text:
    15912.
    Central of Georgia Railway Company v. Griner & Rustin.
   Jenkins, P. J.

1. Where shippers of live stock sued the carrier for damages on account of delay in transportation to the place of destination, and alleged loss in market value because the defendant liád failed to move the car by its afternoon train on a certain day and until the arrival of its afternoon train on the following day, whereby the arrival at destination was delayed from Saturday to the following Monday, the court did not err in overruling a general demurrer to the petition, based chiefly upon the g-round that the bill of lading provided that “no carrier is bound to transport said live stock by any particular train . . or in time for any particular market;” since the carrier was bound both by its general legal obligation (Civil Code of 1910, § 2773) and by an additional clause in the bill of lading to transport the shipment “with reasonable dispatch,” and it was for the jury to say whether the delay alleged was unreasonable. Flowers v. Ga. Northern Ry. Co., 32 Ga. App. 52 (122 S. E. 647); So. Ry. Co. v. Bloch, 18 Ga. App. 767 (1) (90 S. E. 656). Nor was the petition as amended subject to the special demurrers relating to the allegations of shrinkage in weight of the cattle during the shipment, and lack of proper care in feeding, watering, and looking after said stock, these being sufficiently set forth.

2. The verdict, finding for the plaintiffs in divisible items, “loss in weight in cattle $47.78, decline in price in delay $91.70, decline in price liogs $22.50,” total $161.98, was authorized under the evidence.

3. Since “the words ‘immediate shipment’ have been construed as equivalent to ‘reasonable promptitude,’ or ‘within a reasonable time’ ” (Columbia Smelting Works v. Dexter, 31 Ga. App. 627, 121 S. E. 844), there was no error in charging the jury in effect that if they should find that the stock was accepted by the carrier “for immediate transportation, and they failed to transport in accordance with their contract,” without sufficient reason for such failure to transport as agreed and in time, the verdict should be for the plaintiffs, the general legal obligation as well as the express requirement of the bill of lading being that the stock should be transported “with reasonable dispatch.” However, in view of the general popular acceptation of the term “immediate,” as importing swifter action than the terms “reasonable time” or “reasonable dispatch,” it would have been more accurate to use one of the latter terms.

4. The finding for the plaintiff on account of shrinkage in weight being authorized under the evidence, the judge did not err in submitting in his charge such issue to the jury.

5. While it was not admissible to establish a special contract with the carrier (Atlantic Coast Line R. Co. v. Wells, 130 Ga. 55, 59, 60 S. E. 170), or to vary the terms of the bill of lading, there was no error in admitting, as bearing on the issue of unreasonable delay, the testimony of one of the plaintiffs, “Before buying the cattle and hogs, 1 went to the agent and asked him if it was possible to get them into Savannah for the next morning’s market, and he told me it was,” notwithstanding the bill of lading provided that the carrier need not transport by any particular train or for any particular market. “Whether or not the delay in delivery was unreasonable is a question for the jury, and to be determined by them on all the facts of the case; ” and as a part of these facts they are authorized to consider “the information given by the shipper of peculiar reasons for a speedy transit and delivery.” Columbus Ry. v. Flournoy, 75 Ga. 745, 746 (2); So. Ry. Co. v. Bloch, supra.

6. A clause in the bill of lading, signed by both the shippers and the carrier’s agent, providing that it should be “subject to the classifications and tariffs in effect on the date of this agreement,” it was error to exclude material portions of the published tariff and classification existing at the time of the shipment, requiring that “Live stock in less carloads if not tied, or in mixed carloads, must be separated by means of strong partitions to be erected by the shipper at his expense and risk as follows: each . . bull . . must be separated from other animals . . Animals of each kind must be separated from animals of each other kind.”

7. Where, as here, under the contract of affreightment the shipper assumes the duty of loading a car of live stock at his own risk and subject to certain regulations contained in the bill of lading, requiring the separation of the hogs from the cattle, the carrier would not ordinarily be liable for damages incurred in transportation by reason of the failure on the part of the shipper to properly comply with the obligations which he has thus assumed. 10 Corpus Juris, 105. But even where the shipper is to do his own loading, the carrjer who ahcepts tlie freight for shipment assumes the obligations and liabilities of a common carrier (1 Michie on Carriers, 758; 10 Corpus Juris, 106, and notes; 4 Elliott on Railroads, 310); and in the absence of a false representation or deceitful conduct on the part of the shipper with reference to the manner of loading, the carrier, on issuing its bill of lading for the goods as in apparent good order, is presumed to acquire knowledge of any patent fault or delinquency in the manner of loading which a casual inspection of the freight thus tendered would render apparent (Central of Ca. Ry. Co. v. James, 117 Ga. 832, 838, 45 S. E. 223; Kinnick v. Chicago Ry. Co., 69 Iowa, 665, 29 N. W. 772); and where a shipment has been improperly and defectively loaded by the shipper in a manner which would subject it to risks and dangers in transportation, the duty devolves upon the carrier to refrain from transporting it until after such patent defects and deficiencies have been remedied- (Central of Ga. Ry. Co. v. Locketi, 4 Ga. App. 698, 701, 702, 62 S. E. 464); and this is true regardless of the previous issuance of its bill of lading for the loaded goods as in apparent good order. In other words, the acceptance of freight loaded by the shipper and the issuance of a bill of lading therefor, even though it contains the provision that the goods are received “in apparent good order,” does not impose upon the carrier the duty to transport the goods until they are in fact in a condition fit for transportation; and consequently the issuance of such a bill of lading does not operate as an absolute estoppel against the carrier, such as would prevent it from excusing- .a necessary delay in the movement of the freight occasioned by remedying the defects in the shippers work of loading. Accordingly, it was not a correct statement of the law to charge the jury in effect that the carrier would be unconditionally liable for damages incurred by the delay in the proper and necessary work of reloading the shipment, if it had issued its bill of lading for the goods as in good order without exercising- proper diligence in inspecting.

Decided April 15, 1925.

Action for damages; from city court of Statesboro—Judge Proctor. August 20, 1924,

8. The carrier might be liable, however, for the loss occasioned by unreasonable delay, where it is made to appear that the carrier has been guilty of negligence in failing to make its inspection upon the tender of the freight and prior to the issuance of its bill of lading accepting the goods as in apparent good order, when they were palpably improperly loaded, and where, if such patent defect had been then and there discovered, the defect could have been remedied in time to avoid any' subsequent delay in the movement of the freight. In such a case, such negligence of the carrier might constitute the proximate cause of the subsequent delay in transportation. In the instant case this specific theory of liability, while sufficiently covered by the pleadings, was not contended for under the evidence adduced or dealt with in the charge of the court; and it can not be said that liability under this theory was indisputably shown so as to render harmless the erroneous excerpt from the charge actually, .given.

Judgment reversed.

Stephens and Bell, JJ., concur.

STATEMENT OF FACTS BY JENKINS, F. J.

The shippers sued the carrier for damages on account of depreciation in market value from an alleged unreasonable delay in transporting certain cattle and hogs from Statesboro, Ga., to Savannah, Ga., and on account of shrinkage in weight from alleged lack of proper care in feeding, watering, and looking after the stock. The defense of the carrier, as set forth in its plea, was that the “plaintiffs loaded a car with different kinds of stock in one car, to wit, hogs and cows, there being one bull, and plaintiffs failed to separate by partitions or in any other way said differeni kinds of stock as aforesaid, and failed to tie said bull, as required by law and as required by the contract contained in the bill of lading, and if any damage resulted from said shipment it was due to plaintiffs’ own carelessness and failure to comply with the law and the said contract of shipment.” The bill of lading, signed by both the shippers and the carrier’s agent, required that “the shipper at his own risk and expense shall load and unload the live stock into and out of cars, except in those instances where this duty is made obligatory upon the carrier "by statute or is assumed by a lawful tariff provision,” and also that the shipper “shall separate different kinds of live stock when loaded in the same car, by adequately strong partitions, and such stock shall be at the risk of the shipper as to any damage resulting from insufficiency or inadequacy of any such . . appliance or partition.”

From the evidence it appears that the plaintiffs, about noon on a Friday, loaded in one car 57 hogs and 22 head of cattle, including a bull, without separating the kinds of animals or the bull from other animals, as required by the bill of lading and the published tariff. The stock was to be transported, for “immediate slaughter,” from Statesboro to Savannah, a distance of about 60 miles. The carrier appears to have had only one train each day available for the transportation of live stock from Statesboro, leaving that placo in the afternoon and arriving at Savannah about 11 o’clock at night. It was undisputed that the bill of lading, acknowledging receipt of the stock as “in apparent good order” for shipment, was prepared and delivered to the shippers by an authorized assistant of the carrier’s agent; that immediately after receiving the paper they went to a near-by town; that neither the agent nor his assistant made any actual inspection of the car or observed the manner of loading until about 30 minutes before the arrival of the Friday-afternoon train; that it was then too late to properly separate the animals before the arrival of this train; that the operators of this train refused to carry the car, because of the failure to separate the animals; that the carrier did not notify the shippers as to such refusal or advise them as to the improper loading until Friday afternoon after the departure of the train, when the agent demanded that they install partitions, and, upon their failure to do so, he himself had them provided; that the car of stock was then carried on the next Saturday-afternoon train, but 'did not reach Savannah until too late for the Saturday market, so that the animals were available only for the depreciated Monday market. There was evidence that, if the required lumber was at hand, it would have taken about an hour to provide partitions for the animals; but the evidence was not clear as to how near at hand such material was, or just how long the supplying of the lumber, the unloading of the stock, the building of the partitions, and the reloading, would have taken, if it had been attempted between the time of the issuance of the bill of lading soon after noon and the arrival of the Friday-afternoon train. The evidence was also not clear as to what animals were fed or when they were fed by the carrier after issuance of the bill of lading, but there was some evidence indicating that the only feeding was done on Friday; and the evidence as a whole authorized the verdict for the plaintiffs for the item claimed on account of shrinkage in weight.

The evidence was in dispute as to what was said and done between the shippers and the carrier’s assistant agent before and at the time of the delivery of the bill of lading. One of the shippers testified that this agent stated to him that before he issued the bill of lading, “he would have to first examine the car,” and “see” it, that the shippers then left the depot, returned half an hour later, received the bill of lading, and immediately went to another town, at which they received a telephone call from the agent, advising as to their failure to separate the animals and the refusal of the train crew, on this account, to take the car. The agent denied making any statement with reference to his proposed inspection before issuing the bill of lading. He testified also that when the shipper came to- him for the paper, he asked the shipper “if the car was in condition to move,” and that the shipper said “that it had been loaded in such shape as that it was ready for movement.” The shipper denied making such a statement, but testified that the agent asked him if the stock was “loaded,” and “I told him 'yes/ it was loaded, ready to go.”

The excerpt from the charge, referred to in the 7th and 8th divisions of the syllabus, is as follows: “If you find from the evidence in this case that the plaintiff loaded the stock, as contended for by the plaintiff, and that the defendant company issued a bill of lading therefor, and it was in apparent good order, the duty would be on them to see if the stock was properly loaded, or if they had opportunity to investigate -and see if this stock was properly loaded and issued this bill of lading, or if they negligently failed to look and see if the car was properly loaded, and accepted the shipment without doing that, in .that case the railroad would be bound, and your verdict in this case would be for the plaintiff, provided you find that the plaintiff has been endamaged in the way set out in his petition.” The grounds of exception taken to this instruction are: (1) that it excluded from the consideration of the jury the right of the defendant to rely on the terms of the contract of affreightment; (2) that it excluded from consideration the obligation of the plaintiffs to load the stock property by separating the cattle from the hogs in the manner required by the bill of lading; (3) that it instructed the jury that, if the carrier issued the bill of lading and the stock was in ajoparent good order, then it became the duty of the carrier to see that the stock was property loaded, notwithstanding the terms of the contract entered into between the parties; (4) that it instructed the jury that, if the carrier had the opportunity to investigate the loading, and a bill of lading issued, then the plaintiffs should recover, notwithstanding by contract they assumed the obligation to property load the stock and failed to do so.

A. 8. Bradley, Howell Gone, for plaintiff in error.

Lanier & Lanier, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16049.
    Bugg, receiver, v. Knowles.
   Jenkins, P. J.

1. A boy fourteen years of age is presumptively chargeable with the same standard of diligence for his own safety as an adult. Central of Georgia Ry. Co. v. Hartley, 25 Ga. App. 110 (6) (103 S. E. 259); Paulk v. Lee, 31 Ga. App. 629 (2) (121 S. E. 845); Central R. Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952); Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (1) (94 S. E. 821); Jones v. Georgia &c. Ry. Co., 103 Ga. 570 (1) (29 S. E. 927); Roberts v. Porter Mfg. Co., 110 Ga. 474 (35 S. E. 674); Stringer v. Atlanta Box Factory, 25 Ga. App. 341 (1) (103 S. E. 421).

Decided April 15, 1925.

Damages; from Bacon superior court—Judge Summerall. October 27, 1924.

J. M. Knowles sued B. L. Bugg, as receiver of the Atlanta, Birmingham & Atlantic Bailway Company, for damage sustained by him as parent in the death of his two sons, Seth and Bufus, aged fifteen and seventeen years respectively, killed by the running of the defendant’s locomotive 'and cars. The petition alleged: The plaintiff, on the evening of September .8, 1923, noticed that a garage in the City of Alma, at which he liad left his automobile for repairs, was closed for the night, and that the automobile was on the outside. On returning to his home about four miles distant he directed his sons to go to Alma and watch the car during the remainder of the night, lest it should be stolen. They did as instructed and took up their watch at about eleven o’clock. The garage was situated about sixty feet from the intersection of a public street with the defendant’s railroad. The boys sat down upon the track, twenty feet from the public crossing, having chosen that as a convenient place from which to watch the automobile, the time for the arrival of the train which later came along and killed them having long passed. The spot where they Were sitting was about one hundred yards from the depot, anrl was in the, light o¡' two near-by street-lamps. After a time.the boys, “without volition or fault on their part,” fell asleep there on the railroad track, “in which helpless condition they both remained until run over and killed” by the train. For a distance of one mile from where the boys were sitting the railroad is perfectly straight, with nothing to obstruct the view, and they were plainly visible to the engineer and the fireman when the train approached within half a mile of where they were killed. The fact they were asleep and helpless became fully apparent and known to the engineer and the fireman when the train got “within fifty yards or more” from them, but, on account of the rapid speed at which the train was moving, it was then too late to stop it in time to avoid killing them. “The track of said railway company between said station or depot and the said public crossing near where said hoys were killed as aforesaid has been used by the citizens of said City of Alma and others for more than fifteen years as a thoroughfare, with the consent of the authorities in charge of said railway company, said authorities at all times having full knowledge of such use and making no objection thereto.” The defendant was alleged to have been negligent in the following particulars: (1) “in propelling said freight-train, on the occasion of killing said boys, as aforesaid, within the corporate limits of. the said City of Alma, with a population of sixteen hundred inhabitants, at a rate of speed of thirty miles per hour while passing through the business section of said City of Alma;” (2) “in propelling said freight-train on said occasion, within the corporate limits of said City of Alma, at a rate of speed greater than ten miles per hour, in open violation of the ordinance of said City of Alma in force-at said time prohibiting the running of trains within the corporate limits of said City of Alma at a rate of speed greater than ten miles per hour;” (3) “in neglecting to toll the engine-bell of the locomotive propelling said freight-train on said occasion, and keep tolling the same, and simultaneously checking and keep on checking the speed of said train, when within four hundred yards of, and until said freight-train had arrived at, the center of public crossing in said City of Alma, where Decatur Street crosses the main track of said railroad company, said Decatur Street being a continuation of the public road between the City of "VYaycross, Ga., and the City of Baxley, Ga.;” (4) “in failing to ring said engine-bell while said freight-train was in motion within the corporate limits of said City of Alma.” It was alleged, that, “being killed while asleep as aforesaid, and unconscious of the approach of said freight-train as it bore down upon them without tolling the bell of the engine propelling said freight-train, they (the decedents) would not by ordinary care and diligence, either of them, have averted or lessened the consequences that ensued, to wit, the death of both of them.” The prayer was to recover the value of the services of the decedents until thejr should have arrived respectively at the age of twenty-one years, alleged to be $18,720. .

2. Tliis case, in respect to all questions raised by the "general demurrer, is controlled by the decision of the Supremo Court in Lowe v. Payne, 156 Ga. 312 (121 S. E. 812), and the decision recently rendered by this court in Atlantic Coast Line R. Co. v. Fulford, ante, 631, in which last-named case one of the rulings here applicable was predicated upon instructions received from the Supreme Court in answer to questions certified. The petition when fairly construed does not allege a wilful or wanton killing. The defendant being charged with negligence only, and the petition disclosing that the decedents voluntarily sat down upon the railroad-track and there remained until they fell asleep, it affirmatively appears that they were guilty of such negligence or failure to exercise 'Care for their safety as to bar a recovery for their homicide. Eor this reason the petition was subject to the general demurrer interposed. See, in this connection, Southwestern Railroad v. Hankerson, 61 Ga. 114; Wilds v. Brunswick & Western R. Co., 82 Ga. 667 (9 S. E. 595); Central R. Co. v. Smith, 87 Ga. 694 (3 S. E. 397); Southern Ry. Co. v. Hogan, 131 Ga. 157 (1) (62 S. E. 64).

3. Since it is held that the judge erred in overruling the general demurrer, it is unnecessary to examine or pass upon the special demurrers. Columbus R. Co. v. City Mills Co., 135 Ga. 626 (4) (70 S. E. 242); Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264).

Judgment reversed.

Stephens, J., concurs. Bell, J., disqualified.

General and special demurrers to the petition were overruled, and the defendant excepted.'

I. J. Bussell, Larry E. Pedrick, Wilson & Bennett, for plaintiff in error.

E. II. Williams, contra.


author: Per Curiam.

text:
    15849.
    BUNCH v. CITY OF MACON.
    The court erred in allowing the amendment to the answer, and this error rendered the further proceedings nugatory.
    Decided April 16, 1925.
    Adhered to on Rehearing, June 11, 1925.
    Complaint; from Bibb superior court—Judge Malcolm D. Jones. July 9, 1924.
    Application for certiorari was made to the Supreme Court.

      C. L. Bartlett, W. A. McClellan, for plaintiff.

      Grady Gillon, H. D. Russell, for defendant.
   Per Curiam.

This is the second appearance of this case in this court. For a statement of the pleadings and the evidence as presented on its first appearance here, and for the opinion of this court then rendered, see 29 Ga. App. 290 et seq. (115 S. E. 40). The judgment of the superior court granting a nonsuit was reversed by this court, and by writ of certiorari the case was carried to the Supreme Court, where the judgment of this court was affirmed. City of Macon v. Bunch, 156 Ga. 27 (118 S. E. 769). On the last trial of this ease in the superior court the defendant offered the following amendment to its answer.

“Par. 1. That a full complement of city detectives were employed immediately after the discharge of said J. E.- Bunch, to wit, J. A. Alexander, T. E. Chambliss, Homer Hardison, T. F. Thompson, and J. H. Knight; and that J. E. Bunch can not maintain his action until such time as he may establish title to said office, and that title can then be maifitained only against a de facto officer, should it be determined that he was entitled to said office.

“Par. 2. That the mayor and council of the City of Macon had provided by ordinance adopted January 6, 1920, that there should be a chief of detectives and four detectives, and that immediately thereupon the civil-service commission employed four detectives and a chief of detectives, which said employees constituted a full complement of detectives; said detectives so appointed were Homer Hardison, Chief, S. L. Morris, J. T. Clance, T. F. Thompson, and T. E. Chambliss.

“Par. 3. That in August, 1920, and two or three days subsequent to the abolishment of the civil-service commission, the chairman of the police committee gave said J. E. Bunch an opportunity to .be tried, if said J. E. Bunch contended he was a member of the Macon police force. Defendant shows further that said J. E. Bunch failed and refused to accept such opportunity to stand trial, as was by law provided.”

This amendment was allowed over objection, and was demurred to as follows: “1. Because paragraph 1 of said amendment does not allege that any of the persons named, to wit, J. A. Alexander, T. E. Chambliss, Homer Hardison, T. F. Thompson, and J. II. Knight, or either of them, had been specially appointed to said office in place of Bunch, who claimed to be the rightful officer, and who the paragrajjh alleges had been discharged from said office. 2; Because the 2d paragraph does not allege that either of the persons named, being the same as those set out in paragraph 1, who were appointed under said ordinance, were specially appointéd in the place of J. E. Bunch, or that the appropriation for said detective. force was paid to either of them specially in place of said Bunch; or that the salary which had previously been appropriated to pay the plaintiff had been specially paid to their [either?] of said persons named. 3. Because paragraph 3 of said amendment is insufficient in law, and because it does not allege in what way tbe chairman of the police committee gave Bunch an opportunity to be tried; not [nor ?] alleges that Bunch refused to be tried after charges had been preferred, or that any charges had ever been preferred, as required by the city charter, or that a trial had been had, or that he had been dismissed after trial and upon conviction; and that said paragraph was too vague and indefinite and wholly insufficient in law.” The court overruled the demurrer, and the plaintiff filed exceptions pendente lite to the rulings as to the amendment. The trial of the case resulted in a .verdict for the defendant, the plaintiff’s motion for a new trial was overruled and in his final bill of exceptions error was assigned on the exceptions pendente lite and the refusal of a new trial.

That the 3d paragraph of the amendment was subject to the demurrer lodged against it is clear. The former decision of this court and that of the Supreme Court in this case, to which reference is made above, settle the questions sought to be raised by paragraphs 1 and 2 of the amendment, adversely to the contention of the defendant. The entire amendment therefore should have been stricken. This error rendered the further proceedings nugatory.

Judgment reversed.

Broyles, G. J., and Luke and Bloodworlh-, JJ., concur.


author: Bboyles, O. J.

text:
    16191.
    Ætna Insurance Company v. Goldman.
   Bboyles, O. J.

1. Where a policy of fire insurance contains what is known as the “iron-safe clause,” this clause is a warranty binding on the assured, and the stipulations in the clause - constitute conditions precedent to the bringing of an action upon the policy; and in such a suit, where the evidence fails to show a substantial compliance with the terms of such stipulations, or satisfactory reasons for noneompliance, the plaintiff is not entitled to recover. Scottish Union &c. Ins. Co. v. Stubbs, 98 Ga. 754 (27 S. E. 180); Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 (27 S. E, 975); Jefferson Fire Ins. Co. v. Brackin, 147 Ga. 47 (3), 49 (92 S. E. 871).

2. One stipulation in the “iron-safe clause” of a'policy of fire insurance is that the assured “will take a complete itemized inventory of stock on hand at least once in each calendar year, arid unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date.” A so-called “inventory,” showing the original purchase price of goods, but not showing their value at the time of. the making of the inventory, is not an “inventory” within the meaning of the above-quoted stipulation. An “inventory,” under that stipulation; means an itemized list of every article in the stock of goods at the time of making the inventory, and the setting down of the actual value of each article at that time. And the failure of the assured to make such an inventory will prevent a recovery on the policy. Southern Fire Insurance Co. v. Knight, 111 Ga. 622, 631 (36 S. E. 821, 78 Am. St. Rep. 216, 52 L. R. A. 70).

Decided April 16, 1925.

Rehearing denied May 14, 1925.

Complaint; from Warren superior court—Judge Shurley. December 8, 1924.

Application for certiorari was made to the Supreme Court.

Smith, Hammond & Smith, J. M. B. Bloodworth, M. L. Fells, for plaintiff in error.

L. D. McGregor, contra.

3. Under the above-stated rulings and the facts of the instant case, the plaintiff was not entitled to recover, and the verdict in his favor was contrary to law and the evidence, and the court erred in overruling the motion for a new trial. This ruling being controlling in the case, it is unnecessary to pass upon the other questions raised in the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bell, J.

text:
    15888, 15889.
    RENDER & HAMMETT et al. v. HARTFORD FIRE INSURANCE CO.; and vice versa.

    1. Where the law authorizes service of process upon a principal by service upon the agent, it is the agent’s duty, when service is so made, to exercise diligence to notify his principal, and in default thereof the agent will be liable for such damage as the principal may sustain.
    2. Where such agent is a partnership, the partnership may be served by service upon one of the partners, and such service upon the partnership is service upon the principal.
    3. Where a summons of garnishment was directed to a nonresident insurance company having an agent and doing business in one of the counties in this State, the agent being a partnership, and it was recited in an entry of service by the officer that he had served the summons upon the company personally by serving a designated person, “agent in charge,” and where the person so served was a member of the partnership, the entry was amendable so as to show that the service was upon the partnership as the agent in charge of the office or business of the company in the county or district at the time of the service, such being the facts; and the defects therein were curable by judgment.
    4. Conceding (without deciding) that the plaintiff’s petition, if construed as proceeding ex delicto, would not set forth a cause of action against the partnership nor against one of the members thereof, it is the rule that in case of doubt as to whether an action is ex delicto or ex contractu a reviewing court, in dealing with an exception to a judgment sustaining a general demurrer to the petition, “should adopt that construction which will sustain the -petition, and reject that construction which will defeat it.” Citizens <G Southern Banh v. Union Warehouse Co., 157 Ga. 434 (7) (122 ¡3. E. 327).
    (а) Thus, if it could be said that it is doubtful whether the present action is ex delicto or ex contractu, it being sustainable as an action ex contractu, it may and should be construed as one of that character if it could not be upheld as an action ex delicto.
    (б) The law implies, as a part of the contract by which every agency arises, that the agent agrees to have and exercise towards his principal diligence, loyalty, and absolute good faith; and where the agent is a partnership, the partnership and all its members may be held liable for a violation of such duty by any member, as for a breach of contract.
    (c) Where a member of a partnership breaches the duty owing by it to a principal of which the partnership is an agent, the principal, in a suit against the partnership for such breach of duty, in the event he establishes his case, will be entitled to a judgment not only against the member who committed the breach, but also against the partnership and all the individual members thereof who are served.

      (d) The judgment of the court was correct in so far as the demurrers to the petition were overruled, but it was error to sustain the demurrer as to one of the members of the partnership.
    Decided April 16, 1925.
    Action for damages; from Troup superior court—Judge Boop. August 6, 1924.
    Hartford Fire Insurance Company filed suit against Bender & Hammett, a partnership composed of B-. L. Bender and P. M. Hammett, and against Bender and Hammett individually, both of whom were residents of Troup county, alleging that the partnership was the agent of the plaintiff for the purpose “of receiving-proposals and making insurance in its behalf” in the City of LaG-range and vicinity, enjoj'ing and receiving a compensation for services rendered, and that the plaintiff had been damaged by a breach of duty on their part, arising out of the agency. The complaint was that a certain summons of garnishment in another cause was issued and directed to the plaintiff and served upon it by service upon the partnership as its agent; that the agent failed to notify the plaintiff of the service of such summons, and it had no knowledge thereof until after a judgment had been duly rendered in favor of the plaintiff in garnishment upon its failure to answer the summons; that it was not indebted to the party who was defendant in the suit out- of which the garnishment issued, and if 'it liad .been notified of the service it would have answered and established its-want of indebtedness; and that as a result of the failure' of its agent to-notify it of the service of the summons it was subjected to a judgment and compelled to pay the amount thereof when it could not otherwise have been held liable under the summons. The present suit was to recover the amount which it had thus been forced to pay. It was alleged that the plaintiff was a foreign corporation doing business in the State of Georgia and in the county of Troup. ' It was shown in the petition that the record in the garnishment case bore an entry of service as follows: “Georgia, Troup county. I have this day served summons of garnishment issued on within affidavit and bond, personally on Hartford Fire Insurance Company, a corporation, also Savannah Fire Insurance Company, a corporation, by serving R. L. Render, agent in charge, 12 o’clock noon. This Feb. 14, 1922. A. 0. Wilson, L. C.” The petition further alleged: “The summons of garnishment was on the 12th day of February, 1922, served upon petitioner, the Hartford Fire Insurance Company, by A. 0. Wilson, L. C., by serving the agents of petitioner in Troup county, Georgia, Render & Hammett, by handing said summons of garnishment to R. Jj. Render, a member of the firm of Render & Hammett.”
    The defendant demurred generally, and in the demurrer alleged, as one of the reasons why the petition set forth no cause of action, that the entry of the officer on the garnishment proceeding shows that there was no service on the agency of Render & Hammett, and fails to show that there was any service on an agent of the plaintiff, or that the alleged agent R. L. Render was the agent in charge of the plaintiff’s office and place of business in Troup county. As a part of the same demurrer it was urged on behalf of the defendant Hammett that the petition showed upon its face that there had been no service of the garnishment summons so far as he was concerned, and no service on the agency, the service having been made only upon R. L. Render personally. The court overruled the demurrers as to the partnership, and also as to R. L. Render individually, but sustained the demurrer as to Hammett. . The defendant partnership and Render as air individual excepted to the judgment overruling the demurrer as to them, and the plaintiff excepted to the sustaining of the demurrer as to Hammett.

      L. B. Wyatt, for plaintiffs in error.'

      Spalding, MacDougald & Sibley, Lovejoy & Mayer, contra.
   Bell, J.

(After stating the foregoing facts.)

Whether one of the bills of exceptions should be considered as a main bill and the other as a cross-bill need not be determined. We will, however, consider both bills in one opinion.

We have no hesitancy in holding that in cases where service upon a principal may be had by service upon his agent, it is the duty of the agent to notify his principal of that fact when service is so made. In the absence of a waiver a party can not be held to a suit without service, and where the law provides for service upon a principal by service upon its agent,- it necessarily does so upon the assumption that the agent will notify the' principal. The plaintiff in this case was subject to .be served in the manner stated. Civil Code (1910), §§ 2563, 2564; Great Eastern Casualty Co. v. Haynie, 16 Ga. App. 643 (85 S. E. 938). If in the present case there was service upon the principal by service upon the partnership, the latter would be liable for damages sustained by the plaintiff principal because of its being compelled to pay a judgment which, according to the averments of'the petition, would never have been rendered against it- if the agent partnership had duly informed it of the service. Cf. Civil Code (1910), §§ 4627, 3581; Wood v. Isom, 68 Ga. 417 (4); Wright v. Central R. Co., 16 Ga. 38 (3); Georgia &c. Ry. Co. v. Jossey, 105 Ga. 271 (31 S. E. 179).

Service upon one member of a partnership is service upon the firm (Civil Code of 1910, § 3167; Ferry v. Mattox, 2 Ga. App. 104 (3), 58 S. E. 291); and since the ñrm was the plaintiff’s agent, service upon the firm was service upon the plaintiff. In other words, where a principal may be served by service upon its agent, and its agent is a partnership, the service upon the principal may be perfected by service upon one of the members of the partnership. Cf. 30 Cyc. 478; 2 C. J. 669.

But it is claimed by the defendants that the entry of the officer in the garnishment proceeding is fatally defective as showing service, because it does not appear, as required by the Civil Code, § 5270, that the agent served was in charge of the office or business of the corporation in the county or district at the time of the service. It would seem that the word “agent,” following the name of the person to whom the writ was delivered, was merely descriptive, and that the entry did not show service upon him in the capacity of agent. The defendants rely principally upon the decisions of the Supreme Court in Southern Railway Co. v. Hagan, 103 Ga. 564 (1) (29 S. E. 760); Holbrook v. Evansville &c. R. Co., 114 Ga. 4 (39 S. E. 938). These decisions are to the effect that the return of an officer merely stating that ho had served a named railroad company with a summons of garnishment by serving a designated person, without describing that person as the agent in charge of the office or business of the company in the county or district wherein the service was made, will not afford a basis for entering a judgment against the company for failure to answer. The two cases cited appear to be identical in their facts, and the Hagan case, supra, was distinguished in Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E, 25). Where a garnishee has been actually served; and judgment has gone against him upon his failure to answer, he can not afterwards avoid the judgment merely because the return may have been defective in the particulars indicated above. In such a case the entry will be regarded as an irregular or incomplete return of good service. The plaintiff has made an allegation that it was served; the meaning of which is that the person or firm served was in fact its agent in charge of its business in the county wherein the service was made. In these circumstances the defects in the entry could have been cured before judgment by an' amendment. After judgment amendment -was not necessary. See Jones v. Bibb Brick Co., supra; Tifton Compress Co. v. Robinson, 31 Ga. App. 350 (1) (120 S. E. 701); Seaboard Air-Line Ry. v. Davis, 13 Ga. App. 14 (78 S. E. 687); McDuffie Oil & Fertilizer Co. v. Iler, 28 Ga. App. 734 (1) (113 S. E, 52); Love v. National Liberty Ins. Co., 157 Ga. 259 (1) (121 S. E. 648). The plaintiff could not have escaped payment of the judgment merely because of the defects in the entry of service. If it had sought to void the judgment by an affidavit of illegality, it could not have done so without alleging that it had not been served. The petition shows that this allegation could not have been made, because it was not the truth.

The petition, which is not demurred to specially for duplicity, alleges that the failure of the partnership to notify the plaintiff of the service was either by “neglect” or “design.” It is suggested on behalf of the partnership and Hammett that any breach of duty appearing rvas a tort by Bender alone, and that a partnership will not be held liable for a tort committed by one of the partners in which the other partner did not join. See Battle v. Pennington, 14 Ga. App. 56 (80 S. E. 297). It is provided in the Civil Code, § 3187, that partners are not responsible for torts committed by a copartner. There has possibly been some confusion in the construction of this section, and, while the contention of the defendant, in the abstract, would appear to be answered by 'the reasoning of Chief Justice Bleckley in Drucker v. Wellhouse, 82 Ga. 129 (8 S. E. 40, 2 L. R. A. 328), quoted by this court in Zukas Bakery v. Lipes, 27 Ga. App. 712 (109 S. E. 537), it is unnecessary to make any direct and positive ruling upon the point in the case now before us.

“Where from the language of a petition it is doubtful whether the pleader intends to proceed upon the action as one ex contractu or as one ex delicto, the ambiguity not being.raised by demurrer and thus removed, and where the averments of the petition as a whole are generally more appropriate to an action ex delicto, and where, if the petition is construed to be one arising in tort, no cause of action is set forth, and where, if the petition is construed to be one on contract, a cause of action is set forth, the court "should, in passing upon an exception to a judgment sustaining a general demurrer to the petition, adopt the latter construction, as that construction will uphold the action. If a party has two remedies, one an action for breach of the contract, and the other an action on the case for the wrong, he may elect which of the remedies he will pursue:” Citizens & Southern Bank v. Union Warehouse &c. Co., 157 Ga. 434 (7), 455 (122 S. E. 327). See also Payton v. Gulf Line Ry. Co., 4 Ga. App. 762 (2) (62 S. E. 469); Dawson Cotton Oil Co. v. Kenan, 21 Ga. App. 688 (1) (94 S. E. 1037); Lytle v. Southern Railway Co., 3 Ga. App. 219 (59 S. E. 595). If the petition should fail to set forth a cause of action if construed as complaining of a tort, it is still possible to uphold it as an action for a breach of contract. Perhaps this is even the only proper construction to make of it. Whatever may have been the purpose of the defendants in failing to notify the plaintiff .of the service, the failure to do so was a breach of duty. In Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (1), 759 (60 S. E. 372), this court said: “The law implies, as a part of the contract hy which every agency arises, that the agent agrees to have and exercise, for ,and toward his principal, loyalty and absolute good faith.” (Italics ours.)

The court did not err in overruling the demurrer as to Render and the partnership. Since the demurrer was joint, by the partnership and both of the individual defendants, if a cause of action was set out against the defendant Render it might have been overruled as to all the defendants. May v. Jones, 88 Ga. 308 (4) (14 S. E. 552, 15 L. R. A. 637, 30 Am. St. Rep. 154); Howard v. Edwards, 89 Ga. 367 (2) (15 S. E. 480). This, however, was not done.

.Did the court err in sustaining the demurrer as to Hammett? In our opinion the question should be answered in the affirmative, irrespective of the applicability of the rule of practice laid down in the cases just referred to.

The learned trial judge probably had in mind that the service of the summons of garnishment was made only upon Render, and thus inadvertently applied the rule as laid down in section 3167 of the Civil Code to the effect that service of process upon one partner, while binding upon the firm and the individuals served, is not binding upon the individual members of the partnership who are not served. Printup v. Turner, 65 Ga. 71 (3). Notice to Render was notice to the partnership of which he was a member, and, as we have seen, service upon him was service upon the firm. It therefore became the duty not only of Render but of the partnership, including Hammett, to give notice of the service to their principal. The default therefore was not attributable alone to Render; otherwise there would have been no reason for overruling the demurrer as to the partnership. The present action is to hold the partnership liable for the default. If in the instant action there had been service, or the equivalent, only-upon Render, any judgment that the plaintiff might recover could only affect Render and the partnership. But each member of a partnership is a- surety for the other as to acts within the legitimate business of the partnership (Civil Code of 1910, § 3180), and there is no suggestion that Hammett was not served in the present case. In fact his appearance by a general demurrer waived service, and if the allegations of the petition be true, the plaintiff is entitled to a judgment not only against the joint copartnership property, but also against the individual property, real and personal, of each member of the partnership. Civil Code (1910), § 5592. “In this State a judgment on a suit against a partnership binds all partners, so far as the partnership is concerned, and also binds individually such of the partners as are served. The execution issued on the judgment may be levied either on partnership property or on individual property of the partners served. If all the partners are served, ,the judgment stands just as an ordinary judgment against joint debtors would stand, except that the partnership assets are also subject to levy under the execution issued thereon.” Higdon v. Williamson, 10 Ga. App. 376 (1) (73 S. E. 528). See also Flowers v. Strickland, 10 Ga. App. 739 (73 S. E. 1092).

The court erred in sustaining tire demurrer as to the defendant Hammett.

Judgment on Mil of exceptions No. 15888 affirmed. Judgment on MU of exceptions ' No. 15889 reversed.

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


text:
    15940.
    HOLT v. EMPIRE TIRE & RUBBER COMPANY.
    A person may be substituted as a debtor in place of one who is only a surety or a guarantor, and an agreement to that effect is not within the statute of frauds, although the obligation of the primary debtor is not extinguished. The petition in this case did not seek to hold the defendant answerable for the debt, default, or miscarriage of another, but was founded upon an original undertaking, whereby the defendant was substituted in the place of one obligated to the plaintiff as a guarantor. The agreement was not one required by the statute of frauds to be in writing, and the demurrer seeking an application of the statute was properly overruled.
    Decided April 16, 1925.
    Complaint; from city court of Atlanta—Judge Reid. September 16, 1924.
    Empire Tire & Rubber Company brought suit against Eloy L. Holt, and made the following ease: On September 26, 1923, Motor Tire Company owed the plaintiff $7,706.25 on an open account for merchandise, for the payment of which the plaintiff held the guaranty of L.-B. Holt, who at the time was being sued thereon. The defendant in the present action was the manager and principal stockholder of Motor Tiro Company, which on the date mentioned was insolvent and in process of liquidation. Under these circumstances the plaintiff made an agreement with him and L. B. Holt to the following effect: “L. B. Holt settled his liability on the basis of $5,000, in consideration of which the suit against [him] was dismissed; the settlement with L. B. Holt for an amount less than his entire liability was made 021 the condition that a deduction of $1,000 be allowed from said account, because of alleged defective merchandise, and on further condition that the balance of $1,706.25 would be settled by defendant by returning tubes of á value of $500, then represented to be on hand and ready to be returned, and a further payment by the said defendant Floy L. Holt of the balance at the rate of $100 per month; that it was also agreed that the terms of said agreement be reduced to writing, but that the suit should, be immediately dismissed as to L. B. Holt, he having at that time paid $2,500 in cash and had tendered his notes frathe balance.” The agreement was duly drafted and submitted to the defendant for his signature, but he failed, on demand, to execute it. It is alleged that the plaintiff fully performed its part of the agreement by discharging L. B. Holt from liability under his guaranty, and that it would be a fraud on the plaintiff if the defendant should be allowed to refuse performance on his part. After crediting the cash payment and the notes of L. B. Holt, and making the deductions called for by the agreement, except for the tubes which were never returned, and after the allowance of a further credit of $552 collected by the plaintiff by levy upon and sale of certain assets belonging to Motor Tire Company, made at the direction of the defendant, there remained a balance of $1154.24 for which the defendant Floy L. Holt wks liable and for which the plaintiff prayed judgment. A general demurrer to the petition was overruled, and the defendant excepted.

      Troutman & Troutman, for plaintiff in error.

      Walter 8. Dillon, contra.
   Bell, J.

(After stating the foregoing facts.)

It appears from the allegations of the petition, whether we have fully shown it in the statement of facts or not, that the debt of Motor Tire Company was not extinguished. If it were sought, therefore, merely to hold the defendant Floy L. Holt, answerable for the debt of the tire company, the alleged "agreement between him and the plaintiff should, under the statute of frauds, have been in writing, in order to be enforceable, unless there was such part performance by the plaintiff as would render it a fraud by the defendant if the court did not compel performance by him. It is not necessary, however, to enter into a decision of whether, under the facts set out in the petition, the defendant could be held solely for the debt of the tire company.

Properly construed, the action is founded upon an original undertaking wherein the defendant was substituted as the plaintiffs debtor in the place of L. B. Holt, the guarantor. Considering the allegations as true, as must be done on demurrer, the original guarantor, upon the payment of $5,000 or the equivalent, was entirely released and discharged from further liability, and the defendant Floy L. Holt, in consideration of such releasé and discharge, was substituted in his stead for the balance of the indebtedness, less the deduction of $1,000 on account of defective merchandise. It is immaterial whether the tire company continued liable or not.

A party may be substituted as a debtor in place of one who is only a surety or a guarantor, and an agreement to that effect is not one falling within the operation of the statute of frauds, although the obligation of the primary debtor is not extinguished. Indeed, in such a case the surety or guarantor is considered as the primary debtor for the purpose of determining the rights and liabilities of the parties to the new agreement. “An agreement between a creditor, his debtor, and a third person, whereby such third person, in consideration of the creditor’s releasing the debtor, agrees to pay the amount of the debt to the creditor, and as part of the agreement the creditor releases his debtor and agrees that such third person shall be substituted for the debtor, is not within the statute of frauds; the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place. Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (51 S. E. 714).” Harris v. Jones, 140 Ga. 768 (1) (79 S. E. 841); Coldwell Co. v. Cowart, 138 Ga. 233 (2) (75 S. E. 425); Williams v. Garrison, 21 Ga. App. 44 (1) (93 S. E. 510), and cases cited.

The court did not err in overruling the demurrer.

Judgment affirmed.

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


text:
    16027.
    STANDARD OIL COMPANY OF KENTUCKY v. TURNER et al.

    According to the allegations of the petition in this action for negligence by citizens of this State against several defendants, one of whom resided in another State, a resident defendant having participated in all acts charged as negligence against the nonresident defendant, the controversy between the plaintiffs and the nonresident defendant was not one which was wholly between citizens of different States and which could be fully determined as between them; and the nonresident defendant, therefore, was not entitled to the removal of the case from the State court to the Federal court;
    Decided April 16, 1925.
    Petition to remove cause; from Cherokee superior court—Judge Blair. September 27, 1924.
    EL A. Turner and his minor children, all of whom were residents of the State of Georgia, brought an action in the superior court of Cherokee county, for the death of his wife and their mother, against Standard Oil Company, a corporation of the State of Kentucky, and George I. Teasley and John Teasley, residents of the county of the suit.
    The petition alleges that the decedent was killed on September 12, 1923, while she was using in her home a liquid which her husband had bought from tire Teasleys as kerosene, and which she and the plaintiffs believed to be kerosene, although it was in truth gasoline, or a mixture of such a quantity of gasoline with kerosene as to make it highly explosive and dangerous,—“much more dangerous and much more explosive than kerosene.” If the fluid purchased by the decedent’s husband had in fact been kerosene, it would not have exploded, or set lire to or injured the decedent when used by her as she was using it at the time of the explosion. The Teasleys were engaged in the selling of kerosene and gasoline as a mercantile partnership, and the plaintiff IT. A. Turner had purchased the particular fluid from John Teasley, acting for himself and George I. Teasley, and had carried it to his home for the use of himself and family as kerosene. It was drawn from the Teasleys’ kerosene dispensing tank. Standard Oil Company was a corporation engaged in the sale and distribution of gasoline and other petroleum products.
    Paragraphs 5 and 12 of the petition were as follows: “In the year 1923, and a short time prior to the 12th day of September, the exact date being unknown to the plaintiffs, the' defendant Standard Oil Company, by and through its agents and employees, placed an employee of the said company in charge of a truck or wagon of the company, loaded with kerosene and gasoline, which was offered for sale to any one who desired to buy, and at said time the defendant John Teasley, acting for himself and for George 1. Teasley, merchants as aforesaid, purchased from the defendant, the Standard Oil Company, a quantity of fluid conveyed on said vehicle, and the same was placed by the said agent and employee of the Standard Oil Company and the said John Teasley, acting for himself and the said George I. Teasley, in the kerosene dispensing tank at the place of business of the said defendants George I. Teasley and John Teasley, which dispensing tank was the storage tank in which to keep kerosene for the purpose of dispensing and selling the same therefrom in quantities as called for by the customers of said store and any one else desiring to purchase kerosene, all of which said facts were known to each and all of the said defendants at said timed’ “The death of the said Ludie Turner was occasioned solely by the negligence and wrong of the defendants in selling and causing to be sold and delivered to the plaintiff TI. A. Turner, as hereinbefore alleged, the said fluid which was gasoline, or a mixture of a- sufficient quantity of gasoliue with kerosene, which said gasoline, or fluid with mixture of gasoline, was a highly dangerous substance, explosive, and liable to explode and cause destruction of human life and property, and in selling and delivering the same to the plaintiff 11. A. Turner, as hereinbefore alleged, for kerosene oil, which is a substance greatly resembling-gasoline in its superficial appearances, but which is free from danger when handled in an ordinary manner and as it was by the said Ludie Turner, deceased, at the time'and on the occasion hereinbefore referred to; that the defendants [were] each further negligent in placing and causing said fluid to be placed in the kerosene dispensing tank of the defendants George I. Teasley and John Teasley, as hereinbefore alleged, where it was likely to be dispensed to the plaintiff H. A. Turner and others as kerosene, and were negligent in selling and delivering the same to the plaintiff H. A. Turner as kerosene, as hereinbefore alleged; and the said wrongful acts of the defendants and each of them in causing the said fluid to be thus placed, sold, and delivered as kerosene, in such manner that in the natural course of things, and in a way that could be reasonably expected, it came into the possession of the said Ludie Turner, and was used as kerosene by her without any knowledge on her part that it was in fact gasoline or a mixture of gasoline with kerosene, were the direct, proximate, and natural cause of her death and of the plaintiffs’ injury and damage as hereinbefore alleged, and the said negligence was in law and in fact the negligence of each of the defendants and of all of them.”
    The petition being substantially as above, the Standard Oil Company filed its application to remove the ease to the United States district court, upon the ground that the controversy between it and the plaintiffs was separable and between citizens of different states. The case is here upon exceptions to the judgment of the superior court refusing the application.

      Spalding, MacBougald & Sibley, for plaintiff in error.

      Morris, Hawlcins & Wallace, John 8. Wood, A. J. Henderson, contra.
   Bell, J.

(After stating the foregoing facts.)

Even if, as contended by the plaintiff in error, the petition set. forth no cause of action as to it, that circumstance alone would not be cause for removing the case from the State court to the Federal court. The controversy might not be a separable one even though it involved only the question of law to be determined on demurrer as to whether a cause of action was alleged. According to the allegations of the petition, all acts charged against the nonresident defendant as negligence were participated in by the resident defendants; and this being true, it is immaterial whether the petition may show additional acts of negligence on the part of the other defendants. The question of removal is to be determined solely by reference to the allegations of fact contained in the plaintiff’s petition. Atlantic Coast Line R. Co. v. Bryant, 7 Ga. App. 703 (67 S. E. 1049). The controversy so made is not one which is wholly between citizens of different States and which can be fully determined as between them, and the judge did' not' err in refusing the application for removal. See Southern Ry. Co. v. Miller, 1 Ga. App. 616 (4) (57 S. E. 1090); Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206 (50 L. ed. 441, 26 Sup. Ct. 161, 4 Ann. Cas. 1147); Scearce v. City of Gainesville, 33 Ga. App. 411 (126 S. E. 883).

Judgment affirmed.

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


text:
    16058.
    Collins v. Savannah Guano Company.
    Decided April 16, 1925.
   Bell, J.

1. The verdict was not illegal or without evidence to support it merely because the only witness sworn in the case, while on the stand in behalf of the plaintiff, testified that.the defendant’s indebtedness to the plaintiff was a certain aggregate amount, without stating the principal and interest separately, where the verdict for the principal and interest as separately found by the jury was authorized by all the evidence, including the note sued on.

2. It does not conclusively appear that the defendant was not credited in the verdict with a payment of $50 made pending the suit and shortly before the trial, it being inferable that this item was deducted from the interest which had accrued since the last previous payment, although it appears that in the deduction there was an error of $2 in favor of the plaintiff. With respect to the amount of the verdict, it further appears that the finding for attorney’s fees was excessive to the extent of $5.20.

3. A written notice given under the Civil Code (1910), § 4252, for the purpose of enforcing an obligation to pay attorney’s fees was sufficient as to matter of form, where it was signed by an attorney as the representative of the payee, who was still the holder and in whose name the suit was brought, and where it identified the contract and notified the defendant, ten days before the suit was brought, of the plaintiff’s intention to bring the suit and the term of court to which the suit would be made returnable. Ryles v. Bank of Statham, 7 Ga. App. 489 (3) (67 S. E. 383); Aycock v. Tillman, 14 Ga. App. 80 (80 S. E. 301); Phelps v. Belle Isle, 29 Ga. App. 571 (1) (116 S. E. 217); McKibben v. Fourth National Bank, 32 Ga. App. 222 (11) (122 S. E. 891).

4. It was not necessary that the notice alleged to have been served within the prescribed time upon the defendant, a copy of which was attached to the petition, should be introduced in evidence, or that further proof of the service should be made, where the answer admitted receipt of the notice within the time alleged, and merely denied that the notice upon its face was in conformity to law.

5. In the brief of counsel for plaintiff in error the exceptions pendente lite taken to the allowance of an amendment to the process are referred to only in the statement of the history of the ease. There being no sort of insistence thereon or argument relating thereto these exceptions are treated as abandoned-. While there is a general insistence upon all grounds of the motion for a new trial, one of which assigns error upon the allowance of the amendment, it is well settled that such a ruling can not properly be made a ground of a motion for a new trial.

6. The judgment overruling the motion for a new trial is affirmed with direction that the verdict and judgment be amended by writing off $2 from the interest and $5.20 from the attorney’s fees as awarded therein.

.Judgment affirmed, with direction.

Jenivms, P. J., and Stephens, J., concur.

Complaint; from city court of Reids ville—Judge Cowart. October 6, 1924.

B. W. Barnes, for plaintiff' in error.

II. G. Beasley, contra.


text:
    16094.
    BARROW COUNTY COTTON MILLS v. FARR.
    1. In a suit by a servant for an injury arising from negligence of the master in failing to furnish proper machinery or appliances, or a safe place of work, the servant, to be entitled to recover, must show, among other things, that he did not have equal means with his master of knowing of the danger.
    2. The evidence failing, as a matter of law, to show that, if the defendant was guilty of negligence, the plaintiff did not have equal means of knowing of the alleged negligent defects complained of, the verdict found for the defendant was demanded, and it was error to grant the plaintiff’s motion for a new trial.
    Decided April 16, 1925.
    Actiou for damages; from Barrow superior court—Judge Russell. October 13, 1924.
    In this action for damages by W. A. Farr against Barrow County Cotton Mills, a verdict having been found for the defendant, the plaintiff filed a motion for a new trial, in which, besides the usual general grounds, the only exceptions were to the failure of the court to give in charge to the jury certain principles of law alleged to have been involved under the pleadings and the evidence. The motion was granted, and the defendant excepted.
    The petition alleged: that the plaintiff was employed by the defendant as the foreman or boss of the defendant’s dye-room, and that .one of his duties was to cheek in such cotton as was hauled to the defendant’s mill to be made into cloth; in the discharge of which duty it was necessary for the plaintiff to leave his regular station and go into the yard when cotton was brought in; that on December 16, 1919, it became necessary for him to “check in some cotton that was being hauled to the defendant’s mill,” and that while he was so employed, a bale of cotton “was knocked off of the two-ton truck belonging to defendant,” and fell in the direction of the plaintiff; that as he leaped in an effort to avoid being struck, “he slipped and fell on some ice which through the negligence of the defendant was over the yard of the defendant’s mill,” and the bale of cotton fell upon him and broke one of his legs. The suit was to recover for this injury.
    The petition as amended alleged: that the yard was nearly “covered with ice which was caused by a leakage in the pipes” which the defendant had installed to supply the mill with water, and that the defendant was negligent “in not providing petitioner with a safe place in .which to work; that defendant was further negligent in failing to repair said water-main within a reasonable time after the same had [burst], and defendant was further negligent in allowing the thick deposit of ice to remain on its yard after defendant knew or should have known of the presence of said ice.” “Petitioner shows that it was not his duty to inspect nor repair the water-mains which had frozen and burst and which defendant had negligently allowed to remain in such dangerous condition, and petitioner shows that from day to day as said pipes would leak, the water leaking therefrom would freeze and spread over the yard of defendant’s mill.” “Petitioner shows that he was not fully aware of the dangerous condition of said yard nor of the size and thickness, of said spot .of ice and the danger therefrom, and petitioner did not have equal means with defendant of knowing of the dangerous slippery conditions of said yard, and . . petitioner shows that defendant knew or ought to have known of the dangerous and slippery condition of said yard.” “Petitioner shows that defendant was negligent in that said defendant, through its [president], ordered . . petitioner onto said yard, while said yard was in an unsafe and dangerous condition, to perform the task of checking and unloading said cotton, and defendant was further negligent in failing to warn petitioner of the danger confronting him in going upon said yard and of the presence of the ice thereon.” “Petitioner shows that defendant corporation had no bed or body on said truck for the purpose of retaining said bales of cotton on said truck, nor rvere there any rails or other obstacles or obstructions or protection around the side of said truck to prevent cotton from falling therefrom, and petitioner alleges that defendant was negligent in not providing a rail or retaining wall or other suitable protection around the side of said truck to retain said cotton and to prevent the same from falling in any direction other than the direction in which said bales may have been guided and directed by persons lowering said cotton from said truck to the ground of defendant’s mill-yard. Defendant was further negligent in ordering . . petitioner to leave his regular station or place of work in the dye-room of defendant’s mill building, to work in close proximity to a dangerous instrumentality in the nature of said unguarded truck loaded with bales of cotton, said truck being without guard-rails, ropes, or other kind of retainers to prevent said bales of cotton falling; and petitioner alleges that defendant knew or should have known of the dangerous condition of said truck in being without guard-rails or retainers, and . . petitioner was without equal means of knowing of the danger from the defective condition of said truck.” The petition further alleged that the plaintiff “was wholly free from fault in the premises.”

      ff. A. Johns, for plaintiff in error.

      B. B. Bussell Jr., contra.
   Bell, J.

(After stating the foregoing facts.)

It is suggested in the brief of the attorney for the defendant in error that a demurrer to the petition was overruled, and that since no exceptions have been taken to that judgment, the petition stands as sufficient under the law of the case, and that, gauging the evidence accordingly, a verdict for the plaintiff would have been authorized. The defendant in error has not sought to have the demurrer and the judgment thereon included in the record, but, even assuming that a general demurrer to the petition was overruled without exception, we are still of the opinion that a verdict for the defendant was demanded, and therefore that the court erred in setting it aside.

It is well settled that if a particular verdict is demanded, even the first grant of a new trial is error, irrespective of any errors in the charge of the court.

The plaintiff testified that the pipes, in several places, had been leaking, and that he had seen the water standing about them for some days before his injury. The “spot of ice” on which he slipped was about as big as a table pointed out in the court-room. He had not seen the ice before, but there was nothing to hide it from him. He did not think anything about the dangerous condition of the yard until he got hurt. He did not know what caused the bale of cotton to fall, except that a bale starting the other way “kicked this one” and it fell on him. He was required to be on the yard practically every day at that time of the year. He did not think the cotton was tied with ropes, and there was, on the truck, no guard-rail nor anything to prevent the cotton from falling. The plaintiff further testified: “ On this particular occasion I had two vehicles running, a dray driven' by Mr. Roberts and a truck driven by Jack Kemp. I also had some colored help, helping to load and unload. . . Sometimes we would stack this cotton on the truck and sometimes we would stand it on the ends. ,. . I hired these men. . . I hired the men in my department. . . These boys that I named yesterday, their duties were to do anything I told them to do. . . Thejr were working under my supervision. 1 sent them out there to help haul that cotton. . . If we were hauling cotton from a distance we would tie ropes around it; of course, when we were unloading it we had to take the ropes or rails, or whatever was holding the cotton, off, to unload it. When unloading cotton, if we have it fastened on or had guard-rails around it, we would have to take them off of at least one side.” There was no other evidence tending to show negligence by the defendant or illustrating the conduct of the plaintiff.

Whatever else might be said with respect to deficiencies in the evidence, it conclusively appeared that the plaintiff failed to prove the allegation of the petition that he did not have equal means with his master of knowing of the danger which resulted in his injury, and consequently he was not entitled to recover, whether the petition be taken as the law of the case or whether his right was to be established under the law of the land. The verdict found for the defendant having been demanded, the court erred in granting a new trial.

Judgment reversed.

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


text:
    15898.
    JETER v. DAVIS.
    1. An instruction to the jury which correctly presents the law applicable to a theory raised in the case by the defendant can not be held erroneous merely because the court did not, in the same connection, instruct the jury as to the contentions of the plaintiff.
    2. In this action against a physician for cutting the plaintiff’s arm for the purpose of drawing the plaintiff’s blood for a transfusion, contrary to an alleged agreement whereby the plaintiff consented to the operation only upon the condition that the blood would be drawn with a needle and her arm would not be cut, the court did not err in instructing the jury in effect, with reference to an infection which subsequently developed, that the defendant would not be responsible for anything occurring after the plaintiff left the physician’s charge, unless it resulted directly and proximately from the defendant’s act; the instructions being warranted by the pleadings and the evidence.
    3. In a iori action, where under the pleadings and the evidence a verdict for nominal damages may legally be found, it is error, requiring a new trial, to instruct the jury 'in such language as to imply that the plaintiff can not recover without affirmative proof that damage resulted from the alleged tortious act.
    4. It is not reversible error that the court, in giving to the jury a requested instruction, prefaced it by the words, “I have been requested to tell you.”
    5. Where, in an action of the character stated in paragraph 2 above, the plaintiff alleged that the cutting of her arm was wilful and malicious, the court did not err, when charging the jury, in directing them “to look to the evidence and see whether there was intent wilfully and maliciously in this cutting,” when it was apparent, from the cognate portions of the charge, that the jury were to consider the intent accompanying the act merely for the purpose of estimating the damage, in the event of a finding for the plaintiff, and that the judge did not imply, by such direction, that proof of bad motive was essential to a recovery.
    6. In view of the plaintiff’s allegations and evidence, the judge erred when, after stating the contentions of the defendant to the effect that what was done was with plaintiff’s consent and was accomplished in the usual and proper way, he added: “Of course, if he did this thing properly and there was some form of infection from some other source or cause after this lady left his hospital, he would not be liable.” This excerpt assumed the plaintiff’s consent, when it was in issue and when its existence was a condition of non-liability, irrespective of the care and skill which the defendant may have employed.
    7. Other assignments than those dealt with above are too imperfect to present any question for decision. Under the rulings contained in headnotes 3 and 6 and the corresponding divisions of the opinion, the court erred in overruling the plaintiff’s motion for a new trial.
    Decided April 16, 1925.
    Action for damages; from Fulton superior court—Judge Ellis. August 2, 1924.

      J. V. Poole, for plaintiff.

      Underwood, Pomeroy & Ilaas, for defendant.
   Bell, J.

Mrs. F. D. Jeter brought a suit against Dr. E. C. Davis and Davis-Fischer Sanitarium Company. The sustaining of, a general demurrer filed by the company was affirmed by this court in Jeter v. Davis-Fischer Sanitarium Co., 28 Ga. App. 708 (113 S. E. 29). To the statement of the allegations of the petition there set forth, the following may be added as relevant to the case as charged against the doctor: “Petitioner shows that her said husband went down to the office of the,sanitarium to call up his home at Douglasville, and before he came back into the operating room the said doctors and nurses took petitioner'and placed her on the operating table, telling her the taking of the blood from her arm would not amount to more than a pin scratch, and that the blood would be taken with a needle and she would scarcely know it; that she told the said doctors and nurses not to cut her arm, and they told petitioner they would not cut her arm and would only puncture the skin in order to get at the vein, and that it would •take only a very few minutes, and she could go home in twenty or thirty minutes.” “Petitioner shows that the incision in her arm was made without her knowledge and consent, and contrary to her express direction and request and over her objections, that she did not consent to have her arm cut and would not have consented to the same, that she was told by the said doctors and nurses that they would not cut her arm, and was told by them while they were actually in the act of cutting that they were not cutting her arm, but that the pain was caused by the injection of the needle, that when she complained of the pain, the doctors and nurses told her it was only the needle and would not amount to anything.” “Petitioner shows that she told the said doctors and nurses that she could not bear to see blood, and that she was placed on the operating table in a position where she could not see the blood, and could not see her arm; neither could she see what the doctors and nurses were doing, and had to take their word as to what they were doing, and did not know they had cut her arm until they were sewing it up.” “Petitioner shows that the said sanitarium, through’ and by its agents and employees, and the said Dr. E. 0. Davis, mistreated, maltreated, and unlawfully abused, injured and damaged petitioner by the acts and deeds heretofore set out, and as hereafter set forth: (a) That they wilfully committed a tort on petitioner by cutting her arm over her objections and without her knowledge and consent; (&) that they perpetrated a fraud and a tort on petitioner, and caused her to allow them to put her on the operating table for the purpose of having her blood taken, by assuring her the operation would not amount to anything and would not hurt her, and, after getting her,in their control on the operating table, then cutting her arm without her knowledge and consent; (d) that they deceived petitioner by telling her,they would not cut her arm, and by telling her the operation would not amount to anything harmful."

Upon the trial of the case against Dr. Davis the verdict was in favor of the defendant. The plaintiff made a motion for a new trial, -which was overruled, and she excepted.

In one of the special grounds of the motion for a new trial complaint is made of the following charge of the court: “Of course, you will understand, if Dr. Davis did this thing properly, and if he had their consent in doing of it, and if this lady left the hospital in that condition and the wound afterwards became infected from some other reason or cause than what he had done, he would not be liable for anything that occurred in consequence." It is assigned that this charge was error for the reason that there is no proper way to commit a wilful and wrongful trespass on the person of another, and because it “confused the skill of the doctor and the right to cut plaintiffs arm to such an extent that the jury was unable to intelligently understand the said charge, ami was prejudicial to the plaintiff.” It is further alleged that the charge was error because there was no contention or evidence that the plaintiffs arm became infected'from any other cause than the defendant’s act in cutting it.

As will be observed, the plaintiff contended that although she consented to a transfusion of her blood to one of the defendant’s patients, she did so only upon the condition that the blood should be extracted from her by a needle and in no other way, and that the defendant, in violation of the terms of the consent given, cut her arm with a knife, for the purpose of obtaining the blood, and thus wrongfully inflicted a serious injury. There was evidence on behalf of the plaintiff which, if believed by the jury, would have established the allegations of her complaint. On the other hand, the defendant testified, and introduced witnesses who also testified, to the effect that the plaintiff offered herself unconditionally for the purpose of the operation, and contended, therefore, that in cutting her arm he was acting with the plaintiffs consent, either express or implied. The testimony on behalf of the defendant further tended to show that the operation was performed properly, and that all proper diligence was exercised to prevent infection. While the defendant filed only a general denial to the allegations of the petition, his evidence, to which-we have just alluded, was introduced without objection. In these circumstances the jury could consider the evidence and the court was authorized to charge upon it. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579). The excerpt from the charge of the court set out above was not adjusted to the contentions of the plaintiff, but this is no reason, for holding that the charge was error, provided it was adapted to the contentions and evidence of the defendant. Edwards v. Capps, 122 Ga. 827 (3) (50 S. E. 943); James v. Hamil, 140 Ga. 168 (3) (78 S. E. 721).

The defendant would uphold the charge on the idea that the suit, properly construed, is one for negligence. In this position we can not concur, in view of the allegations of the complaint. The plaintiff says her action is nothing more nor less than an action for assault and battery. While it is unnecessary to determine whether this contention is correct or not, it would seem to the writer that the defendant was not guilty of a trespass upon the plaintiff’s person, where her consent was given to the drawing of the blood in some way. According to her contentions he merely exceeded -his authority. Where a person having license from the law to do an act abuses or exceeds his authority, he becomes a trespasser ab initio. But when the complaining party himself grants a license which he might have granted or not, at his option, the remedy for an abuse is not broader than the abuse itself. The licensee is not*-rendered a trespasser from the beginning, but is liable on the special case for any violation of the terms of the license. Sheftall v. Zipperer, 133 Ga. 488 (2) (66 S. E. 253, 27 L. R. A. (N. S.) 442); Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6) (72 S. E. 51). But whether the plaintiff’s counsel has correctly classified the suit or not, it was not an action for negligence. And yet, since there was. evidence tending to sustain the defendant’s contention that the defendant and his assistants performed the operation with due skill, and also that they had the plaintiff’s consent in doing it, the first assignment upon the charge is clearly without merit. Was there any evidence to authorize the inference that the wound became infected from some other reason or cause after the plaintiff left the hospital ? If the plaintiff’s contentions are true, the wrong committed upon her was a positive tort, even though it may not be considered as a trespass upon the person, and she was not bound to do anything to lessen the damages. Civil Code (1910), § 4398; Athens Manufacturing Co. v. Rucker, 80 Ga. 291 (4) (4 S. E. 885); Holbrook v. Town of Norcross, 121 Ga. 319 (2) (48 S. E. 922). But if by affirmative action on her part she exposed it to infection and it be made to appear that this and not the wound was the cause of a part of the injury and suffering for which she sued, the defendant to that extent would not; be responsible. He would not he relieved of responsibility, however, merely because of the plaintiff’s inaction or failure to lessen the damage by ordinary care. Compare Clements v. State, 141 Ga. 666 (81 S. E. 1117).

As already stated, the defendant offered evidence to show that the wound was properly made and properly cared for during the time that the plaintiff was in his charge. This would be some evidence that the infection was from some independent cause. A physician who treated her at her home for some time after the operation testified: “As to what caused her arm to be infected, I don’t know; she was very imprudent, she unwrapped her arm, took the dressing off, and showed it to neighbors several times. I know that to be a fact. 'She showed it to my wife, and put the dressing back on and showed it to Mr. Harvey, and I think part of her condition was secondary infection, infected again. It was not infected the first time I saw it, it was swollen, but that is not necessarily a sign of infection; you may have that without infection. Her arm was bound tight when I first saw it, and I released the tension, not because it was infected, but it was pretty tight, and I simply wanted to give it a little relief. That would not cause it to he infected.”

We can not say that there was a total lack of evidence to show that a part of the plaintiff’s trouble was brought about by her own mistreatment of the wound. The excerpt complained of is not subject to any of the exceptions taken thereto. The rulings here made will dispose of grounds 1 and 5 of the amendment to the motion for a new trial.

Error is also assigned upon the following charge: “That is the contention of the defendant, that they were under no duty after the operation. Of course, you will understand, after' the operation and after the leaving of the hospital, that Dr. Davis would not be responsible for anything occurring that was not the direct and proximate cause, caused by this alleged infection or injury.” The assignment upon this charge interprets it as instructing the jury' that the .defendant could not be held responsible for anything occurring that was not the direct and proximate result of the alleged injury, but says that, even so interpreted, it was wholly unintelligible and confusing to the jury, and that it was error because the defendant would be responsible not only for the direct and proximate consequences of his act, but also for all damages sustained by the plaintiff “which were the logical and natural results of and traceable to the alleged injury or cut.” We do not think the charge was subject to the criticism made of it.

In Central Railroad v. Freeman, 75 Ga. 331 (2), the Supreme Court held that in an action for a tort there was no error in charging the jury that the burden was on the plaintiff to show, among other things, that the injury was the direct and proximate consequence of the defendant’s negligence. While this is not a case of negligence, the same rule of responsibility on the part of the wrongdoer for consequences would apply; except that, as seen in the preceding division of this opinion, the plaintiff was under no duty to lessen the damages. See also Shields v. Georgia Ry. & Electric Co., 1 Ga. App. 173 (1) (57 S. E. 980); Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906). From what is said in the preceding division the charge was warranted by the evidence.

Another ground of the motion complains that the court erred in charging the jury.as follows: “The burden is on her to show that this produced an injury, and the bru-den of proof is on her to show what the injury was and the extent of it; that is to say, those things must be shown by her before the defendant would be required to malee a defense.” It is assigned that this charge “was error for the reason plaintiff would be entitled to recover nominal damages when she showed the cutting of her arm was done- without her consent and contrary to an agreement with Dr. Davis not to cut her arm, whether she suffered any injuries or not, and the said charge deprived her of that right.” In our opinion this charge was error. It has been frequently held that in a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued for, there can be no recovery of general or nominal damages. “Generally the rule that in every case of breach of contract the other party has the right to recover nominal damages does not apply where only special and punitive damages are sued for, and where such damages are not recoverable.” Hadden v. Southern Messenger Service, 135 Ga. 372 (3) (69 S. E. 480). It is unnecessary to refer tó other cases to the same effect., cited and relied upon by the defendant in error. It is asserted that since the plaintiff proved actual damages, she can not complain because the court would not permit her to recover nominal damages. This contention is not well taken. The plaintiff- laid her entire damages generally in the sum of $30,000. She did not sue for any special or actual damages, and the measure of her recovery would be determined by the enlightened consciences of impartial jurors. If entitled to recover at all, she was entitled recover general damages, including nominal damages. Counsel for defendant in error further say that the rule is applicable that a new trial will not be granted merely for the purpose of giving the plaintiff an opportunity to recover nominal damages. See Sutton v. So. Ry. Co., 101 Ga. 776 (29 S. E. 53); Fulghum v. Beck Duplicator Co., 121 Ga. 273 (2) (48 S. E. 901); Edwards v. Hale, 129 Ga. 302 (58 S. E. 807); Adams v. Bridges, 141 Ga. 419 (81 S. E. 203); Williams v. Herrington, 12 Ga. App. 76 (76 S. E. 757); Roberts v. Glass, 112 Ga. 456 (37 S. E. 704); Bloom v. Americus Grocery Co., 116 Ga. 784 (3) (43 S. E. 54); Hadden v. Southern Messenger Service, 135 Ga. 372 (3) (69 S. E. 480); Addington v. Western & Atlantic R. Co., 93 Ga. 566 (20 S. E. 71); Civil Code (1910), § 4397. Whether this rule would be applicable where the right to recover nominal damages is destroyed by a charge of the court need not be decided. The rule is inapplicable to actions ex delicto, such as the one in hand. Jones v. Water Lot Co., 18 Ga. 539 (2); Ellington v. Bennett, 59 Ga. 286 (1); Eiswald v. Southern Express Co., 60 Ga. 496; Holmes v. Clisby, 121 Ga. 241 (9) (48 S. E. 934, 104 Am. St. Rep. 103). General damages are such as the law presumes to flow' from any tortious act, and may be recovered without proof of any amount. Civil Code (1910), § 3507. As already stated, if the plaintiff was entitled to recover at all, she would at least be entitled to recover uominal damages merely in vindication of her right, and this without actual proof of the same. The charge was susceptible of the construction that although the plaintiff may have -shown that the cutting of her-arm wras-done without her consent-and contrary to an agreement with the doctor that lie would not cut her arm, she would nevertheless be required to show by affirmative proof that she had been damaged, before she would be entitled to recover. There is no escape from the conclusion that the charge was error. See, in this connection, By-field v. Candler, 33 Ga. App. 275 (6) (125 S. E. 905), and eases cited.

The plaintiff excepts to the manner in which the court complied with one of her requests to charge, in that the court prefaced the instructions with the words, “I have been requested to tell you,” etc. Under the ruling of the Supreme Court in Dotson v. State, 136, Ga. 243 (3) (71 S. E. 164), there is no cause for new trial in this assignment.

The court instructed the jury as follows: “It is claimed in this case by this plaintiff that this cutting of her arm was done not only without consent, not only contrary to an agreement not to do it, but that it was done wilfully and maliciously. You look to the evidence and see whether there was intent wilfully and maliciously in this cutting.” There was no error in the failure of the court to define the words “wilfully” and “maliciously.” Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (3) (124 S. E. 92). Nor is this excerpt subject to the complaint that it implied that proof of the defendant’s bad motive was essential to a recovery, it appearing from the cognate portions of the charge that the jury must have understood that they were to consider the question of the intent merely for the purpose of, estimating the damages, in the event of a finding for the plaintiff.

In another portion of the charge the judge instructed the jury as to the defendant’s contentions, and then said: “Of course, if he did this thing properly and there was some form of infection from any other source or cause after this lady left his hospital, he would not be liable.” The language quoted was error, for the reason that it failed to include as a condition of non-liability that the plaintiff consented to that which was done. If the cutting of her arm was done contrary to her consent and instructions, the defendant would be responsible whether he did it properly or not. The use of due care and sufficient skill would not relieve him.

Two other special grounds of the motion for new trial .were as follows: “8. Movant insists that the court erred in not giving-in charge the law essential and applicable to the case on trial, which case was a suit for the wilful trespass on the person of plaintiff.” “9. Movant insists that the whole of said charge was error for the reason the material parts of the law given in charge were applicable to suits for malpractice, and not applicable to the case on trial, which sounded in trespass to the person, and was calculated to confuse and mislead the jury and cause them to believe if Dr. Davis made the transfusion in a skilful and scientific manner, plaintiff could not recover.” These exceptions are entirely too general to present any puestion for decision. Wade v. Eason, 31 Ga. App. 256 (1) (120 S. E. 440); Southern Railway Co. v. Wessinger, 32 Ga. App. 551 (6) (124 S. E. 100).

In another ground of the motion for a new trial it is complained that the court allowed “the introduction of chart which is in the record, over objections that the same was not identified by any witness or otherwise as being correct.” This ground is imperfect, because it does not set forth the document, in form or substance, so that this court may determine from the assignment itself what were the contents of the evidence objected to. McCollum v. Thomason, 32 Ga. App. 160 (8) (122 S. E. 800).

Under the rulings contained in headnotes 3 and 6 and the corresponding divisions of this opinion, the court erred in overruling the plaintiff's motion for a new trial.

Judgment reversed.

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


text:
    15906.
    Adams v. Fleming.
    Decided April 17, 1925.
   Bell, J.

1. Wliero an action was brought upon an open account os for the balance of the purchase price of property sold and delivered, and the evidence on the trial showed without dispute that the property had not been sold, but had been delivered to the defendant rmder a contract for the exchange of the same for other property, a part of which the plaintiff had not received, and that the plaintiff had not rescinded the contract or offered to do so, but was relying thereon, a verdict in his favor was without any evidence to support it, and contrary to law', . The plaintiff's remedy was an action for damages for a breach of contract, and the measure of damages would be the market value of the property that he should have received, but had not received, in the exchange, to be. determined as of the time for delivery under the contract. Butler v. Sams, 138 Ga. 748 (75 S. E. 1127); Busbee v. Chapman, 139 Ga. 19 (76 S. E. 377); Civil Code (1910), §§ 4270, 4271.

2. It follows that the court erred in refusing a new trial.

Judgment reversed.

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

: Complaint; from city court of Barnesville-^Judge Redding. August 23, 1924.

Claude Christopher, for-plaintiff in error.

Dobbs & Barrett, contra.