administratrix had withdrawn $88.72 from, the Bank of Kestler for which she had not accounted, and which belonged to the estate; that she had taken possession of certain personal property worth $461, for which she had not accounted; that she converted to her own use certain live stock of the value of $75, and received certain farm produce of the value of $360 from croppers of the decedent for the year in which he died, and failed to account therefor. He further found that the administratrix, instead of applying for leave to sell the land belonging to the estate, continued in possession thereof and farmed thereon for three years after the death of the decedent, and that the land was worth $475 per year, or $1,425 for the three years for which she had failed to account. He further found that the administratrix had paid out, illegally and without authority, $2,160.71 belonging to the estate, which included $55.95 paid as costs in connection with her application for dower, and $850 claimed as attorney’s fees; that the amount of attorney’s fees allowed by the ordinary was unreasonable, and that $250 was a reasonable allowance for that purpose. In his summary the auditor holds that the administratrix is chargeable with, and her sureties liable to account for, the amount reported in her return as having been received, — $6,164.10,—to which should be added the deficit in the value of the premises surrendered to her husband’s vendor, amounting to $450, the value of the property set out as having been received by her and not accounted for, including the bank deposit withdrawn, amounting to $985.22, and the value of the premises for rent for three years, $1,425, making a total of $9,024.32, which he finds the principal and surety on the bond are chargeable with. He allows the administratrix credit for $4,003.19 properly expended according to her return, plus an allowance of $250 for attorney’s fees, making a total of $4,253.19. No exceptions to the auditor’s report were taken by the -defendant administratrix, but exceptions to. all the findings of fact of the auditor, except the finding that the payment of the dower costs was illegal, were filed by the defendant surety. The court directed a verdict against all the exceptions except those taken to the finding of the auditor with reference to the receipt of $360 of farm produce by the administratrix from croppers of her intestate without accounting therefor, and the finding of the auditor allowing $250 as attorney’s fees in lieu of the amount fixed by the ordinary; and on those exceptions the jury found in favor of the auditor’s report, but reduced the value of the farm produce mentioned from $360 to $350, and fixed $300 as a proper fee for the attorney. Upon this .verdict the court entered judgment in favor of the receiver, for the use of each of the plaintiff creditors, in the amount of such creditor’s claim against the estate, and further ordered that the receiver recover of the defendants, the additional sum of $2,-253.24, making a total of $5,000, the amount of the bond sued on.

The defendant surety filed a motion for a new trial in the consolidated case and filed separate motions for new trial in each of the cases out of which the consolidated case grew; and to the overruling of each of the motions above recited he files a separate bill of exceptions. The questions raised by the bill of exceptions in the consolidated case are decided. The other bills of exceptions are dismissed.

Judgment reversed in case No. 17501. Writs of error dismissed in cases Nos. 17502, 17503, 17504, 17505, 17506 and 17507.

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


text:
    17112.
    Singer Sewing Machine Co. v. Tidwell & Co.
    Sales, 35 Cyc. p. 657, n. 62; p. 682, n. 15.
   Stephens, J.

1. Where a written contract, by the terms of which personal property delivered by the owner to a person as a bailment for hire is rented to the bailee upon payment of a stipulated amount at certain regular periods as “rental” for the property until a certain gross sum has been paid, provides that the bailee may, at any time before the' expiration of the period of rental, become the purchaser of the property upon the payment of the aggregate rental value, upon which payment he shall receive credit, as part of the purchase-money, for the payments previously made as rental under the terms of the contract, the contract constitutes a conditional sale of the property, and should be recorded as provided in section 3319 of the Civil Code (1910), in order to constitute constructive notice of the contract to one who afterwards acquires a lien on the property.

2. Where in such case the property was levied on under an execution against the bailee, and the bailor filed a claim of title thereto, and in support of the claim introduced in evidence the contract described above, which had not been recorded, a verdict finding the property subject to the execution was, as a matter of law, demanded. The judgment in the justice’s court in favor of the claimant was without evidence to support it, and the judge of the superior court did not err in sustaining the certiorari brought by the plaintiff in execution, and in rendering a final judgment finding the property subject to the execution.

Decided March 2, 1927.

.Certiorari; from Meriwether superior court — Judge Eoop. December 31, 1925.

J. F. Hatchett, R. A. McGraw, for plaintiff in error.

Judgment affirmed.

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


text:
    17130, 17176.
    Mayor and Aldermen of the City of Savannah v. Southern Stevedoring Company; and vice versa.

    Licenses, 37 O. J. p. 255, n. 68 New; p. 258, n. 24.
   Stephens, J.

1. In a suit against a city by a corporation doing business in the city, to recover money paid by the plaintiff as an occupation tax, which it is alleged could not be legally assessed against the plaintiff, but which the plaintiff had involuntarily paid for the purpose of preventing an immediate seizure of its property and “to avoid arrest, fine, and imprisonment,” where it does not appear from the petition that there was provision for any penalty by arrest, fine, or imprisonment, or by seizure of property, or by molestation of business, for failure to pay the license tax assessed, the petition does not show that there was any urgent or immediate necessity for the payment of the tax by the plaintiff, or that it was necessary for the plaintiff to pay the tax for the purpose of preventing an immediate seizure of its property. Civil Code (1910), § 4317; Williams v. Stewart, 115 Ga. 864 (42 S. E. 256).

2. Although it is alleged in the petition that a city ordinance provides a penalty of fine or imprisonment for failure to pay the tax, yet it does not appear from the ordinance referred to (which is filed as an amendment to the petition) that such a penalty is provided for; and the allegation in the petition as to the contents of the ordinance, not being sustained by the ordinance itself, will be disregarded.

3. An allegation in the petition that upon the plaintiff’s failure to pay the occupation tax when due the plaintiff would be notified by the city marshal that an execution therefor would be issued, and that unless the plaintiff paid the tax at once it would be prosecuted in the police court of the city, alleges only a mere possibility of a prosecution of the plaintiff in the .police court on failure to pay the tax, and shows no immediate duress which would necessitate a payment of the tax in order to prevent an immediate seizure of person or property.

4. A city ordinance providing for the payment of a license-tax imposed upon certain occupations, and further providing that every person subject to the license tax “shall take out such license . . before commencing any business, calling, or profession,” that any person who opens up and operates a place of business in the city after a specified time shall, before doing so, call at the city marshal’s office and have his business or profession classified, that for a failure to do so within five days after opening up and commencing the business he shall be prosecuted in the police court of the city, and, upon conviction, be subject to fine and imprisonment, and that any person transacting any business specified in the ordinance, who shall be found without a license displayed in his place of business, or who shall refuse to allow an inspection of his license by the city marshal, shall, on a conviction thereof in the police court, be fined and imprisoned, does not provide any penalty by fine or imprisonment, or by seizure of property, or by molestation of business, for a failure 'to pay the license-tax assessed therein.

Decided March 2, 1927.

Complaint; from Chatham superior court — Judge Meldrim. January 5, 1926.

Application for certiorari was made to the Supreme Court.

John J. Bouhan, E. O. Hunter, for Mayor &c. of Savannah.

E. B. Weatherly, Lawrence & Abrahams, contra.

5. The petition fails to set out a cause of action, and it was error to overrule the general demurrer.

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

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


text:
    17133.
    City Council of Augusta v. Demore.
    Costs, 15 C. J. p! 282, n. 11.
    Municipal Corporations, 28 Cye. p. 1520, n. 30.
    Trial, 38 Cyc. p. 1617, n. 34; p. 1618, n. 35; p. 1693, n. 55; p. 1711, n. 19.
   Stephens, J.

1. Where, in a suit against a city to recover for personal injuries alleged to have been sustained by the plaintiff, in running his automobile into a rope, which it was alleged the defendant maintained in a negligent manner, stretched across a street along which the plaintiff was traveling, the only allegations of negligence on the part of the plaintiff, made by the defendant, which were' pleaded in bar of a recovery, were that if the plaintiff had exercised ordinary care and diligence in proceeding along the street, he would have observed the rope stretched across the street, and that if he had exercised ordinary care and diligence to avoid the consequences of the alleged negligence of the defendant, the injury would not have occurred, and 'where there was no evidence to authorize the inference that the plaintiff, before receiving the injury, had actual knowledge of the defendant’s alleged negligence, and where there was no evidence to authorize an inference that the plaintiff was negligent otherwise than in failing to exercise ordinary care and diligence to observe the existence of the rope stretched in front of him across the street, and where there was no plea‘setting up the defense of comparative negligence and seeking apportionment of damages, a failure, in the absence of a request, to charge the law as to apportionment of damages was not error.

Decided March 2, 1927.

Damages; from city court of Richmond county — Judge Black. January 11, 1926.

Archibald Blackshear, for plaintiff in error.

Cohen & Gray, contra.

2. Where, in such a ease, there was no evidence whatsoever from which it could be inferred that the plaintiff actually knew of the existence of the rope stretched across the street, before running into it, there was no issue authorizing the court to charge upon the rights and duties resting upon the plaintiff after discovering the existence of the obstruction in the street.

3. Certain requests to charge, which the court refused, referring to the plaintiff’s duty to exercise ordinary care and diligence- to observe the existence of the obstruction in the street and to exercise ordinary care and diligence to avoid the consequences of any negligence of the city in permitting the obstruction, and which contained instructions that if the plaintiff had failed to exercise such care and dilegence he could not recover, were fully covered by the charge of the court, which instructed the jury that “if the plaintiff, by the exercise of ordinary diligence, could have avoided the consequence of defendant’s negligence, if any, he can not recover,” and “if the city was negligent, and the plaintiff by the exercise of ordinary care on his part could have avoided the injury, . . your verdict should be for the defendant.”

4. Applying the above rulings, the court did not err in failing to charge the law relative to comparative negligence and apportionment of damages, and did not err in refusing the defendant’s written requests to charge.

5. The verdict for the plaintiff was authorized by the evidence.

6. It can not be held that the case is brought to this court for the purpose of delay only. The defendant’s motion to assess damages is therefore denied. Judgment affirmed.

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


text:
    17140.
    Burkhalter v. Jordan & Rogers.
    Appeal and Error, 4 C. J. p. 1068, n. 16.
    Partnership, 30 Cyc. p. 501, n. 63.
    Pleading, 31 Cyc. p. 619, n. 64.
    Trial, 38 Cyc. p. 1299, n. 25.
   Stephens, J.

1. An agreement between a partner and a debtor to the partnership, whereby the latter’s indebtedness to the partnership is discharged upon his payment to another of an individual indebtedness of the partner, is void as against the partnership. Eady v. Newton Coal &c. Co., 123 Ga. 557 (51 S. E. 661, 1 L. R. A. (N. S.) 650, 3 Ann. Cas. 148). In a suit of the partnership upon a note to it, a plea setting up such an agreement is properly stricken.

2. Where the defendant’s counsel has been heard in argument upon a motion to strike the defendant’s plea, the striking of the plea afterwards, in the absence of the defendant or his counsel and without notice to either, is not error.

Decided March 2, 1927.

Complaint; from city court of Keidsville — Judge Cowart. December 18, 1925.

W. T. Burkhalter, pro se. Eason & Everitt, contra.

3. No other assignment of error is insisted upon.

Judgment affirmed.

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


text:
    17192.
    Youmans, administrator, v. Edenfield.
    Champerty and Maintenance, 11 C. J. p. 274, n. 98.
    Evidence, 22 C. J. p. 1259, n. 88.
    Executors and Administrators, 24 C. J. p. 689, n. 4; p. 690, n. 6.
    Party Walls, 40 Cyc. p. 772, n. 3; p. 776, n. 16; p. 7-79, n. 26 New.
   Stephens, J.

1. Where an administrator sells land as the property of his intestate and the land sold includes, in addition to land in the administrator’s possession, certain adjoining land not in his possession, the purchaser may, without proof of actual fraud or misrepresentation on the part of the administrator, avoid the deed pro tanto as to the part of the property not in the possession of the administrator, where such land in adverse possession can be definitely determined. Edenfield v. Rountree, 33 Ga. App. 444 (126 S. E. 731).

2. Where, by agreement between two adjoining landowners, a wall erected along the dividing line between the two lots of land, which rests entirely upon one of the lots, and the cost of the erection of which was borne by both of the landowners, is used as the dividing wall between two building's, the owner of the land upon which the wall does not rest, irrespective of the character of his right in and to the wall and the land upon which the wall rests, at least has an easement appurtenant' to his lot in the entire wall and the land upon which it rests, for the support of the building upon his lot and for the support and maintenance of his interest in the wall. 30 Cyc. 771A.

3. Whatever possession in the wall and the land upon which it rests may be in the owner of the land upon which the wall rests, such possession is not adverse to the owner of the adjoining land as respects the latter’s easement in the wall and the land upon which it rests, and is necessarily not adverse to the administrator of the latter owner having possession of the latter lot. The administrator of the owner of the latter lot, having the lot in possession, necessarily has in possession the wall and the land upon which it rests so far as is necessary in the exercise of the right in the easement appurtenant to the lot upon which the wall does not rest.

4. Where the administrator of the owner of the lot upon which the wall does not rest sells the lot, including the building thereon supported by the wall, and makes a deed conveying title to the purchaser, not only to his intestate’s lot, but also to the strip of land upon which the wall rests, the purchaser from the administrator can not avoid the deed pro tanto, as respects the value of the wall and the land upon which the wall rests, upon the ground that the administrator, when he made the deed, was not in possession of the wall and the land upon which the wall rests. This is true irrespective of the fact that the title to the land upon which the wall rests, or to the wall, may not have been in the intestate, but may be in the adjoining owner.

Decided March 2, 1927.

Complaint; from city court of Swainsboro — Judge Herrington. January 22, 1926.

Anderson & Trapnell, for plaintiff.

Arthur W. Jordan, Kirkland & Kirkland, for defendant.

5. Where the description of the land purporting to be conveyed in the administrator’s deed includes not only the land upon which the wall rests, but an-additional strip of land adjacent to and beyond the wall belonging to the adjoining landowner, the possession of which was held by him adversely to the administrator, and the administrator’s deed to that strip could convey no title thereto and was void pro tanto, because that strip was not in the administrator’s possession, yet where it appears from all the facts and circumstances surrounding the sale that a sale of the additional strip of land was not contemplated either by the administrator or by the purchaser, the purchaser has received title to all that he contracted to buy and expected to obtain under the contract of sale, and has therefore suffered no damage and is entitled to no abatement in the purchase-price contracted to be paid. This is not varying a written instrument by a parol agreement.

6. In a suit by the administrator against the purchaser to recover the balance due on the purchase-money, where, under the above rulings, the undisputed evidence demanded a finding that the administrator, at the time of the sale of the property, had possession of the wall and the land upon which the wall rests, a charge by the court which authorized the jury to find, in abatement of the purchase-price, an amount representing the value of the wall and the land upon which it rests was error.

7. The above rulings are not in conflict with the law of this case as laid down in Edenfield v. Rountree, supra.

Judgment reversed.

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


text:
    17246.
    Hagler et al. v. Pacific Fire Insurance Company.
    Insurance, 33 C..J. p. 82, n. 95; p. 155, n. 83, 88 New.
   Stephens, J.

1. A petition against an insurance company, wherein it is alleged that at the time of the issuance of the policy sued on the defendant was represented by named agents in the county in which the suit is filed, -alleges jurisdiction in that county, as provided in section 2563 of the Civil Code (1910). Process issued thereon in the usual form, directed to the sheriff of the county, requiring the defendant to be and appear at the term of the court to which the suit is returnable, is valid. Service upon the defendant company under such process could be perfected, under section 2564, by leaving a copy of the petition with the company’s agent in the county, if there be one. The fact that no legal service could be perfected upon the defendant insurance company in this case, because at the time of filing the petition there was no agent of the defendant in the county upon whom service could be legally perfected, does not affect the validity of the process, but affects only the validity of the service perfected by serving the former agent in the county, who, at the time of service, was not an agent of the company and upon whom legal service could not be perfected. The process, therefore, being valid, was subject to amendment. This case is distinguishable from 'that of Union Marine Fire Ins. Co. v. McDermott, 31 Ga. App. 676 (121 S. E. 849). In that case the petition affirmatively showed that the defendant had no agent or place of business in the county upon whom service could be perfected, and did not show that there was an agent elsewhere upon whom service could be perfected, and therefore the clerk was wholly without power to issue any process at all, while in the instant case it does not appear from the petition that there was no agent of the defendant company in the county upon whom service could be perfected.

2. Where, in such a suit, it was, at the return term, made to appear to the court’that the service actually made under the process was defective and constituted no legal service upon the defendant, in that service was perfected upon a person who had been an agent of the defendant insurance company at the date of the issuance of the policy, but who, at the date of the filing of the suit, had ceased to be an agent of the company, and where it was further made to appear to the court that there was no agent of the defendant company within the county in which the petition was filed and in which the policy sued on was issued, and that no legal service could be perfected within that county, and where it was also at that time made to appear to the court that a certain person in an adjoining county in the State was an agent of the company upon whom service could legally be perfected, as provided in sections 2563 and 2564 of the Civil Code (1910), the court had the power to pass an order then in term time directing that a' second original of the suit-issue, and that the process be amended and be directed to the sheriff of the latter county, and that service be perfected upon the agent in the latter county, returnable to the next term of court, which, for this case, was made the appearance term.

3. Where the new process actually issued pursuant to the order of court, which was actually served upon the agent of the defendant company in the adjoining county by the sheriff of that county, was not directed to the sheriff, or any of his deputies, in the. latter county, but was in fact directed to the sheriff of the county in which the petition was filed, it was not invalid, but was further amendable by being directed to the sheriff of the adjoining county in which the agent resided; and the court, at the term to which the process was returnable, had power to pass a further order directing that the amended process be further amended and be directed to the sheriff of the adjoining county, and that the petition and the last amended process be, by the sheriff of the adjoining county, served upon the agent residing therein, and that the suit be made returnable to tlie next term of court, 'which term was designated as the appearance term of the case.

Decided March 2, 1927.

Complaint on fire policy; from Campbell superior court — Judge Hutcheson. February 3, 1926.

Application for certiorari was made to the Supreme Court.

E. J. Reagan, W. G. Hollingsworth, for plaintiffs.

Smith, Hammond & Smith, W. G. Post, for defendant.

4. Where service was perfected under the last named order of the court by the sheriff of the adjoining county, under process directed to him and served upon the agent of the defendant company in that county, and returned, pursuant to the order of the court, to the next term of the superior court of the county in which the suit was pending, the service was valid and legal, under a valid process; and at a subsequent term of court the suit was not subject to dismissal upon the ground that the original process was void and the subsequent amendments thereto were also void.

Judgment reversed.

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


text:
    17338.
    Graf v. Shiver.
    Landlord and Tenant, 36 C. J. p. 395, n. 89; p. 396, n. 97; p. 658, n. 46; p. 659, n. 54; p. 664, n. 20.
   Stephens, J.

1. Where a proffered amendment to the counter-affidavit in a proceeding to dispossess a tenant upon his failure to pay the rent, admits his failure to pay the rent', but alleges that it is not due by reason of certain obligations and indebtedness of the landlord to him in an amount in excess of the unpaid rent and arising out of the contract of rental, the amendment is insufficient and fails to allege any indebtedness or obligation from the landlord to the tenant where, by the terms of the contract of rental, such indebtedness or obligations did not so arise. Furthermore, where the obligations and indebtedness from the landlord to the tenant are alleged to have arisen by reason of certain expenditures which the tenant was forced to make upon the rented premises for the purpose of repairing and restoring the premises to the condition in which it is alleged the landlord at the time of entering into the lease contract falsely and fradulently represented the property to be, such indebtedness is not established where it is not specifically alleged wherein the property was defective and wherein there was a failure in the property to conform to the alleged representations of the landlord. Where it is alleged by the tenant that the rented property consisted of an ice plant and machinery for making ice, and that at the time of the execution of the rental contract the landlord falsely and fraudulently represented to the tenant that the machinery had been in use only five years, when in fact it had been in use for a period of thirty-five years; that the landlord represented that the plant was in first-class condition and that “the repairs set out in the contract were the only repairs necessary to make the plant in first-class condition,” which repairs mentioned in the contract were otherwise than alleged in the plea, and where it is further alleged that it was necessary for the tenant to expend upon the plant the specific sums stated elsewhere in his plea, the allegations do not specifically and with requisite certainty set out the defects in the machinery. The court did not err in disallowing the proffered amendment to the defendant’s counterclaim.

Decided March 2, 1927.

Eviction; from Cook superior court — Judge Knight. April 10, 1936.

2. Allegations of fact as the basis for the issuance of a warrant to dispossess a tenant, contained in the landlord’s affidavit upon which the warrant issued, which are not denied by the tenant in his counter-affidavit, will be treated as admitted. Where the landlord’s affidavit contains an allegation that he has demanded possession of the premises, and the tenant’s counter-affidavit denies only that the rent is due and does not deny that demand has been made for possession of the premises, such demand will be treated as an admitted fact. Hindman v. Raper, 143 Ga. 643 (85 S. E. 843); Mitchell v. White, 74 Ga. 327 (2).

3. While double rent in a proceeding to dispossess a tenant can be collected only from the date of demand for possession of the premises, yet where demand as alleged in the landlord’s affidavit, upon which the warrant to dispossess was issued, is admitted by the tenant in his counter-affidavit, as indicated above, the date of demand is necessarily established as not later than the date of the execution of the landlord’s affidavit. In such a case an exception to the verdict found for the plaintiff, in so far as it finds an amount for double rent, upon the ground that the evidence discloses no proof as to the date the demand for the premises was made, is without merit.

4. Whether or not double rent, which is recoverable against .a tenant holding over, as provided in section 5389 of the Civil Code (1910), is uncollectible for a period during which the rented premises are in possession of a receiver appointed for the property of; the tenant, the pendency of the receivership will prevent the collection. of double rent only when the control and possession of the property by the receiver prevented the tenant from moving out and surrendering the rented premises to the landlord. Where it appears that, after the issuance of a 'warrant to dispossess, a period of ten months elapsed before the tenant surrendered the premises to the landlord, and that during that period the rented premises were in the control of a receiver for a period of not longer than six months, but it does not appear what part of this time was covered by the possession of the receiver, the evidence is insufficient to establish as a fact that the possession and control of the rented premises by the receiver prevented the tenant from moving out and surrendering the premises to the landlord.

5. Upon the issue formed in this case by the warrant to dispossess for failure to pay rent and the counter-affidavit thereto, the verdict for the plaintiff was authorized, and no error of law appears.

Judgment affirmed.

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

H. W. Nelson, R. F. Hendricks, J. S. Story, E. H. Griner, for plaintiff in error.

Branch & Snow, W. D. Buie, contra.


text:
    17477.
    WASHINGTON LOAN & BANKING COMPANY v. CLARY.
    Where the payee of a note states to the original surety thereon that he (the payee) has taken an additional surety upon the note and that he releases the first surety, this ' does not amount to a contract between them, and the first surety is not thereby released from his obligation upon the note.
    Decided March 2, 1927.
    Rehearing denied March 5, 1927.
    Complaint; from Wilkes superior court — Judge Perryman. May 10, 1926.
    The Washington Loan So Banking Company, as payee, sued John Henry Cohen, as maker, and H. A. Clary and B. F. Burdett as sureties, upon a note. Judgment by default was rendered against Cohen and Burdett. Clary, in his plea, admitted the execution of the note by Cohen with himself as surety, but pleaded that by a subsequent contract between himself and the bank he was released from his obligation upon the note, and that Burdett was substituted in his place as surety. The only evidence in support of the plea was that of Clary, who testified that after he had become surety for Cohen upon the note he told Cohen, who was about to go to work for Burdett, that Cohen would have to pay the note or arrange to procure Clary’s release from liability upon it, that Cohen stated that he would undertake to get Burdett to go on the note as a substitute for Clary, and some time after this Clary had a conversation with Barksdale, the cashier of the plaintiff bank, as to which Clary testified as follows: “Mr. Barksdale told me that Burdett had endorsed it [the note]. I happened by ,fhp bank and Mr. Burdett and Mr. Barksdale were in the bank on the outside at the little writing desk, ¿nd-Mr. Barksdale called my attention to the fact that he was taking Burdett’s name as indorser on that note, and taking mine off.” Clary further testified: “Prior to that time [when Clary had the conversation with Barksdale] John Henry Cohen told me that he would undertake to get Mr. Burdett to go on the note in my place. The next thing was when I went to the bank and was told by Mr. Barksdale that that had been done. Barksdale told me that he had taken Burdett on the note in my ■place. . . When Barksdale and Burdett and I were talking about the matter it came up this way: I walked in the bank and Barksdale and Burdett were there at the desk, and Barksdale turned around and says to me, ‘I am putting Burdett’s name, on this note and taking yours off.’ That was my understanding. That -was all said. I did not see the note then. He did not have the note in his hand; I think it was on the desk. When Barksdale told me what had been done, I thought it was' done.”

      Principal and Surety, 32 Cye. p. 156, n. 18; p. 185, n. 39.

      Barksdale testified that he had no recollection of any such conversation as testified to by Clary, that the only conversation he had with Clary was to the effect that Clary stated that Cohen was going to move to Burdett’s and that Clary wanted Burdett to indorse the note with him. Barksdale further testified that Cohen never came to him to see about getting Clary’s name off the note, that Clary never asked him to take Clary’s name off, and that the indorsement of Burdett was taken as added security on the note.
    There is no evidence other than this that Burdett agreed to a substitution of himself for Clary as surety on the note. Clary’s name was never stricken from the note. Both Clary’s name and Burdett’s name appear as sureties upon the note. The verdict was in favor of Clary. The plaintiff moved for a new trial, upon the grounds that the verdict was without evidence to support it, and that the court erred in certain portions of the charge to the jury.

      L. E. Thompson, Colley & Wynne, for plaintiff.

      B. W. Fortson, for defendant.
   Stephens, J.

(After stating the foregoing facts.) The only evidence tending to establish a contract between Clary and the bank, releasing Clary from his obligation as surety upon the note, is Clary’s testimony as to his conversation with Barksdale, the cashier of the bank. Taking Clary’s testimony most strongly against him (as must be done, since he is a party to the ease), it must be construed as stating that in this conversation Barksdale informed him that Burdett “had endorsed” the note, and that Barksdale “had taken Burdett on the note” as a substituted surety for Clary. This conversation constituted no contract between the bank and Clary. It can .prove no more than that the bank, through Barksdale, had already made an agreement with Burdett whereby Bnrdett was to be taken as a substituted surety for Clary. Barks-dale merely stated what he had already done. He made no promise to Clary, and since Clary had made no promise to the bank nor had performed any act for the bank, Barksdale, in stating that he had put Burdett’s name upon the note, accepted no act or promise of Clary.

There being no evidence authorizing a jury to find that Clary had a contract with the bank by which he was released as a surety upon the note, the verdict for him was unauthorized.

Judgment reversed.

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


text:
    17509.
    Texla Oil Company v. Calhoun.
    Decided March 2, 1927.
    Complaint; from Fulton superior court — Judge E. D. Thomas. June 3, 1926.

      Dillon, Calhoun & Dillon, for plaintiff in error.

      Hewlett & Dennis, contra.
    Corporations, 14 C. J. p. 486, n. 64.
   Stephens, J.

1. Where a subscriber to the capital stock of a corporation lias complied with, his contract and fully paid for his stock, and where the corporation, after demand upon it for issue of the stock, refuses to issue the stock, the subscriber may treat the contract as rescinded and recover from the corporation the amount which he has paid for the stock. DeLamar v. Fidelity Loan & Investment Co., 158 Ga. 361 (4) (123 S. E. 116); 14 C. J. 486, § 720; Watkins v. Record Photographing Abstract Co., 76 Ore. 421 (149 Pac. 478); Kinser v. Cowie, 235 Ill. 383 (85 N. E. 623, 126 Am. St. R. 221).

2. The petition set out a cause of action, and the court properly overruled the demurrer.

Judgment affirmed.

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


text:
    17513.
    Watts v. Taylor.
    Decided March 2, 1927.
    Levy and claim; from city court of Camilla — Judge Burson. June 9, 1926.

      Hill & McElvey, for plaintiff in error.

      Gardner Gardner & Crow, contra.
    Appeal and Error, 4 O. J. p. 1165, n. 60.
    Evidence, 22 O. J. p. 1236, n. 32.
    Sales, 35 Cyc. p. 671, n. 43.
    Trusts, 39 Cyc. p. 138, n. 30; p. 139, n. 33; p. 155, n. 32; p. 157, n. 37; p. 158, n. 49.
   Stephens, J.

1. Where a husband purchases an automobile and makes the initial payment thereon with money belonging to his wife, and executes a written contract therefor with the seller, in which title is reserved in the seller until payment of the entire purchase-money, and where the wife afterwards pays out of her own funds the entire balance due, the husband on such payment by her takes title to the property as her trustee, the trust becomes immediately executed, and the entire legal and beneficial interest is thereby vested in her, and she may afterwards sell the automobile and convey full -title thereto. Civil Code (1910), §§ 3739, 3740; Brooks v. Fowler, 82 Ga. 329 (9 S. E. 1089).

2. Evidence tending to establish the above-stated facts is not in contradiction of the terms of the written instrument under which the husband purchased the property.

3. Upon a trial of an issue formed in a claim ease, where the property has been levied upon as that of the husband, and a claim thereto has been filed by one who claims title as coming out of the wife, and where the written contract under which the husband purchased the automobile has been introduced in evidence, evidence tending to establish the facts indicated in paragraph 1 above is relevant as tending to establish the. claimant’s case.

4. The court erred in excluding all the testimony offered and objected to, as set out in the special grounds of the motion for a new trial.

5. The assignments of error in the motion for a new trial are sufficient to raise the questions here decided.

6. The motion to dismiss the bill of exceptions for insufficiency of the assignments of error is denied.

Judgment reversed.

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


text:
    17118.
    Globe & Rutgers Fire Insurance Company v. Jewell-Loudermilk Company.
    Appeal and Error, 4. G. J. p. 975, n. 88; p. 987, n. 3; p. 1143, n. 3.
    Assignments, 5 C. J. p. 979, n. 41; p. 981, n. 57.
    Evidence, 22 C. J. p. 297, n. 5; p. 573, n. 33, 34; p. 579, n. 84.
    Fire Insurance, 26 C. J. p. 381, n. 60; p. 427, n. 74; p. 428, n. 91; p. 486, n. 7; p. 53,5, n. 26; p. 538, n. 65, 69; p. 553, n. 96; p. 578, n. 11, Í3, p. 579, n. 23.
   Stephens, J.

1. Whether or not, where a policy of fire insurance provides that upon the demand of either party appraisers shall be selected and the amount of loss ascertained by appraisement, and that no suit or action on the policy shall be sustainable in any court “unless the assured shall have fully complied with all the foregoing requirements,” an actual appraisement is a condition precedent to the insured’s right to recover for a loss under the policy, the insured performs all of his obligations as respects an appraisement, as provided in the policy, when he in good faith agrees to the selection of appraisers and submits the matter to appraisement as provided in the policy; and where the appraisers, through no fault of the insured, fail to agree, the insured has complied with all of his obligations under the policy and the insured may, in the absence of a further demand by the insurer, for an appraisement, proceed forthwith to institute suit upon the policy and establish the amount of his loss by the evidence before the jury. 14 R. C. L. 1361, § 532; Jerrils v. German American Ins. Co., 82 Kan. 320 (108 Pac. 114, 28 L. R. A. (N. S.) 104, 20 Ann. Cas. 251). This case is distinguishable from that of Insurance Co. of North America v. Folds, 35 Ga. App. 720 (135 S. E. 107), because in that case the plaintiff^who was the insured, undertook, under the terms of the contract, and in accordance with an agreement for an appraisement, signed by both parties, to fix and determine the amount of the loss, by an appraisement, and, after the award made thereunder had been held invalid by reason of the illegal appointment of the umpire, who was appointed by the judge of the superior court at the instance of the plaintiff, the plaintiff brought suit upon the policy without ever having completed the appraisement which he had undertaken to obtain.

2. A threat made by an attorney for the insured and communicated to one of the appraisers, that if the appraiser made an award in a certain amount the attorney would take legal proceedings against the appraiser, where, from the evidence, it does .not appear that this appraiser failed to agree by reason of such threat, is insufficient to authorize the inference that the act of the attorney in any way brought about the failure of the appraisers to agree.

3. Under the foregoing rulings, the court did not err in directing a verdict against the defendant on the plea in abatement, in which it' contended that the suit was not maintainable because no award had been made by the appraisers appointed under the provisions of the policy; and the court properly refused certain requests to charge, made by the defendant.

4. The admission in evidence of a letter from the local agent of the defendant company, directed to it at its home office, written the day after the loss of the insured property, advising the home office of the loss, and containing a statement that “the estimated loss is about $1,000,” whether the letter was relevant or not, as an admission by an authorized agent of the defendant company as to the value of the property lost, could not have influenced the jury and was harmless, in view of other evidence as to value and in view of the fact that the verdict actually rendered found the loss to be only $750.

Decided March 3, 1927.

Action on fire-insurance policy; from Hall superior court— Judge J. B. Jones. December 12, 1925.

Application for certiorari was made to the Supreme Court.

5. Where a witness testifies as to his familiarity with the value of property of the kind destroyed, his estimate of the value of the property destroyed is relevant and admissible.

6. Evidence that at the time of the issuance of the policy of insurance, when the insured and the local agent of the insurer were endeavoring to agree upon the amount of insurance which the property “would stand,” the amount of insurance for which the policy was issued was left by the insured to the local agent of the insurer was admissible as an admission indicating the value placed upon the property by the insurer at the time of the issuance of the policy. Southern Ry. Co. v. Branch, 9 Ga. App. 310 (71 S. E. 696).

7. Where the plaintiff testified, that, when he signed the affidavit to the proof of loss introduced in evidence and to which his signature purported to have been attested by a notary public, he was under oath, that an oath had been administered to him, that he signed the paper, and that the notary witnessed his signature, the proof of loss was properly admitted in evidence, over objection by the defendant that it was not sworn to as required by the policy.

8. An assignor of a chose in action, who has assigned the legal title thereto to another as security for a debt, has such an interest therein that he may maintain a suit thereon in his own name. Wheeler v. Stapleton, 99 Ga. 731 (27 S. E. 724). The alleged newly discovered evidence that, before suit, the plaintiff assigned his right and title to the cause of action to another as security for á debt, was irrelevant.

9. The verdict for the plaintiff in the amount of $.750 was authorized by the evidence, and no error appears.

10. It appearing that suit was filed within sixty days after the loss became payable under the terms of the policy, and it not appearing that any demand for payment was made upon the insurance company after the loss had become payable under the terms of the policy, attorney’s fees were not recoverable under section 2549 of the Civil Code (1910), which provides for the payment of attorney’s fees where the insured refuses to pay the loss within sixty days after demand, if the refusal is in bad faith.

11. The judgment is affirmed, with the direction that the amount found for attorney’s fees in the sum of $150 be written off.

Judgment affirmed, with direction.

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

Smith, Hammond & Smith, Dean & Wright, for plaintiff in error.

A. C. Wheeler, contra.


text:
    17256.
    Continental Life Insurance Company v. Wilson, administrator.
    Accident Insurance, 1 C. J. p. 417, n. 39; p. 427, n. 45; p. 486, n. 74; p. 489, n. 5; p. 491, n. 38.
    Appeal and Error, 4 C. J. p. 1180, n. 21.
    On, 29 Cyc. p. 1484, n. 51.
   Stephens, J.

1. In an insurance policy which insures against bodily injuries effected solely through external, violent, and accidental means, and sustained by the insured in the following manner: “By the wrecking or disablement of any private automobile, motor-driven car, or horse-drawn vehicle, in which the insured is riding or driving, or by being accidentally thrown from within such automobile, car, or vehicle,” the expression “such vehicle,” in the clause “by being accidentally thrown from within such . . vehicle,” includes any “horse-drawn vehicle,” without reference to its being- a vehicle which has been wrecked or disabled.

2. The provision covering injuries sustained “by being accidentally thrown from within such automobile, car, or vehicle” covers any accident which might reasonably be expected to happen to the insured upon being accidentally thrown from an automobile, car, or vehicle, and therefore covers an injury, resulting in the death of the insured, which he sustained by being accidentally thrown from a log-cart in which he was riding, which struck a stump in the road, throwing him out and dislodging a log, which fell upon him. See, in this connection, Wright v. Ætna Life Ins. Co., 10 Fed. (2d ed.) 281.

3. Where the insured is “on” a log-cart which is loaded with logs, he is “within” the vehicle, in the sense of the terms of the policy, reasonably construed.

4. In a suit upon an insurance policy, where the -only allegation as to a demand upon the insurance company for payment of the loss was contained in the allegation as to the filing of the proof of loss, which was filed, prior to December 7, 1925, on which date the insurance company acknowledged receipt of proof of loss and denied liability and refused payment of loss, and where the suit was filed on January 12, 1926, the petition did not allege a failure of the insurance company to pay ihe loss within sixty days after demand.

5. Applying the above-stated rulings, the petition, which was a suit against the insurer by the administrator of the insured, to recover for a loss alleged to have been covered by the policy of insurance, set out no right to recover attorney’s fees and the penalty provided for in section 2549 of the Civil Code (1910), but otherwise set out a cause of action in the plaintiff, as administrator, for the face value of the policy, payable upon the death of the insured.

Decided March 3, 1927.

Complaint on life-policy; from Bibb superior court — Judge Malcolm D. Jones. February 26, 1926.

Robert W. Barnes, for plaintiff in error.

Evans & Evans, Hall, Grice & Bloch, contra.

6. Where the insurer denies liability under the policy and refuses to pay the loss sustained, it thereby waives its right to rely upon the provision in the policy that suit thereon shall not be instituted prior to the expiration-of sixty days after the proof of loss has been made as required by the terms of the policy. Scott v. Life & Casualty Ins. Co., 34 Ga. App. 479 (129 S. E. 903); Continental Ins. Co. v. Wickham, 110 Ga. 129 (2) (35 S. E. 287).

7. The suit, although it does not appear that it was hied after sixty days after the filing of the proof of loss, was not prematurely brought.

8. The judgment overruling the demurrers, general and special, except to the allegations seeking recovery of a penalty and attorney’s fees, is affirmed; but the judgment overruling the demurrer to the allegations seeking recovery -of a penalty and attorney’s fees is reversed.

Judgment affirmed in part and reversed in part.

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