text:
    14618.
    Colt Company v. Wheeler.
   Bell, J.

1. Tlie court did not err in failing to charge, without a timely written request, the law applicable to certain issues which were only collaterally involved. Bishop v. Georgia National Bank, 13 Ga. App. 38 (4) (78 S. E. 947); Branch v. Bishop, 135 Ga. 110 (2) (68 S. E. 1021).

2. In one of the grounds of the motion for a new trial it appears that an objection to a question propounded to a witness was sustained before the witness answered. Another question was asked and answered as follows: “Q. Have you got a plant of the same kind? A. Yes, sir.” The answer was excluded, on motion. It does not appear wherein the answer to this question would have been material to the party offering it, or that he was prejudiced by its exclusion. The assignment of error upon the refusal of the court to allow the witness to answer the first question is imperfect, in not alleging what answer was expected. Southern Railway Co. v. Wright, 6 Ga. App. 172 (3) (64 S. E. 702).

3. A breach of warranty, express or implied, in the sale of personalty gives the purchaser the right to damages (Civil Code of 1910, §4136), the measure of which is the difference between the contract price and the actual value of the goods at the time and place of delivery. Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301 (1) (64 S. E. 1008); Americus Grocery Co. v. Brackett, 119 Ga. 489 (5) (46 S. E. 657); Springer v. Indianapolis Brewing Co., 126 Ga. 321 (2) (55 S. E. 53).

4. A plea of total failure of consideration to a suit for the contract price of certain articles is not supported when the evidence fails to show that the articles were entirely worthless. Hardee v. Carter, 94 Ga. 482 (1) (19 S. E. 715); Clegg-Ray Co. v. Indiana Scale Co., 125 Ga. 558 (54 S. E. 538).

5. “The admission or declaration of an agent, when acting within the scope of his authority, is to be considered as the admission or declaration of his principal. Williams v. Kelsey, 6 Ga. 365 (1), 373; Krogg v. Atlanta & West Point Railroad, 77 Ga. 202; 1 Michie’s Dig. Ga. R. 293; Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108); Civil Code (1910), § 5779.” Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656 (3) (116 S. E. 325). But before the declarations are admissible some proof of the agency should be submitted. Agency may be established by circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the alleged agent himself, clearly tend to establish the fact of his agency, his declarations may then be admitted and considered as a part of the res gestae of the transaction; but the declarations of an alleged agent when standing alone are never admissible to prove liis agency. Georgia Land Co. v. Davis, 28 Ga. App. 398 (1) (111 S. E. 219). “The declarations of an alleged agent, though made dum fervet opus, are not admissible to prove his agency.” Franklin County Lumber Co. v. Grady County, 133 Ga. 557 (1) (66 S. E. 264). Measured by these rules, there was no proof whatever in this case of the agency of an alleged agent whose declarations that the property was worthless were admitted in evidence over appropriate objection of the plaintiff, and the admission of this evidence was error.

Decided December 10, 1923.

Complaint; from Cherokee superior court—Judge Blair. April 7, 1923.

Broolce & Henderson, for plaintiff.

Wood & Vandiviere, for defendant.

6. This was an action for the purchase price of an apparatus sold for a lighting system. The jury rendered a general verdict in favor of the defendant, upon a plea of total failure of consideration. The only warranty involved was that the apparatus was “thoroughly durable . . , automatic in action, and of good material and workmanship.” There was some evidence to authorize the inference of a breach of the warranty, and further that the property was worthless, but because of the error noted in the preceding paragraph, the court erred in oven-uling the plaintiff’s motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14619.
    McDowell v. Engel.
   Jenkins, P. J.

The plaintiff sued her former husband, to recover unpaid installments due under a written contract entered into while they were in a state of separation, whereby she, for herself and two minor children, agreed to accept a certain cash payment and monthly installments in a stated sum, in lieu of alimony in a divorce proceeding immediately contemplated. The contract provides that the payments shall be “for her maintenance and the maintenance of the said two children,” and that “said monthly payments the said [husband] shall continue to render unto the said [wife] until the youngest of the two above-named children shall reach the age of 21 years.” It provides that the wife shall have the custody of the children “so long as she acts honorably and does not marry some one who will mistreat the said two children or either of them; ” that “when the above-named children reach the age of 21 years the [husband] shall be discharged from any further payments either to said children or to the said [wife], but a remarriage of the said [wife] shall not discharge said [husband] from liability to support said children; ” and' that, so long as the husband complies with' this contract, the wife will not bring any proceeding to compel him to pay or render her maintenance, or include any claim for alimony in said divorce proceeding. By a proposed amendment to his plea and answer the defendant set up that the amount he was to pay the plaintiff under the contract was for the joint support of the wife while unmarried and the children, and that since the wife had remarried, he was liable under the contract only for an amount sufficient to support the children, which he alleged to be only $20, in lieu of the $40 per month provided in the contract for their joint support, and he asked to be relieved of the difference. On objection of the plaintiff this amendment was disallowed. The jury found for the plaintiff, and exception is taken to the disallowance of the amendment. Held: This was a marital agreement for separate maintenance, made under the condition of actual separation. See Sumner v. Sumner, 121 Ga. 1 (3) (48 S. E. 727). The agreement as made contemplated a permanent adjustment, and its effect was finally to fix and establish the respective rights and obligations of the parties. See Coffee v. Coffee, 101 Ga. 787 (28 S. E. 977). The language of the instrument, providing that “said.monthly payments” shall continue “until the youngest of the two above-named children shall reach the age of 21 years,” is such as to exclude rather than raise any implication that the amount provided for should be sealed pro tanto either upon the death or the majority of one of the children or the remarriage of the wife. All of such contingencies were presumably taken into account in fixing the amount called for by the contract.

Decided December 10, 1923.

Complaint; from city court of Sylvania—Judge Evans. April 26, 1923.

O. T. Guyton, H. A. Boykin, for plaintiff in error.

Y. B. Bargeron, E. 8. White, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14621.
    BROWN v. ATLANTA NORTHERN RAILWAY CO.
    1. Where a complaint for damages against a carrier of passengers accustomed to receive passengers on signal at a flag station is based, by the averments of the suit, upon the theory that the plaintiff became a passenger when, in pursuance of a signal by the plaintiff, the defendant’s car stopped, the plaintiff was not entitled to a charge that the relation of passenger and carrier commenced on the giving of the responsive signal by the carrier before the car stopped, indicating its intention to stop and receive the plaintiff as a passenger. Such a charge would have submitted a theory not presented by the action.
    2. If a person in a proper condition and having a bona fide intention of becoming a passenger on the car of a carrier of passengers, accustomed to receive passengers on signal at a flag-station, presents himself at the proper time thereat and signals the car to stop, and the signal is answered, and if the car is stopped within a reasonable distance from the station, apparently in pursuance of the exchange of signals, but at an unsuitable and unsafe place for boarding, such person, if he does . not, in the exercise of ordinary care, know of the danger of boarding the ear at that point, has the right, in the absence of notice by the defendant to the contrary, both to rely and act upon the fact of the car’s stopping as an invitation for him to board the car where it stopped, without any rei-nvitation, or further expression of the purpose ■of the defendant’s servants in stopping, and, while so acting, is entitled to that degree of care on the part of the carrier which is due to a passenger,—namely, extraordinary care. Where the evidence in an ■action for damages is sufficient to support the other parts of the hypoth■esis stated, it is not necessary, in order to establish his right as a passenger, that the plaintiff should show that no such notice was given him, or that the defendant did anything further by way of invitation when it stopped the car under such circumstances. In this case one of the court’s charges was erroneous in placing such a burden upon the plaintiff, on account of which, after verdict found for the defendant, the court erred in overruling the plaintiff’s motion for a new trial. There is no merit in any of the other assignments of error.
    Decided December 10, 1923.
    Action for damages; from Cobb superior court—Judge Blair. May 5, 1923.
    Certiorari was granted by the Supreme Court.

      Mozley & Gann, H. B. Moss, for plaintiff.

      Golquüb & Conyers, John T. Dorsey, for defendant.
   Bell, J.

Fred Brown brought an action for damages against Atlanta Northern Bailway Company, an interurban carrier of passengers by trolley, based upon the theory of negligence on the part of the defendant in failing to furnish to the plaintiff as a passenger a safe opportunity to board the car at a flag-station where the car was accustomed to stop on signal for the reception of passengers, in that, although the motorman answered the plaintiff’s signal, he ran past the station and stopped the car near by, over a 'trestle through which the plaintiff fell as he was attempting to board the car in the belief that the car had stopped for the purpose of receiving him as a passenger at this point. The occurrence was at night. The petition alleged that when the car stopped he at once started toward it “with the intent to get on said car and become a passenger on same. Petitioner did not know, and on account of the bright lights of said car and at the back end of said car plaintiff was unable to discover, that said car had passed the grounds prepared for passengers to get on and off of said car; ' . that the defendant negligently drove said car about 50 feet north of the. [station]. and stopped their car over [the trestle], .thereby inviting petitioner to get on said car at said point;” that the defendant was negligent in “inviting petitioner to board its car at said unsafe place.” There were other specifications of negligence, but th,e above-quoted averments are controlling as to the theory of the action. A verdict was found for the defendant, and the plaintiff has excepted to a judgment denying his motion for a new trial.

In one of the grounds of the motion for a new trial error is assigned upon the failure of the trial judge to charge, without request, that if the jury “believed that the plaintiff . . gave the motorman on the defendant’s car a signal [at the station] that he wished to get on the car, and that that signal was responded to, by the motorman indicating his acceptance of the signal to let plaintiff . . get on the car and ride, that from that instant the relation of passenger on the jliart of plaintiff and carrier on the part of defendant existed between plaintiff and defendant, and that defendant was bound to exercise extraordinary care for plaintiff” from that instant. Eegardless of whether the plaintiff was right in fact in regard to the time when the relation of passenger and carrier began, the court did not err, in view of the averments of the petition, in failing to charge as indicated. Such a charge would have submitted a theory not presented by the complaint, which alleged no invitation by the carrier in responding by signal to the signal of the plaintiff, but only in the act of stopping the car.

There are decisions which would support the proposition which the plaintiff in error has advanced in this assignment, provided the complaint and the evidence were such as to involve its application. Among these is the Wisconsin case of Karr v. Milwaukee Heat &c. Co., 132 Wis. 662 (113 N. W. 62, 13 L. R. A. (N. S.) 283, 122 Am. St. Rep. 1017). But in Georgia & Florida Railway Co. v. Tapley, 144 Ga. 453 (87 S. E. 453, L. R. A. 1916C, 1020), the Supreme Court of this State observed that in the Karr case the Supreme Court of Wisconsin “goes further than most other courts have gone.” It is not intimated .whether or not. the courts of this State should apply the doctrine o'f that case. A.decision of this question would be wholly voluntary at this time, because, as we have seen, the averments of the petition in the instant case do not invoke such doctrine.

Error is assigned upon the following excerpt from the charge of the court: “I call your special attention to these two contentions, because it is a fundamental point, in the case, and the court instructs you with reference to the plaintiff’s contention now that if the plaintiff signalled the defendant’s car that he desired to become a passenger upon it, and if the defendant’s motorman responded to such signal from the plaintiff, indicating that the car would stop for the plaintiff, but if it didn’t stop.at the station for the purpose of receiving plaintiff as a passenger, but ran by plaintiff and stopped at a point beyond the station, and if ihe purpose of the defendant’s motorman in stopping ihe car beyond the station was to receive the plaintiff at that point as a passenger on defendant’s car, and such purpose was indicated to the plaintiff in any way by the motorman, and if in pursuance of such stop and purpose the plaintiff undertook to take passage upon the defendant’s car, the court instructs you that the defendant would owe the plaintiff extraordinary diligence to have its approaches to its cars reasonably safe for approaching and entering its cars; and if, in consequence of a failure on the part of the defendant to exercise that care for the safety of the plaintiff, he was injured, he would be entitled to recover from the defendant for such injuries, provided he could not have avoided the consequences of the defendant’s negligence by the exercise of ordinary care on his own part.” (Italics ours.) The assignment of error is substantially as follows : that when the defendant had given a responsive signal to the signal of the plaintiff and had thereupon stopped the car, “movant had a right to assume that said motorman had stopped in pursuance of his agreement to stop when he had given his responsive signal that he would stop, and the fact that he ran a little past the very station point did not require another invitation on the part of the motorman;” that the charge was not applicable to the facts developed by the evidence; that it placed “a burden upon the plaintiff that rightfully belongs upon the defendant to warn plaintiff not to follow an attempt to get upon said car beyond the very station point;” that the plaintiff “made no claim of a reinvitation to get on said car; he relied upon the responsive signal of the motorman in the first instance;” that the “stop, being the first one made after said signal was given, was a continuous invitation to come on and get on the car;” that “under the charge the plaintiff’s right to a recovery would depend upon the inward mind of the motorman,” and that thus an “impossible burden” was .placed upon the plaintiff. The evidence for the plaintiff, which supported the petition, tended to show, among other things, that the signal which the plaintiff had given was in time for the defendant to have stopped the car immediately at the station, and also that the plaintiff had no notice that the car was not stopped for the purpose of receiving him as a passenger; whereas it was the contention of the defendant, supported also by evidence, that the car was.stopped as soon as reasonably possible after the receipt of the plaintiff’s signal; that the defendant did not stop on the trestle for the purpose of receiving the plaintiff as a passenger, but with the intention of backing the car to the station where the plaintiff would be received, and that this purpose on its part was made manifest to the plaintiff by certain blasts of the whistle and also by the conductor verbally. The issues were thus clearly drawn, and the evidence would have supported a finding either way. The above-quoted excerpt, under the circumstances, was error. If the car stopped within a reasonable distance from the station, apparently in pursuance of the exchange of signals, the plaintiff, if he did not know of the danger in boarding the car at that point, and could not have known of it in the exercise of ordinary care, and if he was in a proper condition to be transported and bona fide intended to obtain the service,—all of which the jury might have inferred from some of the evidence,—would have had the right, in the absence of notice to the contrary, both to rely and act upon the fact of stopping as an invitation for him to board the car where it stopped, without further invitation, or a further expression of the purpose of the motorman in stopping, and while so acting would have been entitled to that care which is due to a passenger,— namely, extraordinary care. It was not necessary, in order to establish such right, that the plaintiff should show that no such notice was given to him, or that the defendant did anything further by way of invitation when it stopped the car under the circumstances stated. The charge was a misstatement of the plaintiff’s contentions and placed upon him a burden not imposed by law. The burden of showing such notice of its non-intention to receive the plaintiff as a passenger at the place in question, under the issues as developed, was one that rested upon the defendant. The erroneous portion of the charge is shown in italics. See Western & Atlantic Railway Co. v. Voils, 98 Ga. 446 (2) (26 S. E. 483, 35 L. R. A. 655); Georgia & Florida Railway Co. v. Tapley, 144 Ga. 453 (4) (87 S. E. 473, L. R. A. 1916C, 1020). While the charge might not be entirely accurate with this portion deleted, if upon another trial the issues be the same a charge may readily be framed in accordance with the views herein expressed.

If the plaintiff did not give his signal reasonably in time for the car to stop immediately at the station, his failure to. do so would appear to have been waived, because the defendant’s servants did not ignore the signal but stopped; but if such failure in fact existed, it could be considered by the jury in determining whether the plaintiff believed that he would be received where the car stopped, or that it would reverse and come back to receive him.

The other grounds of the motion are without merit. On account of the error above noted the trial judge erred in denying the motion for a new trial.

Judgmeni reversed.

Jenhins, P. J., and Stephens, J., concur.


text:
    14628.
    Wright v. Calhoun National Bank.
   Bell, J.

This case is here upon exceptions to the nonsuit of an action in trover. Prior to the filing of the suit the plaintiff had been adjudicated a bankrupt. After an adjudication in bankruptcy and before the appointment of a trustee the bankrupt has sufficient title in the property theretofore owned by him to authorize the institution and maintenance of a suit by him to protect the assets of the bankrupt estate. Until such appointment or election of a trustee the bankrupt has title,—defeasible, but sufficient to authorize the institution and maintenance of a suit on any cause of action otherwise possessed' by him. 2 Collier on Bankruptcy (13th ed., 1923), p. 1636, §70; Johnson v. Collier, 222 U. S. 538 (56 L. ed. 306). But “the trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt.” Bankruptcy act of 1898, § 70; 2 Collier on Bankruptcy 113th ed., 1923), 1626. It is conclusively to be inferred from the plaintiff’s evidence that the property for which the action in trover was brought had been acquired by him prior to his adjudication as a bankrupt. It follows that the right to sue for its conversion, unless it was exempt, was in the trustee, if a trustee was appointed and qualified before the suit was brought. . The evidence upon the trial was silent as to whether a trustee had been appointed or not, but, it appearing from the plaintiff’s evidence that he was adjudicated a bankrupt several months before the present suit was filed, and that there were assets to be administered, even if only those sued for, the presumption would be that a trustee was duly elected and qualified before the suit was filed; and there being no proof that the property sued for had been set aside to the plaintiff as a homestead or exemption, the right to sue was prima facie in such trustee and not in the bankrupt. See Bankruptcy act of 1898, §§44, 55, 70; 2 Collier on Bankruptcy (13th ed., 1923), pp. 1015, 1099, 1634, 1635, 1641, 1818; Wright v. Ehrlich, 146 Ga. 400 (1) (91 S. E. 412). Applying the foregoing principles to the evidence, the proof did not show that the plaintiff had title or the right to 'sue for the property at the time his action was brought, and the nonsuit ■was proper.

Decided December 10, 1923.

Complaint; from Gordon superior court—Judge Tarver. February 27, 1923.

M. B. Eubanks, for plaintiff.

J. G. B. Erwin, for defendant.

Judgment affirmed.

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


text:
    14632.
    COLE v. BANK OF BOWERSVILLE.
    1. A note in which it is stipulated that a certain sum will be paid means that this sum will be paid in money, and the maker will not be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money.
    2. When a negotiable paper received under dishonor is sued on by a holder or indorsee, no set-off against the original payee is allowed except such as is in some way connected with the debt sued on or the transaction out of which it sprung.
    3. Applying the foregoing principles to the facts of this case, the trial court did not err in directing a verdict for the plaintiff, nor in any prior ruling.
    Decided December 10, 1923.
    Complaint; from Hart superior court—Judge W. L. Hodges. April 3, 1923.

      J. H. & Emmett Skelton, George G. Grogcm, for plaintiff in error. Tutt & Brown, T. S. Mason, contra.
   Bell, J.

To a suit upon a negotiable note, brought by the Bank of Bowersville, an indorsee, the defendant maker, F.-E. Cole, pleaded, in his answer as amended, that at the time of the execution of the note it was agreed between himself and the payee that it would not be paid in money, but at its maturity would- be offset against other and larger notes held by him against the payee. It was further pleaded that such larger notes -had not been paid, that the payee therein was insolvent, and that the plaintiff indorsee had notice of all of these facts when taking the note sued on. At the close of the evidence the court struck the amendment to the answer, ruled out certain evidence introduced by the defendant, and directed a verdict for the plaintiff. The defendant took exceptions pendente lite to the striking of the amendment to his answer, and in the motion for a new trial complained of the other rulings. The motion being overruled, he brought the case here.

“A note in which it is stipulated that a certain sum will be paid means that this sum will be paid in money, and neither the maker nor the indorser will be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money. Civil Code (1910), §§4266, 5788; Stapleton v. Monroe, 111 Ga. 848 (36 S. E. 428); Brewer v. Grogan, 116 Ga. 60 (42 S. E. 525); American Harrow Co. v. Dolvin, 119 Ga. 186; Berendt v. Ripps, 120 Ga. 228 (47 S. E. 595).” Kerr v. Holder, 13 Ga. App. 9 (4).

The contemporaneous oral agreement pleaded was inadmissible to vary the written promise to pay in monejr, and the defendant was relegated to the remedy of set-off, which, if available, was so irrespective of the oral agreement. While this remedy would have been open to him as against the original payee, it could not be employed against the indorsee. When a negotiable paper is sued on by a holder or indorsee, even though received under dishonor, no set-off is allowed as against the original payee, except such as is in some way connected with the debt sued on or the transaction out of which it sprung. Civil Code (1910), §4344; Polk v. Stewart, 144 Ga. 335 (87 S. E. 21). There was no plea or evidence that the alleged set-off based upon the larger notes was in any way connected with the debt sued on or the transaction out of which it arose, but the contrary affirmatively appeared. The alleged oral agreement did not establish the nec-essary relation between the two demands, and amounts to no more than a stipulation to offset independently of such relation, besides being prohibited by the parol evidence rule.

It follows from the above that the plea as amended did not allege, and the evidence as a whole did not prove, any defense, and therefore that the court did not err in any of its rulings. In this view it is immaterial whether the indorsee took with notice of the facts, and no decision is necessary as to whether the evidence would have authorized an inference that it did so. This case is unlike that of Staley v. Matheny, 30 Ga. 937, in which, though the plaintiff indorsee took subject to the equities between the original parties, the plea was not based upon any prior or contemporaneous agreement at variance with the writing, but upon a subsequent agreement which, being executed by the defendant maker, amounted to a payment and satisfaction.

Judgment affirmed.

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


text:
    14633.
    Sloan v. Sheffield.
   Jenkins, P. J.

1. In order for one to be entitled to the summary remedy of eviction as provided for in sections 5385 and 5386 of the Civil Code (1910), the relation of landlord and “tenant must exist between himself and the person holding over. Civil Code (1910), §§ 3691, 3692; Brown v. Persons, 48 Ga. 61; Watson v. Toliver, 103 Ga. 123 (29 S. E. 614); Edwards v. Blackshear, 24 Ga. App. 622 (101 S. E. 585); Bacon v. Howard, 19 Ga. App. 660 (5) (91 S. E. 1066).

2. “Where one party conveys land to another, and it is agreed between them that the vendor shall remain in possession until a fixed time when he shall surrender possession to the vendee, the relation of landlord and tenant exists between the two; and a dispossessory warrant will lie in favor of either the purchaser or his successor in title against the seller, upon refusal by the latter to deliver possession at the time agreed upon.” Prichard v. Tabor, 104 Ga. 64 (2) (30 S. E. 415).

3. The same rule should apply in a purchase under a bond for title in a case where the obligee is entitled to actual possession, and the obligor holds over beyond the date fixed by the agreement for the surrender of tlie premises. In such a ease the obligor’s occupancy, being under the obligee and not adverse to him, an obligation to pay rent is implied. Wheiner, in the absence of any sort of agreement as to the actual possession and enjoyment of the premises, the holder of the equitable title under a bond is impliedly entitled thereto as against him who holds the legal title solely for the purpose of securing the payment of the purchase-money, need not be decided, since there was abundant testimany going to show that it was expressly understood and agreed that the plaintiff obligee was to have possession of the premises on April 1, 1920.

4. The fact that by the terms of a preliminary written contract binding the trade for the sale of the premises it was agreed between plaintiff and defendant that “C. E. Sloan shall be allowed to remain in said property until April 1st, 1920,” did not have the effect of limiting plaintiff’s rights to an action against such person, since he negotiated the trade merely as defendant’s agent, and all the facts and surrounding circumstances show that he occupied the house not as tenant, but as the husband of the defendant and head of the household.

Decided December 10, 1923.

Eviction, from DeKalb superior court—Judge Hutcheson. March 10, 1923.

Parker & Patterson, for plaintiff in error.

Etheridge, Sams & Etheridge, contra.

5. Under the evidence submitted and in accordance with the foregoing rules, the judge to whom the case was submitted did not err in finding in favor of the plaintin.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    14640.
    Morris v. Battey.
   Jenkins, P. J.

1. “A petition for certiorari is such a suit as can bo renewed under the provisions of the Civil Code,” § 4381. If, however, the petition or initial proceedings be “void for any reason, the suit cannot be renewed.” Bass v. City of Milledgeville, 121 Ga. 151, 152 (48 S. E. 919); Citizens Bkg. Co. v. Paris, 119 Ga. 517, 518 (46 S. E. 638). But to render the certiorari void, there must be “something inherently defective” in the petition or proceedings themselves. Bass v. City of Milledgeville, supra; Singer Sewing Machine Co. v. Dacus, 22 Ga. App. 297 (1 b) (96 S. E. 8). A failure in the answer to sufficiently verify the allegations contained in the petition will render the proceeding subject to dismissal, although the petition itself is not so inherently defective as to be void. Tyner v. Leake, 117 Ga. 990 (44 S. E. 812); Louisville & Nashville R. Co. v. Lovelady, 14 Ga. App. 305 (80 S. E. 725); Phillips v. Jones, 7 Ga. App. 141 (66 S. E. 401); Freedman v. Bush, 30 Ga. App. 757 (119 S. E. 421).

2. Where a certiorari is applied for after the expiration of the statutory time from the rendition of the judgment complained of, the petition should show on its face that it is a renewal of a previously dismissed certiorari sued out within the proper time in the same cause, and that the renewal is within six months from the date of dismissal. Where all of these facts are made plainly to appear in the petition for certiorari, and reference is made therein to the papers in the former certiorari, of file in the same court to which the renewed petition for certiorari is brought, the court, in passing upon the truth of such averments, relative to matter happening in the same superior court and subsequent to the trial in the court below, may properly inspect the former record, in order to verify the statement in the petition that it is in the same case, and the averments of dates as showing that the proceedings were in due time. The rule might be different where an ordinary suit is dismissed and renewed. There the plaintiff might be required by special demurrer to attach to his renewal suit a copy of the former petition, in order to indicate as a fact that the cause of action is the same, since there is no presumption that the questions involved in two such suits are one and the same; and the court is entitled to say for 'itself, as matter of law, whether such an allegation as to identity is true, rather than rely merely upon the opinions and conclusions of the pleader. Atlanta Ry. Co. v. Wilson, 119 Ga. 781 (1), 784 (47 S. E. 366). In a case like this, however, where the renewed petition for certiorari is in the same cause pending in the trial court, the essential issues which might be reviewed are necessarily identical, and the averment that it is in the same case1 as the former proceeding is one of fact, and not one of opinion or conclusion. The averments relative to the identity of the former proceedings are made solely “in order to show that the court has jurisdiction of the ease;” and the evidence supporting such averments, as to facts happening in the same superior court and subsequent to the trial of the case in the court below, need not appear in the petition itself. Such essential allegations may be verified, when questioned, by any proper method of proof, the best and highest evidence being the papers and entries themselves in the previous certiorari. Jones v. Gill, 121 Ga. 93 (2), 95, 96 (48 S. E. 688); Morrison v. Hilburn, 126 Ga. 114 (5) (54 S. E. 938); Sellers v. Page, 127 Ga. 633 (5) (56 S. E. 1011); Williams v. Shuler, 94 Ga. 660 (1) (19 S. E. 981); Moody v. Muscogee Mfg. Co., 134 Ga. 721 (1), 729, 730 (68 S. E. 604); Harlow v. Rosser, 28 Ga. 219, 221 (1); Fitzgerald v. Alpha Cement Co., 15 Ga. App. 174, 178 (82 S. E. 774). It was therefore error to dismiss the renewed certiorari, on the theory that it failed to show the jurisdiction of the court to consider it.

Decided December 10, 1923.

Certiorari; from Fulton superior court—Judge Bell. March 27, 1923.

Mitchell & Mitchell, for plaintiff.

Mark Bolding, E. F. Childress, for defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14650.
    Davis, agent, v. Mizell.
   Bell, J.

1. A stipulation in an interstate bill of lading, signed and accepted by the shipper, that “except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as conditions precedent to recovery, claim’ must be made in writing to the originating or delivering carrier within six months after delivery of the property, or in case of failure to make delivery, then within six months after a reasonable time for delivery'has elapséd,” is valid and binding; Mitchell v. Atlantic Coast Line R. Co., 15 Ga. App. 797 (2) (84 S. E. 227); Southern Ry. Co. v. Simpson, 20 Ga. App. 290 (1) (93 S. E. 47); Southern Ry. Co. v. Bunch, 27 Ga. App. 689 (1) (109 S. E. 523); St. Louis &c. Ry. Co. v. Starbird, 243 U. S. 592 (61 L. ed. 917; 37 Sup. Ct. 462); Ellis v. Davis, 260 U. S. 682 (67 L. ed. 460, 43 Sup. Ct. 243).

2. It follows that in a suit for damages for a failure by the carrier to make delivery of the shipment, where it appears that su'ch-a stipulation was made and lias not been complied with, nor compliance waived by the carrier, a recovery will not be authorized; but where the consignee does not sue upon the express contract evidenced by the bill of lading, but brings his action in tort, as was done in this case, based solely upon a breach of the public duty of the carrier to transport and deliver the goods, and the carrier defends upon the ground of a failure of the plaintiff to comply with .the stipulation, it has the burden of showing such want of compliance. 10 C. J. 302; Southern Ry. Co. v. Bunch, 27 Ga. App. 689 (1) (109 S. E. 523); Houtz v. Union Pacific R. Co., 33 Utah 175 (43 Pac. 439; 17 L. R. A. (N. S.) 628 (7), and cases therein cited).

Decided December 10, 1923.

Action for damages; from Camden superior court—Judge High-smith. April 7, 1923.

S. C. Townsend, Conyers. & Wilcox, for plaintiff,in error.

Cowart & Vocelle, contra.

3. In the instant case the bill of lading signed by the shipper was introduced in evidence by the defendant carrier, and contained the stipulation set forth above, but there was no evidence as to whether the stipulation had been complied with. The court did not err in failing to charge the jury upon the necessity of such compliance, the carrier having failed to bring evidence to raise the issue. No other reason is urged for setting aside the verdict, the brief of the plaintiff in error being confined to the one question herein indicated. The action of the court in overruling the motion for a new trial is therefore affirmed.

Judgment affirmed.

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


text:
    14660.
    Knight v. Jeff Davis Banking Company.
   Jenkins, P. J.

Both under the laws of this State prior to the present banking law of August 16, 1919 (Ga. L. 1919, p. 135), and under that act, banking corporations, their presidents and directors, were and are prohibited from using and applying any part of the capital stock of a bank to the purchase of shares of its own stock. Civil Code (1910), §2348; Penal Code, § 209; act of 1919, supra, p. 218, art. XX, §24; Fitzpatrick v. McGregor, 133 Ga. 332 (2), 337-342 (65 S. E. 859, 25 L. R. A. (N. S.) 50); Crawford v. Roney, 126 Ga. 763, 766 (55 S. E. 499). In this action upon a promissory note given by the defendant to cover his original subscriptions for shares of stock in the plaintiff bank and another banking corporation merged with it, the plea and testimony of the defendant to the effect that the president of the banking corporations had agreed to cancel all of the note sued on except $125, in consideration of the defendant’s transfer and surrender of his stock to the plaintiff bank, showed an unauthorized and illegal consideration and constituted no legal defense. In this transaction (before the present banking law) no question is presented by the record as to whether the plaintiff bank and its president could have become the purchaser or holder of the defendant’s shares, if “necessary to prevent loss upon a debt previously contracted in good faith,” as permitted by the present law, since there is no proof as to the existence of such a contingency. See, in this connection, article XIX, § 21, of the act of 1919, supra. The court, therefore, properly directed a verdict for the plaintiff and overruled the defendant’s motion for new trial.

Decided December 10, 1923.

Complaint; from city court of Hazlehurst—Judge Bennett.. July 22, 1922.

8. D. Dell, for plaintiff in error. Newton Gaskins, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J. .Jenkins, P. J.,

text:
    14661.
    MATTOX v. LAMBRIGHT.
    Where a complaint for damages alleged, (1) that the plaintiff was a member of the family and one of the tenants of the defendant, and an invitee and guest of another tenant, and as such had the right to use a certain hallway, designed for the use of the tenants and their guests and invitees, in the defendant’s apartment-house wherein these tenants resided, over which hallway the defendant as landlord retained possession and control; (2) a dangerous condition in the hallway, by reason of which the plaintiff was injured, with facts which would authorize an inference of negligence on the part of the defendant in reference to such condition, in failing to keep the hallway in a reasonably safe condition for the use of the tenants and their invitees; and (3) that the plaintiff at the time of her injury was in the exercise of all ordinary care and diligence under the circumstances, detailing the facts in reference thereto from which it cannot be said, as a matter of law, that there was a want of ordinary care on her part, but which would authorize the conclusion alleged, a cause of action was set forth, and a general demurrer was improperly sustained.
    Decided December 10, 1923.
    Action for damages; from Fulton superior court—Judge Humphries. May 14, 1923.
    A general demurrer was sustained to the action of Mrs. Betty Mattox against W. E. Lambright, a suit for damages, and the plaintiff excepted. The petition alleged: “At about nine o’clock a. m. on the 15th day of April, 1922, the plaintiff called to see Mrs. B. M. Asbill, wife of B. M. Asbill at their apartment, Apartment No. 24 of the Poncemore Apartment at 831 Ponce de Leon Avenue in the city of Atlanta, Fulton county, Georgia.” “The plaintiff went to the apartment of Mr. and Mrs. Asbill as an invitee and guest of the said Mr. and Mrs. Asbill upon matters of interest and concern both to Mrs. B. M. Asbill and to herself.” “She remained in the Asbill apartment for about thirty minutes, and upon leaving said apartment when she had finished her visit, and immediately upon entering the hallway leading up to said apartment from the outside, the plaintiffs feet shot out from under her and she fell in said hallway just outside the door of the Asbill apartment, and, as she fell, her right hip struck against the edge of the steps leading up from said hallway to the apartment above and against the post at the edge of said steps, and she fell flat upon the floor and broke her right hip-bone near the upper joint, breaking the neck of the femur completely in two.” “At the time of said injury the defendant was the lawful owner of said apartment house at Number 831 Ponce de Leon Avenue, and was in lawful possession thereof through himself and through his agents, and had been in possession thereof for some time prior to the injury herein complained of.” “The said Mr. and Mrs. B. M. Asbill were, at the time of the injury herein complained of, lawful tenants of said Apartment No. 24 of the Poncemore Apartment, and Mr. Asbill was paying a rental on said apartment of approximately $75 per month,, and was occupying said apartment together with his wife, the said Mrs. B. M. Asbill.” “The plaintiff was, at the time of the injury herein complained of, a lawful tenant of Apartment No. 35 of said Poncemore Apartment, occupying the same as a member of the family of W. A. Sutherland, who was renting from the defendant said apartment No. 35 at a monthly- rental of $110 per month.” “The hallway in which the injury herein complained of occurred was a common hallway leading not only to said Apartment No. 24, but also to apartment above said Apartment No. 24, and said hallway was not in the possession and control of the said tenants, or any of them, but remained and was at all times in the possession and control of the owner of said building, whose duty it was to see that said hall was kept in proper repair and in proper condition for the use of said tenants and their guests.” “The defendant prior to and at the time of the injury herein complained of did do certain things in connection with said hallway, such as sweeping, cleaning, and lighting same, for the purpose of keeping the same clean and tenant-able and in other ways exercised control over said hallway.” “Within less than forty minutes prior to the occurrence of the injury herein complained of, and between the time the plaintiff entered said Apartment No. 24 and the time she left said Apartment No. 24, the defendant, through a duly constituted agent and employee, commonly called the ‘janitor,’ had placed upon the floor of said hallway leading to and from the Asbill apartment and the apartment of other tenants in the same entrance of the building a liquid flooring covering made of a greasy, slippery substance, which your petitioner understands is commonly called ‘liquid wax,’ which will hereinafter be referred to as ‘liquid wax,’ and left the same upon the floor without wiping it off or otherwise drying it up and without notifying Mrs. Asbill or the plaintiff or any one in said apartment of the dangerous condition thus created.” “That the result of leaving said liquid wax upon the floor without wiping it up and drying it [off] was to make the floor very slippery and to make it unsafe to walk over, and did create a condition dangerous to all those who attempted to walk over said floor.” “The application of the liquid wax to the floor of said hall or passageway, without wiping, up or drying off the same, left said floor in a condition not reasonable and proper f.or the use of persons walking over same.” “The act of the defendant through his duly constituted agent and employee of putting said liquid wax upon said floor and leaving it without wiping it up or drying it off, and in failing to notify the tenants and their guests of the danger thus created constitutes a lack of reasonable care and diligence in keeping said hallway safe for the use of parties using the same, both the tenants and their lawfully invited guests.” “The defendant failed to use reasonable care and diligence in providing a safe passageway for the tenants of said Apartment No. 24 and their lawfully invited guests at the time of the injury herein complained of, in that the defendant did not apply and wipe off said liquid wax in the manner in which .said wax is intended to be applied and wiped off, but applied unreasonably large quantities of the same to the floor of said hallway without wiping it off as it is applied and wiped off by reasonably careful and prudent persons, and did not notify the plaintiff or tenants of said Apartment No. 24 of the dangerous condition thus created.” “The defendant was negligent in placing and permitting to be placed upon said hall or passageway leading to Apartment No. 24 a slippery and greasy floor-covering such as liquid wax.” “The defendant was negligent in placing and permitting to be placed upon the floor of said hall or. passageway leading to Apartment No. 24 a slick and greasy floor-covering such as the liquid wax referred to and leaving same upon the floor without wiping, or drying it off, without notifying the plaintiff and the occupants of said Apartment No. 24 of the condition of said hall or passageway.
    “The defendant was negligent in failing to light said passageway so that the condition of the floor could be easily and readily observed by the exercise of ordinary care and diligence on the part of persons using same, more particularly the tenants of said Apartment No. 24 and their lawfully invited guests and the plaintiff herein.” “The defendant was negligent in failing, after the dangerous condition of the floor of said hall or passageway, caused by the presence of large quantities of said liquid wax, came to [his] knowledge, to take such steps as were necessary immediately to place said passageway in a safe condition for the use of the tenants of Apartment No. 24 and their lawfully invited guests.” “The defendant was negligent in creating a dangerous and treacherous trap by greasing and slicking the floors of the hall or passageway leading up to said Apartment No. 24 between the time when the plaintiff passed over the same going to the apartment of Mr. and Mrs. Asbill and the time when the plaintiff left said apartment, without giving to Mrs. Asbill or to the plaintiff any notice of said change.” “The defendant was negligent in'creating through his duly constituted agent and employee a condition of the floor of said hall or passageway leading up to said Apartment No. 24 which unreasonably and unnecessarily endangered the life and limb and safety of persons lawfully using said passageway, including the tenants in Apartment No. 24 and their lawfully invited guests.” “-The said hall or passageway leading to Apartment No. 24 was so dark at the time of the injury herein complained of that a person using the same would not in the exercise of ordinary and reasonable care and diligence have discovered that said liquid wax was upon said floor.
    “The plaintiff was free from all fault and blame in the premises, for the reason that she did not see that the floor was covered with wax, nor was her attention • attracted to it, nor could she discover the same in the exercise of ordinary care and diligence, for the reason that the hall was so dark that the condition of the floor could not be observed so as to tell whether or not any solution such as liquid wax was upon said floor.” “The plaintiff was free from all fault and blame in the premises and is not guilty of contributory negligence, for the reason that, even if she had known of the condition of the floor of said passageway at the time the injury herein complained of occurred, she could not have used greater care and diligence in walking over the same than she was exercising at the time the injury complained of occurred, and the defendant impliedly held out such floor as being suitable and flt for walking over, and the same was fit and proper when the plaintiff entered the Asbill apartment, and was only rendered slick and treacherous and dangerous and unfit for walking on by the act of the defendant in placing said liquid wax upon same while the plaintiff was in said Apartment No. 24, and the plaintiff had the right to assume that said passageway was in a safe and proper condition and in the same condition as when the plaintiff entered said Apartment No. 24, and to walk on the same in leaving Apartment No. 24, where she had been as a lawful invited guest.” “The plaintiff was free from all fault and blame in entering and leaving the premises, for the further reason that the defendant held out said passageway leading to Apartment No. 24 as being suitable for walking on, by knowingly placing and leaving it in the condition in which it was at the time the injury complained of occurred, and the plaintiff assumed and had the right to assume that the defendant would not knowingly place and leave the passageway in a dangerous condition at a time of day [when] in the ordinary course many people would naturally use and were entitled to use the same.” “The plaintiff was free from all fault and blame in the premises for the further reason that the passageway in question was the only ordinary means of ingress and egress for guests at the said Apartment No. 24, and was in proper condition when she entered the building, and it. was necessary for her to leave said apartment, and she left same exercising every reasonable precaution to walk safely over the passageway in question, and without any knowledge or means of obtaining knowledge, by the exercise of ordinary care and diligence, of the treacherous condition of the'hallway, caused by the act of the defendant as above set out between the time when the plaintiff passed over the hallway into said Apartment No. 24 and the time when the plaintiff left said Apartment No. 24 thirty or forty minutes later.” There were other averments of negligence, but these need not be stated. Further allegations are devoted to a description of the injuries received and a statement of the damages claimed.

      Robert P. Jones, W. A. Sutherland, Watkins, Russell & Asbill, for plaintiffs.

      Etheridge, Sams & Etheridge, for defendant.
   Bell, J.

(After stating the foregoing facts.)

We think that the court was in error in dismissing the petition. Under the averments made, the plaintiff had a right to be upon the premises at the place where the injury occurred. She alleges not only that she was a member of the family of a tenant, but went to the apartment of another tenant as an invitee and guest, upon matters of interest and concern to them both. “A landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, where the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care.” Ross v. Jackson, 123 Ga. 657 (51 S. E. 578). See Civil Code (1910), §§ 3694, 3699; Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. E. 694). Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code (1910), §4420.

It is alleged that the defendant retained the possession and control of the hall where the plaintiff was injured. Where the landlord retains even a qualified possession and general supervision of his building he may be held liable to his tenants, their guests or invitees, for injuries arising from a failure to maintain the building in proper repair or a reasonably safe condition, either if he knew of the defects or if in the exercise of ordinary care he should have known of them. Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127).

Ordinarily, before a landlord can be held liable for damages for a failure to keep the premises in repair or in a safe condition, notice of the defect must be brought home to him; but it is well settled that where he retains a qualified possession of and general supervision over the rented premises either by himself or through an agent in charge, no actual notice of the defective condition is required in order to fix liability for an injury to a tenant or the tenant’s guest or invitee, provided the landlord should have known thereof by ordinary care. Davis v. Hall, 21 Ga. App. 265 (1), 268 (94 S. E. 274). The averments bring the plaintiff within the protection of the requirement by the law of ordinary care on the part of the defendant.

The question next presented is, was the defendant negligent? Perhaps it is true that waxing or otherwise treating the floors in the halls of a building of the nature and uses here described may be proper, and would not amount to negligence when done in the usual and ordinary manner, but the plaintiff alleges that the proper way to use “liquid wax” is to apply it and then “wipe it up or dry it off,” and further that “unreasonably large quantities” were applied by the defendant “without wiping it off.” We cannot say as a matter of law that the petition does not allege a negligent condition of the floor. In the nature of the averments the question is one for a jury.

Does the petition disclose that the plaintiff could have avoided the consequences of the defendant’s negligence by the exercise of ordinary care? If so, the plaintiff cannot recover notwithstanding the defendant’s alleged negligence. Civil Code (1910), § 4426. The petition avers that the hall was not lighted so that the condition of the floor could be easily and readily observed; that it was “so dark that the condition of the floor could not be observed so as to tell whether or not any solution such as liquid wax was upon said floor,” which was “only rendered slick and treacherous and dangerous and unfit for walking on by the act of the defendant in placing said liquid wax upon same while the plaintiff was in said Apartment No. 24, and the plaintiff had the right to assume that said passageway was in a safe and proper condition and in the same condition as when the plaintiff entered said apartment,” only forty minutes before; that she did not know of the dangerous condition and was not warned. The petitioner further alleges that “immediately upon entering the hallway,” as she departed from her visit to Mrs. Asbill, her feet “shot out from under her and she fell in said hallway just outside .the door of the Asbill apartment.” It cannot be ruled that the plaintiff’s stepping out into the darkened hallway was such negligence, if any, as would bar a recovery, since it does not appear that the act would have been attended with any danger, except for the change of conditions occurring without her knowledge within the brief time she had spent in the apartment of Mrs. Asbill.

While it is true that where facts are considered on demurrer and every rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary car.e on the part of the plaintiff, the demurrer should be sustained (Moore v. Seaboard Air-Line Railway C o., 30 Ga. App. 466 (6), 118 S. E. 471); yet questions as to diligence and negligence are peculiarly for the jury, and the court will decline to solve them on demurrer except in plain and indisputable cases. Columbus Railroad Co. v. Moore, 29 Ga. App. 79 (1) (113 S. E. 820). We do not think that the facts set forth in the complaint present such a case. This conclusion is not in conflict with'any of the decisions of this court in a number of recent cases to be presently mentioned. We have caused practically the entire complaint to be set forth in detail, in order that the distinction between this case and those may become readily apparent. The cases of Flournoy v. American Hat Mfg. Co., 21 Ga. App. 599 (94 S. E. 835); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Ogain v. Imperial Cafe, 25 Ga. App. 415, and Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589, involved the rights and liabilities incident to the relation of master and servant, and each of them apparently turned upon the theory that the plaintiff employee either knew or had equal opportunities with his master of knowing of the defects complained of. While the plaintiffs in the Ogain and Biederman cases each attempted to negative this proposition, they did so merely by conclusions which the pleaded facts respectively not only failed to support, but disputed. A nonsuit was affirmed in Flanders v. Atlanta Terminal Co., 21 Ga. App. 812 (95 S. E. 307), because the plaintiff did not prove the allegation .of her complaint that the steps were worn and slick. The sufficiency of the petition was not decided. It might or might not have been subject to demurrer. In Jones v. Asa G. Candler Inc., 22 Ga. App. 717 (97 S. E. 112), a nonsuit was granted because it appeared from the evidence that the plaintiff was merely a licensee, and not an invitee as alleged. Furthermore, the object complained of in that case was patent and obvious, and the court took occasion to observe: “In fact the stumbling over the small pile of lumber against the wall seems to have been due to her own carelessness in hurriedly and without looking coming out of the door of Dr. Crenshaw’s office. The lumber was evidently there when she went into the office, and no reason appears why she should not have seen it and avoided it in coming out.” 'A careful reading of Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 S. E. 433), will show that the court concluded (Judge Stephens dissenting) that the defects there in question were also obvious, the petition, according to the opinion of the majority, not alleging “any facts showing that the danger, if any, . . could not by the exercise of ordinary care have been seen and discovered by the plaintiff.” The court said further that the petition “fails to allege any culpable negligence on the part of the defendant;” but there was no allegation, as here, that the condition complained of was unnecessary or unusual, or that the water was not placed upon the floor in the ordinary and proper discharge by the landlord of his duty in the care and keeping of the building. In Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81), the only complaint made was directed at an insufficiently lighted stairway which the plaintiff deliberately attempted to descend, with knowledge, of course, of the darkness. No defect in the floor or steps was alleged. The facts respectively of Castleberry v. Fox, 29 Ga. App. 35, and of Avary v. Anderson, 31 Ga. App. 402 (120 S. E. 683), are also distinguishable from those of the case at bar. Compare with the former Goddard v. Boston & Maine Railroad, 179 Mass. 52; Lyons v. Boston Elevated Ry. Co., 204 Mass. 227.

The petition set forth a cause of action, and the court erred in sustaining the demurrer. See Jones v. Tift, 63 Ga. 488; Archer v. Blalock, 97 Ga. 719 (25 S. E. 391); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060).

Judgment reversed.

Stephens, J., concurs. Jenkins, P. J., concurs specially.

.Jenkins, P. J.,

concurring specially. The plaintiff invitee, in walking upon the waxed floors maintained by the defendant, assumed all the risk incident and usual to the ordinary condition of a floor of that kind and character, and likewise assumed all the hazard that might be incident to its usual and proper upkeep and maintenance. I concur in the holding of my colleagues only because elements of alleged negligence appear in this case which differentiate it from the recent eases of this court,—to wit, that the liquid wax was not only applied in unreasonably large quantities, but that the unusual and unnecessary danger thus arising was further augmented by reason of the alleged fact that such unusual quantity of liquid wax had been applied without being subsequently wiped off as was usual, customary, and proper, thus leaving the floor in an unusual and unnecessarily slippery and dangerous condition.


text:
    14716.
    Griffin Hosiery Mills v. United Hosiery Mills.
   Jenkins, P. J.

1. “Where suit is brought against defendants who are only jointly liable, the plaintiff cannot dismiss as to one and proceed against the other, except in eases provided for by statute. But where suit is brought against two or more defendants alleged to be jointly liable, and the proof or' the pleadings show that there is no joint liability, the plaintiff may dismiss as to those who are not proper parties to the action.” Lippincott v. Behre, 122 Ga. 543 (1, 2) (50 S. E. 467); (Civil Code (1910), § 5688. Thus, it is not required^ as a prerequisite to a recovery, that both defendants shall be shown to be liable, since, except in cases where the liability is solely joint, it is the plaintiff’s privilege to voluntarily dismiss his action as to one and proceed to trial against the other (City of Atlanta v. Anderson, 90 Ga. 481, 16 S. E. 209), or at any time before verdict he may disclaim a right to recover against one and insist upon a verdict against the other. Baker v. Thompson, 89 Ga. 486 (4) (15 S. E. 644); Western Union Telegraph Co. v. Griffith, 111 Ga. 551, 558, 559 (36 S. E. 859). There can, however, be but one satisfaction of the same damage or injury; and if, instead of merely dismissing his suit against one of two defendants sued jointly, the plaintiff proceeds, for a consideration, to fully settle and satisfy his claim against one, he cannot by the terms of such accord and satisfaction, where the injury or damage complained of is the same, limit the release to the defendant thus dealt with, but in such a case the claim itself becomes extinguished. Donaldson v. Carmichael, 102 Ga. 40 (2), 42, 43 (29 S. E. 135); 1 C. J. 536 (§30). The record fails to disclose that the petition was demurred to on the ground of a misjoinder of actions or of parties; but assuming, as contended by the defendant, against whom the suit continued and judgment was rendered, that it was defective in this respect (in this connection see Albany Ry. Co. v. Merchants Bank, 137 Ga. 391, 395, 73 S. E. 637; Southern Express Co. v. Pope, 5 Ga. App. 689, 690, 63 S. E. 809; Wright v. Southern Ry. Co., 7 Ga. App. 542, 545, 67 S. E. 272; but see also Civil Code of 1910, §5515), the entry on the petition does not indicate a mere dismissal of the action against one of the two joint defendants; but here it is disclosed that in a joint action, seeking compensation for the same injury or damage, consisting of the value of certain described goods, the dismissal entered upon the petition shows that the plaintiff had for a stated consideration settled his claim in full against one of the defendants, and the evidence shows that the amount thus accepted represented the proceeds of a sale of the goods by that defendant. In some jurisdictions it has been held that a settlement with a joint defendant who was in no way liable, either in fact or in law, does not operate to discharge the defendant actually responsible (see case note, 14 L. R. A. (N. S.) 321). But where the injury or damage complained of is the same, the mere fact that the defendants could not be joined in the same action does not authorize more than one satisfaction of the same claim (Friedlander v. Weinberg, 27 Ga. App. 808 (2), 110 S. E. 26); and consequently the plaintiff in this case, having settled in full as to one of the joint defendants relative to the same injury or damage, could no longer proceed against the other.

Decided December 10, 1923.

Damages ex contractu; from city court of Griffin—Judge Darsey. May 8, 1923.

The "United Hosiery Mills, plaintiff in this action, bought of the Griffin Hosiery Mills a consignment of hosiery, to be shipped to the purchaser at Chattanooga, Tennessee. These goods, packed in nine separate and numbered cases, were delivered by the vendor at Griffin, Georgia, to the Southern Kailway Company, which issued a bill of lading describing the shipment by weight and listing each case by its separate number. The goods were shipped “order notify,” and were paid for by the plaintiff at the time of delivery. Subsequently one of the cases was missing from the shipment, and on investigation it appeared that the missing case was incorrectly addressed by the shipper to Des Moines, Iowa. It appears from the testimony for the defendant that when the lost case was located at Des Moines, Iowa, the railroad company was directed to return it to the consignee, but failed or refused to do so, and that it was sold by the railroad company at Des Moines for $50. Both the vendor and the railroad company refused payment, and a joint action was instituted against them. The record fails to disclose any demurrer setting up a misjoinder of parties or of actions. Prior to the trial the plaintiff dismissed its action against the railroad company, and made upon the original petition the following entry: “Georgia, Spalding County. The within suit is hereby dismissed as to the Southern Railway Company, in consideration of the sum of fifty ($50.00) dollars, which is paid to the plaintiff by the Southern Railway Company, the receipt of which is hereby acknowledged. This January 9th, 1923.” The Griffin Hosiery Mills thereupon made an oral motion to dismiss the petition and filed a plea on the ground that the settlement of the. case against the railroad company precluded the plaintiff from proceeding against the other defendant. The motion to dismiss was overruled. The jury found a verdict for the plaintiff for the amount sued for, less the amount paid in its settlement with the railroad company. The defendant made a motion for a new trial, which was refused, and the case came to this court on exceptions to the rulings stated.

Judgment reversed.

Stephens and Bell, JJ., concur.

Beclc & Beclc, for plaintiff in error. 8. B. Wallace, contra.


text:
    14720.
    TUFTS, executrix, v. THRELKELD.
    1. Wlien the record shows a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriff’s return must be duly traversed. A plea to the jurisdiction, on the ground that the defendant was not a resident of the county in which the suit was filed, cannot be maintained without a traverse of the entry of service, where it appears therefrom directly or by necessary implication that the suit was filed and served in the county of the defendant’s residence; and the sheriff and his deputy who made the entry are necessary parties to the traverse. Bell v. New Orleans é Northeastern R. Co., 2 Ca. App. 812 (2), 816 (59 S. E. 102).
    2. Where, upon a suit for personal injuries, a true entry of personal service is made as to the defendant tort-feasor, who thereafter dies, the action does not thereby abate, and the personal representative of the deceased tort-feasor, after the lapse of the 12 months’ exemption from suit, may be properly made a party defendant in his stead. A plea to the jurisdiction, thereafter filed by such personal representative on the ground that the tort-feasor was not a resident of the county in which the suit was filed, may be disregarded in the absence of a traverse of the entry of service, to which the sheriff and his deputy, if a deputy made the entry, are made parties. The untraversed entry of service must be taken as true, and such a suit is a valid pending suit against the personal representative so long as it stands.

      3. The plaintiff’s cause of action having been saved from abatement by the deaui of the tort-feasor, and the right to maintain it having become fixed when the personal representative of the original defendant was made a party, the right of action did not abate because of the deatn of the tort-feasor, when it was subsequently dismissed. The plaintiff had a right to renew it at any time within the statute of limitations, as in other instances, on the payment of costs, as provided in the Civil Code, § 5625. Seioell v. Atkinson, 14 Qa. App. 386 (1) (80 S. E. 862).
    4. If a danger is obvious and as easily known to the servant as to the master, the latter will not be liable for a failure to warn, but if there are latent defects incident to an employment, unknown to a servant, of which the master knows or ought to know, lie is bound to give to the servant warning in respect thereto.
    5. In a suit by a servant against the master, the petition should plainly and distinctly set forth the elements necessary to a recovery. Legal results arising from the facts alleged may be pleaded in general terms or in the form of a legal conclusion. A petition so drawn is good against demurrer. Southern States Portland Cement Co. v. Helms, 2 Ca. App. 308 (1) (58 S. E. 524). A conclusion in a pleading will not be subject to special demurrer if the inference stated therein may be legitimately drawn from the special facts pleaded.
    6. The petition was not subject either to the general or the special demurrer interposed.
    Decided December 10, 1923.
    Action for damages; from DeKalb superior court—Judge Hutcheson. May 9, 1923.
    On January 28, 1920, Farris Threlkeld filed an action, by next friend, against Arthur Tufts, for personal injuries alleged to have been caused by the negligence of the defendant on the 15th day of the same month. A deputy sheriJf of Fulton county made an entry of personal service upon the defendant on the next day after the suit was filed. The defendant died on February 23, 1920. His death was suggested of record on March 1, 1920, and on March 18, 1922, upon a rule nisi issued to his executrix, Mrs. Janie W. Tufts, who acknowledged service of the rule, an order was passed making hex a party defendant, but allowing her until the first Monday in May to file such defense as she might desire. On April 29, 1922, she filed a special plea to the jurisdiction, alleging that the original defendant, at the time of the filing of the suit, was not a resident of Fulton county, as the petition alleged, but of the county of DeKalb, that she herself was at all such times a resident of the county of DeKalb, and that the city court of Atlanta, in Fulton county, was without jurisdiction to entertain the suit. On May 26, 1922, before this plea had been disposed of, the plaintiff voluntarily dismissed his action. There was never any traverse to the entry or return of service on the tort-feasor, Arthur Tufts. On May 29, 1922, the plaintiff brought a second action, called a renewal of the first, in the superior court of DeKalb county, against Mrs. Tufts,, as executrix. A copy of the first suit, and all orders and proceedings incident thereto, were set forth as exhibits to the second suit. The averments of each in respect to the transaction by reason of which the plaintiff claims damages were substantially as follows: That the defendant Arthur Tufts was an independent contractor, erecting a three-story building in the city of Atlanta; that the' plaintiff, Farris Threlkeld, a minor 16 years of age was employed by him on January 20, 1920, as a helper in the construction of the building; that on the third day thereafter the plaintiff was assigned by his employer to work upon the second floor, to see that the elevator which carried concrete thereto was properly emptied; that on this day, at about 12:25 p. m., the plaintiff was walking across the ground floor toward a column, for the purpose of climbing to the second floor to the work assigned to him, the column being provided .with a chain ladder for purpose; that the ground floor had been laid before the plaintiff was employed, and in it was a large square opening, 6x6 feet, which had been left as an elevator shaft, or shaft into which steps were to be built. This shaft had been covered over with paper, upon which dirt and water had fallen until it looked like a part of the floor. The plaintiff was not advised by any one of the presence of this opening, and in the exercise of ordinary care could not have discerned its existence; he had been working on the building only three days, was not there when the ground floor was constructed, did not know how it was constructed, and had not been warned of any pitfalls thereon; that on the day of his injury, as he was walking across this floor toward the column referred to above for the purpose of continuing his work on the second floor, he stepped on the flimsy paper which covered the shaft and fell through the same to the basement floor beneath, a distance of some 15 feet, suffering certain injuries which he describes and which are alleged to be permanent.
    It is alleged that the defendant was negligent in that he placed in the ground or first floor “a pitfall” as described above, “which was dangerous in its character, and covered same over with paper, causing it to look like the surrounding floor, and negligently failed to advise petitioner of its presence;” that the defendant was further negligent “in that he failed to provide a reasonably safe place for petitioner to perform his work, and.it is here alleged that said place was not a reasonably safe place, because of the pitfall he had caused to be placed therein, without notice to petitioner; and it is here shown that petitioner did not have equal means with the master of knowing or of ascertaining that said pitfall was there or that the place at which he worked and was injured was not a reasonably safe place for him to work and perform his duties.” Damages were claimed in the sum of $25,000.
    The defendant interposed a general demurrer, and also a special demurrer to the. language of paragraph 16, which is shown in the last quotation above, upon the ground that it does not affirmatively allege any facts showing why the plaintiff did not have equal means with the defendant of knowing of the conditions which resulted in his injuries, and that this averment is a mere conclusion of the pleader. The demurrers were overruled and the defendant excepted. '

      Westmoreland & Smith, for plaintiff in error.

      Arminius Wright, contra.
   Bell, J.

(After stating the foregoing facts.)

We cannot agree with the position taken by the plaintiff in error that there was never a valid pending suit in the city court of Atlanta. An action was pending there at the death of the tortfeasor, with an entry of service regular upon its face. This entry was never traversed, and implied that the defendant was a resident of the county of Fulton, as the petition had alleged. It was proper thereafter in due season to make the executrix of the tort-feasor a party defendant in his stead. Her plea to the jurisdiction, on the ground of her non-residence and that of the tort-feasor, would have been properly disregarded in the absence of a traverse of. the entry. The necessity of such a traverse in connection with a plea to the jurisdiction like that here involved has been recently discussed by this court in Williams v. Atlanta National Bank, 31 Ga. App. 212 (120 S. E. 658). Under the ruling then announced, it is the opinion of the court that the plea to the jurisdiction now under consideration amounted to nothing. Thus the action was a subsisting and pending suit, unaffected by the death of the tortfeasor, until it was voluntarily dismissed by the plaintiff on May 26, 1922.

The question next arising is whether such voluntary dismissal subjected the plaintiff’s case to abatement on account of the previous death of the tort-feasor? Shall the renewal of the action be treated as an original suit and the plaintiff be dealt with as if no action had been pending at the time of the death of the tortfeasor? Did the plaintiff, by dismissing Ms first suit, lose the advantage of its pendency, which would have prevented an abatement with the death of the wrongdoer? The plaintiff’s cause of action would have abated at common law, but this rule has been modified in this State by legislative enactments, contained now in the Civil Code (1910), §4421, which section provides as follows: “No action for a tort shall abate by the death of either party, where the wrong-doer received any benefit from the tort complained of; nor shall any action for the recovery of damages for homicide, injury to person, or injury to property abate by the death of either party; but such cause of action, in case of the death of the plaintiff, shall, in the event there is no right of survivorship in any other person, survive to the personal representative of the deceased plaintiff, and in case of the death of the defendant shall survive against said defendant’s personal representative.” It has been repeatedly held by the Supreme Court and this court that this section is applicable only to actions pending at the time of the death of the defendant. See Callaway v. Livingston, 28 Ga. App. 453 (111 S. E. 742), and cases cited. Was the second suit a continuation of that action? A similar question was decided by this court (though by a divided bench) in Sewell v. Atkinson, supra, in which Judge Russell, speaking for the majority, said: “At common law a cause of action for a personal tort abated with the death of the person in whom the right of action was vested. The General Assembly, in varying the rule of the common law, evidently intended to prevent the abatement of actions for personal injuries, pending at the time of the death of either party, and expressly declared that in ease of the death of a plaintiff in such an action the 'cause of action’ shall survive to the personal representative of the deceased plaintiff, if there is no right of survivorship in any other person. Civil Code, § 4421. This rule in derogation of the common law must of course be construed strictly, but the intention of the legislature must nevertheless be given effect, and it must be presumed that the use by the General Assembly of the term 'cause of action/ in the exception' as to pending actions, was not unintentional or ill-advised.” In that case the action was against the receiver of a railroad company, for damages on account of the homicide of the plaintiff’s son. The plaintiff died a few months thereafter, and her administrator was subsequently made a party plaintiff in her stead. Later the plaintiff administrator dismissed the action, to a renewal of which the defendant demurred upon the ground that any rights which the plaintiff had as administrator in connection with the suit formerly brought by the plaintiff’s intestate terminated when the plaintiff voluntarily dismissed the previous action. This court affirmed the overruling of the demurrer.

While the language employed in that case in reference to the meaning of the phrase “cause of action” as contained in section 4421 of the Civil Code is apparently in conflict with an expression by the Supreme Court in Frazier v. Georgia R. &c. Co., 101 Ga. 77 (28 S. E. 662), wherein it was said: “The words 'cause of action . . shall . . survive to the personal representative of the deceased plaintiff/ construed in the light of the title of the act and of the phraseology of the act itself, mean, in our opinion, that the action, rather than the cause of action shall survive,” we think the conflict is merely apparent an‘d not real, and that the correct result was reached in the BeweTl case. Judge Bussell was holding that where the action has once been properly instituted, the cause of action will not thereafter abate by the death of either party if a new party plaintiff or defendant is made, though the suit is subsequently dismissed; while the language of the Supreme Court in the Frazier case was merely to the effect that the cause of action could not survive unless a suit had been filed before the death of the tort-feasor. Thus there is no inconsistency between the two decisions.

When the plaintiff in the case now before us had succeeded in filing the former suit and procuring its service upon the defendant before his death, the danger of abatement by the death of the tort feasor was passed, provided a new party defendant was properly made. When thereafter the defendant’s executrix was made a party in his stead, the right to continue the action (assuming a cause of action was alleged) became fixed. If the plaintiff had been nonsuited, we see no reason why the action might not thereafter have been renewed as in other instances. Similarly, the suit could be voluntarily dismissed with the right of renewal at any time within the statute of limitations. “Unless the bar of the statute of limitations would attach but for the renewal of ,the suit within six months, and until the action is barred by the statute of limitations, it is within the power of a plaintiff, at his ovm option, to dismiss his suit and recommence it as often as he chooses, subject only to liability for the cost in case he desires to renew the action.” Poplarville Sawmill Co. v. Driver, 17 Ga. App. 674 (1) (88 S. E. 36). The pendency of the suit at the time of the death of the defendant, with proper service, and the making of the defendant’s personal representative a party in his stead, kept the action alive. Its subsequent dismissal was then unaffected by the death of the tort-feasor. To hold that the action could not be renewed would be the same thing as saying that it abated not because of the death of the original defendant but because of its dismissal; and a voluntary dismissal will not ordinarily abate or destroy the cause of action.

Though the plaintiff has made certain averments appropriate to an action recommenced under section 4381 of the Civil Code, within six months after a prior dismissal, thus possibly indicating his belief that the renewed action would otherwise have been barred, we think this section is in no wise applicable and that such averments may be treated as surplusage. The right of action would not have been barred by the statute of limitations until the lapse of two years from the plaintiff’s majority. Under this section the second suit need not be identical in form with the first, nor tire same as to parties, though it must be for substantially the same cause of action. Cox v. Strickland, 120 Ga. 104 (5, 6) (47 S. E. 912, 1 Ann. Cas. 870). At common law a second action to be identical with the first must, besides possessing other requisites, be brought in the same court, but this rule does not prevail in this State. See Cox v. Strickland, supra. Thus we are not concerned with the question as to whether a renewal of a suit under section 4381 is to be considered identical with the first, nor are we to be governed by the rule prevailing at common law in determining the identity of the two actions. The present action was not renewed under section 4381, but under section 5625. In this section it is required that on dismissal of the plaintiff’s case, he may recommence it on the payment of costs. If the plaintiff had not paid the costs of the first suit before commencing the second, and if a plea in abatement had been filed on that ground, it would undoubtedly have been held that the second action was abatable for the failure to pay the costs, on the idea that the suits were identical. Doody Co. v. Jeffcoat, 127 Ga. 301 (1) (56 S. E. 421); Moore v. Bower, 6 Ga. App. 450 (4) (65 S. E. 328); Holmes v. Huguley, 136 Ga. 758 (1) (72 S. E. 38). The cause of action and the parties were the same, the executrix being considered the same as the original defendant. Moody v. Threlkeld, 13 Ga. 55 (5).

It would seem that if the parties are the same and the cause of action the same, the two cases are identical though they were brought in different courts, except perhaps when one was in the State and the other in the Federal court, or vice versa. See Perry v. Constitution Pub. Co., 17 Ga. App. 80 (4) (86 S. E. 93). If the renewal action could have been held subject to a plea in’abatement for nonpayment of costs in the prior suit if the plaintiff had failed to pay the same, on the ground that the actions were identical, we think that the second must also be treated as a mere continuation of the first, for the purpose of determining the question of abatement on account of the death of the tort-feasor. The second action was not a new and distinct suit, but actually a renewal of the first one.

In our opinion the court did not err in overruling the demurrer on the ground that the plaintiff’s cause of action had abated. No question as to the jurisdiction of the superior court of DeKalb county where the second suit was filed has been raised! The petition alleges that this was the county of the residence of the executrix, as did she in her plea to the jurisdiction to the first suit. She was suable in the county of her own residence without regard to the residence of the decedent whose estate she represented. Long v. Stanford, 135 Ga. 823 (70 S. E. 645); Lively v. Ward, 23 Ga. App. 805, 807 (99 S. E. 632).

We come now to the question whether or not the averments of. the suit would show an original cause of action. It is true that a servant over 14 years of age is presumptively chargeable with the same degree of diligence for his own safety as an adult engaged in the same work. Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (1) (94 S. E. 821); Civil Code (1910), § 3474; Central R. Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952); Evans v. Josephine Mills, 119 Ga. 448 (6) (46 S. E. 674); Texas Co. v. Hearn, 23 Ga. App. 408 (1) (98 S. E. 419). It is true also that if a danger is obvious and as easily known to the servant as to the master, the latter will not be liablé for a failure to warn. Crown Colton Mills v. McNally, 123 Ga. 35 (3) (51 S. E. 13); Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429); Hamby v. Union Paper Mills Co., 110 Ga. 1 (35 S. E. 297); Stubbs v. Atlanta Oil Mills, 92 Ga. 495 (17 S. E. 746); Cartledge v. Pierpont Mfg. Co., 120 Ga. 221 (47 S. E. 586); Hoyle v. Excelsior Laundry Co., 95 Ga. 34 (21 S. E. 1001); White v. Kennon, 83 Ga. 343 (9 S. E. 1082). But if there are latent defects incident to an employment, unknown to a servant, of which the master knows or ought to know, he is bound to give the servant warning in respect thereto. Civil Code (1910), § 3130. In the. absence of anything to suggest that the place where he is working is dangerous, the servant has the right to rely upon the performance by the master of the duty to furnish him a reasonably safe place and to properly inspect it and preserve such safety. City of Atlanta v. Trussell, 21 Ga. App. 340 (3) (94 S. E. 649); International Cotton Mills v. Carroll, 22 Ga. App. 26 (1) (95 S. E. 472). The plaintiff alleges that he had been working for the defendant only three days, and that the shaft or hole in the ground floor had been covered over with paper upon which dirt and water had fallen until it looked like a part of the floor. In paragraph 16 of the petition it is alleged that the defendant was negligent, in that he “covered same over with paper” causing it to look like the surrounding floor, and negligently failed to advise petitioner of its presence. We think these averments sufficiently alleged a latent danger of which, taking the averments to be true as must be done upon demurrer, the plaintiff was entitled to be warned. It does not appear that the dangers were obvious and as easily known to the servant as to the master. It cannot be held as a matter of law from the plaintiff’s allegations that he was not at the time engaged in the service of his master and within the scope of his employment. He says he was going across the first or ground floor to the column for the purpose of ascending upon a chain ladder to the second floor where he worked, the ladder being designed for that use. He was upon the premises of his master and apparently engaged in doing what he was expected to do. He had to get to the second floor somehow, and he had to come upon the premises to do so. It does not appear that he was out of the path of duty, nor is the rule here pertinent, as laid down in Byrd v. Thompson, 146 Ga. 300 (4) (91 S. E. 100), and in a number of other decisions by the Supreme Court and by this court, that the law declaring the duty of a master in regard to furnishing a servant a safe place to work is not ordinarily to be applied where the place is constantly changing by reason of the very work which the servant is employed to perform. According to the petition the first floor had been constructed. The plaintiff was not engaged in the construction of the shaft, nor in doing any work that in its progress changed the character for safety of the place in which his work was performed as the work progressed. In so far as the shaft was concerned, the risk was not one which he assumed in his employment. “The general rule in regard to the duty of the master to furnish a safe place to work is not rendered inapplicable merely because the servant was engaged in construction work, and that at the time of the injury the object being constructed was in an unfinished state, to some extent changing from day to day. If it were otherwise, it would be difficult to find a case where, a workman was engaged in performing labor for a master where the rule would apply. Practically all labor normally tends to change the condition of the thing labored upon; otherwise it would be useless.” Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390, 394 (112 S. E. 374). We think the decision of the Supreme Court in the case just cited would be applicable to the facts now before us, and that the allegations of the petition bring the case within the general rule regarding the duty of the master in furnishing the servant a safe place to work.

This case is unlike that of Naylor v. Chickamauga Quarry &c. Co., 19 Ga. App. 714 (91 S. E. 1063), in which the plaintiff was injured by stepping “upon a forty-penny nail sticking through a piece of board lying with its point upward on the concrete floor.” “A piece of paper about four inches wide and five inches long had blown up against the nail and board, so that, coming upon it from the direction from which the plaintiff came, he could not see the nail or board, but it was apparent from the other side." A nail sticking through a board was a thing likely to be found in a building in the course of construction, and was an ordinary risk of the employment. The only reason it was not visible both to the master and the servant was the fact that a pi'ece of paper had blown against it and covered it. It appeared affirmatively from the petition that the plaintiff had equal means with his master of knowing of the danger. The case is also easily distinguishable from that of Terry v. Thompson, 22 Ga. App. 406 (95 S. E. 1010).

There was no merit in the special demurrer. In a suit by a servant against a master, the petition should plainly and distinctly set forth the elements necessary to a recovery. Legal results arising from the facts alleged may be pleaded in general terms or in the form of a legal conclusion. A petition so drawn is good against demurrer. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (1) (58 S. E. 524); Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (3) (64 S. E. 302); Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 (1) (86 S. E. 933). A conclusion in a pleading will be subject to special demurrer only where no facts are alleged in support of it, or the specific facts alleged will not warrant the inference which is drawn in the conclusion.

It was therefore permissible upon the facts pleaded for the plaintiff to aver by way.- of conclusion that he did not have equal means with the master of knowing of the danger which resulted in his injury.

We think that the petition sufficiently set forth a cause of action under the Civil Code, §§ 3130, 3131, and that the court did not err in overruling the demurrers.

Judgment affirmed.

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


text:
    14719.
    Tufts, executrix, v. Threlkeld.
    Decided December 10, 1923.
    Description of ease and names of counsel the same as in the next preceding case.
   Bell, J.

This case is controlled, by the decision this day rendered in Tufts V. Tlvrelheld, ante, 452.

Judgment affirmed.

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


text:
    14727.
    BUHLER v. COHN.
    Upon a negligent injury to a minor, entailing expense of medical services, medicines, nursing, etc., tlie right of action for the recovery of such expense is ordinarily in the father; and such right is not divested merely because he may not be financially able at the time of the injury to provide those things for the minor which are needed as a result N thereof. The present action by the mother, to recover for such expense incurred and defrayed by her for no other reason than the financial inability of the father, was subject to the general demurrer interposed.
    Decided December 10, 1923.
    Action for damages; from Muscogee superior court—Judge Munro. May 21, 1923.

      Thomas E. Shanks, Paul Blanchard, for plaintiff.

      Ed. Wohlwender, McCutchen & Bowden, for defendant.
   Bell, J.

Mrs. Sadie Loeb Buhler, a married woman, brought a suit against Ephriam Cohn, alleging in substance that the defendant had negligently injured the plaintiff’s daughter, and that as a result thereof certain necessary expenses for medicines, doctors, nurses, and hospital had been incurred, which the plaintiff had defrayed out of her separate estate. She alleged that the child’s father, her husband, because of his financial condition existing at the time of the injury, “was not able to furnish the means for the necessary treatment and maintenance of the said child, and that she was able to expend the funds necessary for her treatment and maintenance, and that she did so out of her own separate estate.” The petition was dismissed upon a general demurrer, and the plaintiff excepted.

The right of action for a tort to a minor ordinarily is vested in the father. The defendant in error rests his case upon the doctrine laid down in Southern Railway Co. v. King, 126 Ga. 794 (1) (55 S. E. 965, 8 L. R. A. (N. S.) 544). In that case it appeared that a father and his daughter were injured in a railroad accident, and that the father died about an hour thereafter. The court held that upon the injury of the daughter the right of action accrued to the father, and that when he died an appreciable time afterwards, with no suit for the injuries to the daughter commenced by him, the cause of action abated. It is sought by the plaintiff to bring her case within section 3021 (3) of the Civil Code (1910), which provides that the parental authority of the father is lost by his failure to provide necessaries for the child. In the King case, supra, the Supreme Court said: “It is also sought to bring the case within the rule that, where a wife is living separate from her husband, who has abandoned her and a minor child, and she has the active care and custody of it, she is entitled to maintain an action for injuries negligently inflicted upon it. But it has been expressly held that this rule applies only to injuries inflicted upon the child after the separation took place, and by reason of which she is deprived of its services. Savannah, F. & W. Ry. Co. v. Smith, 93 Ga. 742; Amos v. Atlanta R. Co., 104 Ga. 809, 814; Civil Code (1895), § 2475.”

Similarfy, it should be said of the case at bar that the father does not lose his right of action for a tort to his child, unless before the injury he shall have forfeited his parental power by the failure to provide it with the necessaries of life. If a mere financial inability on the part of the father to provide the necessaries for his child would result in the forfeiture of his right to sue for an injury to it while it is still in his custody, then the action of many a father for such cause would be in peril of defeat because of his worldly circumstances. We do not think that the provisions of the code-section above referred to contemplated the possibility of such a defense. Furthermore, the plaintiff’s petition in this case does not allege that the father did not furnish the necessaries to the child prior to or at the time of the injury, but merely that lie was unable to- defray the extraordinary expense resulting from the injury. We think it apparent, from the averments of the petition, that the right of action for the injuries to the child in this ease was vested in the father, and that the expense which was caused by the injury was an item recoverable by him and not by his wife. The burden of supplying those things which were needed by the child as a result of the injury was placed upon the father. This was a part of his damage. The damage -under the law was to him, and not to the mother. Notwithstanding her assumption of the burden was impelled by motives deserving of the highest commendation, legally speaking and relatively to the defendant such burden was voluntarily assumed. The judgment of the lower court in dismissing the petition is regretfully affirmed.

Judgment affirmed.

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