text:
    15332.
    ATLANTIC COAST LINE RAILROAD COMPANY v. INABINETTE.
    1. A declaration is bad for duplicity when it contains in the same count more than one fact or set of facts for the recovery of a single demand, any one of which would justify the recovery; but the mere diversity of facts set up in the count will not render it double when the facts are united as a whole, and when, taken together, they tend to the statement of one point or ground of recovery. In this case, according to the petition, the various facts, or “set of facts,” for which the plaintiff claims damages in a single count, occurred upon a single visit by the defendant’s agent to her home. The several acts were committed under color of the same search warrant. They were continuous and bound together with a common intent, forming one entire transaction and constituting but one wrong. If facts alleged in a declaration all go. to make up but one complete result and require but one answer, there is no duplicity.
    2. The petition was not subject to demurrer either upon the ground that it contained a misjoinder of actions for a tort to the plaintiff and a tort to her husband, or upon the ground that she sues for injuries or wrongs to her husband for which he alone has a right of action.
    3. The allegations as to the possession of the search warrant by the defendant’s agent and his holding the same until the police officers demanded that it either be executed or surrendered, and as to his conduct at its execution, were not irrelevant, but were illustrative of the malicious intent with which it was alleged he acted.
    4. In an action for the malicious abuse of legal process, it is unnecessary to allege a want of probable cause; but, assuming that as to other facts set up in the petition it was necessary to negative the existence thereof, this was sufficiently done as against a general demurrer.
    Decided April 24, 1924.
    Action for damages; from Chatham superior court — Judge Meldrim. December 10, 1923.

      Lawrence & Abrahams, F. B. Youngblood,.for plaintiff in error.

      Oliver & Oliver, contra.
   Bell, J.

This was an action for damages based upon acts of the defendant’s agent, alleged to have been committed by him within the scope of his authority. It was alleged that during the absence of the plaintiff’s husband and while she was at home alone, such agent, who had sworn out a search warrant against her husband, came upon the premises “in company with two police officers of the city of Savannah, for the ostensible purpose of executing the said warrant; but the real purpose was to commit a wrong, outrage, and tort upon petitioner’s husband and upon herself. The said Barnes [the defendant’s agent whose acts are complained of] knowingly chose the time when petitioner’s husband would be absent from borne, and she would be without protection and powerless to resist his wrongful, malicious, and outrageous conduct.” The thing described in the search warrant was á certain dress. The transaction of which the plaintiff complains is set forth in the petition at great length and in much detail, but, as suggested by the plaintiff in error, the nature and gist of the action are stated in the 7th and 22d paragraphs, which are as follows: (7) “The defendant’s agent as aforesaid, taking advantage of the known absence of petitioner’s husband, on the 10th day of January, 1923, committed various trespasses upon petitioner, and upon her rights, in that he did wrongfully and without warrant invade the privacy of her bedroom and of her person, and at the same time committed a wrongful search of petitioner’s personal belongings without a warrant; committed a wrongful and unlawful seizure of petitioner’s personal belongings, without a warrant; subjected petitioner to false imprisonment, arrest, and unlawful restraint without a warrant; committed a wrong and tort upon petitioner by exceeding the- authority of an alleged search warrant, which he claimed to have to search the premises of petitioner’s husband in search of 'one tricolette dress, gray, with fringe on over the skirt, and waist worked in silk,’ alleged to have been stolen from the Atlantic Coast Line Eailroad Company, and further committed a tort upon petitioner’s rights by committing a malicious abuse of legal process, maliciously and without probable cause, as hereinafter shown. And the defendant company did commit further wrongs and torts upon petitioner in the manner and conduct of executing said search warrant and in the unnecessary, wrongful, and wilful humiliation of petitioner while said search was being conducted.” (22) “1. The defendants have made an unlawful search of petitioner’s property and personal effects and have violated petitioner’s constitutional rights. 2. The defendants have violated petitioner’s constitutional rights in unlawfully seizing and carrying away personal and private property and effects which were not described in said warrant, and to which the defendants had no right of access or of seizure. 3. The defendants, in invading the privacy of her bedroom, her private bureau drawers, her private closet, and her private trunk, have committed a trespass vi et armis upon petitioner. 4. The defendants are guilty of a violation of petitioner’s rights .in that they exceeded the authority conferred by. said search warrant. 5. The defendants have inflicted wrong and damage upon petitioner in that they have been guilty of malicious abuse of legal process, without probable cause, the pretended warrant having been a mere pretext of obtaining an entry into petitioner’s premises, thereby permitting defendants to engage in malicious conduct. 6. The defendants are guilty of false arrest committed upon petitioner, for the reason that the said Barnes, defendant company’s agent, would not permit her full and free liberty of action, but held her under restraint and false imprisonment, in that the defendants would not permit petitioner to have the privacy of her room in order that she might dress, but compelled her to remain in said room in a state of undress, would not permit her to leave the room, would not give her free liberty of action or of motion, but compelled her to remain under his espionage and control, thus restraining her of her liberty and inflicting upon her great humiliation, mortification and distress, and great mental anguish. 7. The defendants have committed a breach of petitioner’s rights in that the defendants seized petitioner’s handbag, containing articles of her own personal property, which handbag was not described in said warrant, and without petitioner’s consent, and over her protest, and while she was under false arrest, sought to open petitioner’s handbag and was in the act of making an unlawful search thereof when the police officer of the city stopped him. Petitioner charges that the mere act of taking her personal property, opening the same, and exposing its contents to view is a breach of her personal rights and liberty, for which the defendant company is liable in damages.”

The case is here upon exceptions to the judgment of the trial court in overruling certain grounds of the defendant’s demurrer, the first ground of which was that the petition was duplicitous:

(а) in that it joins in one count various actions for trespass, to wit: seizure of plaintiff’s property without a warrant; a search of plaintiff’s premises in excess of the authority contained in the search warrant; false arrest of plaintiff; wrongful search of plaintiff’s property and an action for malicious abuse of process;

(б) in that it joins in one count actions for a trespass to plaintiff and a trespass to her husband, and an action for malicious abuse of process upon himself [herself] and an action for malicious abuse of process upon her husband. Other grounds of the demurrer were: misjoinder of an action for tort to the plaintiff with an action for a tort to her husband; plaintiff sues for wrongs to her husband for which she has no right of action; and that it is not alleged that the warrant issued without probable cause, and no cause of action is set forth.

It is not insisted that the petition, which contains but a single count, is duplicitous in the sense that it attempts to set up liability resting upon inconsistent theories, or that the allegations are in themselves contradictory (Warfield v. Sanburn, 9 Ga. App. 321, 71 S. E. 703; Central of Georgia Ry. Co. v. Prior, 142 Ga. 536 (1), 83 S. E. 117; Pitts v. Smith, 108 Ga. 37, 33 S. E. 814; Seifert v. Sheppard, 111 Ga. 814 (1), 35 S. E. 673; King v. Southern Ry. Co., 128 Ga. 285, 57 S. E. 507), but in the sense that the count is double in that it joins different grounds of action to enforce a single right of recovery. Gainesville &c. Ry. Co. v. Austin, 122 Ga. 823 (1) (50 S. E. 983). A declaration is bad for duplicity when it contains in the same count more than one fact or set of facts for the recovery of a single demand, any one of which would justify the recovery; but the mere diversity of facts set up in the count will not render it double when the facts are united as a whole, and when, taken together, they tend to the statement of one point or ground of recovery.

In this case, according to the petition, the various facts, or “set of facts,” for which the plaintiff in a single count claims damages, occurred upon a single visit by the defendant’s agent to her home. The several acts were committed under color of the same search warrant. They were continuous and bound together with a common intent, forming one entire transaction and constituting but one wrong. If facts alleged in a declaration all go to make up but one complete result and require but one answer, there is no duplicity. Flynn v. Staples, 34 App. D. C. 92 (27 L. R. A. (N. S.) 792 (2)). “It is important to remember that several distinct facts or allegations, however numerous, may be comprised in the same plea, or other pleading, without amounting to the fault of duplicity, if one fact, or some of the facts, be but dependent upon,* or be mere inductment or introduction to, the others, or if the different facts form together but one connected proposition, or entire matter or point.” Ohitty on Pleading, yol. 1' (1st ed.), 249. The plaintiff does not allege any act as a separate cause of action. Kirk v. Seattle Electric Co., 58 Wash. 283 (1) (108 Pac. 604, 31 L. R. A. (N. S.) 991). Even to allege in a single count several kinds of damages resulting from a single wrongful act is not duplicity; and where a single transaction is relied on by the plaintiff the complaint is not double, even though the facts alleged show (without an effort to enforce) a liability both in contract and in tort, while, of course, a separate cause of action in contract cannot be joined with a separate cause of action in tort. 31 Cye. 119.

“The test of whether more than one cause of action is stated in a complaint is whether there is more than one distinct primary right or subject of controversy presented for enforcement or adjudication, and not whether there are different kinds of relief prayed or objects sought. In applying this test it is to be observed that, without giving rise to more than one cause of action, plaintiff’s primary right and defendant’s infringement thereof, which taken together constitute the cause of action, may each be very complicated, and may involve a number of subordinate rights or incidental matters. In determining this question regard should be had to the substance rather than to the form of the complaint, for a complaint may in fact state different causes of action, although they are stated in the form of one, or it may state but one cause of action, although it is stated in the form of several.” 1. C. J. 1055, § 190. See also Emerson v. Nash, 124 Wis. 369 (70 L. R. A. 326, 109 Am. St. Rep. 944). “The same legal right may be more than once violated, and each violation may give rise to a new and distinct cause of action. But a wrong cannot in a legal sense be a violation of more than one right. The same act may violate any number of rights, but each such violation would constitute a different wrong. If such violations [or] wrongs are distinct and separate,' even though resulting from the same act, they would give rise to different causes of action; but from a single wrong but one cause of action can arise. So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action. Courts will look to the allegations both as to the primary right of the plaintiff and the corresponding primary duty of the defendant, and as to the violation or breach thereof, in order to determine whether it is the intention to plead but a single wrong only, or more than one. A single wrong may, however, be composed of numerous elements and shown by various facts. Facts, alone or in conjunction with purely substantive law, do not give a right of action, but are alleged in order to show a wrong which has called into operation the remedial law- which gives the right of action. The facts are' merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. ‘The thing which in contemplation of law as its cause becomes a ground for action is not the group of facts alleged in a declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if -true, they conclusively evince.’ Sibley, Right to and Cause for Action, 48. Different facts may be alleged, separately or cumulatively, to show the same wrong, and the number and variety of the facts alleged will not malee more than one cause of action, so long as but one wrong is shown. A single wrong will not be made plural by alleging that it is made up of a number of constituent parts.” City of Columbus v. Anglin, 120 Ga. 785 (5), 791 (48 S. E. 320).

“The set of facts” upon which the plaintiff relied in this case was such as to fall within the meaning of that phrase as used in the decision of the Supreme Court in Orr v. Cooledge, 117 Ga. 195 (3), 205 (43 S. E. 527), and the case is unlike that of Colquitt v. Georgia Railway & Power Co., 146 Ga. 249 (91 S. E. 70), wherein the petition was held to be subject to a special demurrer on the ground that there was an attempt to join several distinct causes of action in one count.

Thus we hold that the petition was not duplicitous for setting forth more than one cause of action in a single count.

The petition was not subject to the demurrer either upon the ground that it contained a misjoinder of actions for a tort to the plaintiff and a tort to her husband, or upon the ground that she sues for injuries or wrongs to her husband for which he alone has a right of action. While the petition may show a cause of action in favor of the husband, the same is set forth only by way of inducement and is merely descriptive of the cause of action in favor of the plaintiff wife. She does not seek to recover for any injury to her husband, but only for the wrong to herself.

In the 8th paragraph of the petition it is alleged that the defendant’s agent, after procuring the issuance of the search warrant, nevertheless “from time to time failed and refused to execute the same, knowing that said search warrant was a mere pretext, and that there was no stolen property upon petitioner’s premises. But finally, when the police officers of the city of Savannah required that the warrant should be executed or surrendered,” he then proceeded therewith in the manner set forth in the petition. In two grounds of the demurrer it is insisted that these averments as to the possession and execution of the search warrant and the demand of the police officers of the city of Savannah for its execution are irrelevant, as are also those relating to the conduct of the defendant’s agent as to the execution thereof, it not being shown that he was a police officer or had anything to do with the execution of the warrant. The averments were all relevant as illustrating the malicious intent with which, the complainant alleges, Barnes acted in procuring not only the issuance of the warrant but also its execution.

The only reason urged in the brief of the attorneys for the plaintiff in error why the petition does not set forth a cause of action is that it fails to allege want of probable cause. The counsel point out that the only allegations as to the want of probable cause are contained in subsection 5 of paragraph 22, which is as follows: “The defendants have inflicted wrong and damage'upon petitioner in that they have been guilty of malicious abuse of legal process, without probable cause, the pretended warrant having been a mere pretext of obtaining an entry into petitioner’s premises, thereby permitting defendants to engage in malicious conduct.” It is contended that this is merely the statement of a conclusion, and not a statement of fact. Perhaps this is so, but the demurrer does not make that objection. There is no special demurrer attacking any part of the petition as a conclusion.

As stated above, all that was done appears from the petition to have been done under color of the search warrant. One ingredient (if not the gravamen, with other things as mere incidents) of the cause of action is the malicious abuse of legal process, which arises where a legal process has been employed for some object other than that which it was intended by law to effect. In such an action it is .not necessary to allege want of probable cause. Porter v. Johnson, 96 Ga. 145 (1), 147 (23 S. E. 123); King v. Yarbray, 136 Ga. 212 (1) (71 S. E. 131). Irrespective, therefore, of whether the averment of a want of probable cause was necessary as to other facts alleged to constitute the cause of action relied on, the petition was not subject to general demurrer for the reason urged,.even assuming that it should be construed as failing to allege a want of probable cause.

But we find also in paragraph 7 an allegation of the want of probable cause. Again, in paragraph 8 it is averred in effect that the defendant’s agent -knew that the dress alleged to have been stolen was not upon the plaintiff’s premises at the time he procured the warrant to be executed. So if it be true that it was necessary for the petition to negative the existence of probable cause, we think it sufficiently did so as against the general demurrer.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15356.
    Williams v. Baggs Auto Co.
   Bell, J.

1. Where the plaintiff in a suit is a corporation, and its name is changed hy law pending the action, it is permissible for the court to allow an amendment to the petition, alleging that fact and praying that the suit may proceed in the plaintiff’s new name. Atlantic Coast Line Railroad Co. v. Wayeross Light &c. Co., 123 Ga. 613 (3) (51 S. E. 621).

2. It is not essential to the validity of a money verdict in a trover action, where the plaintiff does not so elect, that it shall provide for the making of the money out of the property. In an action of trover, where the plaintiff is entitled to a verdict, it is optional with him whether he will accept an alternative verdict for the property or its value, or whether he will demand a money verdict for damages alone, or some other form of verdict as allowed by law. See Civil Code (1910), § 5930; Drury v. Holmes, 145 Ga. 558 (89 S. E. 487).

3. In the brief for the plaintiff in error the statement is made that the property sued for was destroyed by fire while in the custody of the sheriff under the bail process. This fact, however, does not appear in the record, and no decision can be made in reference thereto, as was done in the case of City of Jeffersonville v. Cotton States Belting Co., 30 Ga. App. 470 (11) (118 S. E. 442).

4. While it is true that, ordinarily, where a vendor has taken notes for the purchase-price of personalty and has reserved title in himself until full payment of the purchase-price, he cannot in an action of trover for the property, after a default in payment, recover the value of the property from the vendee until the notes have been delivered up to him or sufficiently accounted for, so that the vendee will incur no further risk of liability thereon (Smith v. Commercial Credit Co., 28 Ga. App. 403 (4), 111 S. E. 821; Securities Trust Co. v. Marshall, 30 Ga. App. 379 (7), 118 S. E. 478), yet it is not necessary that it should appear that the vendor offered to surrender up the writings which contained the evidence of his title to the property, or of the obligation of the vendee to pay therefor, before bringing the suit in trover. Venable v. Young, 137 Ga. 375 (3) (73 S. E. 633). A failure to surrender such writings before suit, or even the omission to do so upon the trial, wo'uld not render them inadmissible in evidence, although, as stated above, such failure at the trial might affect the plaintiff’s right to recover. There is no assignment, however, in this case, that the verdict was illegal for this reason. There was no merit in any of the demurrers.

Decided April 24, 1924.

Trover; from city court of Atlanta — Judge Keid. December 14, 1923.

5. Where the title of a plaintiff in trover is held by him as security for purchase-money or other debt, and he elects to take a money verdict, he is entitled to recover either the highest value of the property between the date of the conversion and the date of the trial, or the value of the property at the date of the conversion with interest thereon, subject, however, to the condition that under neither choice can he recover more than the amount of the debt for which the property stands as security. Elder v. Woodruff Hardware Co., 9 Ga. App. 484 (71 S. E. 806); Jones v. May, 27 Ga. App. 152 (107 S. E. 897).

6. It has been repeatedly held that as between the original seller and the original purchaser the agreed price as stated in the contract of sale is prima facie, but not conclusive, evidence of the actual value of the property, and that upon proof of the contract, in the absence of rebutting testimony as to value, the plaintiff is entitled to recover the balance due thereon.

(a) The purchase-money notes were admissible as evidence of the balance due. Jones v. May, supra; Securities Trust Co. v. Marshall, supra.

7. The general rule that the plaintiff cannot recover an amount larger than he sues for, as shown by his pleadings, is applicable in trover cases. In a trover suit, where there is no specific ad damnum clause in the declaration, and the only prayer is for process, the amount of damages asked for will be construed to be the alleged value of the property sued for. Thus construing the petition in this case, the recovery could not legally exceed such alleged value, and to this no interest could be added. Pitts v. Bank of Shiloh, 20 Ga. App. 143 (2) (92 S. E. 775). Eor this reason, if for no other (see Drury v. Holmes, 145 Ga. 558, 89 S. E. 487), the verdict directed for the amount of the purchase-money notes with interest, which exceeded the alleged value of the property to the extent of such interest, was illegal; and the judgment of the trial court is reversed, unless at the time the remittitur from this court is made the judgment of the court below the plaintiff will write off from the verdict and judgment all excess thereof above the value of the property as alleged in the declaration, including interest. Should the plaintiff in the court below write off such excess the judgment is affirmed. See Drury v. Holmes, supra.

Judgment affirmed on condition.

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

Morris Macks, for plaintiff in error.

Billie B. Bush, contra.


text:
    15363.
    Bailey v. Kennett.
    Decided April 24, 1924.
   Bell, J.

1. The term of a court to which an attachment should be returnable is determined by the date of the issuance of the attachment, where it is followed by a timely seizure. There is no law in this State requiring the execution and return of the writ' to be made by the levying officer for any particular time before the return term specified in the writ. Where an attachment was issued on April 12, 1923, returnable to a term of the superior court convening on the third Monday in May thereafter, which was May 21, and a seizure was made and the writ returned by the levying officer on May 2, the May term was the return term of the proceeding. Civil Code (1910), §§ 5063, 5076, 5102, 5104; Varn v. Chapman, 137 Ga. 300 (2) (73 S. E. 507); Watters v. O’Neill, 151 Ga. 680 (108 S. E. 35); National Bank of Brunswick v. Pritchard, 4 Ga. App. 46 (3) (61 S. E. 841); Irvin v. Howard, 37 Ga. 19 (7).

(a) The court did not err in refusing to dismiss the attachment proceedings because the writ was not executed longer before the term specified in the attachment as the return term.

(b) The verdict and judgment for attorney’s fees were not illegal upon the sole ground urged, that the attachment writ was not duly returned to the May term of the court as specified in the notice given to the defendant under section 4252 of the Civil Code, in reference to such fees. The record does not raise the question as to whether such fees are recoverable where the plaintiff seeks only a judgment in rem.

2. Where, upon the death of the sheriff of the county of Monroe, the county commissioners of that county appointed another to serve temporarily and until a successor to the deceased sheriff' could be lawfully elected and qualified, and where the appointee made oath and gave bond for the faithful performance of his duties under the temporary appointment, his subsequent execution of an attachment by a seizure' was not invalid merely because he “had not received his commission from the Governor of the State of Georgia, but had only taken oath and given bond.” This is true irrespective of whether in such a case it is necessary for a commission to be issued by the Governor to the appointee in order to complete his qualification. Assuming that the qualification of the appointee was incomplete without such commission, his acts were yet valid as those of an officer de facto. Civil Code (1910), §§ 258, 277; Crawford v. Howard, 9 Ga. 314 (2); Gunn v. Tackett, 67 Ga. 725 (1); Stephens v. State, 106 Ga. 116 (2) (32 S. E. 13); Strickland v. Strickland, 24 Ga. App. 200 (1) (100 S. E. 230). It is not insisted that the vacancy was not filled temporarily by the proper, authorities. See Ga. L. 1872, p. 446; Civil Code of 1863, § 285 (5); Civil Code (1910), §§ 4904, 4976, 4978; Thorpe v. Butt, 106 Ga. 52 (31 S. E. 793).

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.

Attachment; from Monroe superior court — Judge Persons. January 12, 1924.

A. M. Zellner, for plaintiff in error.

Jones, Park & Johnston, A. Melrose Lamar, contra.


text:
    14161.
    SEABOARD AIR-LINE RAILWAY COMPANY v. WRIGHT, comptroller-general.
    1. Three items of a tax levy aggregating four mills, namely, “for court expense,” “salaries and commissions,” and “to pay any other lawful charge against the county,” were attacked upon the sole ground that such items in the aggregate exceeded “50 per cent, upon the amount of the State tax” (five mills) which the county authorities may levy for “county purposes,” under the Civil Code, § 508. Held: It does not appear from the levy itself whether these items or any of them should be classified only as a tax for “county purposes” under section 508, and not under section 507 as a tax for “current expenses”; this depending upon the nature of the expense. It follows that the affidavit of illegality did not show that the levy of the tax for these items was excessive upon the ground urged. “All presumptions are in favor of the legality and validity of a tax.”
    2. Over the objections of the defendant taxpayer the court erred in admitting testimony by the chairman of the board of county commissioners, that the three items stated above were in fact levied for the purpose of paying an amount of accumulated indebtedness; but since the legal result of the proceeding should have been the same if such evidence had been excluded, its admission was harmless.
    Decided April 25, 1924.
    Affidavit of illegality; from McIntosh superior court — Judge Sheppard. December 5, 1922.
    Certiorari was granted by the Supreme Court.

      Conyers & Wilcox, for plaintiff in error.

      Tyson & Tyson, contra.
   Bell, J.

A tax levy for McIntosh county contained among others the following items:

“3. Eor court expense, 1% mills.

“4. Salaries and commissions, 1 mill.

“8. Miscellaneous purposes, 1% mills.” (This item by a stipulation of the parties in the court below is to be considered as a levy “To pay any other lawful charge against the county,” as allowed by paragraph 9 of section 513 of the code.)

The Seaboard Air-Line Eailway Company paid all the taxes demanded of it under the levy except 1% mills. For this balance a fi. fa. was issued, and certain of its property was seized to satisfy the same. The defendant thereupon arrested the proceeding by an affidavit of illegality. The issue was submitted to the trial judge without the intervention of a jury. Upon the hearing he dismissed the affidavit of illegality, and the railway company excepted.

The sole ground.of illegality was as follows: “That items 3, 4, and 8; of the tax levy were excessive, because they amounted to 4 mills, which is 1 % mills in excess of 50 per cent, of the State tax for the year 1921. Said three items are items of general current expense of the county, and the board of commissioners of said county could not legally levy a tax for all of said purposes which aggregated more than 50 per cent, of the State tax levy for the same year. The excess of said levy over and above 50 per cent, of the State tax is therefore illegal.” As to the matter involved this court certified questions to the Supreme Court, for the answers to which see 157 Ga. 722 (122 S. E. 35).

“When debts have accumulated against the county, so that one hundred per cent, on the State tax, or the amount specially allowed by local law, cannot pay the current expenses of the county and the debt in one year, they shall be paid oil as rapidly as possible, at least twenty-five per cent, every year.” Civil Code (1910), § 507. “The ordinaries have power to raise a tax for county purposes, over and above the tax they are hereinbefore empowered to levy, and not to exceed fifty per cent, upon the amount of the State tax for the year it is levied: Provided, two thirds of the grand jury, at the first or spring term of tlieir respective counties, recommend such tax.” 'Civil Code (1910), § 508. The affidavit of illegality is construed as an attack on the three items of the levy, — namely, items 3, 4 and 8, upon the single ground that, being levied under authority of § 508, they exceeded by 1% mills the power of taxation therein conferred. Under the answers of the Supreme Court, each of the three items in question, the expense being lawfully incurred, may or may not be a tax for “current expenses” leviable under § 507, depending upon the nature of the expense. If the indebtedness of the county to be paid under such levies was “a part of the usual, ordinary annual expense o'f the county,” then they would be considered as taxes for “current expenses;” otherwise they would be classed only as a tax for “county purposes.”

Speaking solely with reference to the question raised by the affidavit, the validity of these items of the levy would depend upon whether they fall under §507 or §508. If either the third or the eighth item should fall under § 507, the levy would not be excessive even though the others were made solely under the authority of § 508. It does not affirmatively appear from the levy itself to which classification any one of these items belongs, nor therefore that the county commissioners exceeded their authority in making the levy, upon the ground that they had no power under § 508 to levy a tax for these items in excess of 50 per cent, of the State tax levied, which was 5 mills. “All presumptions are in favor of the -legality and validity of a tax.” Blalock v. Adams, 154 Ga. 326 (3). So the burden was on the defendant taxpayer to make good his contention that the items excepted to fell exclusively under § 508 of the Code and were thus in the aggregate excessive of the amount leviable for “county purposes” under that section, it not being contended that the tax was illegal for any other reason. The very language of the items in question would imply a levy for the ordinary “current expenses” of the county; and furthermore, nothing else appearing, it should be presumed that the commissioners were making provision for the annual current expenses rather than for a tax for a “county purpose” outside of the “usual, ordinary annual expense of the county,” and thus that they were acting under the authority not of § 508, but of § 507, in the levy of these items.

Over the objection of the defendant taxpayer, the court admitted oral testimony by the chairman of the board of county commissioners to the effect that all of the three items in question were levied in fact for the purpose of paying an amount of accumulated indebtedness, and this ruling is assigned as error. The legal purpose of this evidence seems to have been to show that such levies did not fall’within the class as to which § 508 placed a limitation of 50 per cent, additional upon the State tax rate. Under the rulings of the Supreme Court in response to the certified questions, the admission of this evidence was error, but since, in view of what we have said above, the legal result would have been the same had it been excluded, the error in its admission was harmless.

We conclude that the court did not err in rendering a judgment dismissing the affidavit of illegality and ordering that the fi. fa. proceed.

Judgment affirmed.

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


text:
    15033.
    Elberton & Eastern Railroad Co. v. Thornton.
   Bell, J.

1. Under the rule that, except where an act is made negligent by statute or ordinance, it is error for the judge to instruct the jury as to what would constitute negligence, the following charge was error: “Every person operating a locomotive must use his natural faculties of sight and hearing for the protection of persons and property that might be crossing the railroad-traclc at any public crossing; and I charge you that in exercising his faculties of sight and hearing he must observe them at places and under circumstances as would make them effective; the extent to which a person operating a locomotive at or near a public crossing must look and listen is measured by what a reasonably prudent man would do under the circumstances.” There is no statute in this State requiring an engineer to use his sense of hearing, nor to use even the sense of sight so as to make it effective. See Ga. L. 1918, p. 212. As a servant of the railroad company, he is only required to observe the statutory regulations and otherwise exercise ordinary care to avoid injury to persons and property at a public crossing, regardless of whether in doing so his precautions are effective. The question as to how far the engineer should make his sense of sight effective having been left to the jury to determine by the standard of a reasonably prudent man under the circumstances, and the statute requiring a “constant and vigilant lookout,” the charge upon that question was probably not erroneous, but this qualification could not have cured the error in telling the jury, as a matter of law, that the engineer should use his sense of hearing, whether effectively or not.

2. The judge would have further violated the rule stated in the beginning of paragraph 1 above, had he given the requested instructions set forth in special grounds 3, 4, and 5 of the defendant’s motion for a new trial, two of which are so clearly controlled by the ruling made above that they need not be stated. The other request sought an insí ruction that one operating an automobile bhall have it under such control in approaching a railroad-crossing that he “can stop it instantly.” The statute in force upon the subject at the time of the collision now in question required that in approaching such a crossing the person operating the automobile should only “have it under control and operate it at a speed not greater than six miles per hour.” S'ee Ga. L. 1910, p. 90, § 5. It would have been error for the judge to say in charge that ordinary care should have included the additional element of ability to stop it instantly. Davis v. Whitcomb, 30 Ga. App. 497 (5) (118 S. E. 488).

Decided April 25, 1924.

Action for damages; from Elbert superior court — Judge W. L. Hodges. September 14, 1923.

Z. B. Rogers, W. A. Slaton, for plaintiff in error.

Tutt & Brown, contra.

3. Again, in view of tlie rule stated in paragraph 1, but more especially in view of the provisions of the act of 1918, the court did not err in refusing a request to charge as follows: “Within the corporate limits of a city or town in this State a railroad company, instead of blowing the whistle of its locomotive as a signal of the approach of its trains to a street-crossing, may toll its bell; and if you should believe, under the evidence in this ease, that the railroad company either blew the whistle or tolled its bell, that would be a compliance with the requirements of this law, but if the whistle were blown it would- not be necessary to toll the bell, or if the bell were tolled it would not be necessary to blow the whistle.” See Ga. L. 1918, p. 212; Atlanta &c. R. Co. v. Pope, 9 Ga. App. 647 (3) (72 S. E. 63); Georgia Railroad v. Carr, 73 Ga. 557 (3).

4. “A specific charge which is legal and adjusted to a distinct matter in issue, involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other in- . structions given by the court.” Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49). There being some evidence to the effect that the automobile as it approached the crossing was being driven at a speed greater than six miles per hour, and the judge not having instructed the jury directly upon the subject of proximate cause, it was error to refuse a timely and applicable request, framed under the act of 1910, to charge as follows: “At the time this accident occurred any person driving an automobile was required, in approaching a railroad-crossing, to keep his automobile under control and- reduce its speed to not more than six miles per hour. If you believe that the plaintiff in this case or his agent, when approaching this railroad-crossing, did not have his automobile under control, or was driving the same at a speed of more than six miles per hour, that would be negligence per se, and if that negligence was the proximate cause of the injury sued for, the plaintiff would not be entitled to recover.” Hughes v. Atlanta Steel Co., 136 Ga. 511 (1) (71 S. E. 728, 36 L. R. A. (N. S.) 547, Ann. Cas. 1912C, 394); Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732); Georgia Ry. &c. Co. v. Reid, 26 Ga. App. 720 (2) (107 S. E. 100); Louisville & Nashville R. Co. v. Stafford, 146 Ga. 206 (1); (91 S. E. 29); Moody v. DuBois, 29 Ga. App. 652 (116 S. E. 219); Davis v. Whitcomb, 30 Ga. App. 497 (14) (118 S. E. 488).

Judgment reversed.

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


author: Jenkins, P. J.

text:
    15087.
    ATLANTIC COAST LINE RAILROAD COMPANY v. GRADY COUNTY et al.

    It appearing from the county tax levy itself that the items of ordinary “current expenses” plus the item for debts, which in terms included the “legal indebtedness of the county” due and past due at the time of the levy, did not exceed 100 per cent, of the State tax, the court did not err in dismissing the affidavit of illegality, in which the levy was attacked as exceeding the legal limit of taxation by the county authorities.
    Decided April 25, 1924.
    Affidavit of illegality of execution; from Grady superior court— Judge Custer. September 6, 1923.
    The exceptions are to .a judgment sustaining a demurrer to an affidavit of illegality, which was filed upon the levy by the comptroller-general of a tax-execution issued for the collection of taxes due Grady county for 1922. The complaining affiant attacks the tax levy of the county commissioners of roads and revenues, upon the ground that it amounts to $3.70 per thousand, that “said levy for general county purposes exceeds by $1.20 on the thousand 50 per cent, of the State tax of $5 per thousand for said year, and is to that extent illegal and void.” The levy consists of certain items for the compensation of sheriffs, jailors, other officers’ fees, coroners, bailiffs, nonresident witnesses in criminal cases, fuel, servant hire, stationery, jurors, and other current expenses. It appears from the tax levy, all of which is attached to the affidavit as an exhibit, that in addition to the items of ordinary “current expenses” aggregating 37 cents per $100, which are attacked, there is an item of “13 cents on each $100 worth of property to pay legal indebtedness of the county now due, past due, or to become due during the year;” and the levy recites that these items, “aggregating 5 mills, or 100 per cent, of the State'tax, are levied on recommendation of the grand jury.” The plaintiff in error contends that, under section 508 of the Civil Code (1910), the county authorities did not have the power to levy a tax for items constituting ordinary “current expenses” of the county in 'excess of 50 per cent, of the State tax levy, and that the excess tax complained of, based on the levy over and above such 50 per cent., is illegal.

      Pope & Bonnet, for plaintiff in error.

      M. L. Ledford, Jesse Gainey, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) The question raised by the affidavit of illegality in this case appears to be concluded by the recent ruling of the Supreme Court in Central of Ga. Ry. Co. v. Wright, 156 Ga. 13 (118 S. E. 709), wherein it was held, in response to questions certified to it by this court, that “Under the Civil Code (1910), § 507, the proper county authorities can levy a tax of 100 per cent, of the State tax to pay current expenses of the county, but a levy to pay both accumulated debts and current expenses or a levy for either of these purposes must not exceed 100 per cent, of the State tax;” and that “the tax authorized by the above section is in addition to that provided in the Civil Code 1910, § 508,” which relates to the limitation of 50 per cent, on the amount of State tax. In Southwestern R. Co. v. Wright, 156 Ga. 1 (2, 3) (118 S. E. 552), it was also held that, under section 507, “the proper county authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without reference to any recommendation of the grand jury,” and that, “if 100 per cent, of the State tax be not sufficient to pay the accumulated debts and current expenses of the county, the authorities have power to raise a tax for county purposes, over and above the 100 per cent. . . and not to exceed 50 per cent, of the State tax for the year it is levied,” pursuant to section 508, if the grand jury so recommend. See also Sheffield v. Chancy, 138 Ga. 677, 685 (75 S. E. 1112); Wright v. So. Ry. Co., 146 Ga. 581 (5, 6) (91 S. E. 681); So. Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359); McMillan v. Tucker, 154 Ga. 154, 168 (4) (113 S. E. 391); Blalock v. Adams, 154 Ga. 326 (2), 332, 333 (114 S. E. 345). In Sullivan v. Yow, 125 Ga. 326, 328 (54 S. E. 173), Wright v. So. Ry. Co., 137 Ga. 801, 803 (74 S. E. 529), Barlow v. Ordinary of Sumter Co., 47 Ga. 639 (3, 4, 5), 641, and Wright v. Cen. of Ga. Ry. Co., 28 Ga. App. 356 (111 S. E. 61), relied upon by plaintiff in error, only the limitation of 50 per cent, on the amount of the State tax, as now embodied in section 508, appears to have been under consideration; and the effect aird construction of the law now codified in section 507, with reference to the power under that section to levy 100 per cent, of the State tax under certain conditions, was not dealt with. As was said in Sheffield v. Chancy, supra (pp. 684, 685), referring to the case of Sullivan v. Yow, “no accumulated debts were there involved, so that the 100 per cent, limit would apply,” and “what was said in that case had no application to the section of the code now under consideration.” In the instant case part of the tax levy appears to have been for past indebtedness. In Waller v. Perkins, 52 Ga. 234, 238, also cited, the power of county authorities to levy 100 per cent, under the conditions now stated in section 507, and as was stated in that decision “to pay the current expenses and the accumulated debt,” seems to. have been expressly recognized. Since in the instant case it appears from the tax levy itself that the items of ordinary “current expenses” plus the item for debts, which in terms included the “legal indebtedness of the county now due” and “past due,” amounted to only “100 per cent, of the State tax,” as authorized by section 507, the levy was within the powers of the commissioners, and the superior-court judge properly dismissed on demurrer the affidavit of illegality.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell,'J.

text:
    15162.
    PUCKETT v. METROPOLITAN LIFE INSURANCE COMPANY.
    Where a signed application for a policy of life insurance stipulated that “only the officers at the home office of the company in the city of New York have authority to determine whether or not a policy shall issue,” and that “no statements, promises or information made or given by or to the person soliciting or taking” the application, or by or to any other person, should be binding on the company or in any manner affect its rights, unless reduced to writing and presented to the officers of the company at the home office, and where it was further declared and agreed in the application that the statements and answers made therein and the statements and answers to the medical examiner were correct and true, and should form the' basis of the contract of insurance, if entered into, and the policy was subsequently issued in consideration thereof, the knowledge of the insurer’s agent, who had authority only to solicit and write the application and to collect the premiums and sign the company’s receipt therefor, and thereupon to make manual delivery of the policy, was not imputable to the insurer.

      (a) It follows that the court did not in this case err in rejecting evidence offered by the plaintiff, to the effect that such agent, at the time of the application, had knowledge of the truth as to which the applicant made false and material misrepresentations in the application, the purpose of the evidence being to estop the insurer from defending the action upon the ground of such misrepresentations.
    (&) The evidence demanded a finding in favor of such defense, and the court did not err in directing a verdict accordingly, nor in thereafter overruling the plaintiff’s motion for a new trial.
    Decided April 25, 1924.

      Action on insurance policy; from city court of Atlanta — Judge Beid. October 6, 1923.
    This was an action upon a life-insurance policy. The signed application therefor contained the following stipulations: “It is agreed that inasmuch as only the officers at the home office of the company in the city of New York have authority to determine whether or not a policy shall issue upon this application, and as they act on the written statements, answers and agreements herein made, no statements, promises or information made or given by or to the person soliciting or taking this application for a policy, or by or to any other person shall be binding on the company or in any manner affect its rights, unless such statements, promises or information be reduced to writing and presented to the officers of the company at the home office. And it is further declared and agreed that the foregoing statements and answers and also the statements and answers to the medical examiner are correct and wholly true, and that they shall form the basis of the contract of insurance if one be issued. It is further agreed that the company shall incur no liability under this application until it has been received, approved, and the policy issued and delivered and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the life proposed. I hereby declare that this application . . for an insurance on my life was signed by me, and that I renew and confirm my agreements therein as to the answers given to the medical examiner, and I hereby declare that said answers are correctly recorded hereon.”
    The policy subsequently issued as applied for recited that it was issued in consideration of the payment of the annual premiums and also in consideration of the application, a copy of which was attached to and made a part of the policy, and contained a further stipulation as follows: “No agent is authorized to waive forfeiture or to make, modify or discharge contracts, or to extend the time for paying a premium.” Upon the back of the policy was a printed form of receipt which, when filled out and signed by the soliciting agent, who collected the first premium and delivered the policy, was as follows: “This receipt is not binding until the premium stipulated herein has actually been paid in cash, nor until countersigned by an authorized representative of the company. If a check or draft-is given in payment or part payment this receipt shall be void and of no effect if said check or draft is not paid on presentation. This policy shall not 'take effect unless or until the full premium has been paid.
    “Metropolitan Life Insurance' Company acknowledges the receipt of $28.90, the first premium under this policy.
    “Jas. S. Roberts, Secretary.
    “Countersigned Sept. 17, 1920.
    A. R. Wright, Supt.
    (Signature) J. M. E., agt.
    “Payments are invalid unless made in exchange for an official home office receipt signed by an executive officer (president, vice-president, secretary or actuary) of the company and properly countersigned. The company’s agents have no authority to waive forfeiture, alter or amend the contract, to accept premiums in arrears or to extend due date of such premiums. . . ”
    The evidence showed that the company’s agent, J. M. Ellis, had authority to solicit and write applications, to collect premiums and issue receipts therefor as above, and to deliver policies; and that A. R. Wright was “manager” of the company.

      Neufville & Neufville, Anderson '& Roberts, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Bell,'J.

(After stating the foregoing facts.) In view of the stipulations of the application and the recitals of the policy, the knowledge of the insurer’s agent, who had no other authority than to solicit and write the application, to collect the premium and sign the company’s receipt therefor, and thereupon to make manual delivery of the policy, was' not imputable to the insurer, although, according to the stipulation in the policy and the receipt, the policy did not become effective until the premium was paid. This conclusion is not altered by the fact that the agent! in signing the receipt, attached the name of a superintendent or manager of the insurer, as per the agent. The case is controlled in principle by the decision of the Supreme Court in New York Life Insurance Co. v. Patten, 151 Ga. 185 (106 S. E. 183). While it is true .that in that ease the agent’s authority was restricted to soliciting the application and making only a “manual delivery of the policy,” the fact that the agent in the present case had the additional power to collect the first premium and to sign the receipt therefor as the company’s “authorized agent” for that purpose, making the policy effective, does not render the principle of that case inapplicable. The agent in this case still did not come within the class of those stipulated in the application to be the only ones having authority to determine whether or not the policy should issue. lie in no sense acted for the company in making the contract, as is generally true in case of fire-insurance agents. He exercised no discretionary authority as to whether the contract would be entered into, but his acts were purely ministerial. For this reason, if not for the further reason that the limitations upon the power of the agent in the two cases are different, this case does not fall within the rule laid down in Johnson v. Ætna Insurance Co., 123 Ga. 404 (2) (51 S. E. 339, 107 Am. St. Rep. 92), in which (see also Supreme Lodge Knights of Pythias v. Few, 138 Ga. 778 (1), 76 S. E. 91), the limitation upon the agent’s authority was construed to refer to his power to make waivers subsequently to the issuance of the policy. Certain prior decisions by this court appear to have been superseded by the ruling of the Supreme Court in New York Life Insurance Co. v. Patten, supra, in which a question was propounded to the.Supreme Court, probably for the purpose of determining the correctness of such prior decisions.

The evidence was undisputed that the applicant was suffering from tuberculosis at the time of his application, and had recently had hemorrhages, for which lie was treated by a physician; also that not long before the application he had been under the care of another doctor in a hospital. Nevertheless he represented in his application that he had had no such symptom or treatment, and that he had never had any ailment requiring the services of a physician except an ingrowing toenail. He died from tuberculosis not long after the policy was issued.

The- beneficiary in seeking to enforce the policy sought to estop the company from defending, as it did, upon the ground of false. and material representations, by proof that the truth was made known to the insurer’s agent at the time of and before the application. The court rejected the proffered evidence-and thereupon directed a verdict in favor of the insurer. The motion of the plaintiff for a new trial was thereafter overruled, and she excepted.

There was no error in any of the court’s rulings. Wilkins v. National Life &c. Ins. Co., 23 Ga. App. 191 (3) (97 S. E. 879); Metropolitan Life Ins. Co. v. Shaw, 30 Ga. App. 97 (117 S. E. 106), and cases cited.

Judgment affirmed.

Jenlcifis, P. J., and Stephens, J., concur.


text:
    15201.
    SOUTHERN RAILWAY COMPANY v. HARPER, adm’x.
    1. Section. 2486 of the Code of Alabama (set out in the opinion), under which this action was brought for the negligent homicide of the plaintiff’s intestate, as construed by the courts of that State, is altogether punitive in nature and requires the jury to assess such damages as they may deem necessary'to accomplish the defendant’s punishment, without regard to actual compensation.
    2. Accordingly, testimony that the intestate was at the time of the homicide in perfect health was irrelevant, and its admission was error. But the admission of evidence which is merely irrelevant or immaterial is not reversible error unless a reasonable likelihood of prejudicial effect appears, which does not appear in this case.
    3. The negligence specified being the running of a passenger-train at the speed of 60 miles per hour over a defective track at a curve, evidence that the particular ear in' which the decedent was killed, unlike others in the train, was a wooden car was not irrelevant as tending in no way to illustrate the degree of the defendant’s culpability in the particular negligence charged. If it was otherwise as to evidence that the train was actually carrying other passengers than the decedent, its admission was harmless under the facts of this case.
    4. In an action against a railroad company for death resulting from a defective track, the plaintiff may not only show the defective condition of the track at the place of the accident, but may show its condition in the vicinity on either side thereof, as corroborative.
    5. In charging the jury that “the admeasurement of the recovery must be by reference alone to the quality of the wrongful act or omission, the degree of culpability involved in the doing of the act, or in the omission to act, as required by the dictates of extraordinary care and prudence, and without any reference to or consideration of the loss or injury the act or omission may occasion to the living,” the court did not err for the reason assigned, that the degree of the defendant’s culpability should be determined by the jury without regard to the standard of care owing by the defendant to the passengers upon the train.
    6. A verdict was found for the plaintiff in the sum of $20,000. Pending the defendant’s motion for a new trial the plaintiff voluntarily wrote off $5,000. The trial judge thereafter overruled the motion. Assuming that this court, in deciding whether the recovery was excessive, should look only to the verdict as originally rendered, it cannot he said that the verdict was so large as to lead to the conclusion that it was induced by prejudice, bias, or mistake on the part of the jury.
    Decided April 25, 1924.
    Action for damages; from city court of Atlanta — Judge Reid. Novembér 16, 1923.

      McDaniel & Neely, for plaintiff in error.

      W. II. Lewis, John T. Dennis, contra.
   Bell, J.

Mary B. Harper, as administratrix of the estate of Cooley W. Harper, brought an action in the city court of Atlanta against the Southern Railway Company for the negligent homicide of her intestate, who was killed in a wreck of its train while he was riding thereon in the service of the government as a railway mail clerk. The defendant received consideration from the government for his carriage. The action was based upon section 2486 of the Code of Alabama, in which State the homicide occurred, providing as follows: “A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission or negligence of any person, or persons, or corporation, his or their servants or agents, whereby, the death of his testator or intestate was caused, if the testator ox intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death;'such action shall not abate, by the death of the defendant but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such actions must be brought within two years from and after the death of the testator or intestate.”

It is alleged that there was a curve upon the railroad-track at the place where the train was derailed, and consequently wrecked, and that the defendant’s negligence consisted in the operation of the train at that place at the rate of 60 miles per hour and in failing to maintain its roadbed in proper condition. The plaintiff recovered a verdict for $20,000. The defendant made a motion for a new trial, pending which the plaintiff voluntarily wrote off $5,000. Thereafter the motion was overruled, and the defendant excepted. As recited in the motion, liability was conceded, and the only insistence of the plaintiff in error is that the court erred in certain respects influencing the amount of the verdict, and that the verdict is excessive.

Each of the points insisted upon will be examined in the light of the construction which the courts of Alabama have placed, upon the statute on which the action was based. The plaintiff in. error urges that this is proper, and cites as authority a number of decisions by the courts of that jurisdiction. It was held by the Supreme Court of that State in Richmond & Danville R. Co. v. Freeman, 97 Ala. 289 (11 So. 800), that the statute in question is punitive in its nature, and requires the jury to assess, without regard to actual compensation, such damages as they may deem necessary to effect the punishment of the defendant; that “the ad-measurement of the recovery must be by reference alone to the quality of the wrongful act or omission, the degree of culpability 'involved in the doing of the act or in the omission to act, as required by the dictates of care and prudence, and without any reference to or consideration of the loss or injury the act or omission may occasion to the living.” This interpretation seems to have been uniformly adhered .to by numerous later decisions, some of them of recent date.

The plaintiff was allowed to testify that the decedent was in “perfect health,” over objection of the defendant that the evidence'was irrelevant and immaterial, the court saying: “I will leave that in; that may tend to illustrate his conduct, if it gets involved in the ease. I don’t know whether it will or not.” In view of the construction which must be placed upon, the Alabama statute, the objection was well taken. “In an action under [the section of the Alabama code set out above], providing that the personal representatives of one killed by a wrongful act may recover such damages as the jury may assess, evidence of the age, physical and mental condition, earning capacity, and occupation of deceased, and the amount contributed by him to the support of those dependent on him, was properly rejected as irrelevant, since the act is not compensatory, but punitive, in its nature.” Louisville & Nashville R. Co. v. Tegner, 125 Ala. 593 (1) (28 So. 510). Thus it would appear that the court was in error in admitting the evidence objected to. This is not to say, however, that for this reason a new trial should he ordered. The judge seems to have anticipated that some issue might probably arise in regard to contributory negligence on the part of the decedent, but no such issue developed, whether it could become relevant in any case like the present. It is unnecessary to say whether the rule is here applicable that where evidence is admitted provisionally and there is no motion thereafter made to exclude it, a new trial should not be granted upon the ground of its admission. See Davis v. Bellah, 29 Ga. App. 409 (1) (116 S. E. 30). The judge’s statement, made in the presence of the jury, tended to indicate that he did not consider the evidence relevant, unless it should illustrate the conduct of the decedent. Furthermore, he explicitly told the jury in the charge that they were to fix the damages solely by the degree of culpability in the defendant’s acts.

Again, the admission of evidence which is merely irrelevant and immaterial is not ground for reversal “unless a reasonable likelihood of a prejudicial effect appears.” Watkins v. Woodbery, 24 Ga. App. 80 (2) (100 S. E. 34). Even without this evidence in the record it was inferable that the decedent was in good health. He lived in Atlanta and was on his run discharging the duties of his employment. He had been regularly on duty indefinitely theretofore, according to testimony of one Hudson, assistant chief clerk in the railway mail service. In the decision of the Supreme Court of Alabama from which we have just quoted, it was held merely that it was not error to exclude evidence of this nature. We should, of course, hold the same. That is different, though, from adjudging that a new trial should necessarily result because of its improper admission. We cannot say that the defendant, under all the circumstances, was probably prejudiced by the testimony to the lone fact that the decedent, was in perfect health.

Error is assigned upon'the admission of evidence that the car in which the decedent was killed was a wooden car, upon the ground that the same was irrelevant and immaterial, and that the plaintiff had not alleged negligence in the use of such a car. There were other cars in the train, of steel structure. The plaintiff alleged that this particular coach was “crushed into splinters,” and insists that merely by reason of this allegation the evidence was admissible, on the idea that allegations made and not stricken may be proved irrespective of their relevancy. See, on this question, Fleming v. Roberts, 114 Ga. 634 (3) (40 S. E. 792); Mayor &c. of Macon v. Melton, 115 Ga. 153 (2) (41 S. E. 490); Tifton &c. Ry. Co. v. Butler, 4 Ga. App. 191 (4 d) (60 S. E. 1087). Regardless of whether the averment would amount to a statement that it was a wooden structure, and, also, of whether the rule of practice insisted upon is correct or applicable, the testimony in our opinion was admissible. The degree of culpability in the acts of negligence actually alleged should be determined, we think, in view of the surrounding circumstances. A jury would be authorized to find that a carrier of passengers would be more blamable for negligence in the condition of a track, if using it in the running of wooden cars, than if using it in the same condition in the running of steel' cars, on the theory that the probability of injury. or death in case of a derailment would in the former event be greater. Eor the same reason, a given speed might be more subject to censure in the case of wooden cars than in the case of steel cars. This is so regardless of whether independent negligence was charged or existed in the fact that one of the cars was wooden.

Another ground of the motion for a new trial complains that the court erred in admitting testimony of the witness Holland, that there were other passengers on the train besides the decedent. The plaintiff alleged that the decedent was killed upon a passenger-train, and that the defendant was negligent in running this train at the speed of 60 miles per hour over a defective track. Were the jury in their discretion not authorized to find that the wrongful quality in the specific negligence alleged was greater where it directly affected the defendant’s duty to a number of persons than where it affected its duty to but one? Would the same neglect of the track, and the same speed, not be more serious if the train were filled with passengers than if the cars had been empty or it had been a freight-train? We think these questions can only be answered in the affirmative. But assuming that the statute seeks to punish the defendant’s negligénce only as it related to the decedent, we still think the admission of this evidence was not cause for a new trial. The witness testified without objection to the fact that the train was a passenger-train running from Jacksonville, Florida, to Kansas City, Missouri, known as No. 7. That it was a passenger-train was testified by another witness without objection. It would be inferred from the nature of the train that it was carrying other passengers, and proof of a fact already to be inferred and about which there was no dispute could not have been harmful to the defendant, even if irrelevant. Compare Battle v. Braswell, 107 Ga. 128 (1) (32 S. E. 838); A., B. & A. Ry. Co. v. Brown, 129 Ga. 622 (3) (59 S. E. 278). The witnesses themselves were passengers in the same employment as the decedent. The evidence admitted without objection was the practical equivalent of that objected to. See Cooley v. Bergstrom, 3 Ga. App. 496 (2) (60 S. E. 220).

It is also complained that the court erred in admitting testimony that some of the cross-ties were decajred and the track in bad condition in front of the wreck. It appears from the record that the witness was testifying to a condition in the vicinity of the place where the train was derailed, commencing immediately in front of the engine and extending forward approximately 500 feet. The plaintiff could show the defective condition of the track not only at the place of the,accident, but in the vicinity on either side thereof, as corroborative. Ohio Valley Ry. Co. v. Watson, 93 Ky. 654 (1) (21 S. W. 244, 19 L. R. A. 310, 40 Am. St. Rep. 211, and cases cited).

The court charged the jury as follows: “So the question of the amount of the damages is left to the jury, and the rule under which you will ascertain the amount is this, the purpose of the statute being the preservation of human life, regardless of the pecuniary value of a particular life to next of kin, under the statute of distributions, the admeasurement of the recovery must be by reference alone to the quality of the wrongful act or omission, the degree of culpability involved in the doing of the act, or in the omission to act, as required by the dictates of extraordinary care and prudence, and without any reference to or consideration of the loss or injury the act or omission may occasion to the living” This excerpt is assigned as error upon the ground that it required that the negligence which the defendant might be guilty of should be measured in part by the standard of extraordinary care owing by the defendant to the decedent, and in this way enhance the culpability attributable to the defendant in' proportion to such care; whereas the defendant’s blamability “either in degree, kind, or quantity could not be tested by a reference to the degree of care which it may have owed,” and that the reference to extraordinary care “necessarily caused the jury to inflate and enlarge the culpability attributable to the defendant.” This is the substance and effect of the assignment, though it is amplified by additional language.

No Alabama decision directly in point has been cited. We believe that the courts of that State, however, would hold that where there is a duty of slight care, or ordinary care, a breach of the duty would not be so culpable as a breach of the duty of extraordinary care. If there were no duty at all, there would be no negligence. The higher or more exacting the duty, the greater is the degree of negligence in its breach. The greater the degree of negligence, the more culpable it is. In our opinion the charge was sound both in logic and in law.

It is conceded that the decedent was a passenger. No statute of the State of Alabama being pleaded or shown upon the subject, it will be presumed that the common law prevails in that State as to the degree of care owing by a carrier to its passengers. Hill v. Chattanooga Ry. & Light Co., 21 Ga. App. 104 (1 b) (93 S. E. 1027); Atlantic Coast Line R. Co. v. Barton, 14 Ga. App. 160 (1), 162 (80 S. E. 530); Rush v. Southern Ry. Co., 19 Ga. App. 521, 522 (91 S. E. 898). At common law carriers of passengers were bound to use extraordinary diligence. Southern Railway Co. v. Cunningham, 123 Ga. 90 (2) (50 S. E. 979); Seaboard Air-Line Ry. v. Andrews, 140 Ga. 254 (1), 255 (78 S. E. 925, Ann. Cas. 1914D, 165); Southern Railway Co. v. West, 4 Ga. App. 672, 675 (62 S. E. 141).

Finally, it is insisted that the verdict was excessive. “Where pending a motion for new trial by the defendant to set aside a verdict for damages consequent upon personal injuries received by the plaintiff, the latter by his counsel voluntarily, and without any suggestion from the court, reduced the verdict by writing off therefrom a certain sum, and the trial judge subsequently overruled the motion, but it does not appear that his refusal of a new trial was influenced by such reduction of the verdict; and where this court cannot say that the verdict as originally rendered by the jury was so excessive as to lead the court to suspect bias or prejudice on the part of the jury, the judgment of the court refusing a new trial will not be reversed on account of such voluntary reduction of the verdict.” . Savannah &c. Ry. Co. v. Godkin, 104 Ga. 655 (4) (30 S. E. 378, 69 Am. St. Rep. 187).

Certain cases founded upon the same statute as this one are cited by the plaintiff in error in which the Supreme Court of Alabama affirmed the grants of new trials by the lower court on the ground that the verdicts were excessive. These cases, of course, do not show that the refusal of a new trial upon such ground would have been reversed. In Montgomery Light & Water Co. v. Thombs, 204 Ala. 678 (16) (87 So. 205), a verdict for $25,000 was ordered set aside unless $10,000 should be written off, and in Alabama Power Co. v. Talmadge, 207 Ala. 86 (22) (93 So. 548), a verdict was required to be reduced to $17,500, although it was said in that case, in respect of the defendant’s negligence, “that no more culpable act or omission could have been found.” It would appear that in neither of these eases did the defendant owe more than ordinary care. In other cases, verdicts were sustained, as follows: West v. Spratling, 204 Ala. 478 (23) (86 So. 32), a homicide case, where the negligence of the defendant innkeeper consisted in a failure properly to equip the hotel with fire escapes, verdict $15,000; Southern Express Co. v. Roseman, 91 So. 612, where a boy was killed in the public streets by the negligent operation of a truck, verdict $15,000; Louisville & Nashville R. Co. v. Phillips (99 So.), person killed upon railroad-track, verdict $15,000; Louisville & Nashville R. Co. v. Cross, 205 Ala. 626 (7) (88 So. 908), child killed on railroad-track, verdict $15,-000; Central of Georgia Ry. Co. v. Ellison, 199 Ala. 571 (10) (75 So. 159), person killed on railroad-track, after discovery by the defendant’s servants, by an engine running at the rate of 25 miles per hour, verdict $16,000. As was said in regard to the others, it may be also observed in respect of the class of cases last cited that in none of them did it appear that the defendant was due a greater degree of care than ordinary care.

The plaintiff in error filed no pleadings and made no proof in the trial court as to the construction which the Alabama courts have placed upon the statute invoked in this case, and we have merely assumed with it that the decisions by those courts should be binding upon us in the construction of such statute, rather than persuasive only. But see Georgia &c. Ry. Co. v. Sasser, 4 Ga. App. 276 (7 b) (61 S. E. 505); White v. Seaboard Air-Line Ry., 14 Ga. App. 139 (3) (80 S. E. 667); Harper v. Louisville & Nashville R. Co., 141 Ga. 558 (81 S. E. 867). It may be that in no event should we be bound by the Alabama decisions upon the question of whether the verdict was excessive. Anyway, the acts of negligence were proved beyond question. The evidence tended to show that the track was in a woeful condition, and yet at the time of the derailment the train was being operated at a speed of approximately 60 miles per hour, as though the track were in perfect condition.

We cannot say that the verdict as “originally rendered” was so excessive as to lead to the conclusion that it was induced by prejudice, bias, or mistake on the part of the jury, and the judgment refusing a new trial will not be reversed on account of the voluntary reduction of the verdict.

Judgment affirmed.

Stephens, J., concurs. Jenhins, P. J., disqtialified.


text:
    15339.
    VANN, receiver, v. KIMBREL.
    1. Where cotton pledged to secure a debt was converted by the pledgee, his subsequent agreement with the pledgor, liquidating the amount which should be credited upon the debt as the value thereof, a part being credited at the time and the balance to be credited as soon as the pledgee received “account sales,” was not wanting in consideration; and where the pledgee refused to account to the pledgor for such remainder according to the agreement, the latter could maintain an action for its recovery.
    2. Where, after crediting a part of the proceeds of the cotton under such an agreement as stated above, the pledgee refused to credit the remainder, the right of the pledgor to enforce compliance with the agreement as to the remainder was not waived by the mere fact that from time to time he made partial payments upon and gave renewal notes for the respective balances of the debt to secure which the cotton was pledged, and finally paid it in full.
    3. The measure of the liability was the amount which, according to the agreement, the pledgee should have credited but refused to credit, with interest thereon from the time the credit should have been made.
    Decided April 25, 1924.
    Complaint; from city court of Miller county — Judge Geer. December 12, 1923.

      T. S. Hawes, N. L. Stapleton, for plaintiff in error.

      P. D. Rich, contra.
   Bell, J.

This was an action by G. J. Kimbrel against First National Bank of Colquitt. After the suit was filed the bank was placed in thS hands of a receiver, and the receiver was made a party defendant in its stead. The case was tried upon an agreed statement of facts. It appears therefrom that in the fall tof 1920 Kimbrel was indebted to the bank in the sum of $4,333.09. The debt was evidenced by notes. The bank desiring security, the plaintiff pledged twenty-nine bales of cotton. Nine bales were destroyed by fire, but, these having been settled for, the dispute between the parties relates only to the remaining twenty bales. In October, 1921, the bank through its proper officers stated to the plaintiff that his cotton had been shipped and ordered sold, but that “account sales” had not yet been received; that the bank would at that time credit Kimbrel with ten cents per pound on the cotton, amounting to $1,035.03, and would give an additional credit of ten cents per pound as soon as it got returns. “Acting on this statement Kimbrel effected the settlement with the said Watson as an officer of the bank, and gave to the said bank two new notes, one for $2,000 and one for $817.26. This amount represented the amount due by G. J. Kimbrel to the bank after deducting from the principal and interest originally due the value of the nine bales of cotton and also the $1,035.03 credited on the twenty bales of cotton.” Shortly thereafter the bank closed, but it was reopened on December 1st of the same year. A different person was then elected as its executive, and he notified Kimbrel “to come in to the bank and make some arrangements relative to the two notes last described above.” Kimbrel responded and notified the new officer of the agreement and understanding which he had with the bank through its former officer, stating that he was willing to pay in cash an amount sufficient to bring the notes “down to about the amount that would be due on said cotton at ten cents per pound. The bank would not agree to this proposition, stating that they did not feel that the bank was responsible for it.” Kimbrel then made a partial payment, gave another note for the remainder, later made another payment, and renewed the balance, which he finally paid in full. The notes respectively were delivered to Kimbrel as they were renewed or paid. When Kimbrel was informed that the bank would not recognize the agreement lie had with its prior officer he stated to the officer with whom he was then dealing that he “would sue the bank for the ten cents per pound,” and he received the reply that “it was a matter that ought to be thrashed out in court,” and that he could take such steps as he saw fit:

'It is stipulated further that the weight of the twenty bales was 9,989 pounds; that for thirteen bales the bank received only $68.76 net above the 10 cents per pound which had been credited. The remaining seven bales sold at 16 13/16 cents per pound.' The action was to recover the amount of 10 cents per pound for the cotton as the promised but refused additional credit. It was agreed that if the plaintiff was entitled to recover, he should recover the principal sum of $998.90, with interest thereon from October 1, 1921. The court directed a verdict for the plaintiff, and the receiver excepted.

The attorneys for the plaintiff in error in their brief make but three contentions, namely: (1) that the bank is not liable on the agreement made by its former president to pay an additional ten cents per pound on the cotton, for the reason that there was absolutely no consideration for any such agreement; (2) that, regardless of any agreements made by the bank’s former president, or any rights that were vested in Kimbrel by virtue of such agreements, all of these rights were waived by Kimbrel when he gave the renewal notes; (3) that the bank, if liable for any amount on this cotton, was not liable for more than the cotton actually brought.

It is pointed out by the plaintiff in error that the cotton had already been sold at the time of the making of the agreement on which the plaintiff relies, and that it brought less than twenty cents per pound, the value which he claimed and the balance of which the verdict awarded to him. The Civil Code, § 3530, provides as follows: “The pawnee may sell the property received in pledge after the debt becomes due and remains unpaid; but he must always give notice for thirty days to the pawner of his intention to sell, and the sale must be in public, fairly conducted, and to the highest bidder, unless otherwise provided by contract.” The agreed statement shows that the bank did not comply with this section in making the sale, but effected it privately. This it could not have done in the absence of a special agreement. There is no presumption of any exceptional arrangement between the parties, but, in the absence of anything to the contrary, the pledge is presumed to have been made upon the ordinary terms of the law. If either party asserts the existence of a special agreement, the burden is upon him to show it. 21 E. 0. L. 684, 46. “No such agreement appears by the evidence, and the rights of the parties are to be determined under the above-stated general rule applicable to the sale of property delivered in pledge.” Halliday v. Bank of Stewart County, 112 Ga. 461, 463 (37 S. E. 721). Thus the conclusion was demanded that the bank converted the cotton. It thereafter agreed with the plaintiff upon a valuation of it at which the defendant would account.

We cannot concur in the proposition that the agreement was without consideration. The liability of the defendant for the conversion was unliquidated. The plaintiff, if he chose to do so, was entitled to stand upon this agreement and promise, in lieu of his claim for the conversion. Kennedy v. Maddox, 15 Ga. App. 684, 686 (84 S. E. 153). It was necessary that the amount of the defendant’s liability be determined by some persons, at some time, somewhere; and the settlement of this question between the parties was a sufficient consideration for the promise or contract upon which the plaintiff sued.

Where an agreement is made between parties in the nature of an accord and satisfaction of an original cause of action, and a part only of the resulting sum of the indebtedness agreed upon is paid by one party and the balance thereof remains unpaid, the other party may (in lieu of a rescission) retain the amount received under the compromise agreement and maintain an action for the balance due thereunder. Farmers State Bank v. Singletary, 22 Ga. App. 653 (2) (97 S. E. 90). The liquidation of a claim uncertain in amount is a legal consideration for a promise. A compromise or mutual accord and satisfaction is binding upon the parties. Civil Code (1910), §4330; Watkins v. Watkins, 24 Ga. 402 (1); City Electric Railway Co. v. Floyd County, 115 Ga. 655 (1) (42 S. E. 45).

The plaintiff, in renewing his notes from time to time and in finally paying the entire debt, did not waive his demand against the bank. There are numerous decisions to the effect that one who gives or renews a note with full knowledge of facts which would constitute a defense to it waives such defense. Edison General Electric Co. v. Blount, 96 Ga. 272 (1) (23 S. E. 306); American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254 (1) (28 S. E. 40); Atlanta Consolidated Bottling Co. v. Hutchinson, 109 Ga. 550 (1) (35 S. E. 124); Cooper v. National Fertilizer Co., 132 Ga. 529 (1) (64 S. E. 650); Tuttle v. Stovall, 134 Ga. 325 (67 S. E. 806, 20 Ann. Cas. 168); Reeves Tractor Co. v. Barrow, 30 Ga. App. 420 (6) (118 S. E. 456). The decision in each of these cases had reference to the defense of failure of consideration, or fraud, or one of such character as would nullify the actual promise except for the waiver, — that is, a defense which would show that the apparent obligation was apparent only. Here the parties were liable to each other upon distinct obligations. The plaintiff owed the balance of his indebtedness to the bank after the credit made, of ten cents per pound for the cotton. The bank was indebted to him upon a separate obligation for ten cents per pound additional. Because the respective obligations may have arisen out of the same transaction, or even out of the same contract, would not prevent the plaintiff from discharging in full his obligation and then demanding a performance on the part of the bank. Where cross-obligations or independent covenants exist between parties under the same contract, or otherwise, one of them cannot say to the other, “in complying with your obligation you have extinguished mine.” There was no compromise of the dispute between the parties with respect to the liability of the bank to account to the plaintiff for the remaining ten cents per pound for the cotton. He paid the entire amount of his debt, less the sum which the bank actually credited thereon at the time of the making of the agreement which he now seeks to enforce and before the controversy arose.

The contention now under consideration is controlled adversely to the plaintiff in error by the decision of this court in Roberts v. Bank of LaGrange, 25 Ga. App. 343 (1) (103 S. E. 176), wherein it was held: “Where a debtor deposits with a bajnk cotton receipts as collateral security for a loan, and the bank, after being authorized by the debtor to sell the cotton for a certain amount, sells it for a less amount before the maturity of the loan, and, instead of crediting the proceeds of the sale against the loan, credits the same against an unsecured overdraft of the debtor, and deposits the balance in the bank to the debtor’s credit; and where the debtor, upon a rendition to him by the bank of a statement of the transaction, protests against it, and leaves the balance thus deposited to his credit untouched, and never withdraws it or any part thereof, a renewal of the loan thereafter, without more, will not as a matter of law amount to a ratification of the sale of the cotton. The debtor’s claim for the value of the cotton not being a defense to the note, but being rather in the nature of a set-off or counterclaim, the ruling here made is distinguishable from the cases of American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254 (28 S. E. 40), Atlanta Consolidated Bottling Co. v. Hutchinson, 109 Ga. 550 (35 S. E. 124), and Hogan v. Brown, 112 Ga. 662 (37 S. E. 880), in which it was held that where a debtor renews a note with knowledge of a defense thereto, he cannot plead such defense and defeat a recovery in a suit on a renewal note.” See also Brown v. Horn, 32 Ga. App. 95 (122 S. E. 710); McDaniel v. Mallary Bros. Machine Co., 6 Ga. App. 849 (2) (66 S. E. 146).

The insistence of the plaintiff in error, that the bank was never liable to the plaintiff for more than the value of the cotton at the time and place of the sale, is without merit. If the plaintiff had refused to pay the notes and the bank had sued him thereon, and he had recouped for a conversion of the collateral, that, in the absence of a special contract, would have been his measure of damages, augmented by interest if the jury saw fit to include it. See Civil Code (1910), § 4396; Tifton &c. Ry. Co. v. Butler, 4 Ga. App. 191 (1) (60 S. E. 1087). Under a special contract his damage would have depended upon the nature of the agreement. Where parties enter into a special agreement with reference to the terms of a pledge, they will be bound thereby. If his action against the bank had been in trover, as for a conversion, lie could have recovered the highest proved value between the date of the conversion and the trial. See Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165).

The plaintiff, however, is proceeding upon an express agreement by the terms of which the bank credited him with ten cents per pound for the cotton, and agreed to credit him with ten cents per pound additional upon the receipt of “account sales.” It thereafter got returns, but refused to abide its agreement. The measure of the plaintiff’s recovery was the balance due thereon. For-none of the reasons urged, — the only contentions made by the plaintiff in error being as stated above, — was it error to direct a verdict accordingly.

Judgment affirmed.

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